Appellant: (For Saima Gul) Mitchell, Ross; Rhodes & Co, Dundee

(For Fazli Rahim) Jackson, QC, Mason; Capital Defence, Edinburgh

Respondent: Prentice QC; Crown Agent

7 January 2014

[1] The appellants are husband and wife. On 5 March 2013 they were convicted at Glasgow High Court of the murder of a man named Mohammed Noor. The details of the charge included repeatedly striking and stabbing him on the head and body with knives, attempting to decapitate him with a knife or knives, and repeatedly striking him on the head and body with hammers. The trial judge imposed a sentence of life imprisonment on each appellant and fixed the punishment part of that sentence at 23 years in each case. The appellants have both appealed against that punishment part.

[2] The first appellant at the time of sentence was 30 years old. She came from the Khyber Pakhtumkhwa province, perhaps better known as the North West Frontier Province, in north-western Pakistan, as did the second appellant. In 1999 at the age of 16 the first appellant was married to the second appellant, the marriage having been arranged by the parties' parents. She lived with the second appellant for about three months following the marriage. At that point the second appellant decided to travel to the United Kingdom to look for work, which he did using false documents. The first appellant, who was pregnant, remained with the second appellant's family in Pakistan. The second appellant remained in the United Kingdom, eventually in Glasgow, until about 2008. There was limited contact between the two appellants during this period. By 2008 the second appellant's family were not content with having the first appellant live with them, and it was made clear to the second appellant that he would now require to look after his wife, if necessary by taking her to the United Kingdom. During the intervening period he had married a Scottish woman, bigamously. The first appellant and the parties' daughter then travelled to the United Kingdom using false documents.

[3] When the first appellant arrived in United Kingdom she lived in emergency accommodation for a time. She was then told by the second appellant that he had married a Scottish woman and that therefore she must live at the house of her husband's friend, Mohammed Noor, the victim of the murder. The trial judge notes that, while that explanation had been given by the two appellants, he was not convinced that it was the true reason for the arrangement. It appears that the second appellant had four children by the Scottish woman whom he had purported to marry. The trial judge describes the relationship between the deceased and the two appellants as "shrouded in mystery and lies". It was clear, however, that the deceased was the father of a child born to the first appellant in February 2012. Consequently there must have been some kind of sexual relationship between those two, but its nature was not clear. It was alleged by the appellants that for years the deceased had perpetrated dreadful abuse against the first appellant, including rape. Despite that, numerous telephone calls passed between them prior to the deceased's death.

[4] According to the appellants, a crisis in the relationship with the deceased had come about when shortly before his death the first appellant had for the first time disclosed to the second appellant that for a period of years she had been subject to rape and violence at the hands of the deceased. The trial judge comments that there was never any credible explanation for why the first appellant should remain silent about any such conduct for a period of years. On the day before the murder the first appellant went to the police with her older child to complain that she was being harassed by the deceased and that he had taken her younger child from her and was keeping her in his flat. While she was there the deceased arrived with the child, and when asked handed her over to the first appellant. When the first appellant and the deceased left the police station, the police escorted her home and warned the deceased to keep away from her. The appellants had suggested that this incident gave rise the confrontation that led to the death of the deceased. The trial judge was extremely sceptical about this, and indeed about the whole of the explanations given by the appellants.

[5] The following day the two appellants got together in the morning and drove to the deceased's flat. The trial judge comments that it is difficult to determine what happened thereafter beyond the fact that the appellants brutally murdered the deceased. The story given by the first appellant was that the deceased had attempted to rape her, notwithstanding that her husband and children were present, and the second appellant intervened and killed the deceased with a knife and hammer. The second appellant's position was precisely the opposite: the first appellant had killed the deceased and he had been a mere spectator. The trial judge comments that both of these accounts were rejected by the jury.

[6] The trial judge summarized the evidence available from the post-mortem on the deceased and the forensic evidence that had been obtained. The deceased had sustained a large number of sharp injuries, both stab and incised wounds, mainly on his head, neck, upper chest and hands. There was also evidence of blunt force trauma, mostly to the head. On the neck that was a deep gaping wound that ran across the front and sides of the neck and cut deeply into the underlying neck structures, resulting in almost complete decapitation. The neck structures, including blood vessels, the oesophagus and the vertebrae, had all been completely transected. Five stab wounds were found on the front of the upper chest and on the back of the neck. One stab wound on the upper left chest had almost completely passed through from front to back, going through the left lung. Defensive injuries were found on the hands. It was clear from a large number of such wounds that the deceased had fought desperately for his life over a prolonged period. Multiple lacerations existed on the scalp, and there were three fractures of the skull. These would indicate multiple impacts to the head, clearly from the two hammers which were found later at the locus. It appeared likely that the deceased was still alive, although unconscious, when he was decapitated.

[7] In sentencing the appellants, the trial judge described them as having been convicted of one of the most appalling crimes that he had encountered. The killing of the deceased was hideous and cruel, little more than butchery. The parties' 12-year-old daughter was present throughout. The trial judge considered that the punishment part had to reflect the nature of the crime. For that reason alone it had to be significant. He had noted that during the trial neither appellant had shown any sign of remorse or any concern for anyone other than themselves. No reason existed to distinguish between the two appellants in terms of responsibility for what happened.

[8] Both appellants have appealed against the punishment part of 23 years set by the trial judge. It was submitted that, having regard to the particular circumstances of the case and the guidance given in recent cases, that was too high and should be substantially reduced. The particular reasons advanced on behalf of the two appellants were as follows.

[9] The first appellant was 30 years old at the date of sentence. On her behalf it was submitted that cultural differences existed between the United Kingdom and the society from which both appellants and the deceased came. After she had come to the United Kingdom, she was required to live with the deceased in a dishonourable way. The trial judge had thought that allegations of abuse at the hands of the deceased were not credible because, until the day before the murder they had not been brought to anyone's attention. Counsel stated that in fact a social worker had expressed concerns about the position of the deceased, and had challenged the deceased about his behaviour. The deceased's behaviour was described by the social worker as rude, aggressive and domineering; the first appellant, by contrast, was described as placid. Matters had been reported to some extent to the police the day before the murder.

[10] Furthermore, it was submitted that the trial judge had taken account of the number of irrelevant factors. First, he had attached importance to what he described as "a web of lies" regarding the first appellant's immigration status. Secondly, he attached significance to the demeanour of the first appellant in the witness box and throughout the trial: in particular, he stated that throughout the evidence she showed no concern or emotion, especially when her oldest daughter was giving evidence. We were informed, however, that the first appellant had been advised by her solicitor that she should pay attention to the evidence and should try not to react to it in any way. Nevertheless we were told that the solicitor said that she could not recall any contact with the first appellant when she had not been visibly upset and crying. It was also said by counsel that the first appellant had appeared visibly upset when her daughter gave evidence during the trial, crying and sobbing; on this point, it was accepted that there was a discrepancy between the views of the appellant's solicitor and those of the trial judge. It was also said that the first appellant had had difficulty in looking at photographs of the deceased and the locus. Counsel further submitted that the first appellant had been the sole carer for her children, and that was no reason to believe that her attitude towards them was anything other than the normal attitude of a mother towards her children. She was now separated from her children, who were to be placed for adoption, and this caused her great distress. Counsel described the misunderstanding of the first appellant's attitude towards her children as the trial judge's greatest error. Thirdly, the trial judge equated a verdict of guilty with rejection by the jury of everything that the first appellant had said regarding her treatment by the deceased. Nevertheless, it was submitted, a guilty verdict was still consistent with the first appellant's having suffered harm and injury at the hands of the deceased. In this connection, the parties' daughter, who gave evidence, had spoken of abuse by the deceased against the first appellant, beating her with "wires and hands". It was also stated that the deceased had been sexually abusing the first appellant's eldest daughter, and that two weeks before the murder the deceased had announced his intention of marrying that daughter. The first appellant was opposed to that, and that was why she had told the second appellant at that time about the way in which the deceased had abused her. She had also, against her cultural norms, gone to the police because the deceased had taken her younger child from her.

[11] For the second appellant, it was indicated that he was 41 years old and had no significant history of previous offending. It was accepted that the deceased had been subjected to a brutal and horrific attack, for which no explanation had been given. The second appellant had been good friends with the deceased, and it was not clear how much the second appellant knew of the first appellant's relationship with the deceased. The second appellant appeared to have gone to the deceased's house at the latter's request; this had been triggered by the first appellant's going to the police the previous day. That had upset the deceased greatly, and the second appellant had been asked to go to the house to sort matters out. At the house, while the two appellants were with the deceased, something triggered the confrontation that resulted in the death of the deceased. The trial judge had not taken that background adequately into account.

[12] After considering the helpful submissions made by counsel for both appellants, we have come to the conclusion that the punishment parts set by the trial judge were too high. He imposed a punishment part of 23 years in each case. We have no doubt that a substantial punishment part was justified by two factors: the extreme brutality of the attack on the deceased and the fact that the attack was carried out in front of the parties' daughter, who was 13 years old at the time. Moreover, the trial judge records that the daughter was asked by the appellants to obtain a large knife and subsequently a second hammer to attack the deceased. That is clearly a very serious matter. Nevertheless, we have had the advantage of being referred to certain other decisions, and in the light of the punishment parts imposed in these we are of opinion that 23 years is somewhat too high in the circumstances of the present case. Furthermore, we agree with the submission that the trial judge attached excessive significance to certain other factors, perhaps because at the time of sentence they were not brought to his attention as clearly as they might have been.

[13] The relevant factors are as follows. First, we accept that the appellants came from a society which in many respects is very different culturally from the United Kingdom. The history of the relationship of the two appellants and of their relationship with the deceased is highly unusual, but the trial judge did not attach any significant weight to this. This may have been because of the absence of clarity about what actually happened at the time of the killing. Nevertheless, we think that some weight should be given to cultural factors. Secondly, we think that the judge attached too much significance to the absence of reaction of the appellants during the trial. This applies particularly to the first appellant. We were told that she had been told by her solicitor to try not to react to the evidence. The solicitor further thought that, despite the instruction, the first appellant did react to more distressing parts of the evidence. That is clearly at variance with the trial judge's impression. Consequently we do not think that we can attach great weight to the solicitor's account of how the first appellant reacted. We do, however, think that we can attach weight to the instruction that was given by the solicitor, as that might well explain a considerable part of any apparent lack of reaction. In this respect we have been given considerably more information than was available to the trial judge at the time of sentence. Thirdly, we have been informed that the first appellant had been abused physically and sexually by the deceased. While the evidence was very unsatisfactory, the fact that the first appellant became pregnant by the deceased lends some support to this suggestion. The trial judge does not appear to have attached any weight to this factor. We agree with counsel for the appellants that the fact that the jury convicted of murder does not mean that they rejected the whole of the story told by the appellants about their relationship with the deceased. For that reason we consider that some weight must be given to the account of the first appellant's treatment by the deceased. This applies particularly to the punishment part imposed on the first appellant. It appears that she had been forced to live with the deceased, and had some sort of sexual relationship with him. In addition it is clear that she had gone to the police the day before the murder with complaints about the deceased. All of that suggests serious tension in the relationship.

[14] We were referred to a number of recent cases dealing with punishment parts for murder. Following Boyle v HM Advocate, 2010 SCCR 103, the starting point must be taken as in the region of 14 years. In Jakovlev v HM Advocate, 2011 SCCR 608, a punishment part of 19 years was upheld in the case of the very brutal murder of a vulnerable man in his own home. The court pointed out (at paragraph [12]) that the accused had forced their way into the deceased's home, historically the crime of hamesucken, which was itself a serious aggravation. We were also referred to Rippon v HM Advocate, 2012 SCCR 699, where a punishment part of 19 years, reduced from 21 on account of guilty plea, was reduced to 15 years, reduced from 18. In Williamson v HM Advocate, 2011 SCCR 563, in circumstances which counsel described as being as bad as the present case, sentences were imposed of 14 and 17 years. We consider that the most helpful of these cases is Jakovlev v HM Advocate, where the attack was clearly extremely brutal and there were the additional aggravations that the deceased was a vulnerable individual and that the accused had broken into his home in order to carry out the attack. In terms of seriousness, we consider that that is broadly comparable to the present case; the present killing was carried out in front of a child, involving the child to some extent by obtaining weapons, but the elements of hamesucken and the vulnerability of the deceased are absent. The punishment part in that case, fixed at 19 years, was upheld on appeal.

[15] On the foregoing basis, we consider that a punishment part of 19 years is appropriate for the second appellant in this case. So far as the first appellant is concerned, we consider that there are additional mitigating factors. For that reason we will fix the punishment part at 17 years in her case. We will accordingly quash the punishment part of the sentence and substitute punishment parts of 17 years and 19 years respectively.