McNee & Ors, R. v [2007] EWCA Crim 1529

Case No 200603669/A7-200603673/A7-200700100/A7[2007] EWCA Crim 1529
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 3rd May 2007
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE GOLDRING
MRS JUSTICE SWIFT DBE
R E G I N A
-v-
MICHAEL MCNEE
JOHN PAUL RUSSELL
COLIN GUNN
Computer Aided Transcript of the Stenograph Notes of
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MR A HALL QC appeared on behalf of the APPELLANTS MCNEE & RUSSELL
MR D THOMAS QC appeared on behalf of the APPLICANT GUNN
MR T SPENCER QC appeared on behalf of the CROWN
J U D G M E N T
Between
McNee & OrsDefendantRCrown

SIR IGOR JUDGE

[1]: Colin Gunn is 39 years old. He made 12 previous court appearances for some 28 offences between March 1981 and June 2001. These offences include a number of offences of dishonesty, assault occasioning actual bodily harm, wounding and affray.[2]John Paul Russell is now 30 years old. He made 20 previous court appearances for 87 offences between April 1990 and January 2006. They are many and various in their nature but there have been no convictions for offences of violence.[3]Michael McNee is 21. He made eight previous court appearances for 29 offences between 13th September 2000 and October 2004. Again, these offences vary considerably, but there are no previous convictions for offences of violence. All the convictions, including those of Gunn, fade into virtual oblivion when they are compared with the issues which arise in this case.[4]On 29th June 2006 in the Crown Court Birmingham before Treacy J and a jury, all three were convicted of conspiracy to murder. On the following day they were sentenced to life imprisonment. In the case of Gunn, the judge fixed the minimum term at 35 years, less the 470 days already spent on remand. In the case of Russell the minimum term was fixed at 30 years, less 289 days already spent on remand. In McNee's case, the minimum term was fixed at 25 years, less the 402 days already spent on remand.[5]McNee and Russell appeal against sentence with leave of the Single Judge. Gunn's application for an extension of time and for leave to appeal was referred to this Court by the Registrar. We have taken the view that we should give him leave to appeal.[6]By any standards this is an exceptional and horrific case. A brief summary of the facts may not adequately convey the full extent of the criminality of the appellants. On 30th August 2003 a man called Michael O'Brien murdered a man called Marvyn Bradshaw. Michael O'Brien is the son of Joan Stirland and the stepson of John Stirland. The nephew of Colin Gunn was a man called Jamie Gunn. He was with Marvyn Bradshaw when he died.[7]In July 2004 O'Brien was convicted of Bradshaw's murder. He was duly sentenced. During that trial there was evidence of threats passing and traded between O'Brien and Colin Gunn. Jamie Gunn contracted, and later died of, pneumonia. This was on 2nd August 2004. Colin Gunn and the other conspirators blamed Jamie Gunn's death on O'Brien.[8]The obvious tensions led Mr and Mrs Stirland, who feared particularly for their safety after shots were fired at their property in Nottingham, to move away from the area. They settled in a bungalow in a village in Lincolnshire. On the very day that Jamie Gunn died it was decided that his death should be avenged. There was no direct vengeance against O'Brien. He was serving the sentence of life imprisonment imposed on him following his conviction. The vengeance was to be the cold-blooded assassination of his parents.[9]The conspiracy was financed and organised by Colin Gunn. He gave the orders, purchased the telephones used by the conspirators and was responsible for recruiting the gunmen who carried out the killing. The gunmen were never identified. He was also responsible for tracing the Stirlands to their new address by using contacts within British Telecom.[10]Within a very short time of Jamie Gunn's death, McNee and Gunn travelled to the area of the village where the Stirlands had found their new home, for a reconnaissance. Two days later, McNee and Russell went to the same area. They stayed in a caravan a short distance from the Stirlands' home address. The area was travelled up and down by all three. On the day of the murders, 8th August 2004, McNee and Russell were on the promenade some 100 yards from the home of the Stirlands. They were seen drinking and chatting up girls. The Crown's case was they were reconnoitering and they were working as lookouts.[11]At about 2.30 in the afternoon on the 8th August 2004 two men wearing boiler suits entered the home of Mr and Mrs Stirland. They were both armed with pistols. Mr Stirland was shot six times. Mrs Stirland was shot four times. Both were left dead. The killers left the premises. Their burnt out vehicle was discovered later. The bodies of Mr and Mrs Stirland were found that evening by the police.[12]Quite apart from the cold-blooded hunting down and execution of two wholly innocent individuals, there are two particular features of this narrative that are perhaps worth underlining. This conspiracy was organised and its objective accomplished within a short time. All the necessary groundwork, including the recruitment of the actual killers, was completed in that short time and the objective of the conspiracy was achieved in such a way that the killers themselves have, so far, escaped justice.[13]The other significant feature is that these appellants were directly involved in the planning of the killing and they remained active participants in the conspiracy, right up until its objective was accomplished. It is of course true, as the submissions made to us emphasised, that the appellants were not charged with or convicted of murder. But on the known facts and on the basis of the verdicts returned by the jury, these appellants were as culpable of the deaths of Mr and Mrs Stirland as the two men who actually fired the guns.[14]We shall repeat much of what the judge had to say at the end of a very long trial, over which he had presided, not least because it conveys something of the impression made on his mind by the trial. At the risk of stating the obvious, he was entitled to use his own assessment of the appellants' criminalities and their personalities when reaching his sentencing decision.[15]He first of all began by addressing the crime in the broad sense. He concluded from the jury's verdicts that the appellants had joined in the conspiracy with the intention that the Stirlands should be tracked down and murdered in cold blood. He said:
"Each of you, therefore, intended that two people should die, and assisted the plot in various ways with that state of mind. The aggravating features of this case are all too clear. Firstly, this was a careful and professionally organised plan to track down and kill two completely innocent people. Secondly, that plan involved cold-blooded premeditation. Thirdly, the plot was an act of revenge. Fourthly, it involved obtaining and use of firearms. And, fifthly, you wished to demonstrate and assert your criminal grip over areas of Nottingham. There are no mitigating features of this offence."
He then continued that each had been convicted of conspiracy murder, that their aims were achieved and two innocent lives were taken. He said:
"The label attached to the crime to the indictment is to my mind less important than the reality of what happened -- two murders accompanied by the aggravating features I have returned to."
That observation has been criticised in the arguments before us.[16]He then analysed some of the sentencing provisions which he had to consider and apply, and then, having done that, he turned to each of the individual defendants, as they then were. He recognised that Colin Gunn had no recent convictions for violence but he regarded him, in the context of the trial, as deeply involved in criminal activities and a dominating leader of others. He regarded him as the prime mover in the conspiracy. He said he was the leader of the gang responsible for the death of the Stirlands. As he put it, "To your gang your word was law". There was then an interruption and the judge returned to examining his analysis of Gunn's position. He concluded that he initiated and was involved in every aspect of the case. The idea came from him. The obtaining of information about the whereabouts of the Stirlands was inspired by him. He took part in numerous reconnaissance trips and adopted a very hands-on approach. He pointed out that the obtaining of the so-called "dirty mobile 'phones" closely involved in the carrying out of the killing was done by Gunn and concluded:
"You were responsible for the organisation of the crime and the organisation of the other conspirators. You were present in Trustthorpe immediately prior to the shooting, and were there, putting the final touches to the plan. You must have recruited the gunmen and have been party to the arrangements for their getaway. This dreadful crime is your full responsibility. You were centrally involved in murders of the upmost gravity..."
He then examined whether there was any evidence to suggest some mental illness or condition. He found that there was no such evidence. But he went on that that was not the end of it:
"It seems to me that the utterly evil nature of what you did shows that you, a criminal man, are prepared to commit the ultimate offence of violence if and when it suits your purpose. You are prepared to do that to utterly blameless and innocent people. You are prepared to do that out of a perverted desire for revenge."
He then recorded that Gunn did not act on the spur of the moment, but in a calculated and premeditated way, involving others, obtaining firearms and the services of others to pull the trigger, and that he took careful measures to cover his tracks.[17]He concluded that in his assessment, Gunn was a man who would let nothing stand in his way and we quote:
"You would, I am sure, do the same thing all over again if it suited your book. I believe that you pose a serious danger to the public for a long but unquantifiable time to come."
[18]Turning to Russell, he recognised that Russell, although a persistent criminal, had no convictions for violence. He commented that he had lied repeatedly in what was described as a carefully crafted attempt for him and others to escape justice. He concluded that Russell was very heavily involved in the crime, not as an initiator but as a valuable and essential lieutenant. He had joined the plot at the early stages, on the very day of Jamie Gunn's death. He had carried out the reconnaissance and preparation in the village in Lincolnshire on and before 8th August. Although he was not the gunman or one of the gunmen, he was very close to the place where the murders took place immediately before and after the killing. He was therefore to be treated as a lookout and someone in a position to assist the gunmen if that became necessary. He pointed out that at the time of the killing, Gunn, Russell and McNee were the conspirators who in physical terms stood or were present closest to the gunmen. He also pointed out that Russell was in very close touch, at that time by telephone, with Colin Gunn, an indication of the importance of the role played by Russell. He said:
"You were a fully committed member of this conspiracy. You were a vital part of it. I am satisfied you knew of the whole plan. Without you the gunmen could not have done their job. You may not have pulled the triggers but you enabled that to happen in a direct way."
He believed, having considered the defence, that Russell was to be seen as someone without scruple, conscience or remorse. He concluded that, coupled with the information about and his view of the role which Russell played at the heart of the conspiracy, and his own judgment of him that Russell represented a serious danger to the public for the future.[19]As to McNee, he said in effect that he was in much the same position, so far as involvement was concerned, as Russell. They, in practical terms, operated as a pair, although McNee had made the initial reconnaissance of the Lincolnshire village on 4th August with Colin Gunn. That, the judge held, confirmed his view that McNee was an early recruit, someone who was very close to and trusted by Gunn.[20]He made clear that he could not deal with McNee as one of those who handled the gun. He said that the evidence did not make him sure of that. He should deal with him as someone who was in the same position as Russell, a vital member of the conspiracy, fully in the know, and giving essential help right up to the very point of the shooting. He then noticed how young, in relative terms, McNee was at the time of the offence -- 19 years and 4 months old -- and that he had never been convicted of any offence of violence in his past.[21]Notwithstanding those facts, he was satisfied that a sentence of life imprisonment was called for and that the necessary criteria were established. He recorded that, McNee's attitude to his involvement in this conspiracy was mirrored in Russell's case. There was no need for judge to repeat what he had said about Russell's position and we see no point in repeating that either. He was struck by the evidence of the young women who met him and Russell during the weekend, in the context of their apparently utterly carefree attitude on the night before the killing, in the period immediately before the killing on the day when it happened, and afterwards. He concluded this exemplified his ruthless and unfeeling involvement.[22]That lengthy summary and recitation of the judge's reasoning is necessary for the purposes of understanding the submissions which have been made to us, and of course the essential facts which underpin this case. His sentencing decision has been subjected to balanced and measured criticism by Dr David Thomas QC and Mr Andrew Hall QC. The submissions contained in written documents with which we were provided were developed orally before us this morning. Our attention has been focused on the principles and authorities, their purpose to demonstrate that the imposition of a discretionary life sentence and the application of the criteria now found in schedule 21 of the Criminal Justice Act 2003, in the case of a discretionary as distinct from a mandatory sentence of life imprisonment, were wrong in principle. In any event it is contended that the minimum terms were excessive in the case of each appellant.[23]The application of the statutory provisions which applied to this case needs no lengthy analysis. The maximum sentence on conviction of conspiracy to murder is life imprisonment. That is, as we repeat, a discretionary sentence. This offence was committed in August 2004. Accordingly the provisions relating to dangerous offenders to be found in sections 224 to 229 of the 2003 Act do not apply. If the court was satisfied that a discretionary life sentence was appropriate in this case, the court, when passing that sentence, was required by section 82A of the 2000 Act to fix a minimum term which to be served by the offender before his release could be considered. The murders were committed after 18th December 2003. That meant that a court imposing a mandatory life sentence on someone convicted of murder after that date would be obliged, when fixing the minimum term, to have regard to the principles in schedule 21 of the Criminal Justice Act 2003. The effect of section 269 of the Act and Schedule 21 meant that the Parliament had significantly increased the minimum terms to be imposed as part of the mandatory sentence of life imprisonment. The appropriate starting points under earlier sentencing regimes had been significantly lower.[24]We must address the first contention, which starts with the plain fact that the appellants were not convicted of murder, but of conspiracy to murder. It is, of course, well understood that a defendant should not be sentenced for an offence of which he has not been duly convicted. He must have however be sentenced for the offence or offences of which he is guilty. At the risk of repetition, these appellants were convicted of participation in a conspiracy to murder. Its objective was achieved. They were parties to the conspiracy right up until the moment of achievement and indeed in the attempt to escape justice after its completion. The level of their criminality was therefore very high indeed. The appellants are not to be sentenced for murder, but for their involvement in this that particular conspiracy, which culminated in the deaths of Mr and Mrs Stirland. For that, they have a very high, and indeed on one analysis the ultimate responsibility.[25]The sentence permitted by law on conviction of this offence includes life imprisonment. Criticism of the discretionary life sentence was not based on the suggestion that the offence was not a very grave one. No one suggests that this was insufficiently grave; plainly it was a very grave indeed. The proposition is that it is well established that at any rate, before coming into effect of section 224 to 229 of the Act, the discretionary sentence should not be imposed unless there was what Dr Thomas described as:
"Some imponderable feature of the character of the defendant who had committed the grave offence, which would make it impossible to forecast the future if you were ever to be released. There would be uncertainty, unpredictability, instability."
He drew our attention to a number of authorities, designed to demonstrate the force of his submission, that there was no evidence to suggest any instability or unpredictability or irrationality of any kind in his client, Mr Gunn.[26]We should perhaps start with R v Wilkinson (1983) 5 Cr App R(S) 105. Lord Lane CJ said, in the context of discretionary life sentences:
"It seems to us the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is really inappropriate and must only be passed in the most exceptional circumstances."
With a few exceptions of which this case is not one, it is reserved "broadly speaking":
"For offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside and therefore an indeterminate sentence is required, so that the prisoner's progress may be monitored by those who have him under their supervision in prison so he will kept in custody, only so long as public safety may be jeopardied by his being let loose."
[27]The passage does provide some support for Dr Thomas' submission. But it is distinguished by one of the constant themes to be found in the judgments of Lord Lane CJ. In short, when attempting to analyse issues of principle in sentence cases, the general principle does not inevitably trump the particular decision. Let us just remind ourselves that, in that passage, he recognised that there would be exceptions to the principle which he was endeavouring to encapsulate in his observations. Allowance must always be made for the exceptional or unusual case. In any event, quite apart from the problem of the Mental Health Act, the focus of his concern was that court should be directing attention to the impossibility of deciding when the defendant, or the danger posed by the defendant, would subside.[28]The next case to which our attention was drawn was R v Basra (1989) 11 Cr App R(S) 527. Here the court was dealing with a conviction of conspiracy to murder and aiding and abetting murder in the context of the arranged murders of two political appointments:
"In general, it should be said that a life sentence, where it is other than mandatory, as was the case here, is to be reserved for cases where the defendant is someone in respect of whom there is some relevant feature which cannot be determined at the time when the judge is passing sentence. The usual example of that will be some mental condition which affects the degree of risk which the release of the defendant into the community will present. Where there is no such imponderable feature, and where the question is simply that of punishment and the necessity to deter others, those matters can be gauged at the time of sentence and so, as a rule, an indeterminate sentence will be appropriate."
[29]Let us again reflect on this analysis of principle. Again, it justifies the observation we have recently made about Lord Lane's approach to issues of sentencing principle. The sentence begins with the words "in general". What follows is an example and what then follows is a rule, that is, a "general" rule about when an indeterminate sentence may be appropriate.[30]Dr Thomas drew our attention to a number of other cases: R v Thornton, where Lord Taylor followed what Lord Lane said in Basra, and R v Tubbs & Bridge, where Kennedy LJ followed what both Lord Lane and Lord Taylor had already said. But at the time when those decisions were being reached there were, or there were shortly to come two examples which demonstrate that the general principle is never immutable. Once such was R v Easterbrook (1990) 12 Cr App R(S) 331. In his judgment, Watkins LJ drew attention to the submission on Easterbrook's behalf based on Lord Lane's observations about the circumstances in which a discretionary life sentence could properly be imposed. It is true that the judgment focused on the medical report, but Watkins LJ had this to say:
"It is to be noted, however, that those guidelines do not inevitably apply to every case where there is in contemplation of the judge an imposition of a life sentence. There are exceptional cases to which those guidelines have no application."
This reinforces the proposition that there is nothing immutable about the observations made Lord Lane about general principles. The analysis also summarises something which is a constant theme in decision after decision of this Court, that guidelines always admit of exceptions.[31]The second example was a decision of Lord Bingham CJ, the Attorney-General's Reference No 32 of 1996 Steven Alan Whittaker [1997] 1 Cr App R(S) 261. In that case, counsel for the Attorney-General submitted that the principles formulated in Hodgson, subsequently followed in Wilkinson and subsequent cases, did not require, as a matter of uniform practice, medical evidence. The submission was that they merely described circumstances from which the necessary inference of continuing danger to the public could be drawn. On analysis, Lord Bingham accepted the essential proposition on the behalf of the Attorney-General. The sentence of 7 years' imprisonment was quashed and an indeterminate sentence was imposed.[32]The feature to which we draw attention is that the Court concluded that there was good ground for considering that the offender was likely to be a continuing danger for an indeterminate time in the future. That, of course, is the basis on which Treacy J made his decision in this case.[33]The last authority to which we must draw attention is the decision in R v Smith & Smith [2007] 1 Cr App R(S) 1 in which, Lord Phillips CJ, after analysis of the authorities, expressed himself in this way:
"It is not an inevitable rule that the judge has to look for some mental condition to justify the imposition of a life sentence."
[34]In our judgment, in the light of these authorities and the facts of this case, the answer to the question whether the judge was wrong to impose a discretionary sentence of life imprisonment is that he was not. In the particular circumstances of this offence, and in the light of the involvement of these appellants in it, the offence merited a discretionary life sentence. The gravity of the offence cannot be exaggerated. Of itself, like Easterbrook, that might well have justified the life sentence on its own. But there was ample material from the trial process itself, from which the judge could infer, as he did, that each of the appellants represented a continuing risk for the indefinite feature. It did not require medical evidence suggesting irrationality, or instability of the personality, for this purpose. The danger could be represented by a wholly rational individual. The judge was entitled make his own judgment, which he did in his carefully structured sentencing remarks. Accordingly that ground of appeal fails.[35]The second aspect of the argument arises from the judge's decision to focus his attention on the new sentencing statutory structure provided by Schedule 21 for cases of murder and for his approach to them. As to this, considerable weight was attached to the decision in R v Mason & Sellars [2002] 2 Cr App R(S) 128, where Clarke LJ, as he then was, summarised the position in this way:
"Thus in both automatic and life sentence cases the correct approach is to identify a period to reflect the seriousness of the offence which means, in the words of the Practice Direction, the period of detention imposed for punishment and deterrence which as we see it means expression retribution and deterrence in the Practice Direction dated July 27 2000, relating to mandatory life sentences. It will be usually appropriate to take half that figure and then deduct the period on remand in order to arrive at the relevant part of the sentence which is the further period which must be served before the prisoner can require the Secretary of State to refer his case to the Parole Board."
The judgment indicated that the judge was wrong, in respect of his analysis on count 1 of the indictment which Mason faced, and should not have passed sentence on the basis that he intended to follow the procedure laid down in the case of a mandatory life sentence. Dr Thomas suggested that this authority should apply to the present case and, in those circumstances, Treacy J should not have applied the new statutory sentencing structure, but approached the matter, so to speak, without reference to it.[36]The judge himself relied on later decision of this court R v Stapley [2004] 2 Cr App R(S) 533. In that case, the sentencing judge took the view that when considering the appropriate sentence for conspiracy to murder, the court should have regard to the guidelines in terms of recommended minimum terms to be served in cases of murder. The reason for the court's conclusion was this. In any other case of conspiracy the court's function was to determine the role of the individual defendant and the extent of his responsibility before sentence was decided. There was no reason in principle why any different approach should be adopted where the conspiracy under consideration was conspiracy to murder.[37]Without going through all the authorities to which our attention was drawn, we must briefly attend to R v Ford [2006] 1 Cr App R(S) 204, where the appellant was convicted of two counts of attempted murder and sentenced to 30 years' imprisonment. Gibbs J, giving the judgment of the Court presided over by Rose LJ, said that this question arose:
"Should the sentences for attempted murder be subject to upward adjustment to reflect the new starting point for murders of a particularly high degree of seriousness and, if so, to what extent?"
Having analysed the position, and the way in which the judge took the view that a sentence of an 20 years would now be regarded as disproportionately low because of the 30-year starting point provided in Schedule 21, Gibbs J said that in principle the judge was justified in taking that view. The reason was this:
"Any right-thinking member of the public would consider there was an objectionable disparity between the new levels of sentence for murder and the existing levels of sentence for attempted murder. In each case the length of sentence has to reflect, not only an intent to kill but also the relevant serious aggravating features."
He then, of course, analysed the fact that the case of Ford did not involve a sentence for the full offence. The Court concluded that the way in which to achieve a minimum period of custody of 15 years was by dint of various calculations to impose a sentence of 24 years' imprisonment.[38]We can return to this aspect of the case very briefly. This offence was committed at a time when, if any of the appellants had been convicted of murder, the sentencing decision would have been informed by the provisions of Schedule 21 of the 2003 Act. We note that the schedule has been and will continue to be productive of a substantial increase in the lengths of sentence to be served by those convicted of murder. Thus, for example, the starting points in cases which fall within the provisions of paragraph 5(1) of the schedule is 30 years. That is equivalent to a determinate term of 60 years. These sorts of increases are an inevitable consequence of the new legislative structure. That should not and cannot deter judges from looking at the schedule if it is appropriate for them to do so. In our judgment, when assessing the determinate sentence the judge was not obliged by statute to have regard to the principles set out indeed Schedule 21. There are no words of obligation. However we fully endorse his decision to do so as entirely logical and an inevitable consequence of the new regime for sentencing in cases of murder. That, after all will be the regime which will be applied to the two gunmen, if they are brought to justice. The features which bear on the sentencing decision in murder cases, in our judgment, apply to this case of conspiracy to murder where the objective of the conspiracy was fulfilled, and murder resulted, and the criminal culpability of each appellant was extremely high. In those circumstances, as we have indicated, this ground of appeal fails.[39]The remaining question is whether the minimum figure ordered by the judge in the case of any of these appellants is open to criticism. We shall not repeat the sentencing remarks. The judge fully analysed the significant features of the case.[40]We turn briefly to the specific features to which our attention was drawn on behalf of the appellants. We note the ages of Russell and McNee, in the context of their levels of maturity and their susceptibility of their ages, to what can fairly described as the overpowering influence of Gunn. We also recognise the submission made by Mr Hall that some regard should be had to their likely response to very long terms of incarceration, and that of itself may show that the terms now imposed are unnecessarily long. In McNee's case in particular, we are asked to bear in mind his age at the time when the offences were committed, and the flexibility of approach which is normally appropriate in the case of someone who is still very young. We have reflected on these submissions. We have concluded that the judge made appropriate distinctions between the appellants and fairly assessed the way in which the minimum terms should operate in relation to each of them and in relation to each other.[41]We come to our final conclusion in this case. We can summarise it very briefly. This crime merited punishment of the utmost severity. These appeals must be dismissed.

Cited in 1 later judgment