For the appellant: Shead, C Smith; John Pryde & Co

For the Crown: Prentice QC (Sol Adv), AD; Crown Agent

10 August 2011

Introduction

[1] On 4 October 2004 at the High Court in Glasgow, the appellant pled guilty to the following charge:

"(3) On 15 March 2004 at 308 Allison Street, Glasgow you Walter Charles Sneddon Thomson ... Steven Patrick Telford and Samuel Petto did, whilst acting along with another, pour petrol or similar accelerant throughout Flat Ground Right there, and set fire to said premises as a result of which an explosion occurred and fire took effect on said premises whereby the block of flats at 308 Allison Street, Glasgow was extensively damaged and flames, smoke and fire gases arising from said explosion and fire entered the common close and stairwell of said block and the other flats within said block as a result of which Myra Donachie, then residing there, received injuries from which she died on 16 March 2004 at Glasgow Royal Infirmary, Glasgow, and you did murder her."

[2] On 22 October 2004 he was sentenced to life imprisonment with a punishment part of ten years. He now seeks to withdraw his plea of guilty.

[3] This appeal was heard along with that of the co-accused Samuel Petto

The facts

[4] I have described the circumstances of this case in my Opinion in Petto v HM Adv (2011, App No XC194/08).

The issue for this appeal

[5] Counsel for the appellant made substantially the same submission as counsel in Petto v HM Adv (supra). He too relied on the decision in HM Adv v Purcell (2008 JC 131) and on the statement in Gordon (Criminal Law, 3rd ed, para 23.33) that was considered in that case. In essence his proposition was that the core element in murder was the deliberate killing of another human being (HM Adv v Purcell, supra, para 10). Where there was no evidence of a wicked intention to kill, an accused could be convicted of murder only if the nature and extent of the violence of the attack demonstrated a wicked recklessness as to the consequences of the attack on the victim. The law treated that accused as having a mens rea equivalent to a wicked intention to kill. Murder was not defined by reference to the concept of recklessness. Where death was caused by reckless conduct, the crime was culpable homicide. There was no rule that homicide committed in the course of another crime was murder (McKinnon v HM Adv 2003 JC 29). Murder was committed where there was either a wicked intention to kill or to cause physical injury and the conduct displayed a wicked disregard of its fatal consequences. Murder could not be committed in the absence of such intention. To be relevant, a charge of murder had to set out averments of assault on the victim or an intention to cause him physical injury. In the absence of qualifying words such as 'wilfully', the charge was irrelevant. The plea of guilty had therefore been tendered in error. The appellant should be allowed to withdraw it (Pickett v HM Adv 2007 SCCR 389).

Decision

[6] This appeal raises the issues that we have considered in Petto v HM Adv (supra). For the reasons given in our Opinions in Petto v HM Adv I consider that the appellant's plea of guilty cannot be withdrawn. Furthermore, again for the reasons given in Petto v HM Adv, I consider that the submission that the appellant had no intention to kill or cause physical injury is misconceived. I propose to your Lordships that we should refuse this appeal on the ground on which it has been argued and continue it for consideration of the remaining grounds.

For the appellant: Shead, K Smith; John Pryde & Co

For the Crown: Prentice QC (Sol Adv), AD; Crown Agent

10 August 2011

[7] I agree with your Lordship in the chair that the appeal should be refused only on the grounds on which it has been argued.

For the appellant: Shead, K Smith; John Pryde & Co

For the Crown: Prentice QC (Sol Adv), AD; Crown Agent

10 August 2011

[8] I agree with your Lordship in the chair.

For the appellant: Shead, K Smith; John Pryde & Co

For the Crown: Prentice QC (Sol Adv), AD; Crown Agent

10 August 2011

[9] I agree with your Lordship in the Chair that the ground of appeal which has been argued before us should be refused.

For the appellant: Shead, K Smith; John Pryde & Co

For the Crown: Prentice QC (Sol Adv), AD; Crown Agent

10 August 2011

[10] For the reasons given by your Lordship in the chair, I agree that the appeal should be refused on the ground on which it has been argued.