Scottish High Court of Justiciary Decisons

Barrie & Ors v. Her Majesty's Advocate [2002] ScotHC 64 (15 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Hamilton Lord McCluskey	Appeal Nos: C414/00 C403/00 C384/00 C413/00 C433/00 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTES OF APPEAL AGAINST CONVICTION by (1) LEON BARRIE; (2) STEPHEN McKINNON; (3) ROSS McKAY; (4) ALLAN NORWOOD; and NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by (5) JOHN JACKSON Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellants: Boag Thomson, McLaughlin; G Sweeney & Co: McBride, QC, Gilbride;

Callon & Co: Jackson, QC, Livingston; McCusker McElroy; Thomson, QC, Hood;

McMahon & Co

Respondent: Ritchie, A.D.; Crown Agent

 

 

15 May 2002

1. The five appellants were all charged on an indictment containing three charges, all relating to incidents on 12 September 1999. The first charge was a charge of murdering James Rankin: and the other two charges were charges of assaulting Peter Rankin and Peter Rankin Junior respectively. On 16 May 2000 the jury found the charge of murder not proven against the appellant Leon Barrie but convicted him of the two charges of assault. The other four appellants were convicted of all three charges. All five appellants appealed against conviction and the appellant, Jackson, also appealed against sentence. When the appeals came before this court on 19 March 2002, however, Jackson's appeal was abandoned. Having heard argument in the appeals, we decided that Barrie's appeal against conviction should be allowed. For reasons which we shall indicate later, we came to the view that it was necessary to refer the appeals by McKinnon, McKay and Norwood to a larger court. It is, however, convenient to explain the reason for allowing Barrie's appeal against conviction and to deal with a separate argument advanced on behalf of Norwood before turning to the matters which affect all the remaining appellants. We should, however, in the first instance, explain in broad terms what were the events which gave rise to the charges against the five original appellants.
2. The events in question took place on 12 September 1999. On that date all five appellants were in the house of Jackson. At least four of the appellants discussed whether they should go to the house of the complainers at 434 Parkhouse Road, Glasgow, with a view to committing a robbery. The deceased was believed to have sums of money in that house. The trial judge tells us that there was evidence that knives were obtained in order to carry out the proposed robbery. Eventually a group consisting of at least four of the appellants left Jackson's house and went to the Rankin house. There was some conflict of evidence as to whether the appellant Barrie was present at the time when the discussion about the proposed robbery took place and whether he left the Jackson house at about the same time as the other four. There was some evidence that he had left the Jackson house before any of the preparations for the proposed robbery took place. In any event, there was evidence that five persons in all appeared outside the front door of the Rankin house, which was at ground level, and that thereafter there was violence between those persons and the deceased and the two complainers, who had been in the house. In the course of this violence, Peter Rankin and Peter Rankin Junior were injured and the deceased, James Rankin, was stabbed and died as a result. The Crown case was that all five appellants were involved in planning and preparation for a robbery, that all five were involved in the violence, that all five were armed with sticks or knives, that all five were aware that knives had been taken for the purposes of the robbery and that all five returned to the Jackson house. When they returned to that house, it was seen that some members of the group had bloodstains which had come from the deceased, on their clothing and shoes, and there was some conversation about what had happened. The Crown case, therefore, was that all five were guilty of murder as having been involved in a concerted assault with deadly weapons which led to the death of James Rankin. It does appear, however, that there was pathological evidence which indicated that the stab wounds which caused the death of James Rankin could only have been inflicted by one assailant, it also appears, although the position is not entirely clear, that there was evidence to suggest that the appellant John Jackson was the most likely candidate for the role of the person who actually inflicted the fatal injuries.

The case of Leon Barrie

3. Barrie gave evidence and said that he had left the Jackson house before there was any discussion of the robbery and before any knives had been obtained. He had gone off apart from the rest of the group for purposes of his own but subsequently followed the rest of the group towards the Rankin house. As he approached that house, the violence broke out. The judge says that it appeared that, before the fighting began, Barrie had, seen the appellant Jackson in the garden outside the Rankins' house carrying a knife. He then saw the appellant McKinnon involved in a fight with one of the occupants, probably Peter Rankin Junior, and apparently getting the worse of the encounter. Barrie then, on his own evidence, attempted to stop the fighting by assaulting Peter Rankin. Accordingly, he claimed to have been involved in the violence while acting in defence of McKinnon and therefore pled self-defence.
4. The short point in Barrie's appeal is whether the directions given in regard to self-defence, and in particular the application of that defence to action taken in defence of another, were adequate. That question has to be considered in the context that the jury must have regarded Barrie's evidence as at least giving rise to a reasonable doubt as to whether he was involved in the preparations and ? plan for the robbery, since they acquitted him of the charge of murder.
5. In his charge, the trial judge began his treatment of self-defence by saying:

"Now what self-defence means is fairly straightforward. Our law has always said that you are allowed to use a reasonable amount of force to defend yourself, or another, against a violent attack. However, there are conditions attached to the defence - saying it is self-defence does not make it so - and these conditions must all apply if a defence of self-defence is to be successful."

6. The judge then gave the standard directions about the requirements that the person resorting to self-defence must be in imminent danger of attack or under attack, that any reasonably available escape route should be taken and that any force used must be reasonable in relation to the violence threatened. He repeated those directions with particular reference to charges 2 and 3, the assault charges, and told the jury that it would be open to them, if they wished, to conclude that Barrie and McKay, who had lodged a similar defence, should be acquitted on that ground. However, apart from the single reference to "another" in the passage quoted, the judge made no attempt to explain how the conditions attaching to self-defence might apply to the position of a person who intervened to defend another. It was submitted on behalf of Barrie that the application of the conditions ordinarily applying in cases of self-defence to the case of defence of another was not entirely straightforward, for example, in particular, in relation to the question of reasonable means of escape. For his part, the Advocate Depute accepted that although the judge had adequately and correctly defined self-defence, the conditions applicable had not been appropriately applied to the case of defence of another and that something more should have been said.
7. We have come to the view that the submissions on behalf of the appellant should be upheld. We do not think that it is necessarily incumbent on a judge when dealing with a plea of self-defence in the form in which it arose in this case to analyse the conditions applicable in great detail. As a matter of common-sense, a jury may reasonably be expected to allow for the particular specialities of the situation, so long as the general position is put clearly to them. In the present case, however, there was only a very passing reference to defence of another person and, although a very little more may have sufficed, we have come to the conclusion that the jury were not given adequate directions as to how they should deal with the defence put forward by Barrie. It follows that Barrie's conviction must be quashed. He has in fact served some time in custody and been released on parole.

The case of Alan Norwood

8. The particular point which arises in Norwood's case concerns the admissibility of answers given by him in the course of a police interview conducted on 14 September 1999. Norwood was 17 years of age at the time. At some time on 14 September 1999 either Norwood or a member of his family made contact with the police indicating that Norwood could give information about the murder which was being investigated at the time. After police officers had attended at Norwood's house, Norwood went voluntarily to the police station where there was some conversation with the officers, in the course of which Norwood gave certain information. In view of the nature of that information, the officers who had spoken to Norwood consulted senior officers and thereafter detained Norwood in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 and cautioned him. The interview about which the question of admissibility arises took place thereafter, at about 8.30pm. At the commencement of the interview, the interviewing officers went over what had happened in the course of the day, referred to the earlier detention and duly cautioned Norwood. Thereafter, the following exchange took place:

"Suspect: Am I allowed to talk with my lawyer here the now?

DC(1): Mm, did you ask for a lawyer to be advised?

Suspect: Aye.

DC(1): When you were at the bar there? Right, your lawyer will be informed and if indeed your lawyer decides to come and make representation -

Suspect: Mm hm.

DC(1): Advice will be taken as to whether or not your lawyer will be allowed access to you.

Suspect: Right.

DC(1): If your lawyer appears I don't see any reason why he wouldn't be allowed access.

Suspect: Right.

DC(1): All right, but it's important that we get this sorted out just now, particularly in the light of what you've been telling us earlier on."

The interview then proceeded . In the course of it Norwood made statements which were capable of being incriminating. We were informed that the evidence of the interviewing officer was to the effect that in the earlier conversation Norwood had begun to talk about the supply of weapons and that this had led to him becoming a suspect. However, there was no attempt at the trial to have the question of admissibility determined at a trial within a trial.

9. In these circumstances, the submission for the appellant was that it was unfair to allow the incriminating answers to be admitted in evidence in view of the whole circumstances, including, in particular, the age of the accused, the fact that he had been interviewed originally as a witness before his status changed to that of suspect and the fact that he had specifically asked whether he could have access to his lawyer. It was pointed out that in the case of two other of the accused a lawyer had been present at the stage of initial interview. The Advocate Depute, on the other hand, submitted that the questions which had been put to Norwood had been spontaneously answered and that indeed he had, when initially asked to give an account of his involvement, given a full account without prompting. The procedure of detention and intimation to a solicitor and another person had been properly carried out and the judge had properly directed the jury to consider the question of the fairness of the procedure and to ignore the evidence if they thought that there had been unfairness.
10. We have considered the procedure followed and the terms of the interview as well as those of the judge's charge. It is sufficient, in our view, to say that we are satisfied that no sufficient ground has been stated for holding that the terms of the interview should not have been admitted in evidence. In these circumstances, this ground of appeal fails.

The general question of concert and mens rea

11. In his charge, the trial judge referred to the fact that there was evidence which might be sufficient to convict the appellant Jackson of murder on an individual basis, that is, on the basis that he inflicted the fatal wounds. However, he pointed out that the principal Crown case against all five accused was based upon concert. He gave general directions about the law of concert and about the necessity for a common criminal purpose and he gave the standard example of a bank robbery. He also referred to the possibility of spontaneous concert but said that the Crown case was that this was not really a case of spontaneous concert but one of a pre-arranged attempt to commit a robbery. He emphasised the need for deciding what the common criminal purpose was and what the scope of it might be, in view, particularly, of the fact that it had been suggested by the defence that what happened after the group reached the Rankins' house might be divided into a number of different episodes or events. He concluded his general directions on concert by saying:

"You have to be satisfied from the evidence you have heard, in respect of each accused, whether they were part of that criminal purpose, that they knew knives were being carried and were liable to be used in the course of the purpose that I have described, in the way that I have described, and that all the violence that took place outside the Rankins' house, against each of the occupants, was a single consequence or development of that criminal purpose. If you are satisfied on all of these matters you can find the accused or any of them guilty of murder on charge 1 on the basis of concert and it does not matter as I say who struck the fatal blow or who or what each accused did so long as you were satisfied that they were involved in that way."

12. He then defined murder in standard terms, but concluded his directions by saying:

"and this again Ladies and Gentlemen is where it is important to consider the law of concert - the same conclusion can be reached - that murder might... may have been committed by any member or members of the group who may not themselves have had a knife but who knew knives were liable to be carried and were liable to be used in the way which I have described in the course of carrying out the common criminal purpose."

He then defined culpable homicide and later said:

"Well what it means in practical terms in this case is this: if you think that any of the accused went to the Rankins' house knowing that knives were carried and were liable to be used, either with murderous intent or with such wicked recklessness that showed no regard for the outcome that, as I have indicated would constitute murder. However if you thought that either the use of the knife or knives in the course of any assault did not have the qualities of a murderous intent, or wicked recklessness that I have described, you found that not to be proved or that the question of murderous intent or wicked recklessness was absent in the case of any of the accused, simply because they were unaware that knives were being carried and were liable to be used, but that at the same time the accused has involved himself in a struggle with the deceased in a way that in a real and substantial sense contributes to the death of that deceased, that is where you can find that the accused is liable for culpable homicide. Now that is a very technical situation and, as I say, you may find that it has no relevance to the present case but, I have to describe it to you and, if it does, as I say, reflect something which you believe to be in the evidence then you can consider it."

13. Submissions were made on behalf of the appellants in slightly different forms but in view of the fact that we consider that the issue raised requires to be referred to a larger court, we do not think it necessary to identify those submissions in detail. The main thrust of the submissions was that the judge had erred in, in effect, removing culpable homicide from the consideration of the jury insofar as the three remaining appellants were concerned. It was submitted that it would have been open to the jury to convict Jackson of murder but to convict the other participants of culpable homicide. It was further submitted that in using the expression "liable to" in relation to what a member of the group might be held to have anticipated the judge had erred by introducing a civil law concept, namely foreseeability, into a criminal law issue. In order to convict a person of murder, the Crown had to be able to point to the mens rea of murder, and mere foreseeability could not supply the necessary basis for inferring the mens rea of murder in relation to a person who had not directly participated in the actual stabbing. The principal authority referred to in support of these contentions was Brown v H.M. Advocate 1993 S.C.C.R. 382. Before us there was considerable argument about what was said in that case and reference to the discussion of its consequences for the law in Gordon, Criminal Law (3^rd ed). I para.5.37 and following. The position which was reached as a result of that discussion is, in our view, conveniently summarised in Gordon, supra at para.5.52 where it is stated:

"It is difficult to pin down the modern law. The most recent case decision (Brown, supra) relevant to brawls (although hardly on its facts involving a classic brawl situation) seems to favour an approach ultimately dependent on individual mens rea. It makes use of the idea of foresight. It does not lay any particular stress on the presence or absence of weapons; but at the same time, the decision was reached without considering Hume, and without consideration of the earlier twentieth century cases which had specifically addressed the issue of homicide in the course of a brawl."

14. Reference is then made to the opinion of Lord Moncrieff in Docherty v H.M. Advocate 1945 J.C. 89. Without going into the matter in detail, it seems to us that it can easily be seen that there are potentially very important differences between the law as expressed in Docherty and the law as expressed in Brown. Further, the whole course of the discussion of the effects of Brown in the passage in Gordon to which we have referred, indicates that there is considerable uncertainty as to the extent of the effects of the later decision. It may be added that a part of what was said in Brown has already been questioned in Coleman v H.M.A. 1999 S.C.C.R. 87. In all these circumstances, we have come to the conclusion that in the interests of clarification of the law on a type of situation which frequently occurs, it is desirable that the whole issue sh

+ould be referred to a larger court.