Introduction

Case Reference: Richard Gordon [2022] HCJAC 49
Court: Scottish High Court of Justiciary
Date: 23 December 2022

The case of Richard Gordon involves an appeal against his conviction and sentencing following charges related to the attempted murder of Brian Cleary. The appellant was convicted for both attempted murder and carrying a knife in a public place, under section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The primary issues on appeal centered around whether the trial judge erred in instructing the jury about convicting on multiple charges based on the same species facti and whether the sentencing was appropriate given the appellant's prior criminal record.

Summary of the Judgment

The Scottish High Court of Justiciary upheld Richard Gordon’s conviction on both counts. The appellant was found guilty of the attempted murder of Brian Cleary, which involved severe injuries inflicted using a knife, and of illegally carrying a knife in a public place. Despite the appellant's arguments that the trial judge misdirected the jury regarding the principles of species facti — suggesting that one cannot be convicted of two offences based on the same factual circumstances — the court concluded that the legal guidance provided was appropriate. Additionally, the court dismissed the appellant's contention that the sentencing was excessive, considering his extensive history of violent offences.

Analysis

Precedents Cited

The judgment extensively referenced two key precedents: Rodger v HM Advocate (2015) JC 215 and McLean v Higson (2000) SCCR 764. In Rodger, the court clarified that possessing and using a weapon during an assault are distinct offences with different factual requirements, thereby allowing for separate convictions. Conversely, McLean v Higson presented complications regarding overlapping factual circumstances but ultimately did not establish a prohibition against multiple convictions for related offences. The current judgment reinforced the stance taken in Rodger, dismissing the appellant's reliance on McLean to challenge the trial judge’s instructions.

Legal Reasoning

The court's legal reasoning centered on the interpretation of "species facti," a Latin term referring to the specific facts constituting an offence. Lord Woolman, Lord Doherty, and Lady Dorrian emphasized that while there may be overlapping facts between different charges, this does not equate to identical species facti. They reasoned that the attempted murder charge and the possession of a knife charge required distinct intentions and circumstances, justifying separate convictions. Additionally, the court addressed the appellant's argument regarding the jury's consideration of his lies during the police interview, concluding that the trial judge appropriately guided the jury to assess the credibility of the evidence without committing a misdirection.

Impact

This judgment has significant implications for future cases in Scottish law, particularly concerning the prosecution of multiple offences arising from a single incident. It clarifies that as long as each charge has distinct factual elements, overlapping evidence does not preclude separate convictions. This reinforces the prosecutorial approach to addressing various aspects of criminal behavior, ensuring that all relevant offences are appropriately adjudicated. Moreover, the decision underscores the court's commitment to upholding sentence proportionality, especially in cases involving repeat offenders with extensive criminal records.

Complex Concepts Simplified

Species Facti

Species Facti refers to the specific facts that must be proven to establish a particular offence. In simpler terms, it's the unique set of circumstances and elements that define each crime. For example, while both possession of a weapon and using it to commit assault involve a weapon, the intent and context differentiate the two offences, allowing for separate charges and convictions.

Concurrent vs. Consecutive Sentences

When someone is convicted of multiple offences, the court must decide whether the sentences for each should run at the same time (concurrent) or one after the other (consecutive). Concurrent sentences mean the offender serves all sentences simultaneously, often resulting in a shorter total time. Consecutive sentences require the offender to serve each sentence individually, leading to a longer overall period of incarceration.

Conclusion

The High Court of Justiciary's decision in Richard Gordon [2022] HCJAC 49 reinforces the legal framework allowing for multiple convictions based on overlapping yet distinct factual elements. By upholding the convictions and the sentencing structure, the court has clarified that as long as each offence possesses unique species facti, separate charges are justifiable. This judgment not only affirms the principles established in prior cases like Rodger v HM Advocate but also provides a clear directive for handling similar cases in the future. Furthermore, the court's stance on sentencing underscores the importance of considering an offender's criminal history and the proportionality of punishment, thereby contributing to the broader discourse on justice and deterrence within Scottish law.