Murder convictions quashed after trial judge wrongly removed culpable homicide verdict from jury

Lady Dorrian
Lady Dorrian
Two men found guilty of murder had their convictions quashed after appeal judges ruled that the trial judge had misdirected the jury by removing the option of a verdict of culpable homicide.
The Appeal Court of the High Court of the Justiciary allowed the appeal by Ryan Gibb and Cameron Laurie, who were convicted of the murder of James Chadwick following a trial at the High Court in Aberdeen in 2016, after ruling that there had been a “miscarriage of justice”.
The judgment has been published after the two accused were convicted of murder last week following a retrial.
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Turnbull, heard that the appellants had appeared together on a charge of murdering James Chadwick on 31 August 2015 at Chadwick’s home address in Aberdeen.  
At trial it was accepted that both appellants, and no-one else, were at Chadwick’s house together during the incident in which he met his death, but each advanced a special defence incriminating the other, although neither gave evidence.
The court was told that the deceased had previously been in a relationship with Gibb’s mother, Tracey Gibb, and had told witnesses that he was afraid to leave his house and was afraid of violence at the hands of the accused Gibb and his friends. 
The cause of death was a subdural haemorrhage resulting from a blow to the head, but the deceased had sustained a significant number of other injuries, all caused by blunt force trauma, including injuries to the head, neck, chest and abdomen, as well as other minor injuries.
There was evidence from a pathologist that the patterned nature of these injuries were “highly suggestive” of them having been caused by footwear in the context of an assault involving kicking and/or stamping, and the pattern on two of the injuries on the deceased’s head and body was consistent with the tread on Gibb’s trainers.
Gibb was convicted unanimously, and Laurie by a majority, while both were also unanimously convicted of a further charge of attempting to defeat the ends of justice.  
In his speech to the jury, the advocate depute raised the possibility that a verdict of culpable homicide might be returned in respect of the second appellant, Laurie, but neither defence counsel made reference to the issue.  
Judge’s charge
However, in the course of his charge to the jury, the trial judge withdrew the possibility of a verdict of culpable homicide in respect of either accused, saying that the litany of injuries was such that there was no scope for a conviction for culpable homicide.  
The trial judge gave the jury directions about concert, and told them that although they could convict the first appellant as actor, they could convict the second appellant only on an art and part basis.  
Both appellants appealed against conviction, arguing that the judge “erred” in removing the option of culpable homicide from the jury’s consideration.
It was also submitted that his directions in respect of concert were “inadequate”; on the basis that in a case of this kind, alleging spontaneous concert, and where there are no clear and undisputed facts about the circumstances of the attack, and no weapons it was incumbent upon the trial judge to give directions about the nature and scope of any common criminal purpose, and that it extended to the degree of violence which resulted in death.
For Gibb, it was further submitted that the direction that Laurie could be convicted only on an art and part basis was a misdirection, unfairly undermining Gibb’s defence of incrimination.
And for Laurie, it was said that there was a misdirection in relation to the treatment of certain statements made by a witness.
The Crown’s response was that the nature of the attack was such that there was “no room” for a verdict of culpable homicide. 
In these circumstances it was not necessary for the trial judge to direct the jury that they required to be satisfied that the scope of any concert extended to the degree of violence which caused death. 
The sustained and violent nature of the attack was such that it obviously encompassed the use of “lethal force”.
‘Miscarriage of justice’
Allowing the appeal, the court held that the trial judge’s misdirection was a “material” one.
Delivering the opinion of the court, the Lord Justice Clerk said: “It is beyond doubt that in certain circumstances a trial judge in a case of murder would be entitled to withdraw culpable homicide from the jury, might even have a duty to do so.  It is equally beyond doubt that great circumspection must be exercised in taking such a course, and it would only be justified if it could be said that on the evidence there was no basis upon which such a verdict could be returned.
“The assessment of whether the actions of any particular accused should be characterised as displaying the wicked recklessness required for a conviction of murder is typically one for the jury.  It is only if any evidence which might bear on that question would be incapable of being given weight by any reasonable jury properly directed that the judge would be justified in withholding the option of culpable homicide.  
“In a case where there is no intent to kill, no antecedent plan, no weapons (apart from the dog lead, in this case), where there is uncertainty as to the circumstances of the attack and where there is no clear picture of the respective part played by each of two accused, the factual conclusions which might lead to the determination of the appropriate verdict, as between murder and culpable homicide, are very much issues which fall into the territory of the jury. In such cases it is a question of fact and degree whether the actions should be classed as murder.”
Lady Dorrian added: “This is not a case in which picture was so clear cut – as regards either accused – that culpable homicide should have been withdrawn from the jury.  We consider that in doing so the trial judge misdirected the jury, and that the misdirection was a material one which has resulted in a miscarriage of justice. On that basis we will allow the appeal. That being so, we do not require to address the remaining grounds of appeal.”

© Scottish Legal News Ltd 2020

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