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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 44
HCA/2024/104/XC
HCA/2024/300/XC
Lord Justice General
Lord Justice Clerk
Lady Paton
Lord Malcolm
Lord Pentland
Lord Matthews
Lord Armstrong
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTES OF APPEAL AGAINST CONVICTION
by
(1)
MARIA ELENA GARDINER and (2) MICHAEL ANDERSON
Appellants
against
HIS MAJESTY'S ADVOCATE
Respondent
First Appellant: Jackson KC, Deans, Reid; John Pryde & Co (for MSM Solicitors, Glasgow)
Second Appellant: Graham KC, Culross; Collins and Co (for Virgil Crawford Solicitors, Stirling)
Respondent: The Lord Advocate (Bain KC), MacIntosh AD, Blair AD; the Crown Agent
________________________
29 October 2024
2
Introduction
[1]
On 24 January 2024, in the High Court at Glasgow, Maria Gardiner, Michael
Anderson and James Houston were found guilty of the murder of Brian Maley and of
assaulting the deceased's partner, Lynsey Patterson. Each was sentenced to imprisonment
for life with a punishment part of 18 years.
[2]
The appeal concerns the law of concert in homicide cases; specifically whether a jury
can return a verdict of murder against one accused and, in respect of the same act, a verdict
of culpable homicide against another. The appellants maintain that the judge misdirected the
jury by telling them that they could not convict one accused of murder and the others of
culpable homicide.
[3]
Ms Gardiner has an appeal against sentence.
The crimes
[4]
Mr Anderson suspected that the deceased had stolen drugs and/or money from him.
He enlisted Mr Houston to assist him in recovering those items. Text messages between
Mr Anderson and Mr Houston on 6 February 2022 showed that their joint intention was to
"sort out" the deceased.
[5]
Ms Gardiner was Mr Houston's partner. Late on 7 February 2022, they both went to
Mr Anderson's flat in Govan. They discovered from the internet that the deceased's flat was
in Springburn. They devised a plan to go there, "sort out" the deceased and "give him a
doing" or "a beating". It was anticipated that Ms Patterson would be at the deceased's
address.
[6]
Early on the morning of 8 February 2022, the appellants and Mr Houston set off for
Springburn. Ms Gardiner and Mr Houston left their phones at home. They took
3
Mr Anderson's toolbox, which contained at least a hammer, a file, a blowtorch and other
tools, including a chisel. The toolbox was mostly carried by Mr Houston, but on one
occasion by Ms Gardiner. There was conflicting evidence about what happened when they
arrived at the flat. Ms Patterson, who had died prior to the trial diet and whose evidence
was taken under section 259 of the Criminal Procedure (Scotland) Act 1995, said that the
deceased was attacked by Mr Houston. Mr Anderson straddled her and hit her over the
head with a gin bottle. She was not aware of the presence of Ms Gardiner until she saw her
leaving. That was inconsistent with her initial 999 call in which she was recorded as saying
that "three people ran in and stabbed him". Mr Houston testified that the deceased was
attacked by Mr Anderson and Ms Patterson was attacked by Ms Gardiner.
[7]
At all events, the deceased was assaulted by no less than five different weapons,
including a hammer, a knife and a blowtorch. It was not clear where the knife had come
from. The deceased suffered 86 different sites of injury, 36 of which were inflicted by a sharp
implement. The attack lasted about 17 minutes. The fatal injury was a penetrating stab
wound to the right arm. The deceased suffered such severe and rapid blood loss that he died
at the scene.
[8]
The assailants returned to Govan. En route, Ms Gardiner threw away her jacket,
which contained latex gloves in a pocket, and a Stanley knife. The murder weapon was not
found. Mr Anderson had left his mobile at the deceased's address. It was recovered with
small spots of the deceased's blood adhering to it; suggesting close proximity to the attack.
In both conversations with a witness and texts sent from another phone, Mr Anderson
appeared to accept responsibility for the death. He did not testify.
4
The issue
[9]
The issue was whether all three co-accused were responsible for the death on the
basis of concert. The trial judge provided the jury with the standard definitions of murder
and culpable homicide; explaining that either verdict was open to them in relation to the
principal actor, depending upon the quality of the stabbing. On concert, he said:
"If you were to be satisfied that, first, the accused were acting together with a
common purpose; secondly that their common purpose either involved killing [the
deceased], or was liable to involve the use of a type and level of violence on him as to
create an obvious or foreseeable risk that [the deceased] would be killed; and,
thirdly, that in carrying out that common purpose, one of the accused actually killed
[the deceased], wickedly intending to kill him or acting with the wicked recklessness
needed for murder, then each of the accused who by their words or actions actively
associated themselves with that common purpose would be guilty of murder by
virtue of the principle of concert.
... [A] few moments ago you heard me talk about culpable homicide. How could
that arise on the evidence in this trial? ... [T]he issue of culpable homicide could arise
... only if you were to conclude that the person who stabbed [the deceased] in the
arm did so deliberately, but without either the wicked intention to kill him or wicked
recklessness as to whether he lived or died. That is an issue of fact for you.
If you were to come to the conclusion that the person who stabbed [the deceased] in
the arm did so deliberately but without either wicked intention to kill him or wicked
recklessness as to whether he lived or died, then each accused who by their words or
actions actively associated themselves with a common purpose in which such an
injury was intended or was objectively foreseeable would be guilty, applying the
principle of concert, only of the less serious crime of culpable homicide.
[...]
If you consider that the Crown has proved that an identifiable accused stabbed [the
deceased], what then is the position of the two co-accused?
If you also found ... that there was a common plan with which either or both of the
other two accused actively associated, and in which the use of a weapon to inflict
such an injury on [the deceased] was included or was foreseeable as being liable to
happen, then each accused who by their words or actions actively associated
themselves with such a plan or common purpose could also be guilty by application
of the principle of concert of the same crime as the accused who actually inflicted the
fatal stab wound that killed [the deceased].
5
If, however, you were not satisfied that a particular accused actively associated
themselves with such a common purpose - and by that I mean a common purpose
that included the use of a weapon to inflict such an injury on [the deceased], or in
which the infliction of such an injury was objectively likely - then you could not find
that accused guilty of either murder or of culpable homicide. If they're not party to
such a common purpose, you could not find them guilty of either murder or culpable
homicide. In that situation, you could find that accused person guilty only of what
they themselves are proved to have done, together with any non-fatal elements of the
pre-planned assault on [the deceased] with which they actively associated themselves
by their words or actions...
[...]
"You will need, therefore, to look at the evidence in stages. First decide what is the
evidence against each accused separately. Secondly, if there's sufficient to implicate
the accused, decide if there was a common criminal purpose among them and, if
there was, what that common purpose was; and thirdly, with each accused, decide if
that accused was party to that common criminal purpose and, if so, to what extent."
Submissions
Second Appellant
[10]
The second appellant addressed the court first. Founding upon McKinnon v HM
Advocate 2003 JC 29, the second appellant submitted that the law of concert permitted
different verdicts, of murder and culpable homicide, to be competently delivered in respect
of separate co-accused. The trial judge erred in removing the discretion, which was vested in
the jury, to convict the principal actor of murder and the ancillary actors of culpable
homicide.
[11]
In the second appellant's written Case and Argument, it was accepted that, although
the principal actor's guilt was to be established by examining his own criminal intent
(McKinnon v HM Advocate at para [28]), that of the ancillary actors was to be established by
reference to the common plan and whether homicide was within the scope or purpose of that
plan (ibid). This was an objective rather than subjective test. It was open to the jury to
conclude that certain risks were not foreseeable by the ancillary actors, who should therefore
6
have either been acquitted or convicted of culpable homicide (ibid para [30]). This could arise
if the jury concluded that it was not obvious to the ancillary actors that weapons were being
carried or that they might be used.
[12]
The ancillary actors were guilty of murder if they associated themselves with a
common purpose, which either included the taking of a human life or carried such an
obvious risk. If this were not established, the ancillary actors could be convicted of culpable
homicide, notwithstanding that another person was guilty of murder. There was no rule that
the jury must convict the co-accused of the same crime as the principal actor. That was a
matter for the discretion of the jury (ibid para [31]). A single stab wound could still result in
different verdicts against different accused (Hopkinson v HM Advocate 2009 SCCR 225 at
paras [20] to [25]). Care should be taken before removing a possible alternative verdict from
the jury (Brown v HM Advocate 1993 SCCR 382 at 391).
[13]
In oral submissions, a different approach appeared to be advanced. The starting
point ought to be to look at the definitions of murder and culpable homicide and then
determine the mens rea of each accused at the time of the attack in order to assess their
individual levels of culpability. This would eliminate the illogicality described in Carey v
HM Advocate 2016 SCCR 148 (at para [29]). Murder required wicked intent to kill or wicked
recklessness (Drury v HM Advocate 2001 SLT 1013). An accused may be found guilty of
murder on an art and part basis where a reasonable person would have foreseen "an obvious
risk of life being taken" (McKinnon v HM Advocate at para [31]; Poole v HM Advocate 2009
SCCR 577; Black v HM Advocate 2006 SCCR 103 at para [33]). The directions to the jury were
erroneous because they provided an "all or nothing" approach to the ancillary actors. The
court in McKinnon had made considerable efforts to analyse the law on concert from the time
7
of Hume through to Docherty v HM Advocate 1945 JC 89. There was no illogicality in its
reasoning.
[14]
In this case there was a common criminal purpose involving three people going from
one area of Glasgow to another and carrying a toolbox containing items which could be used
as weapons. Injury was in contemplation, but not necessarily serious injury. Culpable
homicide should have remained an option.
First appellant
[15]
In the first appellant's Case and Argument, it was accepted that, in line with
McKinnon v HM Advocate, if the relevant concert were established, there was no separate
question of mens rea on the part of the ancillary actors. The principal actor's guilt was to be
established according to his or her mens rea, but that of the ancillary actors was to be
ascertained by reference to the common criminal purpose and whether homicide was within
its scope. That scope was determined objectively according to what was foreseeable as likely
to happen. If it was not foreseeable that the deceased might suffer serious injury, an ancillary
actor should either be acquitted or convicted of culpable homicide, even if the principal actor
was guilty of murder. It had, according to counsel, for many years been a practice for guilty
pleas to both murder and culpable homicide to be negotiated in concerted attack cases.
[16]
The idea that there was no requirement for the ancillary actor to appreciate the risk of
serious injury did not sit well with the definition of murder (Drury v HM Advocate (at
para [11]) and HM Advocate v Purcell 2008 JC 131 (at para [16]); cf Poole v HM Advocate 2009
SCCR 577 at para [11])). The court should take the opportunity to affirm that the mens rea of
each accused at the time of the attack required to be assessed. They could only be found
guilty of murder if they had the requisite intention for murder at that time (see Brown v HM
8
Advocate 1993 SCCR 382 at 391). It was unfair and unjust to ignore the mens rea of the
ancillary actors.
[16]
The trial judge had misunderstood McKinnon and therefore misdirected the jury in so
far as he said that culpable homicide only arose in determining the guilt of the principal
actor. In relation to Ms Gardiner, culpable homicide could arise if the jury were not satisfied
that she knew that the principal actor was carrying a weapon to be used to kill the deceased.
This was open to the jury, since there was no evidence that she had assaulted the deceased.
The Crown's position had been that it had been either Mr Anderson or Mr Houston who had
delivered the fatal blow. There was no evidence that Ms Gardiner knew that potentially
lethal weapons were in the toolbox. "Great caution" was required before the alternative
verdict was withdrawn (Brown v HM Advocate at 391; Hopkinson v HM Advocate at paras [20]
to [23]).
Crown
[17]
The Lord Advocate provided a detailed written Case and Argument. Chronologically
this first set out the views of the Institutional Writers. These were summarised as being that
art and part guilt extended to all participants in a common purpose for objectively
foreseeable acts within the scope of that purpose. As a generality, there was no basis for
different homicide verdicts (MacKenzie: Matters Criminal 246 and 252; Hume: Commentaries
(4th ed) I. 264 et seq; Burnett: Criminal Law (5th ed) 2, 7; Alison: Principles 60-67 and 523).
[18]
In the pre McKinnon cases, the directions in HM Advocate v McGuiness 1937 JC 37
(transcript of charge at 372) were that, if a number of men were acting with a common
criminal purpose to inflict "serious injury", it did not matter that one used a knife and the
others only fists. Docherty v HM Advocate 1945 JC 89 (at 95-96) was to a similar effect, where
9
the persons acting in concert had reason to believe that a lethal weapon would be used. All
would be guilty of murder. If they only anticipated minor violence, they would not be
guilty. An objective test was to be applied (see also Crosbie v HM Advocate, unreported,
21 January 1946 (reported on another point 1946 JC 79); Harris v HM Advocate, unreported,
9 September 1950; HM Advocate v Miller and Denovan, reported in a note to Parr v HM
Advocate 1991 JC 39 at 48; Boyne v HM Advocate 1980 SLT 56 at 59). In short, culpable
homicide was not generally open to a jury where the ancillary actors were found to have
acted in concert with a murderous actor.
[19]
The situation altered with Melvin v HM Advocate 1984 SCCR 113 in which the jury,
unbidden, convicted one accused of murder and another of culpable homicide. The person
who was convicted of murder appealed on the basis that the two contrasting verdicts
involved a "logical inconsistency". The appeal was refused. There was no reference to
authority and the case was said to be unusual. Melvin was followed in Malone v HM Advocate
1988 SCCR 498 before the high watermark of differentiated verdicts was reached in Brown v
HM Advocate 1993 SCCR 382. In Brown, the trial judge had withdrawn culpable homicide
where two accused had attacked the deceased with a knife and a metal bar; the death being
caused with murderous intent by stabbing. The court posed a question of what evidence
there had been that the accused with the bar was acting with the same degree of recklessness.
This wrongly introduced subjective mens rea rather than focusing on the objective test of
foreseeability within the scope of the common purpose. No authority was cited for this
departure from well-established principles. A different opinion was delivered in Codona v
HM Advocate 1996 SCCR 300 (at 317) which saw a return to foreseeability within the scope of
the common criminal plan.
10
[20]
In Mathieson v HM Advocate 1996 SCCR 388, the trial judge followed Brown in
directing the jury (at 393) that, in a concerted attack, they should look to see whether the
ancillary actors had the requisite state of mind to constitute murder. He directed the jury
that they could convict the principal actor of murder but the ancillary actors of culpable
homicide (cf Kabalu v HM Advocate 1999 SCCR 348; ccf Coleman v HM Advocate 1999 SCCR
87).
[21]
McKinnon v HM Advocate had involved a more comprehensive analysis of the law
than the earlier authorities. The court held (at para [22]) that guilt in concert cases was
determined in an objective manner. It corrected Brown by stating that it was not necessary to
look at what each accused contemplated at the time of the attack, but it erred in holding (at
para [23]) that different verdicts were possible in concert situations. The court restricted that
possibility to cases in which what was in contemplation by the accessory was only "relatively
minor" injury; the risk of death being obvious when serious injury was within the plan.
Where McKinnon diverged from the established law was in the statement (at para [30]) that,
when a person is in concert with others but serious injury was not foreseeable, he or she
might be acquitted or convicted of a "lesser crime than murder" "according to the part
played by him or her". The part played in the ultimate killing was irrelevant. McKinnon
went on to state correctly (at para [31]) that, where a person knows that weapons are to be
used, he may be convicted of murder, but earlier it had said (para [31]) that much will
depend on whether he or she had been reckless "as to the consequences of proceeding". That
conflicts with the court's earlier statement (at para [27]) that no separate question of criminal
intent arose, once concert were established. The court was correct (at para [32]) in outlining
how art and part guilt operated, but immediately erred in saying that a verdict of culpable
homicide was available if the ancillary actors participated in "some less serious common
11
criminal purpose". That was the illogicality identified in Carey v HM Advocate (at para [29]).
The appeal in McKinnon failed because, in the circumstances, where the accused participated
in an attack knowing that knives were liable to be used, an inference of guilt was "virtually
inevitable" (para [41]).
[22]
Several, but not all, subsequent cases followed McKinnon to one degree or another (eg
Advocate 2005 1 JC 252; cf Black v HM Advocate 2006 SCCR 103; Cameron v HM Advocate 2008
SCCR 669; ccf Touati v HM Advocate 2008 JC 215 at para [28]; Hopkinson v HM Advocate 2009
SCCR 225 at para [22]; Poole v HM Advocate 2009 SCCR 577; Scott v HM Advocate
217.
[23]
In Parfinowski v HM Advocate 2014 SCCR 30, it was said (at para [22]), in accordance
with Melvin, Malone and Brown, that the jury were entitled to assess the relative degree of
recklessness in a concert case and that there was no logical inconsistency in different verdicts.
It was said that the mens rea of the participants could differ. In Carey v HM Advocate, the
court reverted to Docherty and correctly said (at para [26]) that a verdict of culpable homicide
in concert with a murderous actor was "inconsistent with the principle of art and part guilt"
because "if the co-accused did not associate himself, judged objectively, with the use of lethal
force, he could not be convicted of any form of homicide (see "illogicality" at para [29]; see
also Green v HM Advocate 2020 JC 90 at para [65]).
[24]
In summary, an accused will be art and part in murder where: (a) he was a
participant in a common criminal purpose; (b) the infliction of a fatal injury was objectively
foreseeable as part of that purpose, and (c) the act is committed in pursuance of that purpose
by another participant. The application of concert does not involve any assessment of the
12
intention of the individual participants in a common purpose. There is no room for one
participant in a joint attack to be convicted of culpable homicide while the actor in the fatal
blow is convicted of murder. Exceptions may arise in relation to the operation of diminished
responsibility or provocation. The trial judge was correct to direct the jury that any accused
found to be art and part in the attack which had led to the fatal blow was guilty of the same
crime as the actor.
[25]
The Crown drew attention to the law in other jurisdictions. No purpose would be
served by examining the position in England and Wales because of the different definition of
murder (but see R v Jogee [2017] AC 387 disapproving, at para 94, Chan Wing Siu v R
[1985] AC 168). Differentiated homicide verdicts were competent (ibid at para 95). Canada had a
requirement that accessories had to be a "significant contributing cause" to the homicide (R v
Strathdee 2021 SCC 40 at para 4; R v Pickton 2010 SCC 32 at para 65). Subjective mens rea was
needed for murder (Hunt v R 2019 QCCA 1431 at para 24). In Australia, Jogee has not been
followed. If a party to a joint criminal enterprise foresaw, but did not agree to, a crime in the
course of that enterprise, he was liable for it if he continued to participate (Miller v The Queen
[2016] HCA 30 at para 4). Manslaughter was an option which should be left open to the jury
even if one accused is guilty of murder (Gilbert v R [2000] HCA 15; Nguyen v The Queen
[2013] HCA 32). Ireland had focused on the intention of the individual, rather than foreseeability
verdicts were therefore permissible (DPP v Gibney [2016] IESC 107).
[26]
Applying the correct principles to these appellants, this was a case of antecedent
concert. The situations in which the court had considered differentiated verdicts to be
competent involved, with the exception of Hopkinson, spontaneous concert (see Parfinowski at
para [22]). The deceased having been found to have been murdered, if either appellant
13
associated themselves with a plan in which the use of lethal weapons was foreseeable, the
inference relative to murder in concert was "virtually inevitable" (McKinnon at para [41]) and
the jury would be bound to convict (Green at para [65]). There was no evidential basis for
concluding that the appellants, whilst in concert, had reason to anticipate only a minor
injury.
Decision
[27]
McKinnon v HM Advocate 2003 JC 29 is a Full Bench (5 judge) decision, much of which
is flawless. Thus, in determining the guilt of the principal actor (whether identified or not)
what must be determined is his criminal intent. That is normally inferred from all the
relevant circumstances; the question being whether he (wickedly) intended to kill the
deceased or acted in such a wickedly reckless manner that he cared not whether the deceased
lived or died.
[28]
In relation to concert, the Lord Justice General (Cullen), delivering the opinion of the
court, said:
"[27] It is, of course, well established that, where a number of persons act together
in pursuance of a common criminal purpose, each of them is criminally responsible
for a crime which is committed in pursuance of that purpose, regardless of the part
which he or she played, provided that the crime is within the scope of that common
criminal purpose. This holds good whether the concert is antecedent or spontaneous.
The submissions in the present appeal have raised the question of the relationship
between concert and mens rea [criminal intent]. ...[I]f the relevant concert is
established, there is no separate question as to whether the individual accused had
the necessary criminal intent which is required for the finding of guilt of that crime.
In short, he or she is responsible for that crime in the same way as if he or she had
personally committed it."
That is entirely correct. The principal actor's guilt depends upon his intent. That of any
ancillary actor depends, not upon his or her intent at the time of the act, but:
14
"on whether he or she acted in pursuance of a common criminal purpose along with
the actor and, if so, whether it was within the scope of that purpose, as inferred from
all the relevant circumstances" (ibid at para [28]).
[29]
The guilt of the ancillary actors does not then depend on his or her individual
criminal intent (ibid). The scope of the common criminal purpose is to be discerned on an
objective basis; that is to say by determining what was foreseeable as liable to happen (ibid
para [29]). McKinnon became derailed when, despite those clear statements, it went on to say
that, even although a murder was committed in pursuance of a common criminal purpose to
which an ancillary accused was a party, he or she would not be guilty of murder but
acquitted or convicted of a lesser crime (presumably assault or culpable homicide) if "it was
not foreseeable that the victim might sustain serious injury" (ibid para [30]). If serious injury
was not foreseeable as part of the common plan, then the ancillary actors cannot be convicted
of any form of homicide because they would not be engaged in a common criminal purpose
which had, as a foreseeable consequence, serious injury. The principal actor would be guilty
of murder but the accessories would, at most, be guilty of assault (cf para [32]). Where, as
here, there is only one cause of death, and that is (as it was) deemed murderous, the ancillary
actors could not be convicted of culpable homicide. Once it is recognised that they were not
engaged in a common criminal purpose, in which serious injury was foreseeable, they drop
out of the homicide equation entirely.
[30]
A sound starting point for an examination of art and part guilt in homicide cases is
the locus classicus: Docherty v HM Advocate 1945 JC 89. Lord Moncrieff said this (at 95-96):
"It is true that if people acting in concert have reason to expect that a lethal weapon
will be used and their expectation may be demonstrated by various circumstances,
as, for example, if they themselves are carrying arms or if they know that arms and
lethal weapons are being carried by their associates they may then under the law
with regard to concert each one of them become guilty of murder if the weapon is
used with fatal results by one of them. In view of their assumed expectation that it
might be used, and of their having joined together in an act of violence apt to be
15
completed by its use, they will be assumed in law to have authorised the use of the
fatal weapon, and so to have incurred personal responsibility for using it. If, on the
other hand, they had no reason so to expect that any one among them would resort to
any such act of violence, the mere fact that they were associated in minor violence
will not be conclusive against them; and the lethal act, as being unexpected, will not
be ascribed to a joint purpose so as to make others than the principal actor
responsible for the act."
There is no requirement to search for the intentions of the ancillary actors at the time of the
killing. The task is an objective analysis of what they ought to have anticipated would be
likely to happen in the course of an attack in which they participated. Thus, if they had no
reason to expect the use of serious violence, they would not be art and part in the homicide.
[31]
The trial judge in Melvin v HM Advocate 1984 SCCR 113 (Lord Wylie) was correct, if
unsuccessful, to direct the jury that, if they were not satisfied that the co-accused was acting
in concert in a homicidal attack, they could only convict him of assault and robbery. He did
not suggest that the lesser verdict of culpable homicide was available where the death was
deemed murderous. On appeal, Lord Cameron prefaced his conclusions (at 117) by stating
that it was "not necessarily to be assumed that the [culpable homicide] verdict ... is sound",
although since it had not been appealed, it was so assumed. This is an indicator that he
considered that the verdict against the co-accused was illogical, but that was not to say that
the verdict of murder against the appellant was similarly flawed. Lord Cameron's
subsequent reasoning is phrased in guarded terms. He does not treat the case as one of
antecedent (or perhaps any) concert, albeit that the accused were charged on that basis. Lord
Avonside was even more cautious in referring (at 118) to the facts being "very special" and in
which there were striking differences in the conduct of the accused.
[32]
Lord Stott does suggest (at 118) that the actings of one accused may be murderous
"without it being a necessary corollary that the acting of another who is acting art and
part in the homicide must be taken to infer the same degree of recklessness".
16
This is illogical. If, as the Crown in this appeal submitted, Melvin is where the direction of
the law altered, it did so upon a very flimsy foundation and without reference to any
authority. It may be that court was influenced by a submission by the Advocate depute that
it was open to the jury to consider the precise degree of participation by each accused in
determining whether their conduct was murderous. That would be correct only if, as may
have been the case, concert at the time of the murderous blows, was not proved.
[33]
Concern about the correctness of Melvin was expressed with some force in Malone v
HM Advocate 1988 SCCR 498. This was another case in which, on one view, the jury had
done precisely what they had been directed not to do; convict one person of murder and the
other of culpable homicide in respect of what was a concerted attack by punching and
kicking in a car park. In recording that the court had "found it a little difficult" to
understand the verdict, the Lord Justice General (Emslie) said (at 508):
"Where two are charged with murder in concert there is no doubt no logical
inconsistency between a verdict of guilty of murder against one and a verdict of
guilty of culpable homicide against the other where there is no evidence of a
deliberate and concerted intention to kill and the case does not involve any
antecedent intention to carry out the crime of assault and robbery. If the evidence
permits it a jury are entitled to assess the relative degree of recklessness attributable
to each accused (see Melvin v HM Advocate). But if a distinction is to be made in a
case involving a joint assault causing death it could normally reasonably be justified
only if, on the evidence, as Lord Avonside pointed out in Melvin, there were striking
differences in the relevant conduct of each of the assailants."
[34]
If the seeds of misunderstanding were sown by this (and it is far from clear that they
were), their crop was well and truly ready for harvest with the advent of Brown v HM
Advocate 1993 SCCR 382. This involved a concerted attack on the deceased; death being
caused by a stab wound to the heart. The trial judge (Lord Marnoch) withdrew culpable
homicide from the jury upon the entirely understandable basis that the stab wound, which
had divided the deceased' fourth rib on the left side and tracked upwards into the heart, a
17
distance of 11.6cms (about 4½"), could only be regarded as murderous. The jury were
directed that whether they should convict of murder depended on whether they were
satisfied that death or serious injury was foreseeably within the scope of the common
criminal purpose. That was correct.
[35]
Nevertheless, the court determined on appeal that the trial judge had been in error.
In stating (at 391) that the alternative verdict should only be withdrawn "with great caution",
the Lord Justice General (Hope) said that the correct approach was normally to leave it to the
jury to decide whether the necessary degree of wicked recklessness had been established.
Although whoever had carried out the stabbing was guilty of murder, the question
remained: "what about the other party to the attack?" The jury had to decide whether he or
she also had "the same degree of wicked recklessness". The Lord Justice General then said
that the jury would have to be satisfied that the other person knew or anticipated that a knife
would be used. He continued (at 392):
"On the other hand, if all that was in contemplation was to use weapons to inflict
serious injury, there was room for the view that this was a case of culpable homicide,
since the murderous act went beyond the joint purpose and there was no evidence to
show which of the two assailants used the knife. The evidence other than that
relating to the force and depth of the stab wound was not such as to exclude the
possibility that one of the accused had acted with a greater degree of wicked
recklessness than was in the reasonable contemplation of the other at the time of the
assault. It appears that this point was overlooked by the trial judge when he said that
whoever did the stabbing was guilty of the crime of murder. In any event there was
here a question of fact which should have been left to the jury to decide."
[36]
This is both confusing and wrong. It is confusing because, if what was in
contemplation in the common criminal plan was to use weapons to inflict serious injury, and
the ultimate attack is deemed murderous, all those participating in that plan would be guilty
of murder. It is wrong because once it is decided that the stab wound was murderous (as
indeed it must have been) the state of the ancillary actor's intention at the time of the blow, in
18
terms of recklessness, is beside the point in a concerted attack. At the risk of repetition, once
the principal actor (whether identified or not) is found to have murdered the deceased, the
guilt of the accessories is determined in accordance with the principles of concert; whether
they participated in a common criminal purpose which had, within its scope, the use of
violence to cause serious injury. If it were otherwise, the well-established principles of
concert would be irretrievably undermined.
[37]
Brown foreshadowed McKinnon and the cases which followed. Many of these contain
conflicting or irreconcilable statements which should now be resolved with a clear
understanding of how concert operates in homicide cases. In short, where the principal
actor, that is he or she whose blows killed the deceased, is guilty of murder, the ancillary
actors are either guilty of murder art and part because of their participation in a plan which
foresaw the use of serious violence, or they are guilty of assault or nothing at all. They
cannot be guilty of culpable homicide if they were not part of the plan to cause serious
injury.
[38]
It follows that the dicta of Lord Stott in Melvin, the Lord Justice General (Hope) in
Brown and the Lord Justice General (Cullen) in McKinnon are in error in so far as they
postulate an assessment of the intention or recklessness of ancillary actors at the time of the
fatal blow, where the attack has been deemed to be murderous. Lord Wylie's and Lord
Marnoch's directions in Melvin and Brown were correct as were the trial judge's charge in this
case. On that basis, the appeals against conviction are refused.
[39]
The Crown have postulated the existence of exceptions where provocation or
diminished responsibility are involved. These may require to be addressed in due course,
should they arise in the future.
19
[40]
This was a case of antecedent concert. It involved pre-planning in the form of
deciding to seek out the deceased in his own home and to "give him a doing", involving the
use of a variety of tools which could cause serious injury. In that state of the evidence, where
the ultimate blow, seen in the context of 86 wounds in total, must be seen as murderous, the
appellants were participating in a common criminal plan in which serious injury was
objectively foreseeable. The consequence is that they too were inevitably guilty of murder.
This is not because of what they may have intended at the time of the murderous blow, but
by operation of the principles of concert.
Sentence
[41]
In deciding that Ms Gardiner should be the subject of the same punishment part as
her co-accused, the trial judge relied on Andonov v HM Advocate 2013 SCCR 245 (at para [15])
whereby, generally, those who take part in a contract killing by performing various roles will
"normally fall to be regarded as equally responsible for the outcome." This was, according to
the judge, equally applicable to all forms of antecedent concert in murder (Rauf v HM
Advocate 2020 SCCR 47). The judge saw nothing in the individual circumstances of the three
accused to justify any distinction in sentence. Ms Gardiner's record was more extensive than
those of the co-accused. Her role, as described by her to a witness, was to "take care" of the
deceased's partner. She had helped to carry the toolbox. After the event she had disposed of
clothing, gloves and a knife.
[42]
The first appellant submitted that the trial judge erred in sentencing her to the same
punishment part as her co-accused. A materially subsidiary role played by one of several
accused ought to be taken into account (Cosgrove v HM Advocate 2008 JC 102 at paras [9] to
[13]; Armstrong v HM Advocate 2021 JC 227 at para [24]). The judge had misunderstood
20
Andonov v HM Advocate and Rauf v HM Advocate. In each case the respective roles of the co-
accused were not relevant because these were cases of antecedent conduct. The first
appellant had not assaulted the deceased. There was no evidence that she had a role in
planning the attack.
[43]
The question is whether there has been a miscarriage of justice because, upon the
principle of comparative justice, Ms Gardiner's punishment part should be seen as excessive.
That principle is that those who have been convicted of the same offence should normally
receive the same sentence (Armstrong v HM Advocate 2021 JC 227, LJG (Carloway), delivering
the opinion of the court, at para [24], citing Thomas v HM Advocate [2014] HCJAC 66 at
para [14]; Rauf v HM Advocate 2020 SCCR 47, LJC (Lady Dorrian), delivering the opinion of
the court, at para [19]). There can, of course, be differences as a result of personal
circumstances, including previous convictions or, more pertinent in this case, the roles
played by each accused in the attack (Cosgrove v HM Advocate 2008 JC 102, Lord Macfadyen,
delivering the opinion of the court, at para [9]). It is correct to say that Andonov v HM
Advocate 2013 SCCR 245 is readily distinguishable as it involved a contract killing.
[44]
The main feature which is founded upon is a lack of evidence that Ms Gardiner
attacked the deceased. In this case, that is a relatively weak submission given that her
purpose, which she appears to have fulfilled, was to take the deceased's partner out of the
picture, presumably so that she could not go to the deceased's assistance in his time of
obvious need. It is equally weak in a situation in which Ms Gardiner was involved in the
plotting, on the day before the attack, and her willing participation in the attack with objects
from a toolbox which she had helped to carry. In these circumstances, the trial judge was
entitled to take the view that no distinction should be made between the accused in this
premeditated attack and brutal killing. The appeal against sentence is refused.
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