First Appellant: Findlay Q.C., V. Young, Advocate; J.C. Hughes, Glasgow

Second Appellant: Jackson Q.C., Lenehan, Advocate; Paterson Bell

Respondent: Miller, Advocate Depute; Crown Agent

15 July 2011

Introduction

[1] On 2 May 2008, at Glasgow High Court, the appellants, James Scott McDonald and Raymond Anderson, were both convicted after trial on seven charges in the indictment they faced: Charge (1), a charge of reset; Charges (2) - (4), three contraventions of the Firearms Act 1968; Charges (6) and (7), two charges of attempted murder; and Charge (8), a charge of murder.

[2] On the same date, the trial judge sentenced each appellant to five years imprisonment in respect of Charge (1), five years imprisonment in respect of Charge (2), ten years imprisonment in respect of Charge (3) and five years imprisonment in respect of Charge (4). Those sentences were backdated to 5 March 2007. They are not the subject of any appeal.

[3] The trial judge did not impose sentences on the appellants in respect of the two charges of attempted murder, Charges (6) and (7). According to his report, he refrained from doing so because the charges of attempted murder had formed part of the same incident that gave rise to the charge of murder. In respect of the charge of murder, Charge (8), the trial judge sentenced each of the appellants to life imprisonment backdated to 5 March 2007. In terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act") the trial judge ordered that a punishment part of 35 years be served by each appellant, before the provisions of sections 2(4) and 2(6) of the 1993 Act should apply. In fixing the punishment parts at 35 years, the trial judge took into account that each of them had also been convicted on Charges (1), (2), (3), (4), (6) and (7). Each appellant has appealed against the imposition of a punishment part of 35 years.

The charges
[4] The appellant McDonald was convicted of charges in the following terms:

"(1) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did reset three machine guns, a bipod, a telescopic sight, quantities of ammunition and a number of flares, all of which had been dishonestly appropriated by theft;

(2) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow, and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did have in your possession firearms, namely three machine guns, without holding a Firearms Certificate in force at the time:

CONTRARY to the Firearms Act 1968, Section 1(1)(a) as amended;

(3) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow, and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did without the authority of the Secretary of State or the Scottish Ministers, have in your possession prohibited weapons to which Section 5 of the aftermentioned Act applies, namely three machine guns:

CONTRARY to the Firearms Act 1968, Section 5(1)(a) as amended;

(4) between 24 November 2004 and 11 January 2007, both dates inclusive, at 57 Tallant Terrace, Flat 0/2, 30 Irongray Street, 82 Inishail Road, and 106 Jerviston Road, all Glasgow, and elsewhere you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did have in your possession ammunition to which Section 1 of the aftermentioned Act applies, namely a number of 5.56 millimetre bullets and a quantity of 9 millimetre bullets, without holding a Firearms Certificate in force at the time: CONTRARY to the Firearms Act 1968, Section 1(1)(b) as amended;

(6) on 6 December 2006 at the premises known as Applerow Motors, 730 Balmore Road, Glasgow with faces masked, you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did assault Steven Lyons, c/o Strathclyde Police, Maryhill, Glasgow, present firearms, namely handguns, at him, pursue him, repeatedly discharge said firearms at him and repeatedly shoot him on the body all to his severe injury, permanent disfigurement and permanent impairment and to the danger of his life and did attempt to murder him;

(7) on 6 December 2006 at the premises known as Applerow Motors, 730 Balmore Road, Glasgow, with faces masked, you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did assault Robert Pickett, c/o Strathclyde Police, Maryhill, Glasgow present firearms, namely handguns, at him, pursue him, repeatedly discharge said firearms at him and attempt to shoot him, pursue him, struggle with him, and repeatedly shoot him on the body all to his severe injury, permanent disfigurement and permanent impairment and to the danger of his life and did attempt to murder him; and

(8) on 6 December 2006 at the premises known as Applerow Motors, 730 Balmore Road, Glasgow, with faces masked, you JAMES SCOTT McDONALD and RAYMOND ANDERSON Senior did assault Michael Lyons, now deceased, c/o Strathclyde Police, Maryhill, Glasgow present firearms, namely handguns, at him, pursue him, repeatedly discharge said firearms at him and shoot him on the body and did murder him."

Subject to one modification applicable to each of Charges (1), (2) and (3), the terms of the charges on which the appellant Anderson was convicted were identical to those relating to the appellant McDonald. When convicting the appellant Anderson on Charges (1), (2) and (3), the jury deleted the reference to "three machine guns" in each charge and substituted therefor "a machine gun".

[5] The facts relating to Charges (1) - (4) on the indictment are relatively straightforward. The trial judge reports that the jury heard evidence that on 11 January 2007 police officers searched a house at 82 Inishail Road, Glasgow occupied by two Crown witnesses. During the search a machine gun, a bipod, a telescopic sight, quantities of ammunition and a number of flares were recovered. One of the occupiers, who was related to the appellant McDonald, gave evidence that the latter had delivered the items to the house. Surveillance of the house prior to the delivery of the items had also resulted in the appellants being observed arriving in separate cars at the time of the delivery. Covert surveillance later recorded the appellant McDonald boasting about having had the items, although he referred to three machine guns and the police having recovered them. The items were military equipment, which could not be lawfully possessed by civilians.

[6] In relation to charges (6), (7) and (8), the trial judge prepared full reports for this court for the purposes of appeals against conviction which had been lodged in respect of each appellant. Those appeals were refused on 1 October 2010 (McDonald & Anderson v H M Advocate [2101] HCJAC 95). In summary, the evidence relating to charges (6), (7) and (8) disclosed that during the afternoon of 6 December 2006 two masked men, whom the jury concluded were the appellants, entered the premises of Applerow Motors, 730 Balmore Road, Glasgow. A garage business involving the repair of motor vehicles and MOT testing was based at the premises. In front of and to the side of the buildings, where servicing, testing and repairs were undertaken, there were areas of tarmacadam on which vehicles could park. The business was owned and operated by a Crown witness, David Lyons. His son, Mark Lyons, another Crown witness, was a mechanic there. On 6 December 2006 David Lyons and his son were both working at the garage, when Michael Lyons, a 21 year old nephew of David Lyons, arrived. He became the victim of the murder charge. Michael Lyons operated a car valeting service. He kept the van he used in connection with that business at the garage premises occupied by Applerow Motors. After arriving at the garage, he filled his van with water and valeted his own car. Steven Lyons, a 27 year old nephew of David Lyons, and subsequently the complainer on Charge (6), one of the charges of attempted murder, also arrived at the garage. He was in his Ford Focus motor car. In the front passenger seat was Robert Pickett, a further Crown witness and subsequently the complainer on Charge (7), the other charge of attempted murder. When Steven Lyons arrived he got out of his car and spoke to Michael Lyons, David Lyons and other people at the garage. Robert Pickett remained in the car. Whilst Steven Lyons was speaking to others, David Lyons saw two masked men walking into the garage forecourt. David Lyons shouted to Steven Lyons and the others to watch out. The two masked men started to run. It could be seen that each of them had a handgun. Steven Lyons jumped into his car and the men started firing. Steven Lyons drove round the side of the garage to the back. As he did so one of the men ran after the car repeatedly firing at it, whilst the other man went into the garage premises where David Lyons, Mark Lyons and Michael Lyons had run upon seeing the gunmen. At least four shots were fired at the car being driven by Steven Lyons. The car collided with a fence at the rear of the premises and Steven Lyons and Robert Pickett got out of the car. The rear window of the car was shattered and a bullet or bullets had passed through the upholstery. When Steven Lyons and Robert Pickett were still in the car, Pickett was struck twice by bullets and sustained minor injuries to his shoulder and the bottom of his back. When Robert Pickett got out of the car he noticed a gunman standing about two feet away from him. The gunman shot Robert Pickett again, in the stomach, causing him to fall to the ground. When Steven Lyons got out of the car he ran into the garage premises and hid near a car parked within the MOT bay. Whilst he was hiding there he noticed the other gunman within the premises. Steven Lyons ran towards his own car in an effort to escape from the second gunman. As Steven Lyons did so he was shot in the leg causing him to fall to the ground.

[7] When the two gunmen were first seen by David Lyons, he, his son Mark and his nephew Michael ran into the garage premises. They were pursued by the second gunman. When David Lyons was near the MOT bay he heard gunshots and thereafter heard Michael Lyons screaming. He saw Michael Lyons falling down near a vehicle within the MOT bay and he went to pick him up. Michael was lying on the ground apparently unconscious. David Lyons could not see any injuries on Michael at that stage. He was about to pick up Michael Lyons when he saw the gunman moving towards them, with his arm outstretched holding a firearm in his hand. The gunman pointed his gun at Michael Lyons and David Lyons causing David Lyons to drop Michael Lyons and to run out of the back of the garage. As he ran out of the back of the garage David Lyons almost ran into the other gunman who was chasing the car driven by Steven Lyons and firing at it. That gunman continued to chase the car and David Lyons ran away. He and his son Mark Lyons managed to escape and reach safety. He saw both gunmen meeting up again and quickly leaving the garage forecourt together. David Lyons then returned to attend to Michael Lyons, who was still lying motionless. David Lyons realised that Michael Lyons was dead. He summoned assistance by dialing 999.

[8] Forensic examination at the garage premises disclosed that at least eleven shots had been fired from two self loading firearms. Five of the shots had been fired from positions in front of the garage and the remaining six shots had been fired in the vicinity of the rear of the MOT bay. These findings were consistent with both of the masked men having guns and one man firing at the front of the premises, whilst the other followed the car driven by Steven Lyons and fired at that car as he chased it. At least four shots were fired at the car.

[9] Post-mortem examination of the body of the deceased, Michael Lyons, disclosed that he had been killed by a single shot in his back, apparently whilst he was lying on his stomach. The complainer Steven Lyons sustained a broken femur, requiring him to be in hospital for three days, followed by treatment extending over a period of months. He also sustained a bullet wound just below his shoulder blade and has permanent scarring. The complainer Robert Pickett was shot in the stomach, on a shoulder and at the bottom of his back. He sustained serious internal injuries, including the loss of a kidney. He was an inpatient in hospital for two months. He underwent a number of operations.

[10] A number of the witnesses who gave evidence during the trial, including the complainers in the two charges of attempted murder, were reluctant witnesses. It was suggested during cross-examination of witnesses that members of the Lyons family had been involved in organised crime. Such suggestions were denied. In particular, David Lyons, who owned the garage business, gave evidence that he knew of no reason why anyone would have wanted to inflict serious injury on him or on any member of his family.

[11] During the trial, neither appellant challenged what had happened at the garage premises on 6 December 2006. It was accepted by their counsel that what had occurred had been premeditated and cold blooded. However, both appellants disputed any involvement.

Grounds of appeal for McDonald

[12] The grounds of appeal against the punishment part of 35 years imposed, which were lodged on behalf of the appellant McDonald, found on the fact that it is the highest punishment part ever imposed in Scotland. It is argued that the punishment part is longer that any previously imposed in a case involving multiple deaths. It is contended that there is nothing in the present case to cause it to be viewed as more serious than convictions for murder involving multiple deaths.

[13] In developing those grounds of appeal during the course of his submissions, Mr. Findlay, senior counsel for the appellant McDonald, indicated that on the face of it David Lyons' premises were garage premises. However, he submitted that there had been a clear inference from the evidence led during the trial that the garage premises had been a front for the activities of persons, including the deceased and the two complainers, who were involved in serious organised crime. Such organised crime involved controlled drugs and the use of serious violence, including firearms. Senior counsel submitted that the conclusion which could be drawn in the present case was that "two bad men had been shooting at three other bad men". The jury had been well entitled to take the view that this had been a feud between those involved in organised crime. Those who carried out the violence may have been acting out of revenge, but they had not been acting for personal gain. In such circumstances, it was impossible to consider the deceased and the two complainers as having been wholly innocent victims. That had been apparent from the attitude of certain of the Crown witnesses during the trial and their reluctance to give evidence.

[14] Against that background, Mr. Findlay argued that whilst the gravity of the charges of which the appellant McDonald had been convicted warranted a punishment part in the higher reaches in which such orders are made, the trial judge had erred in imposing one of 35 years. Such a figure was significantly higher than the punishment parts imposed in the well known cases of Walker v HM Advocate 2002 SCCR 1036, Robert Mone v HM Advocate and Howard Wilson v HM Advocate. Summaries of Mone and Wilson are to be found in an appendix to the report in Walker v HM Advocate.

[15] Mr. Findlay also referred to the recent case of Smith v HM Advocate [2010] HCJAC 118, in which the appellant Smith had pled guilty to murdering a woman and her 10 year old child. The conduct to which the appellant pled guilty had included sexual and sadistic behaviour directed against both victims and the making of efforts to conceal their bodies. In Smith the appeal court had approved a starting point for the punishment part of 35 years, subject to a discount of 3 years to reflect the plea of guilty. In Mr. Findlay's submission, it was understandable why the wider public interest had required a punishment part at the level of that imposed in Smith. In Smith the victims had been wholly innocent. In the present case, however, because the jury would have been entitled to take the view that what had taken place had been a feud involving the two appellants and the three victims, all of whom had some involvement in organised crime, the trial judge ought to have sentenced them on that basis.

[16] Mr. Findlay also argued that the record of previous convictions of the appellant McDonald, whilst extensive, was not such as to require the imposition of a punishment part in excess of 30 years.

Grounds of Appeal for Anderson

[17] The grounds of appeal against sentence lodged on behalf of the appellant Anderson found on the fact that his record of previous convictions is limited in extent. That record of prior offending is described as being "modest and historic". The appellant has no analogous previous convictions. It is also contended that the circumstances of the charges of which the appellant had been convicted, whilst obviously and admittedly serious, were not of such unprecedented gravity as to merit the longest sentence of imprisonment to be imposed in a Scottish criminal court in modern times.

[18] The grounds of appeal on behalf of the appellant Anderson also raise the issue of comparative justice. It is contended that no favourable distinction had been made by the sentencing judge between the appellant Anderson and the appellant McDonald, the latter having convictions at High Court level in Scotland and Crown Court level in England, including for some offences involving firearms.

[19] Mr. Jackson, senior counsel for the appellant Anderson, adopted Mr. Findlay's submissions comparing the circumstances of the present case with those of other well known cases. Mr. Jackson argued that if 35 years had been the appropriate starting point in Smith, in which the victims had been totally innocent, it could not be the appropriate figure in the present case. The two cases could not have been more different.

[20] The appellant was now aged 49. He would be 80 years of age before he could apply to be released on licence. Mr. Jackson explained that he had not acted for the appellant Anderson at the trial. For that reason, he was unable to comment on the trial judge's explanation for having imposed the same punishment part in respect of each appellant. That explanation was as follows. The trial judge was aware that the appellant McDonald had the more significant record. However, he decided not to make any distinction between the two appellants because the evidence during the trial had seemed to suggest that the appellant Anderson was the leader of the two. The appellant Anderson had given evidence that the appellant McDonald had worked for him in the course of his business. When giving evidence, the appellant Anderson had found amusing the suggestion that as between the pair of them the appellant McDonald was the boss. Moreover during the trial the jury had heard evidence about telephone traffic which had indicated that the appellant Anderson's son may have been watching the garage premises where the murder took place and relaying messages to his father. On that factual basis the trial judge took the view that any distinction between the appellant Anderson and the appellant McDonald on the basis of record was offset by the appellant Anderson's role as leader. As we have indicated Mr. Jackson explained that not having been counsel at the trial he was unable to comment on the trial judge's explanation for his decision on this issue.

Discussion

[21] We deal first with the issue of whether the punishment part to be served by each of the appellants should be the same. In addressing that question, we have considered the records of the two appellants and the reasons the trial judge gives for not differentiating between them, notwithstanding the fact that the appellant McDonald has a much longer and more serious record than the appellant Anderson does. As we have indicated, the trial judge informs us that the evidence seems to suggest that the appellant Anderson was the leader of the two. He was the older of the two. He employed the appellant McDonald in the course of his business. Furthermore one chapter of the evidence, that relating to telephone traffic, suggested that the son of the appellant Anderson had been watching the locus and relaying messages to his father.

[22] These convictions resulted from a trial extending over several weeks. In our opinion a trial of that duration gave the trial judge ample opportunity to form his own assessment of the respective roles of the two appellants in the commission of the crimes of which they were convicted. It is not suggested on behalf of the appellant Anderson that the trial judge was not entitled to form the view he did, that the appellant Anderson was the leader of the two. Nor is such a view in any way inconsistent with the jury's verdict.

[23] In our opinion when the trial judge was considering the punishment parts he intended to impose in respect of each of the appellants, he required to consider all the evidence and information before him and to consider whether the punishment parts for the two appellants should be the same or different. As part of that exercise, he was entitled to consider whether one of the appellants played a greater role than the other or whether their roles were similar. If he reached the conclusion that the role of the appellant Anderson was greater than that of the appellant McDonald, it was open to the trial judge to take the view that the greater role of the appellant Anderson balanced out the longer and more serious record of the appellant McDonald.

[24] We have had the opportunity of considering the detail of the two records and the reasons the trial judge gives for imposing the same punishment parts. Having done so, we are not persuaded that the trial judge erred in the approach he took, or that we have any basis for interfering with his view that the punishment parts for both appellants should be the same.

[25] In HM Advocate v Boyle 2010 SCCR 103 the court made clear that section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as amended) provides no minimum or maximum for the period of a punishment part in a sentence of life imprisonment imposed in respect of a conviction for murder. All that the 1993 Act prescribes is that the period must be specified in years and months (paragraph [7]). Later in its opinion, the court addressed the issue of whether 30 years was "a virtual maximum punishment part" that would be imposed in Scotland. The court held it was not and indicated that there might well be cases, for example mass murders by terrorist action, for which a punishment part of more than 30 years would be appropriate. Insofar as cases such as Walker and HM Advocate v Al Megrahi (High Court of Glasgow, 24 November 2003, unreported) might have suggested that 30 years was a virtual maximum punishment part, they were disapproved.

[26] The charges of murder and attempted murder of which the present appellants were convicted are very serious crimes. They were planned in advance. They involved both appellants repeatedly discharging firearms at their victims and doing so with the intention of killing them. More than one of the intended victims could easily have been killed, and the use of firearms within commercial premises showed a complete disregard for the safety of any members of the public who might have been present. In addition, on the same indictment, the appellants were convicted of the reset and possession of one or more prohibited weapons, namely machine guns, together with certain ammunition and other items. Importantly, these additional items appear to have been unrelated to the incident which gave rise to the principal charges of murder and attempted murder.

[27] There was obviously some background to the charges of murder and attempted murder of which the appellants were convicted. A reasonable inference, in our view, is that whoever instigated the attack must have had some prior dealings with one or more of the intended victims. However, the nature of such dealings and the motives for the attack were not established during the trial, and it is unlikely that they will ever be known. In such circumstances we can see no basis for the assertion, advanced in argument, to the effect that these crimes "merely" involved "bad men trying to kill other bad men, with whom they had been in some kind of a feud". Whatever the context, premeditated crimes of violence involving the use of firearms are of the utmost concern to the public, and to this court, and to our mind the present case is no exception.

[28] With that in mind, the question for determination is whether punishment parts of 35 years, to date from 5 March 2007, which were imposed on the appellant McDonald, whose date of birth is 10 August 1973, and the appellant Anderson, whose date of birth is 17 November 1961, can be said to be excessive. We have reached the view that they can be.

[29] In our opinion, serious though the present case is, it cannot be regarded as intrinsically more serious than cases such as Walker, Wilson and Mone. In Walker the appellant was convicted after trial of robbery and murder. The crime was deliberately planned and involved the killing by a machine gun of two serving soldiers and a retired officer, in the course of their duties. On appeal, the punishment part in that case was reduced from 30 years to 27 years. In Wilson the accused had pled guilty to murdering two police officers and attempting to murder another. In Mone the accused, who had escaped from the State Hospital, Carstairs, pled guilty to a number of charges, including a charge of murdering a police officer and two charges of attempted murder. In each case the punishment part was fixed at 25 years.

[30] In Boyle the court gave no overt indication that the punishment parts imposed in those three cases would require to be revised upwards were a similar case to occur again. Indeed, whilst making it clear that there is no 30 year limit to punishment parts, the only example which the court put forward of a case warranting a punishment part in excess of 30 years was one involving mass murders by terrorist action (paragraph [13]). That said, however, there has clearly been a tendency for the length of punishment parts in all murder cases to increase with the passage of time. An illustration of this tendency is the guidance offered by the court in Boyle, at paragraphs [14] to [16], with reference to knife crime in particular, and more generally we find it hard to imagine a punishment part as high as that in the recent case of Smith being imposed, or being affirmed, even eight to ten years ago.

[31] Looking at the circumstances of the present case, even by today's standards, we are not persuaded that they warrant the imposition of punishment parts of 35 years. The fact that on the date they were imposed those punishment parts exceeded any previously imposed supports, but is not the reason for, our conclusion. Rather our conclusion flows from our consideration of the facts of the present case in light of the reports in Walker, Wilson, Mone, Boyle and Smith. Had the principal charges stood alone, we might have been inclined to reduce the punishment parts to the level of 27 or 28 years. However, in terms of section 2(2)(a) of the 1993 Act, we must also take account of the other offences of which the appellants were convicted on the same indictment. As described in paragraph [26] above, these were serious offences in their own right. They were apparently independent of the murderous attack which occurred on 6 December 2006, and in the view of the trial judge (which in this aspect was not challenged before us) they merited concurrent sentences of 5, 5, 10 and 5 years imprisonment. On that broader basis we consider that justice would be done by reducing each of the punishment parts in the present case to 30 years, a view which also takes account of the fact that in both Wilson and Mone the accused pled guilty.

[32] In our opinion punishment parts of 30 years are sufficient to punish the two appellants who were prepared to possess and to use lethal firearms and to impress upon others, as the trial judge sought to do, that such conduct will not be tolerated by the courts and will in all cases attract lengthy custodial sentences.

[33] For these reasons both appeals are allowed and in respect of each appellant the punishment part is reduced to one of 30 years.