Fire-raiser fails in ‘insufficient evidence’ appeal against conviction

William Handy was sentenced to five years’ imprisonment after being convicted along with a co-accused of wilfully setting fire to a car parked at the home of a police officer.

The appellant claimed there was “insufficient evidence” against him and that the trial judge erred in repelling a defence submission of “no case to answer”, but the Criminal Appeal Court ruled that the judge was “correct” to repel the submission.

Lord Menzies, Lord Turnbull and Lady Cosgrove heard that that the appellant went to trial at the High Court of Justiciary at Aberdeen in June 2016 together with the co-accused, Craig Guest, on an indictment containing three charges.

At the end of the Crown case the advocate depute withdrew the libel in respect of two of the charges and the co-accused Guest pled guilty to charge 2, which stated that in June 2014 he and Handy wilfully set fire to a vehicle by pouring petrol over it and igniting the fuel, writing off the car, which belonged to the wife of PC David Farr.

Senior counsel for the appellant then made a submission of no case to answer, but the trial judge repelled this submission after which the appellant gave evidence and the trial proceeded to its conclusion.

The court heard evidence that PC Farr and his colleague, PC Clark, were part of a team that was keeping the appellant under surveillance in a “disruption operation” known as “Operation Cartogram”, which was intended to make life difficult for various persons who were suspected of being involved in criminal activity.

On 13 May 2014 they saw the appellant driving along the A90 Perth to Dundee Road and pulled his car into a layby after they signalled him to stop.

The officers placed him in handcuffs, searched him, questioned him about possible motoring offences and seized the car.

Later that day the appellant logged on to the website 192.com to search for the home addresses of the two officers and discovered where PC Farr lived.

The appellant gave PC Farr’s address to Guest – who was his personal trainer – and said that he was “being hounded” by the police.

There were a number of texts, calls, missed calls and voicemails between Guest and the appellant in the days leading up to the fire-raising on 23 June.

Two days after the fire, the two men went together to an 02 shop in Dundee, where the appellant arranged for a technical specialist to wipe the data from each of their iPhones and then bought a new iPhone for Guest.

During his police interview, Guest confessed to starting the fire and told officers he agreed to commit the crime to pay off a debt.

His position was that someone told him that they wanted a car set alight and where to find the vehicle but he refused to name the person whom he alleged set matters in train.

He poured petrol on the car, ignited it with a lighter, and ran off, but he claimed he did not know who resided at the house and that he only later learned that it belonged to a policeman.

However, the appellant continued to maintain his innocence, claiming that the searches on 192.com were simply to confirm that PCs Farr and Clark were genuine police officers.

When he learned of the fire, he thought Guest must have been the perpetrator and arranged for the iPhones to be wiped to “distance himself” from “the whole scenario”.

Senior counsel for the appellant submitted that there was “insufficient evidence” led such as would entitle a jury to hold that the co-accused Guest acted upon the instigation of the appellant and that accordingly there was “no route in law” through which art and part guilt on the part of the appellant could be said to be established.

It was argued that the Crown required to produce evidence of “actual instigation” to effectively vouch the causative nature of any behaviour or activity by the appellant which could be seen as causing the co-accused to do his bidding, but here there was no evidence of the involvement of the appellant quoad actor.

The Crown required to adduce corroborated evidence of instigation in order to bring home a sufficiency of evidence against the appellant on the charge, but it failed to do so and the judge ought therefore to have upheld the no case to answer submission.

Delivering the opinion of the court, Lord Menzies said: “We agree with the submissions of the Crown that there was sufficient evidence before the court at the stage of the submission of no case to answer to enable the jury, if they chose to do so, to draw the inferences that Mr Guest committed his crime under instigation and that the appellant was the instigator.

“Each case of this nature will depend crucially on its own facts and circumstances. Having regard to the factors referred to by the trial judge…we consider that there was a strong circumstantial case against the appellant.

“The trial judge required to consider the evidence in the way most favourable to the Crown. We consider that he did not fall into any error of law and was entitled to, and indeed correct to, repel this submission.”