First named appellant: McConnachie QC et Prais; Paterson Bell

Second named appellant: Jackson QC et McKenzie; Capital Defence, Edinburgh

Respondent: Wade AD; Crown Agent

Appellant (HMA): Wade AD; Crown Agent

Respondent (Nikolov): Findlay QC et Mullan; Bridge Litigation, Glasgow

5 March 2013

[1] On 29 February 2012 at the High Court in Edinburgh the appellants Andonov and Siddique and the respondent Nikolov were found guilty of the following charge:

"(003) On 24 October 2010 at 124 Forres Drive, Glenrothes, Fife you MOHAMMED ASAM SIDDIQUE, TENCHO HRISTOV ANDONOV and DEYAN NIKOLOV did assault Mohammed Nadeem Siddique, now deceased, formerly c/o Fife Constabulary, Glenrothes and did repeatedly discharge a loaded firearm at said Mohammed Nadeem Siddique and did repeatedly shoot him on the head to his severe injury and you did murder him and you MOHAMMED ASAM SIDDIQUE did previously evince malice and ill-will towards him".

The appellant Andonov was also found guilty of the following charge:

"(004) On 24 October 2010 at 124 Forres Drive, Glenrothes, Fife you MOHAMMED ASAM SIDDIQUE, TENCHO HRISTOV ANDONOV and DEYAN NIKOLOV did assault David Dagleish, c/o Fife Constabulary, Glenrothes and did repeatedly discharge a loaded firearm at said David Dalgeish and did shoot him on the head, all to his severe injury, permanent disfigurement and to the danger of his life, and you did attempt to murder him."

[2] Neither of the appellants, nor the respondent Andonov, had had any previous convictions. In respect of the charge of murder of Mohammed Nadeem Siddique, the trial judge, Lord Kinclaven, sentenced the first named appellant to life imprisonment and, having taken into account the circumstances of both the charges of murder and the other charge of which this appellant was found guilty, fixed the punishment part at 29 years. In respect of the second charge, this appellant was sentenced to 12 years imprisonment. These periods were ordered to run concurrently and were backdated to date from 2 November 2010.

[3] The second named appellant was sentenced in respect of the murder charge to life imprisonment with a punishment part of 25 years, which period was backdated to 9 December 2010.

[4] The respondent, Nikolov, in respect of the charge of murder was sentenced to life imprisonment with a punishment part of 18 years, said period being backdated to commence from 9 December 2010. In his report to this court which runs to no less than 165 pages, the sentencing judge set out the circumstances of the offences which were revealed in a lengthy trial. He provided the court with the following summary:

"The first named accused, Mohammed Asam ("Mo") Siddique was the brother of the deceased. He was convicted of the murder of his brother Toby Siddique by majority. Mo Siddique was the driving force behind the pre-meditated brutal murder of his own brother. There was a sufficiency of evidence against him. He gave evidence which was neither credible nor reliable...

The second named accused, Tencho Andonov was unanimously convicted of the murder of Toby Siddique - charge (3) in addition, he was also convicted by majority of the attempted murder of David Dalgleish - CHARGE (4). Tencho Andonov was the gunman who actually carried out the killing. He callously and repeatedly shot Toby Siddique in the head. The muzzle of the firearm was placed on the tip of Toby Siddique's nose when he fired a shot. He also attempted to murder David Dalgleish. The evidence against Tencho Andonov was overwhelming...

I should highlight that, most unusually, Tencho Andonov instructed his own counsel not to address the jury - and nothing was said to the jury by counsel on his behalf. That may make his position on appeal a difficult one - but that is a matter for your Lordships....If Tencho Andonov now regrets that he did not allow his counsel to address the jury on his behalf - then that is a problem entirely one of his own making. I afforded him every reasonable opportunity to reconsider this position and to change his mind so that his counsel could address the jury but he would not do so....

The third named accused, Deyan Nikolov, was convicted of the murder of Toby Siddique by majority. Deyan Nikolov was the middleman - the link or conduit - between the first accused and the second accused. Although the Crown Note of Appeal tends to overstate Deyan Nikolov's role, there was a sufficiency of evidence against him. It is more appropriate to described Deyan Nikolov's role as being that of a "link or conduit" between his two co-accused - albeit someone fixed with the necessary mens rea. That was an inference open to a jury on the evidence - particularly if the jury were satisfied that Tencho Andonov was in fact the gunman and that Mohammed Siddique was in fact the driving force behind the murder."

[5] The background to the murder of Mohammed Siddique and the attempted murder of David Dalgleish was apparently, in short, deep animosity that existed between the second named appellant and his brother, the deceased, which was founded, to some extent at least, on a dispute between them about the control and ownership of a company Moncrieff Properties, of which they were joint owners. The Crown case was that the second named appellant hated the deceased and wanted him dead, and driven by that hate and greed formulated a plan to have his brother murdered. The Crown case was, further, that the second named appellant and the respondent planned, arranged and organised the murder of the deceased.

[6] The first named appellant was to shoot and kill the deceased in return for a payment to him of money. A meeting was arranged at the home address of David Dalgeish, the complainer in the second charge of attempted murder, which the deceased attended, the purpose of which had been explained to him as being to discuss with Dalgleish a transaction involving contraband cigarettes. The first named appellant also attended, however, and shot the deceased. He also fired the gun at David Dalgleish and shot him to the head in an attempt to kill the only witness to the shooting of the deceased.

[7] The first and second named appellant appeal against the punishment parts imposed by the sentencing judge in their cases.

[8] In making his submissions to this court, senior counsel for the first named appellant, Mr McConnachie QC, made it clear that, having regard to his client's conduct, and the circumstances of the offence of which he was convicted, a very significant punishment part fell to be imposed. It was, however, submitted that a punishment part of 29 years fell to be regarded as excessive in the circumstances. That submission had been pre-figured in the written note of argument for this appellant which is in the following terms:

"While it is accepted that if convicted of these crimes a lengthy punishment part was inevitable, 29 years was excessive. Al Megrahi, the Lockerbie bomber received a punishment part of 27 years for his part in that atrocity. In the recent case of McDonald and Anderson 2011 HJAC 71 punishment part of 35 years was reduced to 30 years. However the court indicated (that) had the principal charges stood alone, then a sentence of 27/28 years would have been appropriate. The principal charges were murder and two charges of attempted murder. The sentence in this case also significantly exceeds the punishment parts imposed in other, arguably more serious cases such as Walker, Wilson and Mone, all referred to in McDonald supra. In all the circumstances including the fact that the appellant was a foreign national and a first offender the punishment part imposed was excessive and amounted to a miscarriage of justice."

In the case of Walker 2002 SCCR 1036, the circumstances were that the appellant was convicted of robbery and murder in 1985 and sentenced to life imprisonment. The crime was deliberately planned and involved the killing by a machine gun of three men in the course of their duties at an army depot. The trial judge made a recommendation, under the legislation then in force, that the appellant should not be considered for release on licence until the expiry of 30 years. In 2002 his case was referred in terms of the Convention Rights (Compliance) (Scotland) Act 2001 and an order was made specifying the punishment part of the sentence as 30 years. The appellant appealed against that order on the ground that the period specified was excessive. The court held that a punishment part in excess of 25 years was justified, since this was a deliberately planned execution of a number of soldiers, acting in the course of their duty and was done in order to achieve gain. Nevertheless it was not impossible to conceive of circumstances in which there might be even greater aggravation, let alone the existence of significant previous convictions and that, accordingly, the period of 30 years imposed by the sentencing judge was excessive. The appeal was, accordingly, allowed and an order for 27 years substituted for that of 30 years. At paragraph 8 of his judgment the Lord Justice General (Cullen) said:

"As the sentencing judge suggests in his report in the present case a number of murder cases might be of such gravity - for example, where the victim was a child or a police officer acting in the execution of his duty, or where a firearm was used - that the punishment part should be fixed in the region of 20 years. However, there are cases - which may be relatively few in number - in which the punishment part would have to be substantially in excess of 20 years".

[9] In 2010, the then Lord Advocate, in the cases of Boyle, Maddock and Kelly appealed against punishment parts imposed in those cases as being unduly lenient and asked the court to give guidance on punishment parts in murder cases. A bench of five judges held, inter alia, that 30 years was not to be regarded as the virtual maximum punishment part and that there may be cases (for example, mass murder by terrorists) in which a longer period may, subject to any mitigatory considerations, be appropriate. Moreover it was open to a judge to specify a period well in excess of the offender's anticipated lifespan. Senior counsel for the first named appellant submitted that while the court in Boyle and others had disapproved of any interpretation of the decision in Walker and the decision in the case of Al Megrahi to the effect that the court was suggesting that 30 years was a virtual maximum for punishment parts, it did not disapprove of the punishment part fixed in the case of Walker. More recently the court had to consider the imposition of a punishment part of 35 years in respect of a charge of murder by the discharge of a self-loading handgun. In McDonald and Anderson v HM Advocate [2011] HCJAC 71 two persons were convicted of reset, three convictions under the Firearms Act 1968, two charges of attempted murder, and murder. The charge of murder involved the two handguns being discharged in a garage forecourt, as a result of which a 21 year old man was killed. Two other persons were injured which resulted in the two charges of attempted murder. The trial judge imposed punishment parts of 35 years in respect of each accused. The court held on appeal that pre-meditated crimes of violence involving the use of firearms were of the utmost concern to the public and to the court. Nevertheless the present case could not be regarded as intrinsically more serious than cases such as Walker v HM Advocate, HM Advocate v Wilson and HM Advocate v Mone (summaries of the decisions in the cases of Wilson and Mone being found in an appendix to the report in the case of Walker) having regard to the terms of the guidance set out in HM Advocate v Boyle and others and the punishment part fixed in the case of Smith (Thomas Bennie) v HM Advocate [2010] HCJAC 118, 2011 SLT 212. The punishment parts of 35 years were accordingly considered to be excessive. Having regard to the concurrent sentences of 5, 5, 10 and 5 years imposed in respect of the other charges, the court held that justice would be done by reducing each punishment part to 30 years. The court in McDonald also observed that had the principal charges stood alone they might have been inclined to reduce the punishment part to a level of 27 or 28 years. It should be noted that the other charges in respect of which the accused were sentenced to concurrent sentences while they were serious charges involving firearms appear to have been unrelated to the circumstances which gave rise to the principal charges of murder and attempted murder. Their Lordships described the charges of murder and attempted murder in McDonald as being very serious crimes:

"They were planned in advance. They involved both appellants repeatedly discharging firearms at their victims and doing so with the intention of killing them. More than one of the intended victims could easily have been killed, and the use of firearms within commercial premises showed a complete disregard for the safety of any member of the public who might have been present. In addition, on the same indictment, the appellants were convicted of the reset and possession of one or more prohibited weapons, namely machine guns, together with certain ammunition and other items." (para 26)

Both of the accused in McDonald had previous convictions whereas, as previously noted, in the present case neither of the appellants nor the respondent Nikolov had any previous criminal record.

[10] Mr McConnachie submitted that on the facts and circumstances of the McDonald case, which involved not just one but two charges of attempted murder, and other offences, where the accused had previous convictions there was a material difference between the position of the two accused in that case, and the first named appellant in the present, which justified a punishment part which would be significantly lower than what was considered appropriate in McDonald. He also referred, once more, to the punishment part in the case of Walker. While it was true that a punishment part of 35 years had recently been upheld, on appeal, in the case of Smith 2011 SCCR 134, which was referred to by the court in McDonald, the circumstances of that case were very different from the circumstances of the present case. In Smith the appellant had pled guilty to murdering a woman and her 10 year old daughter in an incident which involved sexual and sadistic attacks on both of them. He had then tried to conceal their bodies but confessed some time afterwards to his crimes. He was sentenced to life imprisonment with a punishment part of 32 years reduced from 35 years to take account of his plea of guilty. He appealed against the length of the punishment part and that appeal was refused. The court in refusing the appeal said (at para 16):

"What can undoubtedly be said is that the present case is in a category well beyond those contemplated directly in Boyle and may properly be regarded as truly exceptional. First, it was a multiple murder. That in itself would take it into the category of Walker, Mone or Wilson and, indeed, McMurray. Secondly although no firearm or knife was used, one of the victims was a child. Thirdly it included not only both sexual and sadistic conduct towards a woman but also towards a child. Fourthly there were efforts to conceal the bodies, albeit that the appellant did confess to the murders not very long afterwards. These aggravating factors, some of them extreme in nature, fully justify the sentencing judge's selection of a starting point of 35 years. The appeal must therefore be refused."

Senior counsel for the first named appellant submitted that the decision in the case of Smith was not of great assistance in determining the appropriate punishment part in his client's case. It was a quite different kind of case involving as it did almost "every aggravation which could be thought of".

[11] We have come to the conclusion that there is merit in the submissions made on behalf of the first named appellant. It has often enough been said that sentencing is not a science. The sentence appropriate in each case will depend on all the relevant facts and circumstances of each case but there is the need also for justice to be seen to be done generally by ensuring that where crimes are sufficiently similar, and after making all appropriate allowance for aggravation and mitigation, guidelines such as those set out in Boyle, which are intended to provide broad indications as to appropriate levels of sentence in categories of cases, which can be regarded as similar in character, are followed. Sentencing practice and, policy is not, however, intended to be fixed in concrete for all time. It requires to adapt to reflect changing public standards, to have regard to new forms of criminal activity and the frequency of certain offending which may raise particular public concerns. So as the court observed in McDonald:

"There has been a tendency for the length of punishment parts in all murder cases to increase with the passage of time."

Having made those observations, we are satisfied that the seriousness of the first named appellant's conduct, in the present case, cannot be regarded as significantly different from that of the accused in Walker. Equally we consider his position falls to be regarded as somewhat less serious than that of the accused in McDonald. We remind ourselves that in McDonald there were convictions in respect of two attempted murders in addition to the murder itself and that the court indicated that had the murder and attempted murder charge not stood along with the other unconnected charges then they would have been minded to impose a punishment part of 27 to 28 years. We, moreover, consider that the case of Smith does not help in selecting the appropriate punishment part because of the very different circumstances of that case and the nature of the offending involved. In the whole circumstances we have reached the conclusion that the punishment part in respect of the first named appellant should be reduced from 29 years to 27 years. We will, accordingly, quash the punishment part imposed in his case and substitute therefore 27 years.

The second named appellant

[12] Senior counsel for the second named appellant submitted that the punishment part of 25 years imposed in his case was excessive in the circumstances. His client's position throughout had been to deny all knowledge of the circumstances leading to the murder and of how the murder itself came about. That put senior counsel in some difficulty in relation to mitigation. He could not, he accepted, make anything of the fact that the second named appellant had not himself pulled the trigger on the gun. The appellant, however, had, on the face of things, lived a respectable and responsible life prior to this offending and had a full work record. He was responsible for the care of an extended family including his elderly mother. He was a first offender who was 42 years of age at the time of sentencing. Senior counsel, Mr Jackson QC submitted that, having regard to the punishment part fixed in the case of Walker, where the accused had been guilty of killing three soldiers, the punishment part of 25 years imposed in the case of this appellant was excessive. We disagree. The trial judge, in his detailed report makes it abundantly clear that this appellant was "the driving force" behind this killing. He was also assessed by the trial judge as being a very manipulative and domineering person. He was content to order the assassination of his own brother. This type of contract killing, where the accused was instrumental in setting up the circumstances whereby its execution was carried out, is conduct of which this court must take a very serious view, and we are completely satisfied that, making all due allowance for the limited mitigatory factors that were prayed-in-aid in this case, the punishment part of 25 years imposed by the sentencing judge was not excessive having regard to the nature of the offence and this appellant's involvement in it.

Crown appeal against imposition of punishment part in the case of respondent Deyan Nikolov

[13] The trial judge, as in his report he made clear, in fixing the punishment part of 18 years in respect of the respondent Nikolov, had regard to what he described as the "comparatively restrictive role played by the respondent as compared with his two co-accused", describing his role as a "link or conduit between those two accused". In contending that the punishment part of 18 years was unduly lenient in this case, however, the advocate depute submitted that the trial judge had wrongly understated the role of the respondent in the commission of the murder. There was no direct evidence of direct communication between the other two accused and from this it was open to the jury to infer that it was the respondent who had identified and hired the gunman to shoot and kill the deceased. There was evidence that the respondent was involved in more than one attempt to arrange a meeting between the deceased and a third party in order to lure the deceased to a location where he was to be killed. In particular there was significant evidence of the respondent being involved in the preparatory steps taken in setting up the fatal meeting. There was also evidence that he knew a gun was to be used to kill the deceased. Furthermore, there was evidence that, after the murder, the respondent was involved in making arrangements to help the co-accused, Andonov, escape from Scotland and that he was aware of how Andonov was to be paid for the murder. The trial judge, it was submitted, had been quite wrong in his report to suggest that the Crown had over-stated the part played by the respondent in the crime. The respondent's role was clearly fundamental to the execution of the murder of the deceased. While it was, no doubt, fair for the trial judge to say that the co-accused Siddique was a manipulative person and was the driving force behind the crime, this particular crime could not have been executed without the respondent's very active and direct participation. He was going to gain financially from his involvement in it. This was a pre-meditated and organised crime in which the respondent was involved from the outset and one in which, as he knew, a firearm was to be used.

[14] In reply, senior counsel for the respondent, Mr Findlay QC, invited the court to have considerable regard to the views of the trial judge as expressed in his report to this court. He, after all, had heard the whole evidence in what was a very long and complicated trial. The co-accused, Siddique, was truly the master-mind of the crime and a highly manipulative individual. He had recruited the respondent, a significantly younger man, into his employment and had blandished him with that work and also accommodation. The role of the respondent was truly one of a link or a conduit, though it had to be accepted that he knew that it was intended that a gun would be used at the meeting to which the deceased was lured. It was not, however, entirely clear that he knew that the deceased was to be murdered by the use of that gun.

[15] It is of course appropriate for this Court to bear in mind the advantage that the sentencing judge, after trial, has in having seen and heard the whole of the evidence in a very long trial like that to which the present appeals relate and to respect the weight which the sentencing judge has, as a result, placed on particular aspects of that evidence. But in this case the respondent was found guilty, art and part with the other two co-accused, of the contract killing by the use of a gun of the deceased. In that situation we entirely agree with the advocate depute that the sentencing judge was not justified in describing the Crown's position in relation to this accused as being over-stated. He was a key player in the carrying out of the contract killing. We consider that, generally speaking and setting aside any particular mitigatory or aggravating features relating to their individual circumstances, those who are found guilty of deliberately taking part by performing various roles, in a contract killing, art and part, as in the present case, will normally fall to be regarded as equally responsible for the outcome of those arrangements and should be punished accordingly. In the present case we cannot identify sufficient facts and circumstances justifying a distinction being made by the trial judge of some 7 years in the punishment part fixed for the respondent, on the one hand, and the co-accused Siddique on the other. Nor can we see the justification for a distinction of 11 years between the punishment part imposed, in his case, and that imposed in relation to the first named appellant, making all allowances for the aggravations which arose in that appellant's case. Accordingly we are satisfied that the punishment part fixed by the sentencing judge in the case of the respondent was unduly lenient. A clear message has to be sent out by the court that those persons who choose to involve themselves in the preparation and execution of pre-meditated contract killings involving the use of firearms should anticipate being severely punished by the court. In the respondent's case, allowing for the limited mitigation that was prayed-in-aid on his behalf, a punishment part of 18 years, which was imposed, was unduly lenient. We shall, accordingly quash it and substitute therefor a punishment part of 23 years.