Husband jailed for culpable homicide over ‘mercy killing’ of terminally wife admonished following appeal

Ian Gordon, 67, was jailed after pleading guilty to killing his 63-year-old wife by smothering her with a pillow, but the Appeal Court of the High Court of Justiciary ruled that there was “no public interest” in his continued incarceration.

Lord Brodie (pictured) and Lord Turnbull heard that the appellant to went to trial in September 2017 at the High Court in Glasgow on a charge of the murder of his wife of 43 years, but on the morning of the third day of the trial the Crown accepted his plea of guilty to culpable homicide.

‘Excessive sentence’

At the adjourned diet for sentence, having heard mitigation and having previously heard the Crown narrative, the trial judge Lord Arthurson imposed a sentence of three years and four months imprisonment, reduced from five years as the appellant had offered to plead guilty to culpable homicide by way of a section 76 letter as early as July 2016.

However, he appealed against sentence on the ground that in the “exceptional circumstances” of the case an alternative to a custodial disposal was appropriate; alternatively, that the sentence imposed was “excessive”.

The court was told that appellant, who had worked all his life as a self-employed painter and decorator, stopped working in 2015 to care for his wife, whose health was deteriorating.

A long term heavy smoker, she suffered from Chronic Obstructive Pulmonary Disease (COPD) and had retired on medical grounds from her job as a shorthand typist in 2006.

She assumed that she was suffering from lung cancer, but due to “chronic anxiety” she was reluctant to visit hospitals or seek medical treatment as she could not cope with the thought of a formal diagnosis.

On the evening of 24 April 2016, much to her family’s surprise given her aversion to hospitals, Mrs Gordon agreed to be taken to the accident and emergency department of Crosshouse Hospital, where she was treated for pneumonia before returning home on Tuesday 26 April.

The next day, the couple’s daughter Gail Whyte telephoned the appellant to check on her mother and was advised that she had “gone backwards”, while in a separate call later that morning the couple’s son Gary Gordon heard his mother screaming in pain. When Mrs Whyte visited her parents’ house at 7.45pm on the evening of 27 April she found her mother in bed screaming and moaning, clearly in excruciating pain.

‘Mercy killing’

The only direct source of how Mrs Gordon’s life came to an end in the early hours of 28 April 2016 was the consistent account given by the appellant to his children, the members of the emergency services who attended the house, and the police.

Mr Gordon said the couple had made a “pact” that he would give her an overdose of prescribed pain relief medication and that he put a pillow over her heard to “set her free”.

Post mortem examination confirmed that Mrs Gordon had been suffering from lung cancer, but also indicated that the level of prescription drugs would have been sufficient to explain her death.

Thus, but for the appellant’s confession to having smothered his wife with a pillow, the available medical evidence would not have led to the conclusion that he had done so.

At the sentencing diet, the court was referred to many testimonials tendered on behalf of the appellant, including one from a doctor who described what the appellant had done as a “final act of love and compassion, without malice and with kindness”, but the judge considered that “only a custodial sentence was appropriate”.

‘Exceptional circumstances’

Dean of Faculty, Gordon Jackson QC, submitted that there was “no public or private interest” in imprisoning the appellant and that it was not appropriate that he should have gone to jail.

To say, as the trial judge had, that a starting period of five years’ custody was appropriate was “simply wrong” when one considered the sorts of offending which might attract such a sentence.

He added that there had been instances in the past where a custodial sentence had not been imposed in circumstances which were broadly similar to those in the present case, including the recent case of Susanne Wilson, in which Lady Rae had seen no need to impose a custodial sentence following a period of deferral of six months, and the accused was admonished for the culpable homicide of her husband.

The advocate depute Iain McSporran QC, who had appeared for the Crown at trial in and had been instrumental in the decision to accept a plea of guilty to culpable homicide, was diffident about expressing what inevitably would be a personal view, but did associate himself with what the Dean had said as to mitigatory effect of the circumstances in the present case, adding that it did seem to him that the present case was “more deserving of sympathy” than others.

Allowing the appeal, the judges observed that while the appellant had pled guilty to the “mercy killing” of his wife, he acknowledged that what he had done was criminal according to the law of Scotland.

However, he was suffering “an abnormality of mind” and was “unable by reason of mental disorder to appreciate the nature or wrongfulness” of his conduct, which “very much reduces the culpability” of what the appellant pled guilty to.

‘No benefit in continued incarceration’

Delivering the opinion of the court, Lord Brodie said: “The trial judge determined that in the exercise of his public duty and in the public interest only a custodial sentence was appropriate in the appellant’s case. We do not consider that he was right about that. The Dean of Faculty invited us to ask ourselves the question: what is the good reason for this man to stay in jail? We see no good reason.

“The objectives of rehabilitation and individual deterrence have no application. Similarly, given the very particular circumstances of the present case, we see no requirement for general deterrence which has to be met. The appellant is not a risk to the public.”

The author of the Criminal Justice Social Work Report had said that Mr Gordon did “not present a risk of harm” to another person and his actions were “born out of love and loyalty to his wife, rather than intent to do harm to her”.

Lord Brodie continued: “That, as we have been at pains to point out, does not mean that he was not guilty of a crime or that he should not have been prosecuted. It is in the public interest that all cases of homicide should be carefully investigated and, where there is sufficient available evidence, prosecuted at the appropriate level. However, that has been done.

“There is also a public interest in making clear what must be regarded as society’s disapproval of criminal conduct. That is what we have referred to as denunciation. However, we see that as having been achieved by this prosecution and the public recording of a guilty verdict.

“We see no benefit as accruing to the appellant from his continued incarceration. Rather, it can only add to his distress and that of his family, particularly his children, as is evident from the letters from Gary Gordon and Mrs Whyte which were provided to the court. The Dean of Faculty referred to the imposition of a custodial sentence as ‘putting tragedy upon tragedy’. We see the force of that observation. We shall accordingly quash the sentence imposed by the trial judge and substitute it with an admonition.”