Seven judges refuse appeal against convictions of two of three accused involved in Glasgow murder

About this case:

• Citation:
  [2024] HCJAC 44
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Maria Gardiner and Michael Anderson, each sentenced to life with a punishment part of 18 years, argued that the trial judge had misdirected the jury by telling them that they could not convict one of them of murder and the others of culpable homicide. The third co-accused, James Houston, played no part in the appeal. Ms Gardiner also appealed against the length of the punishment part of her sentence, which she argued was excessive.

The appeal was heard by the Lord Justice General, the Lord Justice Clerk, Lady Paton, Lord Malcolm, Lord Pentland, Lord Matthews, and Lord Armstrong. Jackson KC and Graham KC led the representation teams for the appellants and the Lord Advocate, Dorothy Bain KC, appeared for the Crown.

Foreseeable risks

On 6 February 2022 Mr Anderson messaged Mr Houston and discussed a suspicion that the deceased had stolen drugs and/or money from Mr Anderson. Late on 7 February 2022 they devised a plan to go to the deceased’s flat in Springburn and “give him a doing”. Ms Gardiner, Mr Houston’s partner, went with the men to Springburn on 8 February, carrying between them a toolbox containing a hammer, a blowtorch, and other tools including a chisel.

The evidence of the deceased’s partner, who had died prior to the trial diet, was that the deceased was attacked by Mr Houston while she was assaulted by the appellants. This was inconsistent with her initial 999 call in which she said three people ran into the flat and stabbed her partner. The assault lasted about 17 minutes and involved at least five different weapons, with the fatal injury determined to be a penetrating stab wound.

At trial, the issue was whether all three accused were responsible for the death on the basis of concert. The trial judge directed the jury that either a verdict of murder or culpable homicide was open to them in relation to the principal actor. On concert, he added that if the jury was satisfied that a particular accused had actively associated themselves with a common purpose with another accused, they could be guilty of the same crime as the accused who inflicted the fatal wound but could not be guilty of either murder or culpable homicide if they were not associated with that purpose.

For Mr Anderson it was submitted that the law of concert permitted different verdicts, of murder and culpable homicide, to be competently delivered in respect of separate co-accused. There was no rule that the jury must convict the co-accused of the same crime as the principal actor. It was open to the jury to conclude that certain risks were not foreseeable by the ancillary actors.

Counsel for Ms Gardiner added that, in relation to her part, culpable homicide could arise if the jury were not satisfied that she knew that the principal actor was carrying a weapon to be used to kill the deceased. This was open to the jury, since there was no evidence that she had assaulted the deceased.

Antecedent concert

Lord Carloway, delivering the opinion of the court, said of the principles of concert: “There is no requirement to search for the intentions of the ancillary actors at the time of the killing. The task is an objective analysis of what they ought to have anticipated would be likely to happen in the course of an attack in which they participated. Thus, if they had no reason to expect the use of serious violence, they would not be art and part in the homicide.”

He continued: “Where the principal actor, that is he or she whose blows killed the deceased, is guilty of murder, the ancillary actors are either guilty of murder art and part because of their participation in a plan which foresaw the use of serious violence, or they are guilty of assault or nothing at all. They cannot be guilty of culpable homicide if they were not part of the plan to cause serious injury.”

Applying these principles to the facts of the case, Lord Carloway said: “This was a case of antecedent concert. It involved pre-planning in the form of deciding to seek out the deceased in his own home and to ‘give him a doing’, involving the use of a variety of tools which could cause serious injury. In that state of the evidence, where the ultimate blow, seen in the context of 86 wounds in total, must be seen as murderous, the appellants were participating in a common criminal plan in which serious injury was objectively foreseeable.”

He concluded: “The consequence is that they too were inevitably guilty of murder. This is not because of what they may have intended at the time of the murderous blow, but by operation of the principles of concert.”

Addressing the appeal against sentence by Ms Gardiner, Lord Carloway added: “The main feature which is founded upon is a lack of evidence that Ms Gardiner attacked the deceased. In this case, that is a relatively weak submission given that her purpose, which she appears to have fulfilled, was to take the deceased’s partner out of the picture, presumably so that she could not go to the deceased’s assistance in his time of obvious need. It is equally weak in a situation in which Ms Gardiner was involved in the plotting, on the day before the attack, and her willing participation in the attack with objects from a toolbox which she had helped to carry.”

Both the appeals against conviction and sentence were therefore refused.