Scottish High Court of Justiciary Decisons

McCreaddie v. Her Majesty's Advocate [2002] ScotHC 122 (06 September 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lord Hamilton	Appeal No: C184/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST SENTENCE by DEREK ALEXANDER McCREADDIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: P. Ferguson; Drummond Miller, W.S.

Respondent: A. Turnbull, Q.C., A.D.; Crown Agent

6 September 2002

1. The appellant was after trial convicted on 18 March 1997 of a charge of murder. He was sentenced to life imprisonment, backdated to 18 November 1996.
2. Following the reference of the appellant's case to the High Court in accordance with the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001, Lord Coulsfield, who presided at the appellant's trial, determined that the "punishment part" of his life sentence in accordance with para.13 of the Schedule should be fifteen years. The appellant has exercised his right of appeal against that determination.
3. The appeal was heard along with that of William Stewart. Mr Ferguson, who appeared for the appellant, adopted the submissions made by Ms Scott on behalf of William Stewart in regard to, first, the significance of periods recommended under section 205(4) of the Criminal Procedure (Scotland) Act 1995 and earlier legislation; and, secondly, the relevance of the arrangements which had been envisaged, prior to the coming into force of the 2001 Act, for considering the release of the appellant on licence. As to the first of these matters, Mr Ferguson particularly founded on the fact that at the time when the appellant was sentenced Lord Coulsfield stated that he did not consider it appropriate to make such a recommendation. Thus it was not a case, Mr Ferguson submitted, which was "out of the ordinary" run of cases (see Greenfield v HM Advocate 1996 S.L.T. 1214). As to the second, Mr Ferguson drew the court's attention to the fact, as set out in the second ground of appeal, that in 2001 the Preliminary Reference Committee for Life Sentence Prisoners had recommended that the appellant be eligible for reference to the Parole Board after serving nine years of his life sentence. This, he maintained, was indirectly relevant to the selection of the appropriate punishment part.
4. For the reasons given in our opinion in the case of William Stewart, we do not accept the submissions which were adopted and presented by Mr Ferguson.
5. We then turn to the circumstances of the murder with which the present appeal is concerned. It was committed in Tiree Crescent, Newmains. The deceased was found in the early hours of the morning on the roadway near a telephone box. He had sustained five wounds, namely two stab wounds (through the heart and through the abdomen); a third stab wound delivered downwards to the back of the neck and penetrating into the chest; and two slashing wounds, one to the left arm, which may have been a defensive wound, and one to the left ear.
6. The deceased had spent the earlier part of the night visiting friends. He had gone from house to house in a somewhat random way and had drunk a good deal. There was nothing to suggest that he had been involved in any kind of trouble, or had been in contact with the appellant. Shortly before 2.00am he left a house in Tiree Crescent with the intention of making a date with a girl in a phonecall to her. There was evidence that he was seen in the street and approaching the telephone box. A telephone call was made from it to the telephone number of the girl. The call was answered by her mother who said that she had heard the voices of two men; and after a very short time the receiver was put down. Telephone records showed a gap of 11/2 minutes between the end of that call and the beginning of a second call, a 999 call, from the same telephone box. The 999 caller, whose voice was recognised by four witnesses as being that of the appellant, asked for an ambulance and said that there was a man lying on the road there. The appellant, who lived in Tiree Crescent, was identified by two witnesses as having passed along the street. In his report written shortly after the trial, Lord Coulsfield observed that "the assault was a very savage one and two of the wounds at least must have been inflicted with the intention of causing very serious injury, if not actual death." In his report to this court Lord Coulsfield observes that the assault which the appellant committed was on a person who had no connection with him whatsoever. No evidence was led on behalf of the appellant at the trial. There was accordingly no explanation tendered for the killing. At the date of the offence the appellant was 22 years of age.
7. For the appellant, Mr Ferguson submitted that a factor which mitigated the appellant's conduct was that he had called for assistance for the deceased, recognising the gravity of what he had done. However, Mr Ferguson accepted that he had not remained at the scene after making the telephone call.
8. In the circumstances of the present case and having regard to our general observations in the opinion in the case of William Stewart, we are not satisfied that the punishment part which was determined by Lord Coulsfield was excessive.
9. The appeal is accordingly refused.