James Scott Mcdonald+raymond Anderson V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Marnoch,Lord Mackay of Drumadoon |
| Neutral Citation | [2011] HCJAC 71 |
| Court | High Court of Justiciary |
| Docket Number | XC319/08 |
| Published date | 23 February 2012 |
| Date | 15 July 2011 |
| Year | 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Mackay of Drumadoon Lord Emslie Lord Marnoch | [2011] HCJAC 71 Appeal No: XC319/08 XC331/08 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in APPEALS AGAINST SENTENCE by (FIRST) JAMES SCOTT McDONALD and (SECOND) RAYMOND ANDERSON Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
First Appellant: Findlay Q.C., V. Young, Advocate; J.C. Hughes, Glasgow
Second Appellant: Jackson Q.C., Lenehan, Advocate; Paterson Bell
Respondent: Miller, Advocate Depute; Crown Agent
15 July 2011
Introduction
[1] On 2 May 2008, at Glasgow High Court, the appellants, James Scott McDonald and Raymond Anderson, were both convicted after trial on seven charges in the indictment they faced: Charge (1), a charge of reset; Charges (2) - (4), three contraventions of the Firearms Act 1968; Charges (6) and (7), two charges of attempted murder; and Charge (8), a charge of murder.
[2] On the same date, the trial judge sentenced each appellant to five years imprisonment in respect of Charge (1), five years imprisonment in respect of Charge (2), ten years imprisonment in respect of Charge (3) and five years imprisonment in respect of Charge (4). Those sentences were backdated to 5 March 2007. They are not the subject of any appeal.
[3] The trial judge did not impose sentences on the appellants in respect of the two charges of attempted murder, Charges (6) and (7). According to his report, he refrained from doing so because the charges of attempted murder had formed part of the same incident that gave rise to the charge of murder. In respect of the charge of murder, Charge (8), the trial judge sentenced each of the appellants to life imprisonment backdated to 5 March 2007. In terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act") the trial judge ordered that a punishment part of 35 years be served by each appellant, before the provisions of sections 2(4) and 2(6) of the 1993 Act should apply. In fixing the punishment parts at 35 years, the trial judge took into account that each of them had also been convicted on Charges (1), (2), (3), (4), (6) and (7). Each appellant has appealed against the imposition of a punishment part of 35 years.
The charges
[4] The appellant McDonald was convicted of charges in the following terms:
"(1) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did reset three machine guns, a bipod, a telescopic sight, quantities of ammunition and a number of flares, all of which had been dishonestly appropriated by theft;
(2) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow, and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did have in your possession firearms, namely three machine guns, without holding a Firearms Certificate in force at the time:
CONTRARY to the Firearms Act 1968, Section 1(1)(a) as amended;
(3) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow, and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did without the authority of the Secretary of State or the Scottish Ministers, have in your possession prohibited weapons to which Section 5 of the aftermentioned Act applies, namely three machine guns:
CONTRARY to the Firearms Act 1968, Section 5(1)(a) as amended;
(4) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow, and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did have in your possession ammunition to which Section 1 of the aftermentioned Act applies, namely a number of 5.56 millimetre bullets and a quantity of 9 millimetre bullets, without holding a Firearms Certificate in force at the time: CONTRARY to the Firearms Act 1968, Section 1(1)(b) as amended;
(6) on 6 December 2006 at the premises known as Applerow Motors, 730 Balmore Road, Glasgow with faces masked, you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did assault Steven Lyons, c/o Strathclyde Police, Maryhill, Glasgow, present firearms, namely handguns, at him, pursue him, repeatedly discharge said firearms at him and repeatedly shoot him on the body all to his severe injury, permanent disfigurement and permanent impairment and to the danger of his life and did attempt to murder him;
(7) on 6 December 2006 at the premises known as Applerow Motors, 730 Balmore Road, Glasgow, with faces masked, you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did assault Robert Pickett, c/o Strathclyde Police, Maryhill, Glasgow present firearms, namely handguns, at him, pursue him, repeatedly discharge said firearms at him and attempt to shoot him, pursue him, struggle with him, and repeatedly shoot him on the body all to his severe injury, permanent disfigurement and permanent impairment and to the danger of his life and did attempt to murder him; and
(8) on 6 December 2006 at the premises known as Applerow Motors, 730 Balmore Road, Glasgow, with faces masked, you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did assault Michael Lyons, now deceased, c/o Strathclyde Police, Maryhill, Glasgow present firearms, namely handguns, at him, pursue him, repeatedly discharge said firearms at him and shoot him on the body and did murder him."
Subject to one modification applicable to each of Charges (1), (2) and (3), the terms of the charges on which the appellant Anderson was convicted were identical to those relating to the appellant McDonald. When convicting the appellant Anderson on Charges (1), (2) and (3), the jury deleted the reference to "three machine guns" in each charge and substituted therefor "a machine gun".
[5] The facts relating to Charges (1) - (4) on the indictment are relatively straightforward. The trial judge reports that the jury heard evidence that on 11 January 2007 police officers searched a house at 82 Inishail Road, Glasgow occupied by two Crown witnesses. During the search a machine gun, a bipod, a telescopic sight, quantities of ammunition and a number of flares were recovered. One of the occupiers, who was related to the appellant McDonald, gave evidence that the latter had delivered the items to the house. Surveillance of the house prior to the delivery of the items had also resulted in the appellants being observed arriving in separate cars at the time of the delivery. Covert surveillance later recorded the appellant McDonald boasting about having had the items, although he referred to three machine guns and the police having recovered them. The items were military equipment, which could not be lawfully possessed by civilians.
[6] In relation to charges (6), (7) and (8), the trial judge prepared full reports for this court for the purposes of appeals against conviction which had been lodged in respect of each appellant. Those appeals were refused on 1 October 2010 (McDonald & Anderson v H M Advocate [2101] HCJAC 95). In summary, the evidence relating to charges (6), (7) and (8) disclosed that during the afternoon of 6 December 2006 two masked men, whom the jury concluded were the appellants, entered the premises of Applerow Motors, 730 Balmore Road, Glasgow. A garage business involving the repair of motor vehicles and MOT testing was based at the premises. In front of and to the side of the buildings, where servicing, testing and repairs were undertaken, there were areas of tarmacadam on which vehicles could park. The business was owned and operated by a Crown witness, David Lyons. His son, Mark Lyons, another Crown witness, was a mechanic there. On 6 December 2006 David Lyons and his son were both working at the garage, when Michael Lyons, a 21 year old nephew of David Lyons, arrived. He became the victim of the murder charge. Michael Lyons operated a car valeting service. He kept the van he used in connection with that business at the garage premises occupied by Applerow Motors. After arriving at the garage, he filled his van with water and valeted his own car. Steven Lyons, a 27 year old nephew of David Lyons, and subsequently the complainer on Charge (6), one of the charges of attempted murder, also arrived at the garage. He was in his Ford Focus motor car. In the front passenger seat was Robert Pickett, a further Crown witness and subsequently the complainer on Charge (7), the other charge of attempted murder. When Steven Lyons arrived he got out of his car and spoke to Michael Lyons, David Lyons and other people at the garage. Robert Pickett remained in the car. Whilst Steven Lyons was speaking to others, David Lyons saw two masked men walking into the garage forecourt. David Lyons shouted to Steven Lyons and the others to watch out. The two masked men started to run. It could be seen that each of them had a handgun. Steven Lyons jumped into his car and the men started firing. Steven Lyons drove round the side of the garage to the back. As he did so one of the men ran after the car repeatedly firing at it, whilst the other man went into the garage premises where David Lyons, Mark Lyons and Michael Lyons had run upon seeing the gunmen. At least four shots were fired at the car being driven by Steven Lyons. The car collided with a fence at the rear of the premises and Steven Lyons and Robert Pickett got out of the car. The rear window of the car was shattered and a bullet or bullets had passed through the upholstery. When Steven Lyons and Robert Pickett were still in the car, Pickett was struck twice by bullets and sustained minor injuries to his shoulder and the bottom of his back....
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