Baxter v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 08 May 1997 |
| Date | 08 May 1997 |
| Docket Number | No 26 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Kirkwood and Lord Wylie
Crime—Murder—Incitement to murder—No instruction to kill—Whether such instruction necessary—Evidence—Sufficiency
A dispute arose among various owners of flats in a tenement over a scheme for refurbishment and over the related grants. The complainer had been obstructing the scheme and it was feared that if he continued to do so, it would not go ahead and the grants would not be obtained. The pannel threatened the complainer and decided to remove the obstruction by having the complainer killed. The pannel thereafter incited a fellow employee to do the killing. He met that employee by arrangement and discussed with him various ways in which the complainer might be killed. The pannel asked the employee how much “something like that” might cost and the employee said about £5,000 and that they would sort something out. There was no instruction to kill given by the pannel who ended the conversation on the basis that he would give the employee a call. The conversation had been taped and, at trial, the pannel did not argue that the conversation had not been made but explained that it had been a stunt which had been designed to show that the pannel, who was to become the foreman of a squad of workman, would be “a tough customer.” On being convicted, the pannel appealed to the High Court of Justiciary and argued that there was no evidence of a definite, final instruction to kill which was an essential prerequisite to a charge of incitement to murder.
Held (1) that a person might be guilty of incitement without actually instructing the other to commit the crime in question and although the trial judge had been correct to stress the importance of the jury being satisfied that the pannel had seriously intended the employee to kill the complainer, it was unnecessary for the jury to find that he specifically instructed him to do so provided that the pannel seriously intended the employee to carry out the crime; and (2) that, on the evidence, the jury had been entitled to draw the necessary inference; and appeal refused.
James Patrick Baxter was charged on an indictment at the instance of the Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, the libel of which set forth that: “[B]etween 29 and 31 July 1996, both dates inclusive, in the course of telephone calls made to 50 High Street, East Linton and at Battery Road, North Queensferry, you did for the purpose of inciting Edward Ingle, 50 High Street, East Linton to murder Thomas Thomson Gardner, aged 69 years, 145 Bruntsfield Place, Edinburgh, provide him with a description and address of said Thomas Thomson Gardner, propose ways in which said murder might be carried out, agree to pay him £5,000 to carry out said murder and propose ways in which you could avoid being linked with said murder, and you did incite him to murder said Thomas Thomson Gardner.”
The pannel pled not guilty and the cause came to trial before Lord Johnston and a jury in the High Court of Justiciary at Edinburgh.
After trial, the pannel was convicted by a majority decision of the jury and was sentenced to...
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