Mother who murdered toddler Liam Fee loses appeal against conviction

Accordingly, it would not have been sufficient for the appellant simply to have knowledge of assaults being committed by her co-accused and, it was submitted, it was essential that the jury were given clear directions to enable them to understand what was necessary by way of evidence to enable them to reach the conclusion that the appellant had been acting in concert with her co-accused.

There was also a challenge to the directions which the trial judge gave in relation to the availability of a verdict of culpable homicide.

He directed the jury that they could find both accused guilty of murder, find both accused guilty of culpable homicide, or could acquit both. He also explained that they would be entitled to convict the co-accused of murder and acquit the appellant, although not vice-versa.

However, it was argued that he had erred in failing to direct the jury that it was open to them to convict the co-accused of murder and to convict the appellant only of culpable homicide.

Senior counsel claimed that there was a case, on the evidence, for the jury to identify co-accused Nyomi Fee as having been the main “actor” in committing the murder.

However, the advocate depute argued that this was a “clear case in which the Crown had established concert for murder”.

It was submitted that the only error which the trial judge could be said to have made was in giving the direction that the two accused could both be convicted of murder or of culpable homicide, as on the evidence led there was “no room” for the latter verdict in this case.

Delivering the opinion of the court, Lord Turnbull said: “In our opinion, these extracts from his charge demonstrate that the trial judge gave comprehensive, accurate and helpful directions in relation to the doctrine of concert and its application to the evidence in the present case. Given the unusual and complex circumstances this was not an easy exercise and, in our opinion, the trial judge performed his task admirably.

“From all of the references we have identified it is clear that he made it perfectly plain, in relation to both charges, that it was necessary for the jury to be satisfied that both accused had entered into a common plan of the sort which he described. He made it plain that each accused would only be responsible for the consequences of conduct within the scope of the common plan entered into.

“He made it plain that active steps to facilitate the plan were necessary and that mere knowledge of conduct by the other was insufficient to bring home criminal responsibility. We therefore consider that there is no merit in this ground of appeal.

In relation to the alleged misdirection on culpable homicide, he added: “On the hypothesis presented by the appellant, the jury might have concluded that the co-accused was the person who actually inflicted the injuries on the child and ought then to have been given the option of assessing whether the appellant had associated herself with the co-accused’s murderous conduct, or only with some lessor common purpose.

“Importantly though, and as the trial judge points out in his report, it was not the actual attack involved in the fatal blow itself which was the principal feature available to prove a murderous attack. It was that Liam was such a young child, already injured, immobile, dependent and highly vulnerable.

“There is therefore no basis upon which it could be said that the appellant did anything less than actively associate herself with a common criminal purpose which included the taking of human life, or carried the obvious risk that human life would be taken, in the carrying out of which murder was committed… In other words, even if the jury did proceed upon the hypothesis suggested on the appellant’s behalf they would have been bound to conclude that she was guilty of murder art and part.

“In the circumstances of this case the evidence led by the Crown clearly established that the appellant had associated herself with a purpose which carried with it the obvious risk that life would be taken. We therefore agree with the trial judge and the advocate depute that the directions argued for by the appellant were correctly omitted.”