Naveed Iqbal v. Her Majesty’s Advocate [2018] HCJAC 65

Note of appeal against conviction and sentence:- On 3 November 2017, at Glasgow High Court, the appellant was convicted after trial of two charges of attempted murder relating to the fire bombing of two houses in Glenrothes, namely, 5 Adrian Drive and 1 Alexander Road. Following the obtaining of a Criminal Justice Social Work Report the trial judge sentenced the appellant to 16 years imprisonment. The appellant was initially indicted along with three others (Ryan Easton, James Simpson and Jamie McHugh), however, the Crown withdrew the charges against two of them (James Simpson and Jamie McHugh) during the course of the trial. The Advocate depute, in withdrawing the charges against James Simpson and Jamie McHugh, outwith the presence of the jury, advised the court that the revised Crown position was that James Simpson and Jamie McHugh were “innocent” of the charges. The remaining co-accused, Easton, was subsequently acquitted by the jury. The Crown had gone to the jury on the basis that the appellant had instigated the crimes, albeit he was not at the loci at the relevant time, and Easton was the fire bomber. In returning the verdict they did the jury convicted the appellant of instigating the crimes by engaging someone, whom the Crown said was McHugh, to fire bomb the loci, who was then acquitted, and the others, who were initially thought to be involved, who were declared innocent by the Crown. The appellant appealed against his conviction on the basis that no reasonable jury could have returned the guilty verdict against the appellant. The appellant also appealed against his sentence imposed on the grounds that 16 years was excessive. The question for the court in such an appeal, as stated by Lady Dorrian in MacKinnon v HMA [2015] HCJAC 6 at paragraph 6, was whether there was present a “cogent framework of evidence that the jury were entitled to accept as credible and reliable and which ... entitled them to return the verdict”. It was submitted on behalf of the appellant that the Crown had been duped into withdrawing the libel against Simpson and McHugh and to leading and relying upon their evidence and that their evidence was so implausible, against the other evidence led in the case, for example, they had been in the general area at the time of the arsons and had gone to the appellant’s garage the following day, that no reasonable jury could have accepted them. In addition, deleted calls from Mr Simpson’s phone to the appellant at or about the time of the fire bombings was of no significance in light of the Crown’s declaration that Simpson was innocent. On behalf of the Crown it was submitted that the “no unreasonable jury” test was a high one and could succeed only in exceptional circumstances. It was submitted that there was a coherent and compelling body of evidence supporting the conclusion that the appellant had instructed Easton to carry out the fire bombings. The court refused the appeal against conviction. The court pointed to a number of adminicles of incriminatory evidence pointing to the involvement of the appellant:- (1) the appellant had a motive for doing violence to Mr McLaren, one of the residents of 5 Adrian Drive, as a result of the attack on the appellant’s brother less than a month before the fire bombings; (2) the appellant had carried out reconnaissance on the two houses which were attacked less than three weeks before the fire bombings; (3) there was evidence that the appellant had threatened violence to Mr McLaren at the end of the reconnaissance mission; (4) the fact the fire-bombings did occur which suggested the previous threats and reconnaissance were not coincidental; and (5) other criminative circumstances including a link between the fire bombings and Airdrie and Mr McHugh’s family (from DNA on the Dunns bottle), the deleted calls from Mr Simpson’s phone to the appellant at or about the time of the fire bombings and the appellant’s interest in the fire bombings in the following days. The court considered that these factors provided a cogent framework of evidence leaving aside the jury’s view of the evidence from Simpson and McHugh. The trial judge’s direction to the jury that if they rejected the evidence from Simpson and McHugh they “may feel that there is insufficient evidence” was in favour of the appellant. The court was of the view that, whilst the evidence of Simpson and McHugh may indeed have been implausible, it was a matter for the jury to make of that evidence what they wanted and such implausibility was of no assistance to the appellant. It was open to the jury to accept and reject different parts of a witness’s evidence and it was open to them to reject the denials of Simpson and McHugh about not being involved and, notwithstanding the acceptance of their not guilty pleas by the Crown, that they were in some way involved. As the court put it that acceptance by the Crown “did not provide them with a certificate of innocence which was binding on the jury”. In deciding that there was a cogent framework of evidence that the jury were entitled to accept as credible and reliable and which entitled them to return the verdicts of guilty the court refused the appeal against conviction. In relation to the appeal against sentence it was submitted on behalf of the appellant that he had little in the way of previous convictions, was married with a young family and had his own car repair and maintenance business. It was submitted that the sentence was excessive. Here the court refused the appeal against sentence. The court considered that the trial judge had given due consideration to all of the relevant factors in selecting the sentence he had. The court referred to the potential catastrophic consequences of the crimes given the number of occupants in both properties when they were fire bombed.