Scottish High Court of Justiciary Decisons

Arthur v. Her Majesty's Advocate [2002] ScotHC 75 (11 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hamilton Lord Kingarth Lord Carloway	Appeal No: C603/00 OPINION OF THE COURT delivered by LORD HAMILTON in NOTE OF APPEAL by ALEXANDER ARTHUR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: M. Scott, Q.C, Shead; Keegan Smith

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

11 June 2002

1. The appellant was on 7 August 2000 convicted of the murder of his wife, Anne Arthur. At his trial it was accepted on his behalf that the appellant had been criminally responsible for her death. The only issue was whether the crime committed was murder or culpable homicide.
2. The evidence disclosed that the appellant and his wife had been married for many years. Latterly they had both taken to drinking heavily at home. Their drinking bouts were often accompanied by arguments and fights arising out of relatively trivial disagreements. Their neighbour, a Mr. Baxter, spent many evenings in their company, although he was not a heavy drinker. On the evening of 11 April 2000 he was present in the home of the appellant and his wife when they quarrelled heatedly about certain trivial issues. They had both been drinking heavily. Shortly thereafter Mr. Baxter left. Later that evening he heard through the party wall sounds of violence. The following morning Mrs. Arthur was found dead in the livingroom of her home.
3. The Crown case was that she had met her death by manual strangulation by the appellant. This was consistent with the findings on post-mortem examination which included a finding that she had sustained two fractures of the hyoid bone and a fracture of the circoid cartilage, situated just below that bone. There were also other neck injuries. The appellant gave evidence at the trial in the course of which he admitted that he had assaulted his wife, though he said that had been in response to a physical attack by her on him. He testified that he had seized her twice by the neck from behind but denied strangling her. He said that in the course of the struggle she had landed on the floor and that he had fallen on top of her. It was suggested in evidence that by lying on top of her as she lay face downwards the appellant might have occluded her breathing and that this might account for her death. There was evidence which could support such a cause of death and which, if accepted by the jury, could have been a basis for returning a verdict of culpable homicide. The jury, however, returned a verdict of guilty of murder.
4. The appellant has appealed against his conviction. Although several grounds of appeal were presented in his Note of Appeal, only one of these was insisted on by Miss Scott on his behalf at the hearing of the appeal. It was directed to the terms in which the trial judge had in his charge defined the crime of murder. It was contended that the way in which he had done so was so confusing as to amount to a misdirection and that a miscarriage of justice had thereby occurred.
5. In the circumstances of this case the trial judge, in giving directions relative to the charge on the indictment, appropriately defined for the jury the crime of assault, in the course of doing so referring to the requirement of evil intent. He then observed that, in relation to assault and to murder, the prosecutor did not have to prove that the attacker intended to do precisely that which he in fact did. He gave as an example the case of a gunman intending to disable his victim by shooting him in the knee but, owing to his bad aim or whatever, actually shooting him in the heart. The trial judge explained that the assailant would still be guilty of an assault. He also gave the example of a would-be terrorist deciding to plant a bomb for the purpose of blowing up security forces; in the event the explosion injured school children. It would be no answer, the judge explained, for the bomber to say that he had not meant to injure or kill the children. No criticism was made before us of the terms in which he defined assault, though it was suggested that there was a potential for confusion in respect of the illustrations which had been given. The trial judge then proceeded to define the crime of murder. Having explained to the jury the first limb of the relevant definition ("a wilful act of assault which causes the destruction of human life if the assailant intends to kill"), he then defined the second limb in the following terms -

"that the killing of another human being is also properly to be described as murder if the assailant, in carrying out the assault which results in death, deliberately uses life-threatening violence or life-endangering means in such a way as to display a complete, utter and wicked disregard of the consequences to the victim".

Having again referred to life-threatening violence used in such a way as to display a complete and utter and wilful disregard of the consequences to the victim, the trial judge related that concept to the circumstances of the particular case. He said -

"So, in short, ladies and gentlemen, if you hold it proved by the Crown that the accused in this case used life-threatening violence or life-endangering means - strong hands to the neck - and he didn't care what the result of that was, whether the victim lived or died, then you can conclude that he acted with what I will call murderous intent, a murderous intent".

He added -

"So just as evil intention is at the very heart of the crime of assault, murderous intent in that sense, either of these, with deliberate intent or murderous intent as I have put in the alternative, is at the very heart of the crime of murder".

He then explained how an assault leading to death might, by reason of the absence of the requisite state of mind, fall short of murder so that the jury "don't hold proved that the assailant acted with this life-threatening means and showed this utter, wicked disregard of the consequences". In explaining the inferences which were open to the jury the trial judge directed them that if they were satisfied that the appellant had strangled his wife "you [could] certainly make that the basis for saying that was life-threatening violence and you could infer murderous intent". A reference to "life-threatening means" again occurs in a later passage where the trial judge said -

"If one person, let me make it clear, assaults another and the victim dies as a result of that assault then the assailant may be guilty of murder if he acts with murderous intent and uses life-threatening means. If he does not have such an intent he is not guilty of murder but culpable homicide. If he does not use life-threatening means you would be able to hold that he was guilty not of murder but of culpable homicide. So that the heart of the matter becomes the issue of has the Crown established beyond reasonable doubt that the accused possessed the murderous intent and used life-threatening means which [caused the death]".

6. With these and other directions the jury retired to consider their verdict. They returned with two requests, the second of which, in the foreman's words, was as follows -

"We wonder if you could reiterate for us the two definitions of the term 'murder' and in particular the meaning of the word 'deliberate' in the second definition that you gave us earlier which I think referred to deliberate use of life-threatening force or words to that effect".

7. In responding to that request the trial judge returned to the second limb of the definition of murder. He said -

"...if the assailant in carrying out the assault which results in the death deliberately uses life-threatening violence or life-endangering means in such a way as to display a complete, utter and wicked disregard of the consequences to the victim".

He then took up the foreman's reference to "deliberate" and explained that murderous intent did not require planning and forethought but might arise on the spur of the moment. He then illustrated that by reference to an assailant kicking a victim several times on the head causing a fractured skull and resultant death. In such circumstances, the trial judge continued,

"you could regard that as a person deliberately using life-threatening violence and life-endangering means, namely the boot of the foot, in such a way as to display a complete, utter and wicked disregard for the consequences to the victim".

Later in this passage he said -

"Even if there is no planning, even if it is not deliberate in that sense, the use of violence, the deliberate, the intended use of violence in a life-threatening way can provide you with the necessary ingredient for murder".

8. The foreman then responded as follows -

"You have given us a definition for murder which involves two strands, one of which was the intention to kill and the other which was the use of life-threatening violence. Do both of these have to apply or is just one or the other of these strands sufficient for murder?".

9. That statement and question having been repeated by the foreman, the trial judge said -

"The first point is you do not need both. You do not need an actual intention to kill. In short, if the jury hold that what he intended...if the jury are unable to hold that there was an actual intention to kill the jury can still say nonetheless he had an actual intention to use life-threatening violence and to do so in such a way as we can say that he had a complete and utter disregard for the consequences to the victim. So it is not essential to have proof of an actual intention to kill. Does that deal with the point?".

10. The foreman answered that question in the affirmative. The jury then resumed their deliberations.
11. Miss Scott submitted that, while the examples given by the trial judge of results not precisely intended by an assailant might not as such be open to criticism, they laid in the context of this case a potential for confusion. Matters were compounded by the persistent references, when explaining the second limb of the definition of murder to "life-threatening means", sometimes without specific reference to the mental state of the assailant. The jury could have been left with the impression that it was sufficient for murder that there was either an intention to kill or a deliberate use of life-threatening violence. The jury's state of confusion was manifested by the way the foreman had formulated their concerns when further directions were sought. The judge's further directions had failed sufficiently to dispel their confusion. There was a real risk that the jury had thought that the deliberate use of life-threatening means was sufficient to constitute murder without their having considered whether utter and wicked recklessness by the assailant had been proved.
12. We are not persuaded that, taking the judge's directions as a whole, the jury was misdirected as to what was required to establish the crime of murder. In the present case the death was the result of an admitted assault by the appellant on his wife. The issue for the jury was whether the crime was murder or culpable homicide. That turned on the mental state of the appellant at the time when he perpetrated the fatal assault. The trial judge directed the jury on the alternative bases on which a verdict of murder might be returned. No issue arises about the terms in which he directed them on the first of these alternatives (intention to kill). In directing the jury on the second alternative the trial judge repeatedly referred to the relevant mental state being that of utter and wilful disregard for the consequences to the victim. It is true that he refers in that context to "life-threatening violence or life-endangering means" and in his initial direction on this aspect to the assailant using such violence or means deliberately. It is, however, made quite plain at that point and later that the use of such violence and means, and in particular its deliberate use, is only the basis on which the relevant mental state, namely, utter and wicked disregard for the consequences to the victim could be inferred. Although the way in which the foreman subsequently formulated the jury's requests may suggest some confusion on their part at that stage, in his further directions the trial judge repeatedly referred to utter disregard for the consequences to the victim as the mental state required to constitute the second of the alternative bases for murder. In these circumstances we are satisfied that the directions taken as a whole, and upon the basis of which the jury reached their conclusions, did not involve any misdirection and that no miscarriage of justice has been demonstrated. The appeal against conviction must accordingly be refused.
13. There is also before us what purports to be an appeal against sentence. The circumstances against which that arises are singular. When the jury returned to deliver their verdict the clerk, it appears, initially failed to ask them whether their verdict of guilty of murder was unanimous or by a majority. He required to be reminded by the trial judge to do so. The case, the trial judge reports, was a highly charged one. Relatives and friends of the deceased sat in the court for the verdict and there were others in the court who may have been associated with the deceased or the appellant. The trial judge was apprehensive that there might be some form of public outcry at the verdict and was concerned that the proceedings be concluded as swiftly as possible.
14. When the jury's verdict had been fully returned and recorded, the trial judge immediately told the appellant to stand up and he then proceeded forthwith to sentence him to life imprisonment. He did not first call upon the advocate depute to address him nor await any express motion for sentence being made to him by the prosecutor. Nor, despite the appellant having been in custody prior to his trial and a schedule of certain minor convictions having been served on him, was the trial judge addressed by the prosecutor on the history of the proceedings; the schedule was not laid before him. (The Minute prepared by the clerk bears that the appellant was sentenced to life imprisonment, "said period of imprisonment to run from 13 April 2000," that is, backdated to that date, but this appears to have been the result of a subsequent private communication between the clerk and the trial judge). On passing sentence the judge immediately left the bench.
15. Miss Scott submitted that in these circumstances the sentence purportedly passed was incompetent. A motion for sentence by the prosecutor was an essential step if the court was to proceed to sentence. The prosecutor remained master of the instance until he had made a motion for sentence. The court had no power to impose sentence unless the prosecutor first moved it to do so. She cited Hume on Crimes II pp. 131 and 134 and pp. 463, 464 and 470, Alison - Practice pp. 88-90 and p. 653, Bell's Supplement to Hume at p. 300 and Macdonald - Criminal Law (5th edition) pp. 348-9. The importance in criminal trials of adherence to the rules of procedure had been emphasised in H.M. Advocate v. Fraser and Fraser (1852) 1 Irv. 1, where pertinent observations had also been made on the need for a motion for sentence before the court could pronounce sentence. Particular emphasis was placed on the observations of the Lord Justice-Clerk (Hope) and the Lord Justice-General (McNeill) in that case. The circumstance that persons convicted of murder (as had been the two accused in Frasers) might escape punishment was no ground for departing from the procedural requirements. In subsequent proceedings concerning the Frasers, reported at (1852) 1 Irv. 66, a plea in bar of trial had been sustained. The need for a motion by the prosecutor, express or implied by actings, had been recognised in Noon v. H.M. Advocate 1960 J.C. 52. It was immaterial that the sentence on conviction for murder was under statute mandatory. The legal consequence of what had occurred in this case was that the proceedings had fallen and that no further proceedings would be competent. The court had no power at common law to order a new trial and under statute its power to authorise a new prosecution only arose where a conviction had been quashed (Criminal Procedure (Scotland) Act 1995 section 118(1)(c)). It was acknowledged that section 118(4) of the 1995 Act (the statutory power to dispose of appeals against sentence) might not readily be apt to empower the court to quash the present purported sentence, but the court should in this process exercise its common law power to set aside the unlawful disposal. Reference was made to Brown v. Wilson 1993 S.C.C.R. 418. If the court was not prepared to grant the appellant a remedy in this form of appeal, it should allow him to lodge a relative application to the nobile officium of the court.
16. On this aspect the advocate depute submitted that the appellant's submission was both unfounded in substance and procedurally inept. As to procedure there was no remedy available to the appellant under the statute. There was no right of appeal against any sentence fixed by law (section 106(2)); the sentence on conviction for murder was so fixed (section 205(1)). The court was empowered to interfere with the sentence imposed in the court of trial only if it thought that "a different sentence should have been passed" (section 118(4)(b)). The logic of the appellant's submission was that, in the absence of a relative motion by the prosecutor, no sentence could lawfully be passed and for that reason the order made was fundamentally null. What the appellant truly complained of was the validity of the warrant for his incarceration. In these circumstances, if he had a remedy, it was one which could only be granted on an application to the nobile officium of the court.
17. As to the appellant's substantive submission, the advocate depute accepted that the normal practice was for the prosecutor expressly to move for sentence. In this case the trial judge, without affording to either the prosecutor or the defence an opportunity to address him, had pronounced sentence and left the bench. Consequently the advocate depute, whose intention it was to move for sentence, had effectively been precluded by the trial judge's actings from doing so. However, it was submitted that an express motion for sentence was not an essential step in procedure. If the prosecutor did not appear at the stage when the verdict was returned, the inference would be that he had deserted the libel; and the court could not then proceed to sentence. Likewise if the prosecutor having appeared expressly declined to move for sentence, the court had no power to pass one. In none of the authorities cited was it stated that the prosecutor required in terms to move for sentence. His insistence on the prosecution to sentence could be inferred. In the context of a case where the sentence on conviction was fixed by law, the mere presence of the prosecutor on such a conviction being returned empowered the court, in the absence of an express declinature by the prosecutor to move for sentence, to pass the requisite sentence. In both cases referred to in Bell's Notes on Hume (Mailer and Smith) there had been express declinature to move for sentence. Reference was also made to H.M. Advocate v. Paterson 1974 S.L.T. 53 at p. 57. The passage in Alison - Practice at p. 90 was not supported by authority. It was implicit in Noon v. H.M. Advocate that the prosecutor should be afforded an opportunity to move for sentence. In H.M. Advocate v. Frasers (which was concerned with the peremptory nature of criminal diets) the prosecutor had had a responsibility to ensure that the continuation was to a fixed diet but had concurred in an indefinite continuation. Here the Crown was in no way responsible for what had occurred. The appropriate course was to hold that the sentence had been competently passed and to affirm it. If there was a concern about the competency of the sentence, any remedy could be addressed only in a petition to the nobile officium.
18. We have come to the view that there is serious doubt whether the issues raised on this aspect of the case can satisfactorily be resolved in the present procedural context. The statutory powers of this court to dispose of an appeal against sentence are specified in section 118(4) of the 1995 Act. The court may under that subsection either affirm the sentence or "...if the Court thinks that...a different sentence should have been passed" d ispose of it by "quashing the sentence and passing another sentence whether more or less severe in substitution therefor". By section 205(1) of the Act a person over the age of 21 who is convicted of murder may only be sentenced to imprisonment for life. There is no right under the statute to appeal against any sentence fixed by law (section 106(1) and (2)). In these circumstances it is, as Miss Scott recognised, extremely difficult, if not impossible, to say that this court, exercising its statutory powers, could afford any remedy to the appellant since, on the basis of the argument (that in the absence of a relative motion no valid sentence was or could have been passed), this court could not think that a different sentence should have been passed. Any remedy which the court could afford him could only be in the exercise of such common law powers as it may have. We are not satisfied that any such powers can be, or in any event in the circumstances of this case should be, exercised within the context of this statutory appeal. Miss Scott urged us, in the event of our coming to that view, to continue this aspect of the case to allow the appellant, if so advised, to lodge a petition to the nobile officium. We are prepared to accede to that request. That process will allow the court, in the event of it holding that the appellant's substantive argument is well-founded, to consider what remedy, if any, should be afforded to the appellant - or indeed to the Crown.
19. At this stage we have reached no decision on the appellant's substantive argument. While we have heard full argument on it, it is, in our judgment, more appropriate that a decision on that aspect, whatever it may be, is reached in a procedural context in which all possible aspects of disposal are available for consideration.
20. Accordingly, in the whole circumstances we shall refuse the appeal against conviction and continue the remaining aspect of the case to allow the appellant, if so advised, to lodge a petition to the nobile officium which, in due course, the Crown will have the opportunity of answering.