GREEN, NOTES OF APPEAL AGAINST CONVICTION AND SENTENCE BY (FIRST) PAUL GREEN, (SECOND) LEE NOONAN and (THIRD) ROBBIE DARREN BROWN<br> [2019] ScotHC HCJAC

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2019] HCJAC 76

HCA/2019/173/XC, HCA/2019/57/XC

and HCA/2019/56/XC

Lord Justice General

Lord Drummond Young

Lord Turnbull

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTES OF APPEAL AGAINST CONVICTION AND SENTENCE

by

(FIRST) PAUL GREEN, (SECOND) LEE NOONAN

and (THIRD) ROBBIE DARREN BROWN

against

HER MAJESTY’S ADVOCATE

Appellants

Respondent

Appellant (Green): J Scott QC (sol adv), Considine (sol adv); Paterson Bell

(for Fitzpatrick & Co, Glasgow)

Appellant (Noonan): O’Rourke QC, Findlater; Faculty Services Ltd

(for Bridge Litigation, Glasgow)

Appellant (Brown): CM Mitchell QC, Armstrong; Gilfedder & McInnes

(for Callahan McKeown, Paisley)

Respondent: Fraser AD; the Crown Agent

14 November 2019

Introduction

[1] Two issues are raised in these three conviction appeals. The first is the nature and

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extent to which a trial judge may interrupt the examination and cross-examination of an

accused. The second is the adequacy of the judge’s directions on antecedent plan concert.

[2] The second and third appellants challenge the level of the punishment parts, which

were imposed in conjunction with the sentences of detention or imprisonment for life, on the

basis of their relative youth.

General

[3] On 7 December 2018, at the High Court in Glasgow, the appellants were convicted of

a number of offences including that:

“(5) on 23 February 2018 at ... 19 Copland Quadrant, Glasgow, you … did assault

James Watt, residing there and did strike him repeatedly on the body with knives …,

strike him on the body with an unknown object or objects and a golf club and

otherwise inflict blunt force trauma to his head and body, and you did murder him

and you Paul Green did previously evidence malice and ill will towards him;…”.

[4] On 29 January 2019 the trial judge imposed sentences of detention or imprisonment

for life on each appellant. He selected punishment parts of 18 years for Mr Green, 21 years

for Mr Noonan and 18 years and 5 months for Mr Brown.

The evidence in the Crown case

[5] Unfortunately, the trial judge has not produced a readily understandable,

chronological account of events, as revealed in the Crown case. The narrative which follows

is gleaned from his three different reports, the Closed Circuit Television logs and the parties’

Cases and Arguments.

[6] At about 1.00pm on 23 February 2018 the deceased, namely James “Scudger” Watt,

aged 40, assaulted John Mitchell, who was regarded by Mr Green as his father. Mr Green,

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who was aged 30, arrived at the scene in his white BMW. He offered to take his father to

hospital. His father was friendly with Pamela Troy, who was the mother of Mr Noonan and

who also knew the deceased. Mr Green drove to Carmichael Street in order to look for the

deceased. He had a knife and a pick axe shaft with him.

[7] The events which followed occurred in the vicinity of Carmichael Street and Copland

Quadrant, whose gardens back onto each other. Mr Noonan, who was aged 20, lived with

his mother in a ground floor flat at 130 Carmichael Street. The deceased lived in a ground

floor flat at 19 Copland Quadrant. A great deal of the evidence which incriminated the

appellants came from CCTV cameras which focused on: Carmichael Street itself; the front

close entrance to no. 130; and the back garden of no. 130, which also showed the part of the

Copland Quadrant gardens.

[8] At about 1.30pm Mr Green attacked the deceased in Carmichael Street by repeatedly

striking him with the pick axe shaft. The assault ceased when Mr Green was told by a

bystander that the person, whom he was attacking, was not “Scudger”. This was not true.

Having made some phone calls, Mr Green reversed his car, but remained in Carmichael

Street.

[9] At about the same time, Mr Noonan and Mr Brown, who was aged 18, exited

through a window at the rear of Mr Noonan’s flat. Mr Noonan was wearing a scarf pulled

up over his lower face. He was carrying a knife. Mr Brown was wearing a hoodie with the

hood up and a scarf over his lower face. He too had a knife. Mr Noonan had acquired a golf

club. They both made several sorties in the vicinity of the gardens before returning to the

rear of the common close at no. 130. Shortly afterwards they came out of the front of the

close, armed as before. This activity was not connected with Mr Green or the deceased.

Mr Noonan and Mr Brown had had some form of confrontation with a group of workers,

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who were carrying metal poles. Mr Green joined Mr Noonan and Mr Brown. He shook

hands with them. The three went into Mr Green’s car. After more comings and goings,

Mr Noonan and Mr Brown were dropped off at no. 130 and Mr Green drove away.

[10] At 1.40pm Mr Noonan and Mr Brown again exited through the rear window.

Mr Noonan still had a knife and the golf club. They had another confrontation with three

other workmen, whom Mr Noonan persuaded to remove a padlock from a gable end at

Carmichael Street in case “the polis are looking for me”. Soon after, all three appellants

were seen together entering the front of the close at no. 130 and, at various points, exiting

into the back gardens. While engaged in conversation with Mr Green, Mr Brown pointed

towards the deceased’s close at no. 19 Copland Quadrant. Mr Green had a large kitchen

knife. All three appellants jumped over a fence into the rear gardens of Copland Quadrant.

Mr Noonan and Mr Brown had their lower faces covered. They met Alexander Donald, who

was working on a dovecot. Mr Brown asked him for his hammer. Mr Donald refused to

give him it. Mr Green asked him where the deceased lived, but Mr Noonan told Mr Green:

“Don’t ask any c… Ah know. Ahm the man”.

[11] The three then went towards the common close at 19 Copland Quadrant. Mr Green

and Mr Brown went into the flat of William Milligan, who lived opposite the deceased on

the ground floor. Mr Milligan was in his toilet, which was invaded by Mr Green and

Mr Brown. They left when Mr Green said that he knew Mr Milligan. Over a period of two

minutes, the deceased was subjected to a violent and fatal attack. A voice sounding like Mr

Noonan’s was heard repeatedly shouting “Ya f...ing bam”. Things were being thrown. A

man was moaning in pain.

[12] The deceased sustained six stab wounds to his torso, one of which severed the aorta

and was fatal. It had a track length of 23cms. Two were “through and through” with track

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lengths of 7cms. Three of the non-fatal wounds would have required moderate to severe

force. The curtains, behind the place where the deceased was found in the foetal positon,

were slashed. The deceased had defensive injuries. There were blunt force injuries which

were consistent with the use of weapons, fists and/or kicks. Blunt force trauma had

fractured the deceased’s skull. This was likely to have been caused by the golf club.

[13] All three appellants were seen returning to the close at no. 130. Mr Green had his

hood up for the first time. Mr Noonan had the remains of the golf club, which he carried in

a plastic bag. The head and part of the shaft were found in the deceased’s flat. There were

imprints of the club on the deceased’s body. Mr Brown was carrying a foot stool, which, for

some unknown reason, he had taken from the deceased’s flat. Mr Green took it from him

and put it in his car; later throwing it away. Spots of the deceased’s blood were found on

Mr Brown’s trainers. Footprints from his trainers were visible on a settee in the room in

which the deceased’s body was found. Mr Brown was seen on the CCTV possibly carrying a

knife when going back to no. 130.

[14] The trial judge summarised matters thus in his report on Mr Green’s appeal:

“[8] There was therefore overwhelming evidence that the appellant was armed

with a knife and was in the company of others armed with knives. There was no

evidence as to who struck the blows or for that matter who struck the fatal blow.

The blunt force trauma blows were almost certainly the result of being hit by the golf

club whose head and part of the shaft were found in the flat close to the body of the

deceased. Lee Noonan was seen going to the flat with a golf club and leaving with

what remained of the club. There was an inference that he had wielded the club.”

The defence cases

Mr Green

[15] Because of the nature of the ground of appeal directed towards the extent and tone of

the trial judge’s interventions, Mr Green’s evidence was transcribed and available in audio

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format on CD. Mr Green said that he had been phoned about the injury to Mr Mitchell. He

had found him with a cut to his head, which had been caused by a bottle. He asked

Mr Mitchell who had attacked him. He was told that it had been “Scudger”, a person whom

he did not “really” know, but who had been pointed out to him in the past. He had a

“rough idea” of what he looked like.

[16] Mr Green set off in search of the deceased. He was “raging”. After further enquiries,

he was told that the deceased was in Carmichael Street. As he drove down that street, he

saw the deceased. He had been given a description of what the deceased had been wearing

by the person who had phoned him originally. At this point in his examination-in-chief, the

following exchange took place:

“TRIAL JUDGE:

Is that your evidence, that you had been given a description of

what he was wearing.? – Yeah.

I don’t recollect that that was elicited in chief, that was supplied by you, I think.

COUNSEL:

My Lord, perhaps not.

TRIAL JUDGE:

Yes.

COUNSEL:

But that’s your evidence? – Yeah.”

[17] Mr Green resumed his testimony by saying that he got out of his car and hit the

deceased repeatedly with the pick axe shaft which he kept in his car. The reason for this was

that he was angry and annoyed with him. The deceased had denied hitting Mr Mitchell. Mr

Green retrieved a “small” knife from his car with a view to scaring the deceased. The

deceased walked off.

[18] Mr Green then saw two masked people (the other two appellants) running out from

130 Carmichael Street; one had a knife and the other had a knife and a golf club.

Mr Noonan, recognised Mr Green as his mother’s friend’s son. Mr Green denied ever

having previously met either Mr Noonan or Mr Brown. The encounter was coincidental;

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Mr Noonan and Mr Brown having been involved in an unconnected altercation with others

at the same time. Nevertheless, they all got into Mr Green’s car. Mr Green explained what

he had been doing. Mr Noonan offered to go with Mr Green to see the deceased.

Mr Noonan knew where the deceased lived. Mr Green wanted to find out why the

deceased had attacked Mr Mitchell. The search for the deceased in a different street failed.

Mr Green dropped the other two off and went home.

[19] Half an hour later, Mr Green received a call from a friend who ran a local garage to

the effect that Mr Noonan and Mr Brown were in Carmichael Street. They were looking for

him because they had discovered the deceased’s correct address. Mr Noonan wanted to

confront the deceased. Mr Green joined them in the close at no. 130. Mr Noonan came out

of his flat with a “large” (8 to 10 inch) kitchen knife, which, in the presence of Mr Brown, he

gave to Mr Green to hold. Mr Green gave it back to him later. The three met Alexander

Donald. Mr Donald pointed to where the deceased’s flat was. Mr Noonan had said “Don’t

ask any c…, I’m the man; I know where he stays”. The three jumped over the fence between

the back gardens. Mr Noonan went into the rear of the close, where the deceased’s flat was

thought to be. He was followed by the other two. Mr Brown went first into Mr Milligan’s

flat and opened the toilet door. Mr Green knew Mr Milligan, so the two apologised and left.

Mr Green said that he had not gone into the deceased’s flat at all. He left the close, followed

by Mr Noonan and Mr Brown who were shouting “run”.

[20] At this point, there was an interruption from the dock. Mr Brown shouted: “F...ing

liar. F...ing full of it”. The judge describes the outburst as one delivered “with a great

vehemence and evident anger”. It startled everyone in court. Otherwise, the evidence up to

this point occupied 65 pages of transcript with no significant interventions from the trial

judge other than that quoted.

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[21] Mr Green continued by saying that Mr Brown was carrying a foot stool and

Mr Noonan had half of a golf club. Mr Green put his hood up and ran through the close at

no. 130 into his car. He took the foot stool from Mr Brown “because I didn’t want Robbie in

my car”. The trial judge intervened:

“TRIAL JUDGE:

I’m sorry, I just don’t follow that. You took it off Robbie

because you didn’t want Robbie in your car. - Yeah.

Explain that. - …it will come out later but the boy’s house that… me and Robbie had

ran in tae, … he couldn’t have probably picked a worser flat in Govan to have ran

into. Meaning the boy’s family who he’s related to.

COUNSEL:

Sorry, are you talking about William Milligan? - Yeah.

But what did the foot stool have to do with that? - Nothing.

So, his Lordship’s question was can you explain why… - Yeah, why did Robbie

Brown not come in my car?...Because I’m raging wae Robbie Brown for running into

William Milligan’s house.

…

TRIAL JUDGE:

I am still struggling to follow your answer. So, you took this

foot stool off of Robbie Brown because you didn’t want Robbie in the car? I don’t

understand.

COUNSEL:

…you’ve explained… why you were angry with Robbie

Brown…but why did you end up with the foot stool in the car? - I don’t know. He

gave me it. I took it”.

[22] Mr Green dropped Mr Noonan off in Govan Road. Prior to that, Mr Noonan had

said that he had given the deceased “a kicking”. He had later thrown the foot stool out of

the car in Orkney Street. The following question was then posed:

“TRIAL JUDGE:

You will have to explain that one to me… It looks to me as

though Orkney Street is on the route to that part you’ve described as Govan Road…

Is that wrong? … have you got the map in front of you? …You see Orkney Street… I

am just a little bit confused because it would look as though you would go through

or past Orkney Street before you got to Govan Road, but that would be wrong?”

At this point the appellant apparently went pale and looked as if he was about to faint,

although he did not do so. This was only a few minutes after Mr Brown’s outburst. The

trial judge attributes Mr Green’s condition to stress caused by the outburst. It could not, he

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reports, have been caused by his questions about the layout of the streets. Medical

assistance was summoned. On the court resuming outwith the presence of the jury,

Mr Green said that he did not want to continue to testify because “it just makes me look

guilty”. The trial was adjourned over a weekend.

[23] The appellant continued with his evidence. He explained that the reference to

having been given a description of the deceased was to a person who had not given

evidence. Some time was taken up in going through the CCTV images and explaining what,

from the appellant’s perspective, they showed. The question of why Mr Green had taken

the foot stool was returned to, with the trial judge saying that he still did not understand the

answer that this was because he did not want Mr Brown in the car. Mr Green surmised that

he had taken the foot stool because it had come from the deceased’s house and he had

wanted to get rid of it. The examination concluded, still without any significant

interventions from the trial judge, other than a few occasions on which he asked for certain

matters to be clarified.

[24] Much of the initial stages of the cross-examination on behalf of Mr Noonan consisted

of repetition of examination-in-chief or matters unconnected with the libel. Eventually it

turned to the point at which the appellants shook hands. The following took place:

“COUNSEL:

You told them you were looking for Scudger Watt before they

got into your car? - I wasn’t looking for Scudger…. I saw him, I’ve dealt with it so

why am I looking again for him?

Are you [saying] that you didn’t tell Lee Noonan and Robbie Brown that’s why you

were in Carmichael Street? - Yeah, that’s why I was there but I’m certainly not

continuing looking for Scudger.

Did you tell them that you’d been looking for Scudger Watt? - Scudger, yeah, not

Scudger Watt?

TRIAL JUDGE:

Sorry, I just didn’t catch that. You said a moment or two ago,

‘I didn’t tell Lee Noonan that I was looking for Scudger Watt’. Are you now saying

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you did tell them? - I told them that’s why I was in the street but I’m not

continually… looking for them (sic) now at that point”.

[25] A challenge was made to Mr Green’s contention that he had been asked to return to

Carmichael Street by Mr Noonan. Reference was made to what Mr Green had said in his

testimony before the weekend adjournment, to the effect that he had been phoned because

Mr Noonan and Mr Brown had found out where the deceased lived. The trial judge

intervened to say what his note was; that Mr Green had been told that they knew where the

deceased stayed. It was suggested that the appellant had previously said that in the phone

call he had only been told that two boys were looking for him. It was put to Mr Green that

this part of his account (ie that it was Mr Noonan alone who was looking for the deceased)

was fabricated. This passage continued:

“COUNSEL:

Lee Noonan had no reason whatsoever to be looking for

Scudger that afternoon. That’s right, isn’t it? - You’d have to ask him.

… you were with him…

TRIAL JUDGE:

Okay”.

… you’re being asked the question, try and address it, please -

Slightly later on, the cross continued:

“COUNSEL:

But you [said] that the phone call gave you information that

they were phoning you because they knew where Scudger was. - Yeah but they

couldn’t have spoke to Scudger.

But why did you then go to [Carmichael Street]? - I went to see Lee.

Why? - Why not?

TRIAL JUDGE:

… answer the question again, not with an answer (sic, ?

question) but with an answer, a proper answer. Why did you go? - Cos he was

looking for me.”

The question of who was looking for the deceased was returned to:

“COUNSEL:

So could it be because you were looking for Scudger Watt? –

We were going in that direction looking for Scudger Watt, but I wasn’t personally

looking for him.

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TRIAL JUDGE:

… if you weren’t with the group looking for him, how are you

not personally looking for him: You were there, it was you that was doing… - What I

mean, it wasn’t my idea to go looking for him.

Okay. So it wasn’t your idea but you were involved in the search for him, is that

what you’re saying? – Yeah, yeah.

Right.”

[26] During the cross-examination on behalf of Mr Brown, the trial judge asked Mr Green

on one occasion to try and answer the question being posed. The phone call was raised

again as follows:

“COUNSEL:

So did you say [to the garage owner (supra)]… ‘Give one of

them the phone so I can see what they want’? – No.

No. Why not? – Cos he just said ‘Come round’.

TRIAL JUDGE:

No, but answer the question, please. You’re being asked

why… - No, I, didn’t…

Listen now. You’re being asked why not. Answer the question. – I don’t know.”

[27] In cross-examination by the advocate depute, the issue of whether Mr Green had

shown his knife to the deceased was referred to. The following exchange occurred under

reference to the CCTV images:

“ADVOCATE DEPUTE: … let’s look back at it and you can [say] where it is that you

show him this knife. Just go back maybe about… - I’m sure he can see there.

Pause it, now play it on. What I’m asking is what you do to show him it. – He’s…

TRIAL JUDGE:

Is there not a vehicle between you and, and [the deceased] at

that point? I mean your vehicle’s parked quite tight up to either, what is that, a

people carrier or … something of that nature there. … Just play that again, please. -

…Clearly he’s seen something. He’s noticed that I’m doing something. He knows

I’ve put the bat back.

Mmm. … - At this point here he must know that I’m doing something…

Yeah. Can I put something to you for your comment? I mean is it, would it be

incorrect to look at that and imagine that what it shows is you removing a knife from

a cloth or some kind of covering and transferring it to your pocket? – Yeah.

Is that what it shows? – Yeah.

Right, okay”.

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The fatal incident was considered. The following then occurred:

“ADVOCATE DEPUTE: Well, why then did you run into someone’s house? – I’ve

already answered that.

Well, I’m asking…

TRIAL JUDGE:

Well, answer it again. – Cos I followed Robbie Brown into

William Milligan’s house.

ADVOCATE DEPUTE: So there might not have been a plan to run into Mr Milligan’s

house, that was a spontaneous event, the two of you doing it together, should I

understand that? – Yeah.

Yeah, okay. But insofar as the plan was concerned, it was to have this polite

conversion with Mr Watt at his front door. – No I didn’t, I didn’t word it like that, no.

Well, how would you…

TRIAL JUDGE:

How…would you word it then? – Not a polite conversation.”

[28] At this point (page 217 of the transcript of that day’s testimony), counsel for

Mr Green raised the matter of the challenging content and sceptical tone of the trial judge’s

interventions. The trial judge replied that he had said very little. The difficulty was that the

appellant was not answering questions directly. The judge had been intervening with a

view to ensuring that he did so. Very soon after this, the trial was adjourned until the

following day when Mr Green’s testimony was rapidly concluded.

Mr Noonan

[29] Mr Noonan’s evidence was not transcribed. He did not complain about the trial

judge’s interventions. The trial judge does not provide any narrative of Mr Noonan’s

testimony in his report. Mr Noonan’s position was summarised by the judge in his charge

to the jury. It had been Mr Green and Mr Brown who had entered the deceased’s flat. He

had not done so.

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Mr Brown

[30] Although he did not testify, it was Mr Brown’s position that the evidence did not

demonstrate that he had played an active part in the attack. He could not reasonably have

foreseen that the deceased would be attacked. Alternatively, the jury could find him guilty

of culpable homicide on the basis that the appellant could not reasonably have foreseen that

lethal violence would be used.

Charge to the jury

[31] The trial judge gave the jury the standard directions on how to approach the

testimony and to determine issues of credibility and reliability. He referred to the

presumption of innocence, the burden and standard of proof and corroboration. He

directed the jury that, in the case of Mr Green and Mr Noonan, if anything that was said by

them, or any other evidence in the case, caused them to have a reasonable doubt, then they

had to acquit. If they accepted the evidence of either appellant, then they required to acquit

him. Even if they did not completely believe him, if his evidence left a reasonable doubt,

they would still have to acquit.

[32] The trial judge turned to the question of concert. He followed the terms of the Jury

Manual closely as follows:

“... normally ... you’re only responsible for your own actions and not for what

somebody else does. But, if people act together in committing a crime, each

participant can be responsible not only for what he himself does but for what

everyone else does while committing that crime. And that arises ... if, firstly, people

knowingly engage together in committing a crime; secondly, if what happened was

done in furtherance of that purpose; and thirdly, if what happened didn’t go beyond

what was planned by or was reasonably anticipated by those involved.”

[33] Again following the Jury Manual, the trial judge provided examples of situations

involving concert, including the bank robbery, the spur of the moment street fight and the

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housebreaking in which the occupier is killed. He reverted, once more adopting the

phraseology of the Manual, to the street fight as follows:

“... Suppose the initial attacker, unknown to the others, had a knife and stabbed the

victim. Now, in that situation, all three would be guilty of assault by punching but

only the first would be guilty of assault by stabbing, and that’s because in using the

knife he was doing something that wasn’t expected by the others. But ... if the other

two saw the knife was being used or must have known that it was being used and

continued punching the victim, they would also be guilty of assault by stabbing

because they had accepted the escalation of violence in the joint criminal purpose.

So, an unarmed attacker can be responsible for an attack with a weapon if he knew

or must have known that the co-accused was armed and continues his attack.”

The trial judge then spoke specifically about the case which was being tried, but again using

in large part the terms of the Jury Manual:

“Now, in this case, the Crown are not alleging that the concert emerged

spontaneously. The Crown’s position here is that this was planned and, when

there’s a planned crime, acts done that are part of the plan are the responsibility of

everyone involved who was party to that plan. Acts that are outside the plan or

beyond the plan are the responsibility only of whoever committed them. Now, that

is an issue that ... is going to have to be judged according to an objective test. So,

you’ve got to ask yourself, ‘What was foreseeable as likely to happen?’ Now, here,

the Crown says that there is evidence showing a joint or common purpose in the

commission of this crime and you can infer each accused’s actions came within that

common purpose.”

[34] The trial judge embarked upon a summary of each party’s position. He described

the essence of the Crown case as being that all three appellants were looking for the

deceased. All three were seen trying to find the deceased’s flat. All three walked towards it.

All three were armed or, if not armed, each was aware that one or other of the group had a

lethal weapon. Based on the evidence of what went on before the attack and what happened

thereafter the Crown alleged:

“That the picture that emerges is that of a planned attack in concert where extreme

violence was reasonable foreseeable given the presence of the weapons beforehand.

And the Crown say that the inability of the Crown to say who struck the lethal blow

or even who struck which blow and with what weapon is immaterial. The Crown

allege that they acted together with a common purpose where it was known that all

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or some of them was armed and that serious violence was foreseeable and, on that

account, the Crown invite you to convict all three of murder.”

[35] The trial judge summarised the position of each appellant. Having done so, he

adopted the terms of the Jury Manual once more as follows:

“So,... you should approach the matter in stages. You firstly decide what the

evidence against each accused is separately. Secondly, if there is sufficient evidence

to implicate each one, you decide firstly if there was a common criminal purpose

among them and, secondly, if there was, what it was. Then, thirdly, with each

accused, you must decide if he was party to that and, if so, to what extent. If he was,

he’s responsible with the other participants. If he wasn’t, you can only convict him

of what he himself did. So, depending on the degree of the individual accused’s

criminal responsibility, you could either convict all of the accused of this charge or

only two of them or an accused only for what he did himself.”

[36] Having defined murder, the trial judge dealt with the submission which had been

made to the effect that an alternative verdict of culpable homicide was open. Again

following the Jury Manual, he said:

“Culpable homicide is causing someone’s death by an unlawful act which is culpable

or blameworthy. It’s killing somewhere where the accused didn’t have wicked

intention to kill and didn’t act with such wicked recklessness as to make him guilty

of murder. The unlawful act must be intentional or at least reckless or grossly

careless. Recklessness or gross carelessness means acting in the face of obvious risks

which were or should have been appreciated and guarded against or acting in a way

which shows a complete disregard for the potential dangers which might arise. It’s

immaterial whether death was a foreseeable result or not. So you would need to be

satisfied ... that the accused committed an unlawful act, that the act must have been

intentional or reckless or grossly careless in the sense that I have defined it and that

the death was a direct result of the unlawful act.”

[37] The trial judge made it clear that the jury could return different verdicts in respect of

different accused and that, in relation to each of the accused, the verdict of culpable

homicide remained an option.

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Submissions

Mr Green

[38] The first ground of appeal was that the nature, extent and tone of the trial judge’s

interruptions of the appellant had led to a miscarriage of justice. A sound recording of the

testimony having been produced, the issue of tone was raised only in respect of one

relatively insignificant matter. It was submitted that the interruptions had had an impact on

the appellant, as was demonstrated by him almost fainting on being asked by the trial judge

about the route which he said he had taken after the incident. The contention was that a

judge should not interrupt in a situation in which the matter could be clarified by either the

examiner or in subsequent cross-examination. The judge should wait until the conclusion of

the cross-examination before asking any questions which were required for the purposes of

clarification. It was not for the judge to ask questions which were being, or would be, put by

the parties’ legal representatives. Some of the interruptions (such as that asking the

appellant to “explain that”) constituted a challenge to the evidence being given. The judge

had simply misunderstood the route taken by the appellant as disclosed in the CCTV

images. He had also misunderstood the point about whether the Crown case had revealed

that the appellant had been given a description of the deceased.

[39] The testimony of an accused was different from that of a witness. A trial judge had

to take greater care before engaging in questioning an accused, especially prior to the stage

at which all parties had asked such questions as they had deemed fit. The judge had courted

the risk of creating an unfavourable impression of the appellant as a result of his regular

interruptions. This was so, even although it was accepted that the reported legal precedents

had involved far more egregious interruptions. The fair-minded and informed observer

might conclude from the nature of the questioning that there was a real possibility of the

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judge being biased (Porter v Magill [2002] 2 AC 357; Pullar v United Kingdom (1996) 22 EHRR

391; Clark v HM Advocate 2000 JC 637).

[40] The remaining grounds of appeal on conviction were that the trial judge had erred in

failing properly to direct the jury that, if they failed to find satisfactory proof of concert, they

were bound to acquit the appellant. The judge had failed to direct the jury on what to do if

they accepted the evidence of the appellant that he had gone with Mr Brown into the correct

tenement block, but had entered the wrong flat. The judge failed to provide adequate

directions about antecedent concert in murder. The charge as a whole lacked the clarity

which might be expected in directions on such important issues, given the cross

incriminations (see Barrie v HM Advocate 2002 SLT 1053 at para [7]).

Mr Noonan

[41] Mr Noonan submitted that the directions in relation to concert were inadequate.

Clear directions on what was required in order to constitute a concerted antecedent plan to

commit murder were required; ie that there was a joint purpose, which either involved

killing the deceased or carried an obvious risk that he would be killed. The judge did not

define common criminal purpose in the context of the murder charge and the directions

were accordingly difficult to follow (see Perfinowski v HM Advocate 2014 SCCR 30 at

paras [22]-[26]; McKinnon v HM Advocate 2003 JC 29 at paras [29]-[40]). No specific

directions were advanced as having been omitted by the judge.

[42] The trial judge had misdirected the jury on the availability of a verdict of culpable

homicide. He did not explain how culpable homicide could be applied in the circumstances,

standing the explanation provided by the appellant in his evidence. The omission of a clear

direction on the applicability of culpable homicide constituted a miscarriage of justice

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(McKinnon v HM Advocate (supra) at para [41]; Docherty v HM Advocate 2003 SCCR 772 at 777-

778; and Stewart v HM Advocate 2012 SCCR 728 at paras [11]-[12]).

Mr Brown

[43] Mr Brown submitted that the trial judge had failed to direct the jury clearly on the

position if there was no satisfactory proof of concert. He had not directed the jury about

what was to be done if they were not satisfied that the appellant had actively participated in

the attack upon the deceased. There was no specific direction that, in the event of a failure

to prove concert, acquittals had to follow (Docherty v HM Advocate 1945 JC 89 at 99; Shaw v

HM Advocate 1953 JC 51). The case could have been decided on the basis of the actings of at

least some of the individual appellants, but the Crown chose to proceed on the basis that

concert was the only means upon which it sought convictions against all three appellants, as

it could not identify who had struck the fatal blow. If the issue had been live and obvious,

the trial judge ought to have directed the jury on individual responsibility (Gardener v HM

Advocate 2010 SCCR 116 at para [17]). Instead, he chose to direct the jury simply on the

Crown’s approach to concert. The jury could only determine the case on that basis. The trial

judge had failed to direct the jury on the course which they had to take in the event that it

was not proved that the appellant had actively participated in the attack. There was a lack

of direction on the circumstances in which the appellant could be acquitted, rather than

upon the circumstances in which he might be convicted. The directions failed to give any

hint of the basis upon which the jury would be entitled to convict any accused individually.

The failures of the judge were sufficiently material as to justify quashing the conviction

(Mills v HM Advocate 1935 JC 77 at 82-83).

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Crown

[44] In relation to the interruptions, the test was whether the circumstances were such as

would create in the mind of a reasonable man a suspicion that he was not impartial. Justice

had to be seen to be done (Bradford v McLeod 1986 SLT 244; Porter v Magill [2002] 2 AC 357 at

paras 102 -103). The court should have regard to all the relevant factual information and

keep in mind the need for the possibility of bias being “real”. Although there had been a

number of interventions during the evidence of Mr Green, these were for the purposes of

clarification, or with a view to Mr Green answering questions properly asked. No concerns

had been raised until towards the end of Mr Green’s evidence. No miscarriage of justice had

occurred.

[45] The directions on concert were sufficient. The principles were set out in McKinnon v

HM Advocate (supra). The nature and scope of a common criminal purpose was to be

determined on an objective basis; the question being whether, in the case of an individual

accused, what had happened had been foreseeable. A charge should not be an academic

exposition of the law, but tailored to fit the circumstances of the case, including the speeches

(Elsherkisi v HM Advocate 2011 SCCR 735 at para [13]). A charge should not be encumbered

by unnecessary directions (Ferguson v HM Advocate [2015] HCJAC 89 at para [10]). A charge

was not defective because it failed to state the obvious (Moynihan v HM Advocate 2016 SCCR

548 at para [22]). The absence of words that could have improved the charge did not mean

that there had been a misdirection (Kerwin v HM Advocate, unreported, High Court of

Justiciary, 30 March 2016 (HCA/2015/002694/XC)). The charge had to be considered as a

whole and in context of the totality of the trial (Gubinas v HM Advocate 2017 SLT 663 at

para [40]). If there was insufficient evidence for an alternative case based on individual

responsibility, a judge did not require to direct on that alternative case (Gardener v HM

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Advocate (supra) at paras [17]-[21]). The judge gave comprehensive and accurate directions

on concert. He made it plain to the jury that they had to be satisfied that there was a

common plan and that each appellant would only be responsible for the consequences of

conduct which was within the scope of that plan. Active steps to facilitate the plan were

necessary. Mere knowledge of the conduct was insufficient. The violent attacks on the

deceased could only be characterised as murderous. If the appellants were acting in concert,

then the only verdict open was murder.

[46] The real issue was whether any misdirection had had a practical significance

(Thomson v HM Advocate 1998 SCCR 683 at 685; Johnston v HM Advocate 2012 JC 49; Crombie v

HM Advocate 2015 SCCR 29 at para [22]). If there was a misdirection, standing the strength

of the Crown case, no miscarriage of justice arose.

Decision

Judicial Intervention

[47] In Livingstone v HM Advocate 1974 SCCR (Supp) 68, the contention was that the

sheriff had acted oppressively by frequently interrupting the appellant’s evidence to put

questions himself: “thereby disclosing that he was adversely inclined towards” him. It was

accepted by the court that, although there were occasions in which the sheriff was “merely

trying to clarify points in evidence”, there were others which “savoured more of the role of

cross-examiner than a presiding judge”. Although the appeal on this point failed, as no

miscarriage of justice had been demonstrated, the Lord Justice Clerk (Wheatley) delivered

what the SCCR reporter describes as an “informal opinion of the court” containing the

following (at 69):

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“… I must deprecate the practice of such constant interruptions by a presiding judge.

Basically his function is to clear up any ambiguities that are not being cleared up

either by the examiner of the cross-examiner. He is also entitled to ask such questions

as he might regard relevant and important for the proper determination of the case

by the jury, but that right must be exercised, with discretion, and only exercised

when the occasion requires it. It should not result in the presiding judge taking over

the role of examiner or cross-examiner. Normally the appropriate time to put such

relevant questions as he may think necessary for the proper elicitation of the truth is

at the end of the witness’s evidence, and not during the course of examination or

cross-examination (emphases added).”

[48] This statement was approved in Nisbet v HM Advocate 1979 SLT (notes) 5 (Lord

Thomson, delivering the opinion of the court, at 5), in which the appeal was allowed. It is

worth commenting that, in Nisbet, the totality of the appellant’s evidence was 38 pages of

transcript, 15 of which consisted of the sheriff’s questioning. That length of that testimony is

in sharp contrast to the lengths of examination and cross-examination in the modern era,

especially in the High Court. In this case, Mr Green’s testimony alone occupied over

300 pages of transcript.

[49] The dicta in Livingstone v HM Advocate (supra) was adopted in Dobbins v HM Advocate

1980 SCCR (Supp) 253 (LJG (Emslie), delivering the opinion of the court, at 255), in which

the appeal failed despite the judge’s interventions being described as more than “generally

desirable”. It was also, by inference at least, accepted in Tallis v HM Advocate 1982 SCCR 91

(LJG (Emslie) at 99), in which it was held that the sheriff had failed “to demonstrate and

maintain his complete impartiality upon the vital issue which was for the jury to resolve”

and had, in influencing the jury, acted oppressively.

[50] It is important to understand exactly what the Lord Justice Clerk said in Livingstone v

HM Advocate (supra) in relation to the extent of a judge’s powers of intervention. He or she is

first entitled, if not required, to clear up any ambiguities that are not being cleared up either

by the examiner or the cross-examiner. Such clarification would normally be made at or

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about the time when the ambiguity arises. It is true to say that, as a generality, a judge

should wait to see if the ambiguity, which he or she has perceived, will be cleared up by the

questioner rather than intervening precipitately. However, there are many instances in the

course of a trial when it is relatively clear that counsel are aware of what a witness,

including an accused, means because of their knowledge of the background circumstances

as derived from the statements or precognitions. Neither the judge nor the jury have that

background knowledge. The judge may require to interrupt examination or cross-

examination at the time in order to clarify to what the witness is referring. Storing up a list

of ambiguities until the conclusion of cross-examination, or perhaps even re-examination,

would be a highly artificial exercise and has the potential to re-open the cross-examination

or re-examination of the witness unnecessarily. This is especially so in a situation in which

the testimony of an accused has, as it was in Mr Green’s case, been lengthy. Such a practice

is not required by the dicta in Livingstone and it is not a desirable one.

[51] It is the second category of judicial intervention that Livingstone v HM Advocate

(supra) directs should “normally” await the conclusion of questioning by the parties. This is

where the judge decides that questions, which are relevant and important for the proper

determination of the case, remain unanswered. The judge may have thought that there was

some obvious question which has not been asked, but which ought to be answered before

the jury should be asked to consider their verdict. These situations ought to be rare. A

judge ought to be very careful before asking a question about some new matter, which the

parties may have deliberately not probed. As the Lord Justice Clerk said in Livingstone, the

judge must act with discretion and only when the occasion requires it. The overarching

principle nevertheless remains that the judge may, and in some situations ought to,

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intervene “as he may think necessary in the interests of justice” (McLeod v HM Advocate 1939

JC 68, Lord Carmont at 71).

[52] The judge should not take over the role of examiner or cross-examiner. Nevertheless,

provided that the judge does not stray into the realms of cross-examination, and thereby be

perceived by the informed and impartial observer as having an adverse view on the

accused’s credibility or reliability, it will be difficult for an accused to demonstrate that the

interventions have been so oppressive as to constitute a miscarriage of justice either by

destabilising the accused or indicating apparent bias.

[53] In Mr Green’s case, the trial judge’s interventions do not approach the standard

required before it could be said that such a miscarriage has occurred. First, the interventions

which he made were relatively few, when the totality of Mr Green’s testimony is taken into

account. They were far from “constant”. Secondly, although at times the judge asked

pointed questions, he did not take over the role of examiner or cross-examiner. Thirdly,

although the judge did press the appellant to answer the questions which he was being

asked, his questions did not display any adverse view of the appellant’s credibility or

reliability.

[54] Specifically, the judge did make a comment, apparently to counsel, about the

appellant saying that he had been given a description of the deceased before going to look

for him in Carmichael Street. This had not been something which had been adduced in the

course of the Crown case. The judge expressed his concern about this. He was entitled to

do so, even if the answer to his concern was that the person, who was said to have provided

this description, had not been called by the Crown. This was covered in subsequent

questioning of Mr Green.

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[55] The trial judge intervened in an attempt to understand the appellant’s reason for

taking the foot stool from Mr Brown. This was a legitimate interruption in circumstances in

which the appellant was not providing a coherent explanation for doing so. This was a

classic case of a judge seeking to clarify matters. The appropriate time for doing this was at

the time when the ambiguity arose. The length of time between the ambiguity arising and

the judge intervening will be a matter for the judge’s discretion in the particular

circumstances. As touched upon previously, it is normally prudent to wait to see whether

counsel addresses the ambiguity, but it can seldom be conducive of a miscarriage of justice if

the judge steps in prematurely. In this situation, which arose again later, counsel still did

not manage to clarify the appellant’s position beyond the appellant’s ultimate statement that

he did not know why he had taken the foot stool.

[56] The contention that the trial judge’s questioning of the appellant, about his route

away from the scene, had destabilised the appellant and brought about his indisposition, is

speculative. The trial judge rejected it in his report; attributing the problem to the outburst

from Mr Brown. Whatever the situation may be, the trial was adjourned, the appellant

attended to medically, and the examination resumed after the weekend. During cross-

examination on behalf of Mr Noonan, the judge attempted to clarify whether or not the

appellant had told his two co-accused that he was looking for the deceased when he met

them in Carmichael Street. Mr Noonan’s counsel was pursuing this point with some vigour.

The judge intervened on occasion, when he considered, correctly, that the appellant was not

answering the questions posed. This is an essential function of the judge in ensuring the

fairness of the trial for all concerned and maintaining adequate control over the proceedings.

[57] The trial judge intervened during the advocate depute’s cross-examination when he

considered that the questioning did not take account of what was apparent from the CCTV

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images. It may have been unnecessary, and perhaps imprudent, for him to do so, but the

intervention was an example of the judge’s legitimate concern about the accuracy of the

evidence. It was not such as to display any bias.

[58] There is ultimately very little of substance in this ground of appeal. It is accordingly

rejected.

Charge on concert

[59] The context of the directions on concert was the un-contradicted evidence that,

following upon some form of discussion between them, the three appellants had headed

towards the deceased’s close. They were either all armed with knives and other weapons or

must have known that their co-accused, or one or other of them, were carrying such

weapons. Mr Brown asked for Mr Donald’s hammer. At the very least, each must have

been aware that there was to be some form of violent confrontation with the deceased.

There was clear evidence of some form of antecedent concert. The question is: what

directions ought to have been given to the jury in that situation, given that the deceased was

undoubtedly murdered by one of the appellants as the principal actor who severed his aorta

with a knife?

[60] It is correct to say that the Crown proceeded against each appellant solely on the

basis of art and part responsibility. If that were the only basis upon which guilt could have

been established against any one of them, a direction that the failure to prove concert must

result in an acquittal ought to have been given. That is the ratio of Docherty v HM Advocate

1945 JC 89 (Lord Moncrieff at 94 and 97, Lord Carmont at 101) in which there was no

evidence of either concert or of which one of two men (the accused and an unknown person)

had killed the deceased in the appellant’s one-apartment flat. That is not the situation in this

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case. First, contrary to the Crown’s position, it would have been open to the jury to convict

any one of the accused, or at least either Mr Green or Mr Noonan, as principal actor. If, for

example, the jury had not been satisfied of Mr Brown’s involvement but had believed

Mr Green, they could have convicted Mr Noonan on his own. If they had believed

Mr Noonan, they could have convicted only Mr Green.

[61] Secondly, in this case there was ample evidence of antecedent concert. The true issue

was the nature and extent of the common criminal purpose. The present case is closer, but

by no means identical, to McKinnon v HM Advocate 2003 JC 29. In McKinnon there was a pre-

planned discussion about going to the deceased’s house armed with knives, albeit for the

purpose of assault and robbery. McKinnon (LJG (Cullen), delivering the opinion of the

court) is authority for the proposition, derived from Hume: Crimes (I, 264 et seq) and Lord

Moncreiff’s dicta in Docherty v HM Advocate (supra), that a participant in a common criminal

purpose will be guilty of a murder committed by another:

“[15] ... if the participant is one of a number of persons who ... ‘have reason to

expect’ the use of a lethal weapon and have ‘joined together in an act of violence apt

to be completed by its use’. ... Whether the use of a weapon was expected, and

whether the violence intended by the parties was liable to lead to its use, did not

depend on the subjective understanding of the participant ... but on objective

evidence as to the circumstances, including what must have been obvious to that

participant ... [T]he participant will be held responsible for murder committed by one

of the party whom he was supporting where there was an obvious risk that the

weapons carried by them for carrying out the criminal purpose might be used to

commit murder.”

[62] The Full Bench in McKinnon v HM Advocate (supra) overruled the principle in Brown v

HM Advocate 1993 SCCR 382 that, before a particular accused could be convicted of murder

on the basis of concert, it was necessary to prove what he or she had in contemplation at the

time of the attack. In so doing, the Lord Justice General (Cullen) continued, albeit rather

tentatively, that:

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“[23] ... if an accused contemplates that a weapon may be used to inflict serious

injury, in pursuance of a criminal purpose, there may well be an obvious risk of the

victim dying as a result of the use of the weapon.

...

[25] ... While there may be cases in which no other conclusion can reasonably be

reached, it is for the jury to decide whether a person who participates in the carrying

out of a common criminal purpose which leads to a fellow participant committing

murder should be held criminally responsible for the murder on the basis that he

knew that a weapon which could readily be used to kill was being carried for use in

furtherance or that purpose, so that there was an obvious risk of murder. In such a

situation it would be immaterial whether he knowingly ran that risk or was

recklessly blind to it.

...

[27] ... if 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.

...

[31] Where an individual accused knows that weapons are being carried for use in

order to carry out a common criminal purpose, and these are weapons of such a

nature that they can readily be used to kill, it is open to the jury to convict him or her

of murder on the basis that it was foreseeable that such weapons were liable to be

used with lethal effect ...”.

[63] The trial judge followed the precise terms of the Jury Manual, up to a point.

However, as was said in McGartland v HM Advocate 2015 SCCR 192 (Lord Malcolm at

para 31):

“in general the jury manual does not remove the trial judge’s duty to tailor the

charge to the specific circumstances of the case, all with a view to giving proper and

clear directions to the jury. Simply to repeat the terms of the manual is no guarantee

against a misdirection appeal ... The manual is no more than a first port of call ...

Juries are entitled to a bespoke charge adapted to the evidence and to the particular

issues arising in the trial”.

This is so, even if the Jury Manual is intended to encapsulate sound law and good practice

and should be followed unless circumstances dictate otherwise (Daniel v HM Advocate 2019

SCCR 55, LJG (Carloway) delivering the opinion of the court, at para [20]).

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[64] In a case of concert, although the Jury Manual provides specific examples of the

concept, there is no need to rehearse all of these. It may not be desirable to do so if the

example is far removed from the case before the jury. The problem in this case is that the

trial judge did not follow through on his use of the Manual by quoting from the specific

direction recommended in cases of antecedent concert in murder. This is as follows:

“If you’re satisfied that:

(1) those involved were acting together with the joint purpose of committing this

crime;

(2) their purpose involved killing the deceased, or carried an obvious or

foreseeable risk that he would be killed;

(3) in carrying it out one of the accused killed the deceased;

then each of the other accused would be guilty of murder if they each actively

associated themselves with that joint purpose, by word or action.

(Where appropriate) If an accused didn’t associate himself actively with that purpose,

or if he participated in a less serious common criminal purpose in course of which

(the person named in the charge) died, you could find him guilty of culpable

homicide, irrespective of whether you find any other accused guilty of murder.”

Giving such a direction would have focused, with much greater clarity, the issue of whether

one or other appellant associated himself with the joint purpose of either killing the

deceased or doing such violence to him as carried an obvious or foreseeable risk that he

would be killed. The absence of this focus is a misdirection. The next question is whether it

has resulted in a miscarriage of justice.

[65] Returning to the context of the trial in which the charge was given, the

uncontradicted evidence demonstrated that there was a common criminal purpose,

involving all three appellants, to engage in a violent confrontation with the deceased. Each

appellant either carried a lethal weapon or knew that one or other or both of his co-

appellants did so. In that state of affairs, had the trial judge’s sound general directions on

concert been supplemented by that recommended for cases of antecedent concert in murder,

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the jury would have been bound to convict each of murder. No miscarriage of justice has

occurred on this ground.

Charge on Culpable Homicide

[66] The trial judge adopted the Jury Manual directions which define culpable homicide.

Although these directions may be correct as a generality, they are not apt to cover the

situation, such as that which existed in this case, where what is under consideration is a

death which was brought about by an assault; ie a deliberate attack. Concepts such as

recklessness or carelessness have no relevance in such a situation and ought to form no part

of the jury directions. Culpable homicide is simply defined, in the circumstances of this

case, as occurring when an assault, which is not classified as murderous, causes death. A

deliberate, and not a reckless or grossly careless act, is required before there can be an

assault. However, the jury did not convict any of the appellants of culpable homicide. The

misdirection was not a material one in a situation in which the jury considered that each

accused was responsible, art and part, for the murder.

[67] The appeals against conviction are refused.

Sentence

Mr Green

[68] At the commencement of the appeal hearing, Mr Green abandoned his appeal

against sentence. Having regard to the need for comparative justice, it remains necessary to

set out the basis for the judge’s selection of the punishment part in his case. Mr Green was

aged 30 at the time of the attack. He was also convicted of the initial assault on the deceased

by striking him repeatedly on the body with the pick axe shaft, whilst on bail, and having an

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offensive weapon, notably the shaft and a knife, contrary to the Criminal Law

(Consolidation) (Scotland) Act 1995, section 47(1), again whilst on bail. He was on bail at the

time of the murder. He had a number of road traffic offences on his record, but also an

assault by the use of a glass in 2016, which attracted a community payback order with

180 hours unpaid work. He had a conviction for a racially aggravated contravention of the

Criminal Justice and Licensing (Scotland) Act 2010, section 38(1), in 2016.

[69] Mr Green lived on his own in Govan, having been there for about eight years. He

had had a difficult and unsettled childhood. This included periods in foster care. He has a

son, now aged 10. He has had a reasonably good employment record; latterly working as a

maintenance worker with Scotrail. He has not had any alcohol or drug addiction problems.

Mr Noonan

[70] Mr Noonan was aged 20 at the time of the offences. He was also convicted of having

an offensive weapon, notably the golf club and a knife, contrary to section 47(1) of the 1995

Act. He pled guilty to assault to severe injury on another complainer on the day after the

murder, by striking him repeatedly with a metal pen, which was also an offensive weapon

in terms of the 1995 Act. Mr Noonan had a significant criminal record involving: an assault

and robbery in 2012; an assault to severe injury and robbery in 2013 with a racial

aggravation; another contravention of section 47(1), by having a blunt object with him, in

2014; and an assault to injury in 2015. He had been incarcerated for some of these offences.

He had another conviction for possession of an offensive weapon in 2016, this time a

baseball bat. In 2017 he had contravened the Police and Fire Reform (Scotland) Act 2012,

section 90(1)(A), for which he received a 3 month sentence.

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[71] Mr Noonan’s father had been convicted of murder in 2004. He is currently serving a

life sentence in HM Prison, Durham. Mr Noonan had maintained contact with his father.

He had positive and supportive relationships with his mother and sisters. He had been in a

relationship for five years, but his frequent custodial sentences had “impacted negatively”

on this relationship, which had ended. He had attended schools for children with

behavioural problems and had been made the subject of a compulsory supervision order

between the ages of 10 and 16, when he had received his first custodial sentence. Although

he has no qualifications or experience of employment, he has expressed an interest in

engaging in education and securing employment in due course. He had been under the

influence of alcohol when he committed the offences. He had problems with illicit drugs,

including cannabis and diazepam.

[72] The trial judge reports that he imposed a higher punishment part on Mr Noonan

because of his significantly worse record. It was a factor that the appellant had had no

reason for joining in this attack. He had played a more prominent role than the others in the

attack; using his local knowledge and contacts to track down the deceased. The incident had

been on his “home turf”. The punishment part had included an increment of one year in

connection with the assault to severe injury which he had committed on the following day.

The judge considered that 3 years imprisonment would have been appropriate in respect of

this charge. He attributed 2 years to considerations of retribution and deterrence and then

halved it to take into account early release.

[73] It was submitted that the punishment part selected was excessive, having regard to

the age of the appellant, which was on that spectrum which called for a special approach

(Kinlan v HM Advocate [2019] HCJAC 47 at paras [16]-[18]). Mr Noonan had found it

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difficult to comprehend why he had been given a significantly higher sentence than those of

his co-appellants.

Mr Brown

[74] Mr Brown was just 18 at the time of the murder. He pled guilty to possession of an

offensive weapon, namely the knife, contrary to section 47(1) of the 1995 Act. He pled guilty

to stealing the foot stool and to providing a false name, date of birth and address to the

police. This was after he had contravened section 90(1)(A) of the Police and Fire Reform

(Scotland) Act 2012 by threatening and behaving aggressively towards the police. Despite

his youth, he had already acquired significant previous convictions for violence. These

included: assault and robbery with the use of a knife in 2015, for which he was detained for

17 months; assault in 2017, involving a custodial term of 4 months; and, finally, a breach of

section 38(1) of the 2010 Act, involving a sexual element, for which he was on deferred

sentence at the time of the murder.

[75] Mr Brown was from Edinburgh. His father had died when he was 2 years old. His

mother had entered into a relationship which was characterised by domestic violence and

substance abuse. According to Mr Brown, he had been physically abused and neglected.

His mother had died in 2008 from cancer. He had been in a large number of residential

institutions over the years, such that, since reaching the age of 11, he had only been living in

the community for about 18 months. He had had difficulties co-operating with staff in these

institutions. His behaviour had deteriorated and he was sent to secure unit schools. Due to

the chaotic nature of his childhood, he had attended five primary schools. His grandmother

had then enrolled him in George Heriot’s School, as she felt that he had potential. Although

he had no problems in his first year, he was suspended a year later for possession of

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cannabis. His secondary education was equally disruptive. He was known to bully younger

pupils. He used illegal substances. He was thereafter educated in non-mainstream

establishments and secure units. Although he had been able to obtain qualifications in

maths and art, and had taken a number of practical courses, he had not worked other than

for short periods. He said that, at the time of the murder, he had been engaged in stealing

from a local builders’ yard when he and his friend, Mr Noonan, had been approached by

Mr Green. He had been heavily under the influence of alcohol and Valium.

[76] The trial judge reports that he took into account, in particular, the appellant’s youth

in selecting the appropriate punishment part. He noted, however, that the appellant had

offences of violence on his record. He had essentially attacked a stranger at the behest of a

stranger.

[77] Under reference to Kinlan v HM Advocate (supra) it was submitted that the

punishment part was excessive. It was not clear how the trial judge had taken into account

the appellant’s youth in selecting the appropriate punishment part.

Decision

[78] This was a pre-planned and brutal assault on the deceased. Victim statements from

the deceased’s father and mother paint a poignant picture of the loss of their only son. His

father had lost the tenancy of the flat, where he had lived with his own parents and his son,

because of the memories it held in relation to the death of the deceased.

[79] A sound starting point in the assessment of the reasonableness of the punishment

parts on Mr Noonan and Mr Brown is that imposed on Mr Green, who, at the age of 30, was

an adult to whom the normal principles of sentencing would apply. He had a not

insignificant criminal record, including an assault and a section 38 contravention (statutory

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breach of the peace). He had a good employment record. On the other hand he had been on

bail at the time of the murder. It was he who put in train the events which would lead to the

murder by setting out, armed with the pick axe shaft and a knife, with the clear purpose of

revenge, which he initially exacted. He did not let matters rest, but returned to attack the

deceased in his own house. Applying HM Advocate v Boyle 2010 JC 66, which set a norm of

16 years for murders involving the carrying of knives in public, and having in mind the

aggravating factors (record, pre-meditation, bail and previously evinced malice) and those

in mitigation (personal circumstances), the trial judge’s selection of 18 years can be seen as

reasonable.

[80] It is then not just an exercise of comparing the personal circumstances of the other

appellants and selecting an appropriate tariff. Mr Noonan was only 20 at the time of the

murder and Mr Brown was just 18. Although both were technically adults, their relative

lack of maturity is a significant factor. The custodial regimes correctly treat those under 21

differently from those who have reached that milestone in life (see Scottish Sentencing

Council: Literature Review of youth offending and sentencing in Scotland and other jurisdictions

para 3.6 “The different stages of brain development” (suggesting a “young adult” stage of

between 18 and 25)).

[81] As the court emphasised in Kinlan v HM Advocate [2019] HCJAC 47 (LJG (Carloway)

at para [1] (see also Campbell v HM Advocate 2019 SLT 1127 at para [18]):

“… as with all decisions which fix punishment parts in murder cases, the sentence of

the court is detention or imprisonment for life. The punishment part sets a period

which the court considers will satisfy the requirement, in the sentencing equation, for

retribution and deterrence. The court is directed by Parliament ‘to ignore any period

of confinement which may be necessary for the protection of the public’ (Prisoners

and Criminal Proceedings (Scotland) Act 1993, s 2(2) and (2A)). The determination of

the punishment part does not constitute a recommendation or suggestion by the

court that the offender ought to be released upon the expiry of the punishment part.

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35

It simply establishes a period during which the offender cannot apply for parole.

Thereafter, he may only be released if the Parole Board ‘is satisfied that it is no longer

necessary for the protection of the public that the prisoner should be confined’ (ibid

s 2(5) ). Even if he is released on parole, he will remain on licence, and subject to any

conditions which may be deemed appropriate, indefinitely.”

[82] In both Kinlan and Campbell, the court was specifically concerned with offenders who

were under 18 at the time of the offence. Nevertheless, having regard to H v HM Advocate

2011 JC 149 (LJG (Carloway), delivering the opinion of the court, at 154), the court had

regard to punishment parts which were selected for adult offenders, albeit that it recognised

that the exercise did not involve a direct, or arithmetical, equation. In the cases of

Mr Noonan and, especially, Mr Brown, although not all of the same considerations as may

be taken into account for child offenders will apply, their youth, relative to that of Mr Green,

must be a material factor in the sentencing exercise.

[83] Had Mr Noonan and Mr Brown been ages with Mr Green, it may well be that the

trial judge’s selection of their punishment parts could be seen as reasonable. However,

although the judge does report that he took Mr Brown’s youth into account, the degree to

which he did so in both these appellant’s cases is not clear. Especially when considering

lengthy punishment parts, comparative youth must play a significant part in the equation.

The punishment parts selected are very high for convicted persons of this age, even against a

background of other offences and significant criminal records. Having regard to their youth,

the court will reduce the punishment part for Mr Noonan to 18 years and that for Mr Brown

to 16 years. As always in such cases, the court emphasises that it is not recommending or

suggesting that any of the appellants should be released upon the expiry of these terms. It is

only establishing, as required by Parliament, the period during which the offender cannot

apply for parole. The court’s sentence for each appellant is the mandatory one of

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imprisonment or detention for life. After the expiry of the punishment parts, the appellants

will only be released if the Parole Board is satisfied that their continued confinement is not

required for the protection of the public. Even if released, each appellant will remain

indefinitely on licence.

[84] The appeals against sentence are allowed to this extent.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GREEN, NOTES OF APPEAL AGAINST CONVICTION AND SENTENCE BY (FIRST) PAUL GREEN, (SECOND) LEE NOONAN and (THIRD) ROBBIE DARREN BROWN<br> [2019] ScotHC HCJAC_76 (14 November 2019) URL: http://www.bailii.org/scot/cases/ScotHC/2019/2019_HCJAC_76.html Cite as: [2019] ScotHC HCJAC_76, 2020 SCCR 54, 2019 GWD 39-631, [2019] HCJAC 76

Scottish High Court of Justiciary Decisons