Green v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Turnbull,Lord Drummond Young |
| Judgment Date | 14 November 2019 |
| Neutral Citation | [2019] HCJAC 76 |
| Docket Number | No 10 |
| Date | 14 November 2019 |
| Court | High Court of Justiciary |
[2019] HCJAC 76
Lord Justice General (Carloway), Lord Drummond Young and Lord Turnbull
Advocate (HM) v Boyle [2009] HCJAC 89; 2010 JC 66; 2010 SLT 29; 2010 SCCR 103; 2010 SCL 198
Advocate (HM) v Mills 1935 JC 77; 1935 SLT 532
Barrie v HM Advocate 2002 SLT 1053
Bradford v McLeod 1986 SLT 244; 1985 SCCR 379; [1986] Crim LR 690
Brown v HM Advocate 1993 SCCR 382
Campbell v HM Advocate [2019] HCJAC 58; 2020 JC 47; 2019 SLT 1127; 2019 SCCR 367
Clark v HM Advocate 2000 JC 637; 2000 SLT 1107; 2000 SCCR 767
Crombie v HM Advocate [2014] HCJAC 118; 2015 SCCR 29; 2015 SCL 144; 2014 GWD 36–669
Daniel v HM Advocate [2018] HCJAC 52; 2019 SCCR 55; 2018 GWD 30–379
Dobbins v HM Advocate 1980 SCCR (Supp) 253
Docherty v HM Advocate 1945 JC 89; 1945 SLT 247
Docherty v HM Advocate 2003 SLT 1337; 2003 SCCR 772
Elsherkisi v HM Advocate [2011] HCJAC 100; 2011 SCCR 735; 2012 SCL 181; 2011 GWD 37–758
Ferguson v HM Advocate [2015] HCJAC 89; 2015 SCL 972; 2015 GWD 35–563
Gardener v HM Advocate [2009] HCJAC 92; 2010 SCCR 116; 2010 SCL 330; 2010 GWD 4–65
Gubinas v HM Advocate [2017] HCJAC 25; 2017 SLT 663; 2017 SCL 556
H v HM Advocate [2010] HCJAC 111; 2011 JC 149; 2011 SLT 247; 2011 SCCR 25; 2011 SCL 246
Johnston v HM Advocate [2011] HCJAC 32; 2012 JC 49; 2011 SCCR 369; 2011 SCL 549; 2011 GWD 14–334
Kerwin v HM Advocate (HCA/2015/002694/XC) HCJAC, 30 March 2016, unreported
Kinlan and Boland v HM Advocate [2019] HCJAC 47; 2019 JC 193; 2019 GWD 23–369
Livingstone v HM Advocate 1974 SCCR (Supp) 68
McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 471; 2015 GWD 11–184
McKinnon v HM Advocate (No 2) 2003 JC 29; 2003 SLT 281; 2003 SCCR 224
McLeod v HM Advocate 1939 JC 68; 1939 SLT 556
Moynihan v HM Advocate [2016] HCJAC 85; 2017 JC 71; 2016 SCCR 548; 2016 SCL 977; 2016 GWD 31–546
Nisbet v HM Advocate 1979 SLT (Notes) 5
Parfinowski v HM Advocate [2013] HCJAC 123; 2014 SCCR 30; 2014 SCL 29; 2013 GWD 38–731
Porter v Magill [2001] UKHL 67; [2002] 2 AC 357; [2002] 2 WLR 37; [2002] 1 All ER 465; [2002] HRLR 16; [2002] HLR 16; [2002] BLGR 51; (2001) 151 NLJ 1886; [2001] NPC 184; The Times, 14 December 2001; The Independent, 4 February 2002; Daily Telegraph, 20 December 2001
Pullar v UK (22399/93) (1996) 22 EHRR 391; 1996 SCCR 755
Shaw v HM Advocate 1953 JC 51; 1953 SLT 179
Stewart v HM Advocate [2012] HCJAC 126; 2012 SCCR 728; 2012 SCL 1054; 2012 GWD 32–647
Tallis v HM Advocate 1982 SCCR 91
Thomson v HM Advocate 1999 SLT 913; 1998 SCCR 683
Hammond, C, Literature Review of Youth Offending and Sentencing in Scotland and Other Jurisdictions (Scottish Sentencing Council, Edinburgh, April 2019), para 3.6 (Online: https://www.scottishsentencingcouncil.org.uk/media/1961/youth-offending-and-sentencing-in-scotland-and-other-jurisdictions-literature-review-2.pdf) (2 January 2020))
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, 264 et seq
Judicial Institute for Scotland, Jury Manual (Judicial Institute for Scotland, Edinburgh, 2015), p 11.7/116 (Online: http://www.scotland-judiciary.org.uk/Upload/Documents/Export_Jury_Manual_2019104_1809_1.pdf) (2 January 2019))
Justiciary — Evidence — Witnesses — Accused as witness — Interruptions of the accused's evidence by trial judge — Whether nature, extent and tone of interruptions had led to miscarriage of justice
Justiciary — Art and part — Murder — Direction on antecedent concert in murder — Whether adequate direction on nature and extent of common criminal purpose — Whether misdirection
Paul Green, Lee Noonan and Robbie Darren Brown were charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling, inter alia, a charge of murder. On 7 December 2018, following a trial at the High Court of Justiciary in Glasgow, the accused were convicted of, inter alia, murder and were subsequently sentenced to detention or imprisonment for life. Punishment parts of 18 years, 21 years, and 18 years and 5 months respectively were imposed. The accused thereafter appealed against conviction and sentence to their Lordships in the High Court of Justiciary.
Three accused stood trial on a number of charges including murder. The evidence established that, following some form of discussion between them, the accused had headed towards the deceased's home. They were either all armed with knives and other weapons or must have known that their co-accused, or one or other of them, were carrying such weapons. En route, the third accused had asked a man for his hammer, which he refused to hand over. The first accused asked the man where the deceased lived but the second accused indicated that he knew. Each accused must have known, at the very least, that there was to be some form of violent confrontation with the deceased. The first and third accused, apparently mistakenly, entered the flat of a second man, who lived opposite the deceased, but left shortly thereafter. The deceased was subjected to a brutal attack, during which he suffered blunt force trauma and a fatal stab wound.
At trial, the judge interrupted the examination and cross-examination of the first accused on several occasions. He expressed concerns about whether evidence had been adduced in the Crown case and sought clarification of several of the accused's responses. The trial judge intervened when he considered that the accused was not answering questions. He expressed concerns about the accuracy of the evidence. The accused were convicted of murder, among other charges, and sentenced to detention or imprisonment for life, with punishment parts of 18 years, 21 years, and 18 years and 5 months respectively. The accused appealed against their convictions. The second and third accused also argued that the punishment parts imposed were excessive on the basis of their relative youth.
On appeal it was argued that the nature, extent and tone of the trial judge's interruptions of the first accused had led to a miscarriage of justice and that the judge had given inadequate directions on concert, including antecedent concert in murder, and the availability of a verdict of culpable homicide.
Held that: (1) as an overarching principle, a judge could, and in some situations ought to, intervene to clear up ambiguities at or about the time the ambiguity arose. A judge could also ask questions, normally at the conclusion of questioning by the parties, which were relevant and important for the proper determination of the case, but which remained unanswered (paras 50, 51); (2) the trial judge's interventions had been relatively few. He had not taken over the role of examiner or cross-examiner and had not displayed any bias but rather had sought to clarify matters and to ensure both the fairness of the trial and the accuracy of the evidence. This had not amounted to a miscarriage of justice (paras 53–57); (3) subject to the proviso that a judge's charge should be tailored to the specific circumstances of a case, where there had been ample evidence of antecedent concert, the key issue was the nature and extent of the common criminal purpose. The judge's directions should have focused the issue of whether one or other accused associated himself with the joint purpose of either killing the deceased or doing such violence to him as carried an obvious or foreseeable risk that he would be killed. The absence of such focus had been a misdirection (paras 61, 63, 64); (4) the evidence demonstrated that there had been a common criminal purpose involving all accused to engage in a violent confrontation with the deceased and, had the judge's directions on concert been supplemented by that recommended for cases of antecedent concert in murder, the jury would have been bound to convict each accused of murder and no miscarriage of justice occurred (para 65); (5) where death was brought about by the deliberate act of assault, recklessness and carelessness should not form part of the jury directions, but the misdirection had not been material where the jury had considered each accused was responsible, art and part, for murder (para 66); (6) the punishment parts selected for the second and third accused were excessive having regard to their comparative youth (para 83); and appeals against conviction refused, and appeals against sentence allowed.
Livingstone v HM Advocate 1974 SCCR (Supp) 68 applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Drummond Young and Lord Turnbull, for a hearing, on 10 October 2019.
At advising, on 14 November 2019, the opinion of the Court was delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] Two issues are raised in these three conviction appeals. The first is the nature and extent to which a trial judge may interrupt the examination and cross-examination of an accused. The second is the adequacy of the judge's directions on antecedent plan concert.
[2] The second and third appellants challenge the level of the punishment parts, which were imposed in conjunction with the sentences of detention or imprisonment for life, on the basis of their relative youth.
[3] On 7 December 2018, at the High Court in Glasgow, the appellants were convicted of a number of offences including that:
‘(5) on 23 February 2018 at … 19 Copland Quadrant, Glasgow, you … did assault James Watt, residing there and did strike him repeatedly on the body with knives …, strike him on the body with an unknown object or objects and a golf club and otherwise inflict blunt force trauma to his head and body, and you did murder him and you Paul Green did previously evidence malice and ill will towards him’.
[4] On 29 January 2019 the trial judge imposed sentences of detention or imprisonment for life on each appellant. He selected punishment parts...
To continue reading
Request your trial
-
Ahmed v HM Advocate
...33 Carberry v HM Advocate [2013] HCJAC 101; 2014 JC 56; 2013 SCCR 587; 2013 SCL 934; 2013 GWD 30-593 Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39-631 H v HM Advocate [2015] HCJAC 42; 2015 SLT 380; 2015 SCCR 242; 2015 SCL 674 MR v HM Advocate [2013] HCJAC 8; 201......
-
Hay v HM Advocate
...367 Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223; 2012 SLT 484; 2012 SCCR 176; 2012 SCL 385 Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39–631 Hibbard v HM Advocate sub nom H v HM Advocate [2010] HCJAC 111; 2011 JC 149; 2011 SLT 247; 2011 SCCR 25; 2011 SCL......
-
Miller v HM Advocate
...and HM Advocate Cases referred to: Fee v HM Advocate [2017] HCJAC 13; 2017 SLT 469; 2017 SCCR 166; 2017 SCL 376 Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39-631 Khalid v HM Advocate 1990 JC 37 McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 47......
-
Ditchburn v HM Advocate
...55 Lord Malcolm, Lord Turnbull and Lord PentlandNo 4 Ditchburn and HM Advocate Cases referred to: Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39-631 McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 471; 2015 GWD 11-184 McPhelim v HM Advocate 1960......