APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Johnston

[2007] HCJAC54

Appeal No: XC34/07

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST SENTENCE

RICHARD WILLIAM HAIG COSGROVE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Kerrigan, Q.C., Lenehan; Fairbairns

Alt: Kearney, A.D.; Crown Agent

11 September 2007

Introduction

[1] The appellant, Richard William Haig Cosgrove, along with two co-accused, James Bain ("Bain") and Bernard Carlin Young ("Young"), stood trial in the High Court at Edinburgh on an indictment containing a total of nine charges. At the conclusion of the Crown case, all charges were withdrawn with the exceptions of charges 1, 3, 4, and 8 against Bain and charges 3, 4, and 8 against the appellant and Young. At the conclusion of the trial on 30 November 2006, all three accused were convicted unanimously by the jury of all charges which remained outstanding against them.

[2 ] At the adjourned diet for sentence on 11 January 2007 the Trial Judge admonished Bain in respect of charge 1 and all three accused in respect of charge 8. He sentenced Bain and the appellant to life imprisonment and Young to detention for life, in each case in cumulo, in respect of charges 3 and 4. He set the punishment part in respect of the life sentence imposed on Bain and the life detention imposed on Young at 22 years and nineteen years and six months respectively. He set the punishment part in respect of the life sentence imposed on the appellant at 20 years. The appellant appeals against the length of the punishment part imposed on him.

The charges

[3 ] Charge 1 was a charge of assault to injury upon Donna Hendry, laid against Bain alone. Charge 8 was a consequential statutory charge, under section 17(2) and (5) of the Firearms Act 1968 as amended, relating to possession of a sawn-off shotgun at the time of the offences of murder and attempted murder. Charges 3 and 4 were the substantive charges which led to the sentences of life imprisonment. They were in the following terms:

	"(3)	on 22 April 2006 at The Marmion Public House, 2 Gracemount Drive, Edinburgh, with faces masked and heads covered, you JAMES BAIN, RICHARD WILLIAM HAIG COSGROVE and BERNARD CARLIN YOUNG did assault Alexander McKinnon, now deceased, and did discharge a loaded sawn-off shotgun at him, shoot him on the body and you did murder him; ...
	(4)	on 22 April 2006 at The Marmion Public House, 2 Gracemount Drive, Edinburgh, with faces masked and heads covered, you JAMES BAIN, RICHARD WILLIAM HAIG COSGROVE and BERNARD CARLIN YOUNG did assault James Hendry, ... and did discharge a loaded sawn-off shotgun at him, shoot him on the body to his severe injury, permanent disfigurement and to the danger of his life and you did attempt to murder him;..."

Both of these charges, so far as laid against Bain, were aggravated by his having been at the material time subject to four bail orders.

The grounds of appeal

[4 ] The grounds of appeal against sentence lodged on the appellant's behalf were concisely expressed in the following terms:

	"The period of the punishment part selected was excessive when regard is had to the circumstances of the appellant, and the nature of the appellant's involvement in the offences. In particular:
	(a)	The appellant was aged 22 at the time of the offences, and had a minimal record of prior offending.
	(b)	The appellant played a materially lesser role in the crimes yet received a substantially similar punishment to the principal actor, Bain. Bain appeared to be the one with the motive and Bain it was who fired the shotgun. Bain in addition had a more significant record of previous offending and breached multiple bail orders."

The submissions on the appellant's behalf

[5 ] In the written submissions lodged on the appellant's behalf some reference was made to the appellant's personal circumstances, his age [which, as the Trial Judge noted, was 20 at the time of the crimes, not 22 as averred in the grounds of appeal] and relatively insignificant criminal record, but the main thrust of the argument was that the role he played in the murder and the attempted murder was much less significant than that played by Bain, and that both in absolute terms and in comparison to the punishment part of 22 years imposed on Bain, the punishment part of 20 years imposed on the appellant was excessive. As that submission came to be developed in oral argument, it contained two separate strands. One related directly to the part played by the appellant in the crimes. The other was founded on the proposition that, in playing such part as he did in those crimes, the appellant was acting reluctantly under pressure from Bain.

[6 ] As to the part played by the appellant in the murder and the attempted murder, counsel, of course, accepted that the appellant accompanied Bain into the Marmion Public House with his face masked and his head covered, and lent support to Bain in the commission of the crimes. He questioned the Trial Judge's formulation that the appellant had "enabled and facilitated the two shootings", accepting that he could be said to have "facilitated" them, but suggesting that it was going too far to say that he "enabled" them. The background was to be found in the events of charge 1, the assault by Bain on Dionne Hendry. They had had a relationship for a number of years, the assault had angered Adam Hendry, Dionne's father, and Bain's apprehension of violence from him and other members of the Hendry family had prompted the expedition to the Marmion Public House. Bain had set off from Lisa McCraw's flat, indicating by word and gesture an intention to shoot one of the Hendrys. As he did so, he had summoned the appellant to follow him, telling him to "fucking move" (evidence of Nikita Hunter). There was evidence that the appellant followed Bain about and would do whatever he asked of him (Nikita Hunter), and that Bain was a man who normally got his own way (Jason Cervi). When they reached the public house, it was Bain who was armed with the shotgun, who advanced into the bar, and who fired the two shots. As could be seen from the enhanced stills from the CCTV film (Crown production 136), the appellant was not to be seen in the near vicinity of Bain as the shots were fired. There was evidence that, after the event, the appellant was "white and sweating" (John Paul Kelly) and "like a ghost" (Peter Miller). He claimed to have been persuaded to co-operate by threats by Bain. Although the jury had rejected the defence of coercion, the evidence that the appellant acted under pressure from Bain remained for consideration in the context of assessing the part played by each in the commission of the crimes.

[7 ] In these circumstances, counsel submitted, the punishment part imposed on the appellant should have been shorter, and in particular a greater difference should have been made between the punishment part imposed on Bain and that imposed on the appellant. Looking at the appellant's personal circumstances, his substantially lesser part in the crimes, and the fact that there was independent evidence that he was a reluctant participant acting under pressure from Bain, a punishment part of less than 20 years was appropriate. Looking at the matter as one of comparative justice, the difference between the parts played by Bain and the appellant, Bain's more substantial record, and the fact that his conviction was aggravated by the breach of four bail orders ought to have led to a substantial difference between the punishment parts imposed on him and the appellant.

The Trial Judge's observations on the grounds of appeal

[8 ] After noting, and indicating that he had taken account of, the points about the appellant's age and record, the Trial Judge (at pages 15-16 of his Report) made the following observations on the grounds of appeal:

"Cosgrove played a lesser role in the crimes in the sense that he did not fire the shotgun, but he accompanied the gunman to the Marmion Public House masked and dressed in similar clothing, was present in the public house when the shots were fired, and left the public house along with the gunman. As the Advocate Depute put it in his jury speech, 'they took steps to disguise themselves and create terror'. I stated in my sentencing remarks to Cosgrove that he had accompanied Bain to the Marmion Bar dressed in similar clothing and his presence there, masked and hooded, enabled and facilitated the two shootings. I do not accept that Cosgrove 'received a substantially similar punishment part' to Bain, as there was a difference of two years. I accept that Bain appeared to be the one with the motive, that he fired the shotgun, that he had a more significant record of prior offending and that he had breached multiple bail orders. The punishment part in this case had to reflect the fact that, in [addition] to the conviction for murder by shooting, there was also a conviction for attempted murder by shooting. Cosgrove played a significant part in the commission of both crimes. I sought to reflect the differences between his record and involvement on the one hand and those of Bain on the other hand in the distinction I made in their punishment parts."

The Trial Judge made no reference in his Report to the evidence that the appellant acted reluctantly under pressure from Bain.

Discussion

[9 ] The starting point for consideration of the punishment part imposed on the appellant is, as the Trial Judge correctly recognised, that he was convicted by the verdict of the jury, not only of murder by shooting, but also of attempted murder by shooting. Both these convictions require to be reflected in the punishment part selected. On the other hand, it is clear that the appellant did not fire either of the shots, and that he was found guilty of both crimes on the basis of art and part guilt. In selecting the punishment part it is therefore, in our view, necessary to make an assessment of the appellant's culpability.

[10 ] The punishment part must reflect the fact that the appellant accompanied Bain, whom he knew to be armed with a shotgun and to be looking to harm members of the Hendry family, on the expedition to the Marmion Public House; that he was (like Bain) masked and hooded; and that by so accompanying Bain he enhanced the menace of the situation that developed in the public house. We accept that he is properly to be described as facilitating the shootings, although we think there is some force in counsel's suggestion that it is perhaps going too far to describe him as having "enabled" the shootings, if by that is implied that they would not have taken place without his participation.

[11 ] On the other hand, we are of opinion that a distinction requires to be made between the roles in the commission of the crimes of Bain and the appellant respectively. Bain was the person with motive to carry out the crimes; he was the person who took the initiative in arming himself and setting off for the public house. Crucially, he was the one who fired the shots. The appellant, on the other hand had no personal reason for involvement, went along in a supportive role, and did not himself fire any shots or otherwise offer violence. Moreover, although he did provide support for Bain in the commission of the crimes, we accept the point, made by counsel by reference to the photographs, that he appears not to have been in the immediate vicinity as the shots were fired.

[12 ] The Trial Judge rightly notes that the defence of coercion was rejected by the jury. We are of opinion, however, that that does not render irrelevant to the assessment of the appropriate punishment part for the appellant the evidence that he acted with reluctance as a result of pressure from Bain. The test to be applied by the jury in reaching a view on the defence of coercion is a strict one, but a different, less stringent, test falls in our view to be applied to whether the fact that the appellant was acting under pressure short of legal coercion may be relevant mitigation in assessing his culpability with a view to fixing the punishment part of his life sentence. The difficulty in the present case is that the Trial Judge has said nothing to indicate that he evaluated the evidence of pressure. One possibility, of course, is that he utterly rejected the evidence of pressure, both in so far as it was offered by the appellant himself and in so far as it was supported by the evidence of other independent witnesses. Where there was such evidence, however, we are of opinion that the Trial Judge ought to have expressed his views on it and, if he rejected it, to have done so expressly. The Trial Judge has not done that, and in that situation it is, in our view, open to us to form a view on it, as counsel invited us to do. In our view, such independent evidence as there was supports the view that the appellant acted reluctantly, doing what he was told by Bain rather than exercising wholly independent judgment. That falls far short of exonerating him, but it is a mitigatory factor that ought to be taken into account.

[13 ] We do not think that there is much mitigation in the appellant's age, or much ground for distinction between the appellant and Bain in the difference between their ages. For what it was worth the point was taken into account by the Trial Judge. The same may be said for the difference between the appellant's record and Bain's record, and the fact that Bain committed the crimes while subject to four bail orders. That no doubt justified a distinction between them. We are of opinion, however, that when proper account is taken of the appellant's subsidiary and reluctant participation in the crimes and the substantially different roles which the appellant and Bain played in them, a greater difference in the punishment parts selected would have been appropriate. In our view, the appropriate punishment part for the appellant would have been sixteen years.

Result

[14 ] We therefore allow the appeal, quash the punishment part imposed by the Trial Judge and substitute for it a punishment part of sixteen years.