APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Johnston
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[2007] HCJAC54
Appeal No: XC34/07
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
NOTE OF APPEAL AGAINST
SENTENCE
by
RICHARD WILLIAM HAIG
COSGROVE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Kerrigan, Q.C.,
Lenehan; Fairbairns
Alt: Kearney, A.D.;
Crown Agent
11 September 2007
Introduction
[1] The appellant,
Richard William Haig Cosgrove, along with two co-accused, James Bain ("Bain")
and Bernard Carlin Young ("Young"), stood trial in the High Court at Edinburgh on an indictment containing a total
of nine charges. At the conclusion of
the Crown case, all charges were withdrawn with the exceptions of charges 1, 3,
4, and 8 against Bain and charges 3, 4,
and 8 against the appellant and Young.
At the conclusion of the trial on 30 November 2006, all three accused were convicted
unanimously by the jury of all charges which remained outstanding against them.
[2] At the
adjourned diet for sentence on 11 January 2007 the Trial Judge admonished Bain in
respect of charge 1 and all three accused in respect of charge 8. He sentenced Bain and the appellant to life
imprisonment and Young to detention for life, in each case in cumulo, in respect of
charges 3 and 4. He set the punishment
part in respect of the life sentence imposed on Bain and the life detention
imposed on Young at 22 years and nineteen years and six months
respectively. He set the punishment part
in respect of the life sentence imposed on the appellant at 20 years. The appellant appeals against the length of
the punishment part imposed on him.
The charges
[3] Charge 1 was
a charge of assault to injury upon Donna Hendry, laid against Bain alone. Charge 8 was a consequential statutory
charge, under section 17(2) and (5) of the Firearms Act 1968 as amended,
relating to possession of a sawn-off shotgun at the time of the offences of
murder and attempted murder. Charges 3
and 4 were the substantive charges which led to the sentences of life
imprisonment. They were in the following
terms:
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"(3)
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on 22 April 2006 at The Marmion Public House, 2 Gracemount
Drive, Edinburgh, with faces masked and heads covered, you JAMES BAIN,
RICHARD WILLIAM HAIG COSGROVE and BERNARD CARLIN YOUNG did assault Alexander
McKinnon, now deceased, and did discharge a loaded sawn-off shotgun at him,
shoot him on the body and you did murder him;
...
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(4)
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on 22 April 2006 at The Marmion Public House, 2 Gracemount
Drive, Edinburgh, with faces masked and heads covered, you JAMES BAIN,
RICHARD WILLIAM HAIG COSGROVE and BERNARD CARLIN YOUNG did assault James
Hendry, ... and did discharge a loaded sawn-off shotgun at him, shoot him on
the body to his severe injury, permanent disfigurement and to the danger of
his life and you did attempt to murder him;..."
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Both of these charges, so far as laid against Bain, were
aggravated by his having been at the material time subject to four bail orders.
The grounds of appeal
[4] The grounds
of appeal against sentence lodged on the appellant's behalf were concisely
expressed in the following terms:
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"The period of the punishment part
selected was excessive when regard is had to the circumstances of the
appellant, and the nature of the appellant's involvement in the
offences. In particular:
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(a)
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The appellant was aged 22 at the time of the offences, and
had a minimal record of prior offending.
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(b)
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The appellant played a materially lesser role in the crimes
yet received a substantially similar punishment to the principal actor,
Bain. Bain appeared to be the one with
the motive and Bain it was who fired the shotgun. Bain in addition had a more significant
record of previous offending and breached multiple bail orders."
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The submissions on the
appellant's behalf
[5] In the
written submissions lodged on the appellant's behalf some reference was made to
the appellant's personal circumstances, his age [which, as the Trial Judge
noted, was 20 at the time of the crimes, not 22 as averred in the grounds of
appeal] and relatively insignificant criminal record, but the main thrust of
the argument was that the role he played in the murder and the attempted murder
was much less significant than that played by Bain, and that both in absolute
terms and in comparison to the punishment part of 22 years imposed on Bain, the
punishment part of 20 years imposed on the appellant was excessive. As that submission came to be developed in
oral argument, it contained two separate strands. One related directly to the part played by
the appellant in the crimes. The other
was founded on the proposition that, in playing such part as he did in those
crimes, the appellant was acting reluctantly under pressure from Bain.
[6] As to the
part played by the appellant in the murder and the attempted murder, counsel,
of course, accepted that the appellant accompanied Bain into the Marmion Public
House with his face masked and his head covered, and lent support to Bain in
the commission of the crimes. He
questioned the Trial Judge's formulation that the appellant had "enabled and
facilitated the two shootings", accepting that he could be said to have
"facilitated" them, but suggesting that it was going too far to say that he
"enabled" them. The background was to be
found in the events of charge 1, the assault by Bain on Dionne Hendry. They had had a relationship for a number of
years, the assault had angered Adam Hendry, Dionne's father, and Bain's
apprehension of violence from him and other members of the Hendry family had
prompted the expedition to the Marmion Public House. Bain had set off from Lisa McCraw's flat,
indicating by word and gesture an intention to shoot one of the Hendrys. As he did so, he had summoned the appellant
to follow him, telling him to "fucking move" (evidence of Nikita Hunter). There was evidence that the appellant
followed Bain about and would do whatever he asked of him (Nikita Hunter), and
that Bain was a man who normally got his own way (Jason Cervi). When they reached the public house, it was
Bain who was armed with the shotgun, who advanced into the bar, and who fired
the two shots. As could be seen from the
enhanced stills from the CCTV film (Crown production 136), the appellant was
not to be seen in the near vicinity of Bain as the shots were fired. There was evidence that, after the event, the
appellant was "white and sweating" (John Paul Kelly) and "like a ghost" (Peter
Miller). He claimed to have been
persuaded to co-operate by threats by Bain.
Although the jury had rejected the defence of coercion, the evidence
that the appellant acted under pressure from Bain remained for consideration in
the context of assessing the part played by each in the commission of the
crimes.
[7] In these
circumstances, counsel submitted, the punishment part imposed on the appellant
should have been shorter, and in particular a greater difference should have
been made between the punishment part imposed on Bain and that imposed on the
appellant. Looking at the appellant's
personal circumstances, his substantially lesser part in the crimes, and the
fact that there was independent evidence that he was a reluctant participant
acting under pressure from Bain, a punishment part of less than 20 years was
appropriate. Looking at the matter as
one of comparative justice, the difference between the parts played by Bain and
the appellant, Bain's more substantial record, and the fact that his conviction
was aggravated by the breach of four bail orders ought to have led to a substantial
difference between the punishment parts imposed on him and the appellant.
The Trial Judge's
observations on the grounds of appeal
[8] After noting,
and indicating that he had taken account of, the points about the appellant's
age and record, the Trial Judge (at pages 15-16 of his Report) made the
following observations on the grounds of appeal:
"Cosgrove played a lesser role in the
crimes in the sense that he did not fire the shotgun, but he accompanied the
gunman to the Marmion Public House masked and dressed in similar clothing, was
present in the public house when the shots were fired, and left the public
house along with the gunman. As the
Advocate Depute put it in his jury speech, 'they took steps to disguise
themselves and create terror'. I stated
in my sentencing remarks to Cosgrove that he had accompanied Bain to the
Marmion Bar dressed in similar clothing and his presence there, masked and
hooded, enabled and facilitated the two shootings. I do not accept that Cosgrove 'received a substantially
similar punishment part' to Bain, as there was a difference of two years. I accept that Bain appeared to be the one
with the motive, that he fired the shotgun, that he had a more significant
record of prior offending and that he had breached multiple bail orders. The punishment part in this case had to
reflect the fact that, in [addition] to the conviction for murder by shooting,
there was also a conviction for attempted murder by shooting. Cosgrove played a significant part in the
commission of both crimes. I sought to
reflect the differences between his record and involvement on the one hand and
those of Bain on the other hand in the distinction I made in their punishment
parts."
The Trial Judge made no reference in his Report to the
evidence that the appellant acted reluctantly under pressure from Bain.
Discussion
[9] The starting
point for consideration of the punishment part imposed on the appellant is, as
the Trial Judge correctly recognised, that he was convicted by the verdict of
the jury, not only of murder by shooting, but also of attempted murder by
shooting. Both these convictions require
to be reflected in the punishment part selected. On the other hand, it is clear that the
appellant did not fire either of the shots, and that he was found guilty of
both crimes on the basis of art and part guilt.
In selecting the punishment part it is therefore, in our view, necessary
to make an assessment of the appellant's culpability.
[10] The punishment
part must reflect the fact that the appellant accompanied Bain, whom he knew to
be armed with a shotgun and to be looking to harm members of the Hendry family,
on the expedition to the Marmion Public House; that he was (like Bain) masked
and hooded; and that by so accompanying Bain he enhanced the menace of the
situation that developed in the public house.
We accept that he is properly to be described as facilitating the
shootings, although we think there is some force in counsel's suggestion that
it is perhaps going too far to describe him as having "enabled" the shootings,
if by that is implied that they would not have taken place without his
participation.
[11] On the other
hand, we are of opinion that a distinction requires to be made between the
roles in the commission of the crimes of Bain and the appellant
respectively. Bain was the person with
motive to carry out the crimes; he was the person who took the initiative in
arming himself and setting off for the public house. Crucially, he was the one who fired the
shots. The appellant, on the other hand
had no personal reason for involvement, went along in a supportive role, and
did not himself fire any shots or otherwise offer violence. Moreover, although he did provide support for
Bain in the commission of the crimes, we accept the point, made by counsel by
reference to the photographs, that he appears not to have been in the immediate
vicinity as the shots were fired.
[12] The Trial
Judge rightly notes that the defence of coercion was rejected by the jury. We are of opinion, however, that that does
not render irrelevant to the assessment of the appropriate punishment part for
the appellant the evidence that he acted with reluctance as a result of
pressure from Bain. The test to be
applied by the jury in reaching a view on the defence of coercion is a strict
one, but a different, less stringent, test falls in our view to be applied to
whether the fact that the appellant was acting under pressure short of legal
coercion may be relevant mitigation in assessing his culpability with a view to
fixing the punishment part of his life sentence. The difficulty in the present case is that
the Trial Judge has said nothing to indicate that he evaluated the evidence of
pressure. One possibility, of course, is
that he utterly rejected the evidence of pressure, both in so far as it was
offered by the appellant himself and in so far as it was supported by the
evidence of other independent witnesses.
Where there was such evidence, however, we are of opinion that the Trial
Judge ought to have expressed his views on it and, if he rejected it, to have
done so expressly. The Trial Judge has
not done that, and in that situation it is, in our view, open to us to form a
view on it, as counsel invited us to do.
In our view, such independent evidence as there was supports the view
that the appellant acted reluctantly, doing what he was told by Bain rather
than exercising wholly independent judgment.
That falls far short of exonerating him, but it is a mitigatory factor
that ought to be taken into account.
[13] We do not
think that there is much mitigation in the appellant's age, or much ground for
distinction between the appellant and Bain in the difference between their
ages. For what it was worth the point
was taken into account by the Trial Judge.
The same may be said for the difference between the appellant's record
and Bain's record, and the fact that Bain committed the crimes while subject to
four bail orders. That no doubt
justified a distinction between them. We
are of opinion, however, that when proper account is taken of the appellant's
subsidiary and reluctant participation in the crimes and the substantially
different roles which the appellant and Bain played in them, a greater
difference in the punishment parts selected would have been appropriate. In our view, the appropriate punishment part
for the appellant would have been sixteen years.
Result
[14] We therefore
allow the appeal, quash the punishment part imposed by the Trial Judge and
substitute for it a punishment part of sixteen years.