Maria Elena Gardiner and Michael Anderson v. His Majesty’s Advocate [2024] HCJAC 44

Notes of appeal against conviction:- On 24 January 2024, following a trial at Glasgow High Court, the appellants, along with James Houston, were found guilty of a charge of murder following the death of Brian Maley and a charge of assaulting the deceased’s partner, Lynsey Patterson, with all receiving life sentences with punishment parts fixed at 18 years. The appellants appealed against their convictions it being contended that the trial judge misdirected the jury by telling them that they could not convict one accused of murder and the others of culpable homicide. The first appellant also appealed against her sentence it being contended that the imposition of a punishment part of 18 years was in the circumstances excessive. At trial the issue had been whether all three accused were responsible for the death on the basis of concert. The second appellant’s case and argument had contended, under reference to the 5 judge decision of McKinnon v H.M.A. 2003 JC 29, that the law of concert allowed different verdicts, of murder and culpable homicide, to be competently delivered in respect of separate co-accused and the trial judge had erred in removing that discretion enabling the jury to convict the principal actor of murder and the ancillary actors of culpable homicide. It was further contended that there was no rule that the jury must convict the co-accused of the same crime as the principal actor, it being a matter for the jury’s discretion as to whether the ancillary actors associated themselves with a common purpose, which either included the taking of a human life or carried such an obvious risk, and, if they were not so satisfied, they could be convicted of culpable homicide in circumstances where another person was guilty of murder. Further, it was contended that a single stab wound could still result in different verdicts against different accused (Hopkinson v. H.M.A. 2009 SCCR 225) and that care should be taken before removing possible alternative verdicts from the jury. In oral submissions, however, it was submitted that to assess each individual’s level of culpability, the mens rea of each participant at the time of the attack had to be examined as murder required wicked intent to kill or wicked recklessness although, under reference to McKinnon, 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. In the present case it was submitted that the trial judge had erred because the jury were provided with an all or nothing option in relation to the ancillary actors and whilst in the present case injury may have been in contemplation serious injury was not necessarily in contemplation and the jury ought to have been left with the option of returning a verdict of guilty to culpable homicide. The first appellant’s case and argument recognised, under reference to McKinnon, that if concert was established there was no separate question of mens rea on the part of the ancillary actors and that the principal actor’s guilt was to be assessed according to his mens rea, but the guilty of ancillary actors was to be assessed by reference to the common criminal purpose and whether homicide was within its scope which was determined objectively according to what was foreseeable as likely to happen.  It was further submitted that an ancillary actor should not be convicted of murder and should either be acquitted or convicted of culpable homicide if it was not foreseeable that the deceased might suffer serious injury. In the present case it was submitted that the Crown position at trial was that either Anderson or Houston had delivered the fatal blow and there was no evidence that the first appellant knew that potentially lethal weapons were present. The Crown provided an extensive exposition of the development of the law of concert in murder cases including the case of McKinnon and how it has been applied since. It was submitted that an accused will be responsible 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. It was further submitted on behalf of the Crown that no assessment of the intention of the individual participants in a common purpose is required and there is no possibility for one participant in a joint attack to be convicted of culpable homicide while the actor in the fatal blow is convicted of murder, save in circumstances where diminished responsibility or provocation might operate. It was submitted that the trial judge was correct to direct the jury in the way he did, namely, that any ancillary actor found to be art and part in the attack which had led to the fatal blow was guilty of the same crime as the principal actor and there was no evidential basis that the appellants acting in concert only anticipated minor injury being caused. Here the court refused the appeals against conviction. The court reiterated what it described as the “well-established principles of concert” that once the principal actor (regardless of whether he is identified) is found to have murdered the deceased, the guilt of the ancillary actors is determined in accordance with the principles of concert, namely, whether they participated in a common criminal purpose which had within its scope the use of violence to cause serious injury. The court stated at paragraph 37:- “…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.” The court overruled certain dicta in earlier cases, including Lord Justice General Cullen in McKinnon suggesting an assessment of the intention or recklessness of ancillary actors at the time of the fatal blow where the attack had been deemed murderous. The court noted in relation to the present case that the deceased received 86 separate injuries from a number of deadly weapons and such an attack must be seen to be murderous and the appellants were participating in a common criminal plan where serious injury was objectively foreseeable and they, along with the principal actor, were inevitably guilty of murder by operation of concert rather than what they may have intended at the time of the fatal blow. In relation to the first appellant’s appeal against sentence it was reiterated that those who have been convicted of the same offence should normally receive the same sentence, with the exception of differences as a result of personal circumstances, including previous convictions or the roles played by each accused in an attack. The court observed that, whilst the first appellant may not have attacked the deceased, her role was to occupy the deceased’s partner to prevent her coming to the deceased’s assistance and to carry the toolbox containing the weapons to the incident. As such the trial judge was entitled to make no distinction between the punishment parts of those convicted of murder and the appeal against sentence was refused.