Andrew Kelly and Donna Brand v. His Majesty’s Advocate [2025] HCJAC 6

Notes of appeal against conviction and sentence:- On 14 December 2023, following a trial at Glasgow High Court, the appellants and Robert O’Brien were convicted of the murder of Caroline Glachan in 1996. All three were sentenced to life imprisonment with O’Brien, as the principal actor, receiving a punishment part of 22 years, Kelly 18 years and Brand 17 years. The first appellant appealed against his conviction, the second appellant appealed against her conviction and sentence and O’Brien had leave to appeal against conviction refused. The basis upon which the appellants appealed against their conviction was that there was insufficient evidence for convictions on the basis of art and part responsibility. On behalf of the first appellant it was contended that the trial judge erred in refusing a ‘no case to answer’ submission made in terms of section 97 of the 1995 Act at the close of the Crown case. On behalf of the second appellant it was contended that (a) the judge erred in directing the jury that there was sufficient evidence for a conviction; and (b) no reasonable jury properly directed could have determined that the second appellant was part of a pre- conceived plan to confront, assault or murder the deceased or that she participated in the attack in some way. In relation to the appeal against sentence it was contended that the punishment part selected was excessive having regard to her personal circumstances, in particular, her age at the time (17), the absence of previous convictions, the controlling nature of the relationship she was subjected to with O’Brien and principles of comparative justice given the punishment parts for her co-accused. Here the court refused the appeals against conviction. The court reiterated that an accused can only be found guilty of a criminal act if he or she has participated in it and a person who happens to be at the scene of a crime but has played no part in the crime will be a bystander who is not criminally responsible, however, it is not necessary for a person to deliver a blow to the victim where there is a prior agreement to commit the assault and the person was a party to that agreement as the person would be available to provide active support or intimidate the victim. The court stated that any prior agreement will usually have to be inferred objectively from all the circumstances, including any previous threats of violence, evidence of association, the visible presence of weapons, what in fact happened and the actings of the group after the attack. The court further observed that for a conviction for murder to attach to a member of the group, the scope of the criminal purpose does not require to be that the victim would be killed but it would be sufficient that weapons were to be used to cause serious injury. In the present case the court considered that there was sufficient evidence for the jury to infer that the accused left the house together and had a pre-conceived plan to inflict serious injury on the deceased and one obvious consequence of that would be that she would lose her life. In addition, what occurred at the locus was an extremely violent attack using weapons and the jury would be entitled to infer from what actually happened that what occurred was a pre-planned concerted attack and, whilst the death of the deceased may not have been in actual contemplation of everyone at the scene, there was murderous intent of those using weapons with such force on a 14 year old girl. In addition, the accused all returned to the house together and their reactions indicated participation and none were mere bystanders. The court’s view was that there was evidence of a pre-planned attack to inflict serious injury and the appellants participated in that plan and regardless of whether or not they delivered any physical blows by at least lending their support to those who did they were both responsible on an art and part basis. The court also considered that there was sufficient evidence for the first appellant to be convicted as actor as well as on an art and part basis. In relation to the second appellant’s appeal against sentence it too was refused with the court holding that it could not categorise the punishment part of 17 years as excessive having regard to what it described as “an evil concerted crime.”