McKINNON v HM ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 13 February 2003 |
| Docket Number | No 3 |
| Date | 13 February 2003 |
| Court | High Court of Justiciary |
JC
L J-G Cullen, Lord Cameron of Lochbroom Lord MacLean, Lord Osborne and Lord Hamilton
Crime - Art and part - Murder - Assault - Pannels discussing the carrying of knives prior to robbery - Evidence as to individual using knife to strike fatal blows unclear - Alleged misdirection on the law as to concert - Failure to correct submission of advocate depute to jury relying on foreseeability of use by other pannels - Exclusion of culpable homicide from consideration of jury
Five accused stood trial on a charge of murder and two charges of assault. The evidence established that the accused were in the house of one of them and at least four of them had discussed going to the house of the deceased with a view to committing a robbery, as well as obtaining knives with which to carry out the robbery. Knives were obtained. The accused appeared at the door of the deceased and confronted him and his father and younger brother. In the course of the altercation that followed, the deceased received three stab wounds in the chest, which proved fatal. The others who had also been attacked had sustained wounds, one of which was a knife wound. The evidence was equivocal although it pointed to one of the accused as having stabbed the deceased. Following trial, four of the accused were convicted on all three charges and the fifth on the assault charges. Three of the accused convicted on all three charges appealed against conviction.
On appeal, it was maintained that the trial judge had misdirected the jury on the law relating to concert by: (i) failing to correct a contention by the advocate depute in her speech to the jury that what happened was foreseeable to the accused; and (ii) by effectively excluding culpable homicide from the jury's consideration by restricting to two the matters before the jury, namely, whether the circumstances in which the deceased was stabbed indicated that the assailant had a murderous intent, and whether any of the accused were unaware that knives were being carried and were liable to be used but had contributed in some sense to the death of the deceased.
Held that: (1) it was clear to the jury that they were expected to look to the trial judge for directions as to the law to be applied and it was therefore not incumbent on the trial judge to specifically correct a contention advanced by the advocate depute (p 42E) and (2) that if the jury were satisfied that an individual accused was aware that knives were being carried and liable to be used in the projected enterprise, it was clearly open to them to infer that there was an obvious risk that they might be used to commit murder as a consequence or development of the pursuit of the criminal purpose of robbery (p42F-G), and appeals refused.
Passages in the opinion of the Court inBrown v HM AdvocateUNK 1993 SCCR 382 disapproved.
STEPHEN McKINNON, ROSS McKAY AND ALAN JUNIOR NORWOOD were charged along with two other co-accused on a charge of murder and two charges of assault relating to a single incident on 12 September 1999. Following trial, all three appellants were convicted on all three charges.
The pannels thereafter appealed to the High Court of Justiciary against conviction.
Cases referred to:
Barrie v HM Advocate 2002 SLT 1053
Boyne v HM Advocate 1980 SLT 56
Brown v HM AdvocateUNK 1993 SCCR 382
Coleman v HM AdvocateUNK 1999 SCCR 87
Docherty v HM AdvocateSC 1945 JC 89
Mathieson v HM AdvocateUNK 1996 SCCR 388
Melvin v HM AdvocateUNK 1984 SCCR 113
R v PowellELR [1999] 1 AC 1
Textbooks referred to:
Anderson, The Law of Scotland, p 48
Hume, on Crimes, pp 264, 265, 268-270, 271
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Cullen), Lord Cameron of Lochbroom, Lord MacLean, Lord Osborne and Lord Hamilton for a hearing, on 26 and 27 January 2003. The opinion of the Court was delivered, on 13 February 2003, by the Lord Justice-General.
OPINION OF THE COURT - [1] The three appellants stood trial along with two co-accused on a charge of murder and two charges of assault relating to a single incident on 12 September 1999. On the charge of murder the Crown sought the conviction of the accused on the basis that it was the outcome of an antecedent concert between them to commit the crime of assault and robbery. In the result the appellants, along with a co-accused John Jackson, were found guilty of all three charges. The co-accused Leon Barrie was convicted only of the assault charges. All five accused appealed against their convictions. In due course the appeal of John Jackson was abandoned; and the appeal of Leon Barrie was allowed (Barrie v HM Advocate). When dealing with Barrie's appeal the court decided that the appellants' appeals should be referred to a larger court for consideration of the law of concert in light of what was said by the court in Brown v HM Advocate and earlier decisions.
[2] It is convenient to deal first with the law of concert and thereafter with the present appeals.
[3] Senior counsel for the appellant McKinnon submitted that where the Crown relied on concert to establish the guilt of accused persons the jury required to be satisfied in regard to the individual accused that he personally had the appropriate mens rea, that is, that he had in contemplation as part of the criminal purpose an act of the degree of wicked recklessness for murder, such as occurred in the particular case. He relied for this purpose on what was said by the court in Brown at p 393. Thus, the fact that a number of persons set out to rob the victim, knowing that knives were to be used, was not enough to make them responsible for murder committed by one of their number. He emphasised that there had been a progressive change in the approach to the responsibility of an individual accused, contrasting the opinion of Lord Moncrieff in Docherty v HM Advocate with the individualistic approach adopted in Brown.The law had moved away from attributing to an accused what he should have foreseen to what was in his mind as to the behaviour of others. He submitted that the decision in Melvin v HM Advocate had introduced the principle of distinguishing, among persons who had acted in concert, between those who were guilty of murder and those who were guilty only of culpable homicide.
[4] Senior counsel for the appellant McKay adopted senior counsel for the first appellant's submissions and added a number of other contentions. He submitted that when all that was known was that an accused was one of a number of persons who had participated in an attack on the victim, the jury required to consider whether it was proved that he had associated himself with conduct which displayed the sufficient degree of wicked recklessness that the killing of the victim was murder.
[5] For the appellant Norwood, senior counsel distinguished between two concepts which she submitted lay at the heart of the appeal, namely the law of concert (or art and part responsibility) and the mens rea of murder. As regards concert, if the jury were satisfied that the assault which caused the death was within the scope of the joint enterprise then the appellant was art and part responsible for the homicide. Matters such as the actual foresight of the accused or the reasonable foreseeability of events arose in the process of deciding what was within the scope of the joint enterprise and to what extent the accused was a party to it. Foresight or foreseeability were important factors from which the jury could infer art and part responsibility. Once the jury were satisfied that the appellant was responsible for homicide on an art and part basis, they then had to consider the question of the wickedness of the accused's participation. That was in order to determine whether they were satisfied that the Crown had proved that his participation amounted to wicked recklessness. The quality of his actions, and hence the degree of recklessness shown by him, were matters of fact for the jury to determine. They depended on inferences to be drawn from all the relevant circumstances. There might be some circumstances in which the only reasonable inference from the evidence was murder. The same factors which were relevant to determination of the scope of the joint enterprise - foresight and foreseeability - were relevant to determining the degree of recklessness or wickedness involved. It was too simplistic and wrong to take the view that participation in an assault which caused death in the course of a robbery automatically amounted to murder. The only basis on which murder could be so simply ascribed to the actions of an accused was by the imposition of an outdated public policy. Today the aims of any such policy could be met by finding art and part responsibility for homicide, as distinct from murder.
[6] The advocate depute criticised the submissions made by senior counsel for the second appellant the ground that, if they were correct, they would undermine the law on the basis of which an accused could be found guilty art and part. He submitted that the critical issue was the basis on which the law rendered a secondary party to be art and part in respect of a crime, such as murder, committed by another. For the purposes of determining the scope of the common criminal purpose Scots law had always taken an objective approach. What the court had said in Brown sought to introduce a subjective approach. The scope of the criminal purpose included not only what the participants agreed to do but also what could reasonably have been anticipated. Thus a jury would be entitled to convict of murder if the scope included the use of a weapon which might have fatal consequences. This depended on the jury's assessment of the evidence in the particular case. The advocate depute also said that the mens rea of the accused required to be considered, but by joining in the common criminal purpose he or she could demonstrate a...
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