Definition under strain

A bench of five judges has recently sought to resolve one of the remaining conundrums in the modern law of homicide: is it murder if someone deliberately sets fire to a building and an occupant dies, even where there is no allegation that the fireraiser assaulted the complainer, or had any intention to cause death or injury to that or any other person? In the particular circumstances of Petto v HM Advocate [2011] HCJAC 78 (10 August 2011) the answer was in the affirmative, but the law cannot be regarded as settled.

Petto (and others) had set fire to a ground floor flat of a Glasgow tenement, whereby an occupant on the second floor was overcome by smoke and subsequently died. It was conceded that the accused knew that people were living in the tenement and indeed he pleaded guilty to murder, a plea which he sought to withdraw on appeal, arguing that since wilful fireraising was an offence against property, setting fire to a house could not of itself be deemed to be an attack on the person, and there would have to be circumstances from which intention to do physical harm could be inferred. Nothing to this effect had been averred in the indictment.

In response, the Crown argued that there were no exceptional circumstances which would merit withdrawal of the plea, and any criminal act carried out in a wickedly reckless manner and with disregard for the consequences where there was a real and foreseeable risk that death would result, was sufficient to constitute murder; fireraising was such an act. If, however, murder required an intention to injure, the particular circumstances alleged in the present case either justified the inference that there was such an intention, or constituted an exception to the general rule.

The appeal court refused to allow the guilty plea to be withdrawn; it had been tendered on considered legal advice and the appellant’s knowledge of the likely consequences of his actions was a matter of reasonable inference from the facts alleged. On the question of mens rea, the court rejected any suggestion that HM Advocate v Purcell 2008 JC 131 assisted the appellant. There, it had been emphasised that the doctrine of constructive malice had no place in the law of homicide, but the case was distinguishable because there had been no intention to injure anyone. In the instant case, the fire had been started deliberately in the knowledge that people were living in the tenement; while there might have been no desiderative element in the mind of a person acting as the appellant did, his appreciation of the virtual certainty of grave risk of death or injury to occupants ought to be equiparated with an intention that such consequences should occur.

The court expressed the view that nonetheless a comprehensive re-examination of the mental element in homicide was long overdue, suggesting that the current Scots definitional structure might impede rather than conduce to analytical accuracy.

Article 6 appeal against sentence

George v HM Advocate [2011] HCJAC 88 (25 August 2011) is a most unusual case. There, the appellant’s appeal against conviction on various charges of child abuse had been refused, except in relation to two charges on which an amended verdict of guilty was substituted. When an appeal against his sentence of 10 years was later considered, he claimed that it should be reduced, not just because of the amended verdict, but also because of the nine months the appeal court had taken to issue judgment on his appeal against conviction. This (it was said) constituted a breach of the “reasonable time” requirement in article 6 of ECHR. The period was said to be excessive, although no complaint was made about the period of over four years which elapsed between the conclusion of the trial and the start of the appeal hearing.

The appeal court refused to alter the sentence, holding that the amended verdict made no difference to the overall gravity of the case, and that although the delay in issuing judgment was indeed excessive (despite the complexity of the case, the fact that the judgment ran to more than 100 pages and the other pressures on the court), a simple acknowledgment of the infringement of article 6 was the appropriate response. The delay of a few months had to be seen in the context of the period taken by the appellant to prepare for the appeal; he had been on bail for a substantial part of that time; and the gravity of the crimes and the need for deterrence and public protection pointed to the sentence being served in full.

Special defence of incrimination

What should a trial judge say to the jury about a special defence which has not been mentioned during final speeches by the parties, but has not been formally withdrawn? In Flannigan v HM Advocate [2011] HCJAC 81 (23 August 2011) the judge gave no directions at all on a defence of incrimination. The accused had been indicted with two co-accused on a charge of being concerned in supplying cocaine, contrary to s 4(3)(b) of the Misuse of Drugs Act 1971, and sought to incriminate seven Crown witnesses, some of whom he said in evidence were friends of his, but none of whom were (to his knowledge) involved in drug supply.

The trial judge deliberately said nothing about the special defence, on the view that the live issue was not whether the incriminees were concerned in drug supply (which in fact they were), but whether the accused was likewise concerned. He gave the standard directions on the presumption of innocence, on the burden and standard of proof and on corroboration; on appeal, these were held to be quite sufficient in the circumstances of the case and no miscarriage of justice had occurred.

But in course of the argument, the appeal court itself raised the issue of the appropriateness of a special defence of incrimination in a case under s 4(3)(b), referring to certain observations in HM Advocate v Hamill 1998 SCCR 164 and Salmon v HM Advocate 1998 SCCR 740. The court thought there might be considerable force in the view that the allegation under such a charge is personal to the accused against whom it is made, but that there might be an evidential situation in which incrimination might be appropriate: for example, where it was alleged that the accused did specific things, but had been mis-identified as having done them. That was not the situation in the present case, in which the court doubted it was necessary to have lodged the special defence at all.

Punishment parts: again

The law on punishment parts continue to develop apace, leading to an acceptance by the Scottish Government that in some respects new legislation is required. In Petch v HM Advocate 2011 SCCR 199 (noted in the April issue), a full bench reviewed the law on how the punishment part of a discretionary life sentence should be computed. This led to Petch’s sentence being revised (2011 SCCR 360, noted in June), and now the same has occurred in relation to his co-appellant: see Foye v HM Advocate [2011] HCJAC 94 (28 September 2011). The punishment part of his order for lifelong restriction was revised downwards, and his s 76 plea of guilty was recognised by the application of a discount of 25% to the period of the notional determinate sentence remaining after the exclusion of the period considered necessary for public protection.

In the case of mandatory life sentences for murder, punishment parts present a different problem. In Jakovlev v HM Advocate [2011] HCJAC 90 (16 September 2011), a punishment part of 19 years had been selected by the trial judge; this was upheld on appeal after the court embarked on a review of how the minimum and maximum levels of punishment parts have moved on since they were introduced.

Among the authorities examined were of course Walker v HM Advocate 2002 SCCR 1036 (30 years reduced to 27), and HM Advocate v Boyle 2010 SCCR 103 (15 and 12 increased to 20 and 18 respectively). What is striking about these and other cases is the way in which, in each, the figures ultimately reached and the examples used by the courts have subsequently been regarded as having acquired something of a prescriptive character. But in the instant case, the court was at pains to make it clear that sentencing guidelines (and expressions of judicial opinion) are merely that; ultimately the matter of sentence is one of judicial discretion.

The court took the view that “in normal circumstances” the available range of a punishment part should start at higher than 12 years and no longer be subject to a maximum as low as 30 years. Applying that approach, 19 years was entirely appropriate, the murder in question having been committed with extreme violence in an unprovoked and concerted attack upon a vulnerable individual in his own home: in former times the capital crime of hamesucken.