Incompetent Differentiated Homicide Verdicts in Concert Murder Trials: Whole-Verdict Reconsideration Rather Than Implied Acquittal

Court: Appeal Court, High Court of Justiciary (Scotland)
Citation: [2026] HCJAC 21
Date: 10 June 2026
Judges: Lord Beckett (Lord Justice Clerk), Lady Wise, Lady Carmichael
Appeal: Against conviction for murder (art and part) and against punishment part (life; punishment part 16 years)

1. Introduction

This appeal arose from a Glasgow High Court trial in which the appellant and a co-accused were charged with murdering the deceased during an incident in and around a flat at Maxwellton Court, Paisley. The Crown case was that the co-accused repeatedly stabbed the deceased and that the appellant was guilty on the basis of concert (joint criminal responsibility), particularly that she participated in an attack while knowing (or being bound to know) that a knife was being used.

The appeal focused on a procedural and doctrinal problem that is increasingly prominent after the full bench decision in Gardiner v HM Advocate [2024] HCJAC 44, 2025 JC 114: where the Crown proceeds on concert for homicide, the jury cannot competently return different homicide verdicts for the alleged principal and the alleged art-and-part participant (e.g., murder for one and culpable homicide for the other).

The key issues were:

• Verdict management: when a jury returns an incompetent differentiated homicide verdict in a concert case, must the trial judge treat the lesser verdict for the secondary accused as (in effect) an acquittal of murder, or may the judge require further deliberations?
• Jury assistance: whether the judge’s answers to jury questions about “accessory to murder” and about presence/ownership/awareness of the knife were sufficient.
• Sentence: whether a 16-year punishment part was excessive in light of youth, being a first offender, trauma and mental health factors, and parenting responsibilities.

2. Summary of the Judgment

The Appeal Court refused both appeals.

• Conviction: The trial judge was entitled to reject the jury’s initial, incompetent split verdict and to invite the jury to reconsider the whole verdict, after further directions on concert. The initial “culpable homicide” indication could not properly be treated as an acquittal because it did not necessarily imply that fewer than eight jurors favoured guilt of murder; rather, it signalled an intention to convict but with a misunderstanding of what verdicts were open in law in a concert homicide prosecution.
• Jury questions: It was within the judge’s discretion to respond by reiterating correct standard directions instead of giving misleading “yes/no” answers to questions that required legal nuance.
• Sentence: A 16-year punishment part was not excessive given the gravity of the murder, the appellant’s significant role, and the need to differentiate from the principal (punishment part 18 years 6 months), while still allowing a discount for role and personal mitigation.

3. Analysis

3.1 The new and clarified principle: incompetent differentiated homicide verdicts in concert cases

The decision’s practical core is its handling of an incompetent verdict: after deliberations, the jury indicated murder for the co-accused (unanimous) and culpable homicide for the appellant (majority). Because the Crown case was concert, this division was incompetent under Gardiner v HM Advocate.

The court accepted that the judge’s approach was “fair to both” accused because it preserved all competent options, including the possibility that both might be convicted of culpable homicide—an option that would have been lost had the murder verdict been recorded against the co-accused immediately (paras [52]–[54]). That reasoning highlights an important operational point: recording part of an incompetent package verdict can foreclose competent outcomes and distort the jury’s true intention.

3.2 Precedents cited and their influence

(a) Gardiner v HM Advocate [2024] HCJAC 44, 2025 JC 114

Gardiner provided the legal foundation: in a concert homicide prosecution, the jury cannot deliver a “split” homicide outcome (murder for one, culpable homicide for the other) where responsibility is said to be joint for the killing. The appellant expressly accepted the correctness of directing the jury in line with Gardiner (para [2]), and the appeal was not an attempt to reopen its doctrine.

The case is thus an application of Gardiner to the concrete question of what the trial judge should do when the jury nevertheless returns such a verdict.

(b) Goldie v HM Advocate [2020] HCJAC 9, 2020 JC 164 and the “problem verdict” line

Goldie was used as appellate guidance on how to manage problematic or inconsistent verdicts: where a verdict is incompetent or inconsistent with directions, the judge may send the jury back with clarification rather than immediately recording a misconceived outcome (paras [32], [35], [54]).

The court treated Goldie as supportive of the proposition that, where the jury’s intention is plainly to convict but they have misapprehended the law, the correct course is further directions and reconsideration rather than treating the misstep as an acquittal by implication.

(c) Distinguishing “implied acquittal” cases: Kerr v HM Advocate 1992 SLT 1031 and SS v HM Advocate [2023] HCJAC 48, 2024 JC 113

The appellant sought to characterise the initial culpable homicide indication as demonstrating a rejection of murder beyond reasonable doubt—therefore, on her argument, the judge should have treated the matter as acquittal of murder and limited the jury to choosing between “not guilty” and “not proven”.

The Appeal Court rejected that analogy:

• In Kerr v HM Advocate, the problem was arithmetical and constitutional: the votes cast fell short of the required minimum of eight for conviction, so the only lawful outcome was acquittal (para [53]).
• In SS v HM Advocate, the incompetent verdict necessarily implied (given the directions and the mutual corroboration structure) that the jury had rejected essential evidence, meaning the only proper interpretation was acquittal (para [53]).

By contrast, in the present case the “culpable homicide” indication did not necessarily imply that the jury had failed to reach eight votes for murder, nor that it had rejected an indispensable evidential foundation. It suggested a misunderstanding about what verdicts were legally available in a concert homicide prosecution (paras [34], [52]–[54]).

(d) Affirming the “intention to convict” approach: Took v HM Advocate 1989 SLT 425; White v HM Advocate 1990 JC 33; Cameron v HM Advocate 1999 SCCR 476

These authorities were cited (through the parties’ submissions and the court’s reasoning) for the proposition that where a verdict problem is best understood as a jury’s attempt to convict (but in an incompetent form), the trial judge may take steps to allow the jury to express its true intention competently—typically by clarifying the law and inviting reconsideration.

The court noted that Cameron v HM Advocate was “noted with approval” in both Goldie and SS as supporting the judge’s entitlement to invite reconsideration where a final acquittal is not clearly signalled (para [54]).

(e) Jury directions and “knew or must have known”: Mcfadden v HM Advocate [2009] HCJAC 78, 2009 SCCR 902

A recurring question in art-and-part murder cases is the mental element required of the secondary participant. The court endorsed the formulation that to convict, the jury must be satisfied the secondary accused knew or must have known that the knife was being used and nonetheless continued participation (paras [48], [50]). The court considered this formulation sound, relying on Mcfadden v HM Advocate (para [48]).

This is significant because it confirms (in the concert context) that liability may be grounded not only in actual knowledge but in circumstances where the accused was bound to be aware—an evidentially important bridge in group violence cases.

(f) Handling jury questions: Sim v HM Advocate [2016] HCJAC 48, 2016 JC 174

The appellant argued the judge should have answered the jury’s “presence/knife” questions with an emphatic “no” and then elaborated. The Crown relied on Sim v HM Advocate to argue that directions are not to be read in isolation and that, if the overall charge is clear and correct, a judge is not obliged to spell out every negative proposition expressly (para [44]).

The court accepted the judge’s approach as a legitimate exercise of discretion: the jury’s questions were not apt for simple yes/no answers because presence, ownership, and awareness could matter in combination with participation and continued association with the assault; an unqualified “no” risked inaccuracy, while an unqualified “yes” would be legally wrong. Repeating the correct legal test and focusing the jury on participation plus knowledge of knife use was an acceptable—and safer—method (paras [49]–[51]).

3.3 The court’s legal reasoning on the conviction appeal

(a) Sufficiency and the evidential matrix (context for the concert directions)

Although the appeal was primarily procedural, the court anchored its conclusion in the strength of the evidential picture supporting knowledge and participation: pathology evidence indicating multiple stabbings and incised wounds, defensive injuries, blood distribution on clothing consistent with proximity/contact during bleeding, CCTV timing, and incriminating inferences from a recorded prison call where the knife was described as conspicuous (“a bright pink knife”) (para [47]).

This emphasis matters because “problem verdict” analysis often turns on whether the jury’s first attempt can confidently be treated as a final determination on a legal question. Here, the overall evidence supported the view that the jury’s initial split was more likely a misunderstood compromise than a firm rejection of the Crown’s murder case.

(b) The core concert direction the court approved

The court treated as critical the judge’s consistent statement that a murder conviction for the appellant required proof that she:

• participated in the attack; and
• knew or must have known the co-accused was using a knife; and
• continued her participation despite that knowledge.

The court regarded the additional directions—although repetitive—as properly targeted at the “key answer” needed by the jury (paras [48]–[51]).

(c) Why the initial split verdict was not an acquittal in substance

The appellant’s central submission—that the culpable homicide indication should have been recorded as an acquittal of murder—was rejected on a functional interpretation of what the jury was attempting to do:

• The jury’s indication was that the appellant bore responsibility for the killing, but at a perceived lower level of homicide—a pattern consistent with a misunderstanding of the legal consequences of concert in homicide (paras [34], [52]).
• Recording the co-accused’s murder verdict immediately would have eliminated the possibility of culpable homicide for the appellant and forced an artificial binary (murder or acquittal), notwithstanding the jury’s evident wish to convict in some form (para [52]).
• Unlike Kerr and SS, there was no necessary implication that the jury had already reached a final, constitutionally valid acquittal determination on the essential issues (paras [53]–[54]).

3.4 Impact

The decision is likely to be cited in two recurring trial-management contexts:

• Post-Gardiner “split verdict” incidents: It offers clear appellate endorsement of the practice of returning the jury to reconsider the whole verdict (including both accused) where a differentiated homicide verdict is incompetent in a concert case and does not necessarily amount to an acquittal.
• Jury question handling: It supports an approach that prioritises legally accurate “core test” restatement over potentially misleading direct answers to legally loaded questions, particularly where the question abstracts one fact (presence/ownership/awareness) away from the required combination of participation and mental element.

More broadly, it reduces the incentive for parties to treat an incompetent, jury-delivered “compromise” as a tactical route to acquittal; instead, the focus is on enabling the jury to deliver a competent expression of its true conclusion.

4. Complex Concepts Simplified

4.1 “Concert” / “art and part” in homicide

In Scots law, a person can be guilty of murder even if they did not inflict the fatal wound, if they are proved to have acted “in concert” (art and part) with the killer. In practical terms, it is not enough that the person was present. The jury must be satisfied the person actively associated with the attack (by conduct and/or encouragement) and had the required mental element.

4.2 “Knew or must have known”

This captures two routes:

• Actual knowledge: the accused truly realised a knife was being used.
• Constructive knowledge: the circumstances were such that the accused was bound to have realised it (e.g., an obvious weapon in use).

4.3 “Incompetent verdict”

A verdict is “incompetent” where it is not one the jury is legally permitted to return. After Gardiner, a murder/culpable homicide split between alleged concert participants is incompetent where the Crown case is joint responsibility for the killing.

4.4 “Punishment part” of a life sentence

In Scotland, a life sentence requires the court to set a “punishment part”: the minimum period that must be served before the Parole Board can consider release. It is not a promise of release; it is the earliest point at which release can be considered.

5. Sentence Commentary

The appellant’s punishment part (16 years) was challenged as excessive given her youth (early twenties at the time of offending/sentencing), first-offender status, trauma history, mental health issues, and parenting.

The Appeal Court upheld the sentence, emphasising:

• the murder’s gravity: a “frenzied and savage” knife attack with multiple wounds and no attempt to obtain help (para [63]);
• post-offence conduct: leaving the scene, attempting to run away, and misleading the police (para [63]);
• the structured approach to youth mitigation: drawing on McLachlan v HM Advocate [2026] HCJAC 14 that youth may reduce culpability but does not reduce harm (para [64]);
• differentiation of roles: the principal received 18 years 6 months; the appellant, as art and part, received a lower punishment part (paras [60], [64]);
• the relevance of comparative sentencing guidance from HM Advocate v Boyle [2009] HCJAC 89, 2010 JC 66 (para [64]).

While the sentencing judge considered the Sentencing Young People guideline and comparator cases Haig v HM Advocate [2024] HCJAC 28, 2025 JC 9 and RH v HM Advocate [2025] HCJAC 16, the Appeal Court accepted that the appellant was at the “upper end” of that guideline’s ambit and materially older than those teenage comparators (para [60]).

6. Conclusion

The decision in [2026] HCJAC 21 consolidates post-Gardiner trial practice: when a jury returns an incompetent differentiated homicide verdict in a concert murder case, the judge is not required to treat the lesser homicide indication as an implied acquittal unless the verdict necessarily implies acquittal (as in Kerr or SS). Where the jury’s intention appears to be conviction but in a legally impermissible form, the judge may give further directions and require reconsideration of the whole verdict to allow a competent outcome.

On jury management, the court also endorsed a cautious, orthodox approach to jury questions: rather than answering abstracted factual queries with blunt yes/no responses, the judge may safely restate the controlling legal test for concert—here, participation plus “knew or must have known” knife use.

Finally, the sentence aspect confirms the modern approach to youth and trauma mitigation in serious violence: such factors may inform culpability, but they do not diminish the harm done, and substantial punishment parts remain justified where the offence involves sustained, extreme violence and significant participation.