Introduction

The case of Andrew Kelly & Donna Baird v HMA, adjudicated by the High Court of Justiciary on January 15, 2025 (Case No: [2025] HCJAC 6), presents a pivotal examination of joint criminal liability under Scots law. The appellants, Andrew Kelly and Donna Baird, challenged their convictions and sentences for the murder of fourteen-year-old Caroline Glachan, arguing insufficient evidence for their involvement.

The core issues revolve around the sufficiency of evidence to establish art and part liability—a legal doctrine that holds individuals accountable for acts in furtherance of a common criminal purpose—and the credibility of witness testimonies, particularly that of a child witness. The prosecution contended that both appellants were integral to a premeditated assault leading to Caroline's death.

Summary of the Judgment

The Scottish High Court of Justiciary upheld the convictions of Andrew Kelly and Donna Baird, rejecting their appeals. The court found that sufficient evidence existed to establish that both appellants participated in a coordinated attack against Caroline Glachan. The judgment emphasized that active association with a common criminal purpose sufficed for art and part liability, even in the absence of direct evidence of physical assault by the appellants themselves.

Key findings included the corroboration of the victim's assault through forensic evidence and the appropriateness of considering the child witness's testimony under specific legal provisions. The court also addressed the arguments regarding the proportionality of the sentences imposed, ultimately deeming them consistent with the severity of the crime and the appellants' roles.

Analysis

Precedents Cited

The judgment extensively referenced prior case law to substantiate its reasoning:

• McKinnon v HM Advocate (No. 2) 2003 JC 29: This case established that for art and part liability, the accused must have actively associated themselves with a common purpose that includes the risk of causing serious harm or death.
• Khalid v HM Advocate 1990 JC 37: Highlighted that mere presence at the scene does not suffice for criminal liability without evidence of active participation.
• Douglas v HM Advocate 2020 JC 23: Reinforced the principle that any degree of participation in a premeditated assault can render an individual culpable under art and part liability.
• Quinn v HM Advocate 1990 SCCR 254, Mowat v HM Advocate 1999 SCCR 688, and others: These cases collectively underscored the necessity of corroborative evidence to establish involvement in criminal acts beyond mere presence.

The court utilized these precedents to navigate the complexities of shared criminal responsibility, particularly in evaluating the extent of each appellant's involvement.

Legal Reasoning

The court's legal reasoning centered on the doctrine of art and part liability within a joint criminal enterprise. It established that:

• Active Association: Both appellants had demonstrated active association with the criminal plan through their actions and prior threats against the victim.
• Common Purpose: The collective departure from the residence, the presence of weapons, and the coordinated attack evidenced a shared intention to cause harm.
• Corroborative Evidence: Forensic findings and the child's testimonial, despite initial concerns about reliability, provided sufficient corroboration of the events.
• Intent and Foreseeability: The use of weapons and the resultant severe injuries indicated a foreseeable risk of death, reinforcing the gravity of the common criminal purpose.

The court meticulously addressed the appellants' arguments regarding insufficient evidence, ultimately determining that the cumulative evidence met the threshold for a reasonable conviction.

Impact

This judgment reinforces the application of art and part liability in cases of joint criminal enterprises, setting a clear precedent that active association with a criminal plan can suffice for culpability. Future cases involving multiple defendants will likely reference HCJAC 6 to assess the degree of participation required for joint liability, particularly in scenarios where direct evidence of individual actions may be limited.

Moreover, the court's treatment of hearsay evidence from a vulnerable child witness under specific statutory provisions may influence how such testimonies are valued in subsequent trials.

Complex Concepts Simplified

Art and Part Liability

Art and part liability is a legal principle wherein individuals can be held accountable for their role in a collective criminal act, even if they did not directly commit the primary offense. Participation can range from providing support to actively contributing to the execution of the crime.

Common Criminal Purpose

A common criminal purpose refers to a shared intention among individuals to commit a crime. When individuals align their actions towards this common goal, each can be held responsible for the actions taken in furtherance of that purpose.

Hearsay Evidence and Section 259

Hearsay evidence involves statements made outside the courtroom used to prove the truth of the matter asserted. Under Section 259 of the Criminal Procedure (Scotland) Act 1995, certain hearsay statements, such as those from child witnesses, can be admissible under specific conditions, balancing reliability concerns with the necessity of the testimony.

Conclusion

The High Court of Justiciary's decision in Andrew Kelly & Donna Baird v HMA underscores the robustness of art and part liability in Scots law. By affirming the convictions based on the appellants' active association with a premeditated assault, the court has reinforced the judiciary's capacity to hold all participants in a criminal enterprise accountable. This judgment not only clarifies the boundaries of joint criminal liability but also ensures that justice is served by recognizing the multifaceted nature of collaborative crimes.

The case serves as a critical reference point for future prosecutions, emphasizing the importance of comprehensive evidence evaluation and the nuanced application of legal doctrines to complex criminal scenarios.