Saturday, 31 March 2012

Intent and Murder

Gordon Jackson QC
Lord Turnbull 

One of the most interesting, and controversial rulings during the trial of Neil McKenzie and Trevor Muirhead was the decision taken by the presiding judge, Lord Turnbull to direct the Crown to remove the charge of conspiracy to murder from the indictment. As the decision in court happened without the jury present we could not report the reasoning behind that decision, however now that the jury has delivered a Guilty verdict we can.

On Wednesday, at the conclusion of the Advocate Depute's closing speech, Gordon Jackson QC, defending Mr Muirhead, asked the judge if he could discuss a legal matter in the absence of the jury. Jury members left the court and Mr Jackson then put forward his argument that the Crown had put forward no proper evidence of intent to commit murder in it's closing argument.

Mr Jackson pointed out that in Scottish law Murder is defined as to "wickedly kill" which means that the act must be intentional, adding that intent to kill  had to consist of more than a "pious hope" that someone would lose their life.

Mr Jackson  drew an analogy with a murderer attempting to kill his victim  by injecting poison into a box of chocolates.  In this case a jury could legitimately infer an intent to kill, even if the sender had made a mistake and used a harmless chemical instead. However as the devices sent by Mr Muirhead were, in Mr Jackson's phrase "rubbish", lacking as they did any attempt to create an ignition system, the jury could not reasonably infer an expectation by his client  that his actions could  lead to someone losing their life. Mr Jackson pointed out that even sending a stick of dynamite through the post could not be seen as attempted murder as, unless the recipient lit the fuse themselves,  it could not explode.  

The Advocate depute responded by reminding Lord Turbull of his decision earlier in the week to deny a motion to dismiss the case from Donald Findlay, arguing that this motion was covering the same ground. Lord Turnbull responded that he regarded Mr Jackson's argument as "more subtle" than the previous motion and adjourned the court while he considered his response.

When court resumed around an hour and a half later Lord Turnbull ruled in favour of Mr Jackson and instructed the Crown to remove the words "Murder" and "Death" from the indictment. The Advocate Depute then asked for permission to appeal this decision to a higher court, which would have involved a two day delay in the trial. Lord Turnbull then adjourned the court briefly and when court resumed the Advocate Depute withdraw his objections. The charge of conspiracy to commit "murder and assault" was then reduced to conspiracy to assault,the charge the jury found both men guilty of on Friday/

Sentencing will take place on the 27th April.


James Doleman 

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