Appellant:  McConnachie, QC; M Jackson; Capital Defence, Edinburgh

MacKenzie; Dow;  Drummond Miller, Edinburgh

Respondent:  McSporran, QC, AD;  Crown Agent

31 July 2014

[1]        We deal with the first appellant's appeal first.  At the outset, we note that the only live issue in the trial was whether the first appellant was guilty of the crime of murder or culpable homicide.  In addressing the question whether the first appellant actively associated himself with the common criminal purpose, the jury required to consider all the evidence.  The evidence included not only the second appellant's evidence as summarised at the foot of page 2 of the judge's report, but also the evidence of Mr Boyd as summarised at the foot of page 5 of that report.  The jury therefore had an evidential basis that the first appellant's involvement was greater than he was prepared to admit.  It was for the jury to assess that evidence when answering the question whether the first appellant actively associated himself with the common criminal purpose. 

[2]        The only sentence in the charge which was criticised appears at the top of page 46.  That sentence was, in the context we have outlined above, a necessary and proper direction and not a misdirection.  Even if we are wrong on that matter, there was no criticism of the judge's full and detailed directions on the law of concert, we are therefore satisfied that on no view could it be said that there has been a miscarriage of justice and the appeal against conviction is refused.

[3]        Turning to the appeal against sentence, we have given careful consideration to all the mitigatory factors (of which the trial judge was of course aware).  We are unable to say that the sentence imposed was excessive, either on a comparative basis or on a "stand-alone" basis.  It follows that the first appellant's appeal against sentence is refused.

[4]        We turn now to the second appellant's appeal against conviction.  On behalf of the second appellant it is contended that the trial judge's directions did not go far enough.  In particular the trial judge ought to have specifically directed the jury that if they accepted what the second appellant had said when giving evidence, then they were entitled to bring in a verdict of culpable homicide. 

[5]        Again, at the outset, we note that the only live issue in the trial was whether the second appellant committed the crime of murder or the crime of culpable homicide.  In that context, the trial judge at page 21 of her charge directed the jury as follows:

"The second accused has chosen to give evidence, and he has subjected himself to cross examination and he has given evidence on oath.  That evidence becomes available for you to assess and consider in respect of all the evidence in the case and you treat the evidence of the second accused in the same way that you treat the evidence of any witness.  If you believe him or you believe any evidence which clears him of murder, then you are entitled to give him the benefit of that evidence, even if that evidence stands alone. And even if you don’t completely believe the evidence if the evidence leaves you with a reasonable doubt that the accused is guilty of murder then you must reflect that in your verdict".

The phrase "reflect that in your verdict" in the context of this trial and the charge as a whole, was clearly a direction that in the event that they were left with a reasonable doubt that the accused was guilty of murder then they must convict of culpable homicide.  In fact, the trial judge went further than what it is said she should have done.  She correctly directed the jury that even if they did not completely believe the second appellant but the evidence left them with a reasonable doubt, then that must be reflected in their verdict. 

[6]        In the result therefore we have not been persuaded that there is any merit in the second appellant's appeal against conviction.  That appeal is refused.