HMA v David Sell and others

At the High Court in Glasgow today, 22 January 2018, Lord Beckett sentenced David Sell, Barry O’Neil, Anthony Woods, Francis Mulligan, Michael Bowman, Mark Richardson, Gerard Docherty, Steven McArdle and Martyn Fitzsimmons to a total of 87 years' imprisonment.

On sentencing, Lord Beckett made the following statement in court: 

“This case arose from four police operations in which officers of Police Scotland displayed extraordinary ingenuity, courage and commitment.

“The prosecution has also been conducted with great professionalism and reflects the hard work of many people behind the scenes in addition to the skilled prosecutors in court. I have already praised the professionalism of defence counsel and solicitors in the way that they handled the case.

“Viewing matters globally, there can be no doubt that the police uncovered the workings of sophisticated, serious and organised crime but I cannot be distracted by considerations which stray beyond the terms of the charges to which you pled guilty. I sentence each of you on the basis of the charge or charges to which you pled guilty and in the terms in which you did so.

“In so far as it is consistent with the pleas tendered, I have taken account of the Crown narrative as it relates to each one of you. I have considered in the case of each of you the plea in mitigation advanced by your counsel both on 11 December and today. I have considered the terms of the respective Criminal Justice Social Work Reports and, where relevant, your record of previous convictions. I have taken account of your personal circumstances.

“Where a crime is said to have been aggravated by a connection with serious organised crime, in terms of section 29 of the Criminal Justice and Licensing (Scotland) Act 2010, I have taken that into account as I must.  This provision reflects public and parliamentary concern about the presence and impact of serious and organised crime in Scotland. The presence of the aggravation on a charge means that the accused was at least partly motivated by the objective of committing or conspiring to commit serious organised crime. Whilst the circumstances vary on the relevant charges according to their nature, I consider it appropriate in the circumstances of this case to give some effect to the aggravation by increasing sentence to some extent where it features.

“In most of your cases I have taken account of time spent on remand for these proceedings. On behalf of each of you, I have been asked to reduce sentence on account of the tendering of pleas of guilty. In considering that question, I have to bear in mind the stage when an accused indicated his intention to plead guilty and the circumstances in which he did so, and also the way in which the relevant provision has been interpreted.

“Whilst the whole question of discount is a discretionary one for the judge who does not have to make any allowance, as a guide an allowance of one quarter might be made for a plea of guilty tendered at first preliminary hearing. It then reduces on a sliding scale and might be in the region of one tenth at a first trial diet.

“Accordingly, I note the procedure since the case was indicted to its first preliminary hearing on 10 August 2017 when trial was appointed for 28 November and a continued preliminary hearing fixed for 29 September. A further preliminary hearing was fixed for 3 November but it was discharged administratively and so the third time the indictment called in court was on 21 November.  That hearing was continued to a fourth preliminary hearing on 24 November, the last court day before the trial was due to start.

“On 24 November, the 3rd, 5th, 6th and 7th accused tendered guilty pleas acceptable to the Crown. I then agreed that the trial would call on 29 November but no witnesses or potential jurors attended because it was learned that the 4th accused would plead guilty which he did. This was the first calling of the trial diet but the fifth time the indictment called in court.

“I was asked to adjourn the trial to 6 December and to fix a further preliminary hearing for 1 December.

“On 1 December, the sixth occasion when the indictment called in court, the ninth accused pled guilty.

“I agreed to fix a further preliminary hearing for 5 December at which the eight accused pled guilty at the start of the court day and the first accused pled guilty at the end of it; this was the seventh time the indictment called in court. However, the procedure against the first accused on the charge to which he pled guilty had commenced long before 10 August 2017 and I will return to examine it.

“That only left the second accused and I agreed to his counsel’s request to call the case on 6 December in the absence of witnesses and jury but on the understanding that the trial would really start on 7 December. In the event, on 6 December, the eighth time the indictment called in court, the second accused pled guilty.

“It is against that background that in each case I have taken account of the fact that you pled guilty.

“Whilst no jurors or witnesses ultimately had to attend at court, large numbers of witnesses were cited and hundreds of members of the public were summoned to attend at court for 28 November and were on standby from that date onwards and could not be stood down until 6 December.

“Nevertheless, there was some utilitarian value to the system as a whole when it ceased to be necessary to hold a long trial which would have caused substantial inconvenience to a jury and would have caused substantial costs to the public purse.

“In this case in which a trial did not commence, I consider that the agreement of evidence was significantly interconnected with the tendering of pleas of guilty and forms part of the circumstances in which the intention to plead guilty was given.

“In the particular circumstances of this case, in exercising discretion on the question of discount, I have taken account of very substantial agreement of evidence being reached on 29 September which would have played a part in limiting the scope of any trial which might have proceeded and would have reduced, to some extent, the number of witnesses who would have been called.

David Christopher Patrick Sell, I sentence you on the basis of the charge to which you pled guilty and in light of the agreed narrative. It follows that you were not the person who physically inflicted the worst acts of violence on Robert Allan, but you facilitated them and went along with them.  To the extent that you have pled guilty, you have accepted joint criminal responsibility for everything which falls within the terms of your plea.

“Throughout Mr Allan’s prolonged abduction, he was kept in a state of anxiety whilst suffering the consequences of severe injuries. The manner in which he was repeatedly assaulted over the course of three days amounted to brutal and merciless torture. Such a course of conduct cannot be tolerated in our society.

“You were the means by which access was gained to Mr Allan’s home in England and by which he was transported to Scotland. You personally assaulted him at the outset by punching on the head and body. You pointed a gun at him at several stages and facilitated his being bound in chains. At one stage you held a gun to the back of his neck. He was robbed of money and a car. You helped to guard him at times when others were inflicting savage assaults on him.  He was abducted at gunpoint in a vehicle which you drove to Scotland. You knowingly provided premises in Scotland where his abduction and torture could continue. It was whilst he was there that he was struck around the head with a fist enclosed in a metal chain which broke his cheek bone, and his leg was broken with a sledgehammer. Comments were made which implied that he would be killed. He was washed with water and bleach, adding to his suffering, and you were then privy to his departure from your premises.

“Whilst you may not have directly participated, you bear joint criminal responsibility for his thereafter being shot in both knees and then rolled down a hill.

“Mr Allan sustained terrible injuries and required to undergo surgery on his legs which he was at risk of losing to infection. His life was potentially at risk. He sustained a broken bone in his lower back. He had multiple bruises and lacerations. He was in a wheelchair for a long time and then had to use a crutch. He has been permanently disfigured and impaired.

“In these circumstances, severe punishment is called for. It is necessary to deter such conduct and to protect the public from you. There is no suitable alternative to a sentence of imprisonment.

“I have been asked to consider that you are entitled to a reduction in your sentence on account of your plea of guilty. I have already narrated the procedure since the preliminary hearing on 10 August 2017, but in your case, there were trial diets fixed before that. 

“The case called for preliminary hearing on 15 April 2016.  A continued preliminary hearing was fixed for a debate on your opposition to a motion for a Crown witness to give evidence by CCTV as a vulnerable witness.  The application was granted at the hearing on 9 May. Trial was fixed for 18 October 2016, but the late lodging of a list of defence witnesses led to the trial being adjourned to 22 March 2017 when your counsel was not available so that another diet of trial was fixed for 18 April 2017. The case did not call because other potential charges had come to light. 

“In response to the current indictment, an alibi was intimated which was apparently supported by a large number of witnesses and it was not departed from until you pled guilty on 5 December 2017. This cannot be seen as an early plea, it came after several diets of trial had been fixed and after multiple preliminary hearings.

“Nevertheless, there was some utilitarian value in your plea of guilty. The man you abducted did not have to give evidence and inconvenience to witnesses and a jury, and the costs of a long trial, were ultimately avoided.

“For this exceptionally serious crime a suitable sentence would be imprisonment for 17 years to include one year for the aggravation. This will be reduced to 15 years and eight months for your plea of guilty, backdated to 21 December 2015.

Barry William O’Neil, in your case, your plea of guilty to a restricted version of charge 2, reflects your being concerned in supplying the class A drug cocaine during the month of March 2013. You were in a position to be supplying 2 kilogrammes of cocaine to another dealer and the means by which you did so were notably sophisticated.

“You gave him access to a car in which the drugs were secreted in a concealed compartment. You knew where the drugs were hidden and offered advice on how to access them. You knew that there were documents in the car to be used if Mr Allan was stopped by the police and you told him about this.

“When it turned out that there was going to be a financial loss, you followed this up by twice visiting Mr Allan seeking payment.

“There is no suitable alternative to a sentence of imprisonment for such a serious crime.

“Whilst you have only a limited criminal record and no drugs convictions, you are not a first offender. You have two convictions for assault and two convictions for the possession of weapons for one of which you received a short sentence of imprisonment in 2002. The other was met with the maximum amount of unpaid work under a community payback order in 2012. That sentence did not deter you from committing this crime within months.

“Having regard to all of the circumstances, an appropriate sentence would be imprisonment for eight years of which one year reflects the aggravation.

“On account of your having pled guilty, albeit at a very late stage after much procedure which had presented many opportunities for you to do so earlier, I will make some allowance. Accordingly, sentence is reduced to seven years and four months and backdated to 3 March 2017.

“Given that you have pled guilty to a drug trafficking offence, and the sentence passed, the court has a duty to consider if it should make a travel restriction order. Given the circumstances of the offence which I have described, and the aggravation, I am imposing a travel restriction order in terms of section 33 of the Criminal Justice and Police Act 2001 for a period of two years from the date when you are released from prison. The restriction is that you must not leave the United Kingdom and I also direct that you must cause your passport to be delivered to this court.

Anthony Woods, you pled guilty to charge 1 and charge 3 subject to certain deletions and to charge 27. All of the charges are aggravated by having been committed when on bail and charges 3 and 27 also have the aggravation under section 29.

“You have one conviction but it is of some significance, despite its age. In 2000, on indictment, for possession of drugs with intent to supply you were fined £1000.

“On charge 1 the maximum sentence is imprisonment for 10 years.

“You along with Mr Mulligan and Mr Bowman have accepted responsibility for organising premises, vehicles, disguises, false identities and the creation of concealed spaces in premises and vehicles all for the purpose of facilitating the commission of serious and organised crime on a grand scale.

“So far as you and Mr Mulligan are concerned, your acceptance of guilt of part (c) of charge 1 is of particular importance.  It involves possession of an arsenal of deadly weapons and associated material including a quantity of prohibited firearms, ammunition, firearm accessories and a hand grenade for the purpose of supplying to others involved in serious and organised crime and for using to commit acts of violence in furtherance of your own criminal enterprise.

“Your involvement in serious and organised crime extended over 20 months. Such is the gravity of your conduct that there is no suitable alternative to a prison sentence.

“Whilst courts are slow to impose a maximum sentence, the circumstances of this case come into the exceptional situation where it would be justified. Whilst Mr Mulligan admitted part (g) of charge 1 and you did not, I do not consider that to be a material point of distinction given the dominating significance of part (c) and your acceptance of parts (d), (e) and (f). However, allowing for your involvement covering a shorter period than Mr Mulligan’s, I would have restricted the starting point to nine years and six months without the bail aggravation. But taking account of your continuing to offend on bail over a period of three months, the starting point on charge 1 is imprisonment for 10 years.

Sentence on charge 1 is reduced to eight years and nine months for your guilty plea, and backdated to 23 January 2017   

“Charge 3 involves money laundering of substantial sums of Sterling and Euros and carries the section 29 aggravation. An appropriate sentence would be four years to include six months for the section 29 aggravation and I will not increase the sentence for the bail aggravation. Allowing for it being served consecutively, it will be reduced to 32 months and that will be discounted to 28 months and will run consecutively to the sentence on charge 1.

“On charge 27, an appropriate sentence would be three years including six months for the section 29 aggravation discounted to 32 months. Given the overlap with charge 1(c), and the cumulative effect of the other sentences I have imposed, this will run concurrently with the sentence on charge 1. 

Accordingly you will go to prison for 11 years and one month, backdated to 23 January 2017.

Francis Mulligan, you have a limited record of convictions at summary level which include a conviction for possessing a weapon for which you were fined in 2001, a conviction for possession of amphetamine in 2005 and two convictions in 2006 for struggling with the police. Until now you have committed no significant offence since then.

“Your involvement in serious and organised crime, the nature of which I have already described in part, extended over more than three years.

“Of particular importance is your acceptance, in para (c) of charge 1, of your possession of an arsenal of deadly weapons and associated material for the purposes described in the charge, which I have already narrated. I note also your acceptance of responsibility in part (g) for a great deal of technical equipment and materials relating to both the carrying out of surveillance and the thwarting of surveillance.

“Such is the gravity of your conduct that there is no suitable alternative to a prison sentence and I consider the circumstances of your case to justify the exceptional course of imposing the maximum sentence. Accordingly, the starting point for you is imprisonment for 10 years.

On account of your plea of guilty, this will be reduced to eight years and 324 days, backdated to 23 January 2017.

“Michael Steven Bowman, you are sentenced on the basis of your plea of guilty. Your criminal conduct as set out in the parts of charge 1 to which you pled guilty, the nature of which I have already described in part, is serious and it extended over a period of 10 months.

“You have admitted involvement in the reset of a number of cars valued at more than £200,000. These cars were mostly powerful and were equipped with jerry cans of fuel giving rise to a strong inference that they were available to be used in the commission of crimes and then burned to reduce the risks of detection.

“Your plea of guilty does not involve your possession of the weapons for which Mr Woods and Mr Mulligan have accepted responsibility when they pled guilty to part (c) of charge 1. However, you have accepted that your involvement with vehicles and premises was to store, conceal and transport money, controlled drugs, firearms, ammunition, firearms accessories, a hand grenade, anti-surveillance and counter surveillance equipment and other items used to further the commission of serious organised crime.

“Your involvement covers a shorter period, but your conduct is nevertheless very serious. There is no suitable alternative to a prison sentence. The charge is aggravated by your carrying on with these activities after you had been released on bail following your arrest at Heatheryknowe Farm, to which you drove a car with a constructed concealment.

“In the whole circumstances, and noting your lack of previous convictions, the starting point for you is eight years including six months for your continuing to offend in the same way straight after your release on bail on 20 December 2016. Given your plea of guilty, it is reduced to seven years, backdated to 23 January 2017.

“Mark Richardson, on charge 14, you pled guilty to being in possession of a prohibited weapon in the form of a Glock 9mm semi-automatic handgun between 19 and 20 January 2017. For this crime Parliament prescribes a minimum term of five years’ imprisonment and a maximum term of 10 years.

“On a day when Messrs Woods, Mulligan and Bowman were detained by the police, and the police were taking an interest in a Toyota Yaris car, attempts were made to pull it onto a recovery truck with you and others in attendance. You failed to make a getaway and were detained. A search of the Yaris found a concealed compartment in which the loaded gun was hidden. DNA evidence demonstrates that you had touched it previously.

“I was told that you had handed it over to someone else on the previous day. Accordingly you were involved with this weapon twice in different situations and it remained at large after your first involvement with it. That the gun was loaded, according to the agreed narrative, is also relevant.

“In addition to the statutory aggravation under section 29, your record of previous convictions is materially aggravating.

“In 2003 you were admonished for possession of a knife in a public place when on bail. In 2006 you were fined for a similar offence. In 2004, for assault to injury, you were sentenced on indictment to community service and a compensation order of £1000. You have convictions on indictment for theft by housebreaking and reset.

“In 2006 in the High Court you were sentenced to 32 months detention for being concerned in the supplying of controlled drugs. In 2010 you were sentenced, after appeal, to six years and nine months for concern in supply.

“An appropriate sentence would be imprisonment for 10 years to include one year for the section 29 aggravation. Given your plea of guilty, sentence is reduced to eight years and nine months and this is backdated to 23 April 2017 when your remand in custody resumed after you had served time for other matters.

“Gerard Docherty, you pled guilty to culpably and recklessly discharging a firearm into a dwelling-house at Ratho to the danger of the lives of the inhabitants on an amended charge 7. The circumstances in which you did so constitute a very serious example of this crime. Your actions were plainly intended to terrify and intimidate the householder.

“You were armed with what seems likely to have been a Skorpion sub-machine gun. You lay in wait in a secluded position in a neighbouring garden for over an hour. Within the house were two young children, albeit they were not within the conservatory at which you shot twice.

“However, an adult, Robert Kelbie, was within the conservatory.  You have accepted that what you did was to the danger of the lives of the inhabitants and that must particularly apply to Mr Kelbie.

“You made your escape using two getaway cars. The circumstances are redolent of a high degree of planning and pre-meditation and you have accepted that you carried out this crime for payment.

“Whilst you have no directly comparable conviction, you are not a first offender. You have convictions at summary level which include breach of the peace and possession of drugs.

“For being concerned in supplying drugs in 1997, and producing drugs in 2015, you have served short prison sentences. You have a conviction for housebreaking with intent to steal for which a community payback order was imposed in 2012 and in 2015  you were sentenced to 18 months imprisonment for theft on sheriff court indictment.

“Accordingly you must have committed this crime either when you were on early release or very shortly after completing the last mentioned sentence.

In the whole circumstances, even allowing for the absence of similar convictions, the starting point is imprisonment for 12 years to include one year for the section 29 aggravation. Given your plea of guilty, sentence is reduced to 10 years and six months backdated to 20 January 2017.

“Steven Mcardle, you pled guilty to an amended charge 20 of having possession on a single day in August 2016 a prohibited weapon, namely a Glock 26 semi-automatic handgun. The circumstances were said to be that you were briefly in possession of a gun introduced to your premises by someone else. Your plea of guilty includes the section 29 aggravation.

“I take into account your relatively limited involvement and its brevity but I note also that you allowed the gun to remain in illegal circulation rather than destroying it or handing it in to the police as you could have done. It turned up in Glasgow some time later in the possession of serious and organised criminals.

“Your extensive record of previous convictions also falls to be considered. It extends from 2001 to 2017 and includes a variety of crimes of dishonesty, disorder and violence.

“In 2001 you were fined for a relatively minor firearms offence involving an air rifle and on sheriff court indictment you were sentenced to 12 months detention for assault.  In 2002 at the High Court, for breach of the peace and assault to injury, you were sentenced to 12 months detention. In 2004 you were sentenced to five months’ detention for possession of a knife in a public place.

“You have a number of convictions for possessing drugs and in 2007 were made subject to restriction of liberty and probation for being concerned in supply. In 2010 you were sentenced to 18 months imprisonment on sheriff court indictment for being concerned in supplying amphetamine.

“Looked at as a whole, I consider your criminal record to be materially aggravating. In your case, a sentence of imprisonment for eight years to include one year for the section 29 aggravation, is reduced for your guilty plea to seven years and 100 days, backdated to 21 April 2017.

“Martyn James Fitzsimmons, you pled guilty to amended charges 3, 25 and 27. Whilst the crimes occurred on one day only, they are very serious. The weapon in charge 25 was a prohibited weapon, a Glock 19 semi-automatic handgun. Your possession of ammunition represents a further aggravation, as does the different kind of crime reflected in charge 3.

“All of this must be considered in the light of your criminal record. You have both military and civilian convictions which include some relatively minor convictions for assault. 

“However, in 2001, you were made subject to a community service order and ordered to pay compensation of £2000 for assault to severe injury and permanent disfigurement, albeit on summary procedure. In 2006, for possession of an offensive weapon, you were fined £800. In 2007 you were fined for assaulting a constable. You have a conviction for a domestic offence in 2007 and a conviction on sheriff court indictment in 2016 for which the court imposed a community payback order to which you were subject when you committed the crimes on this indictment.

“Of most significance is your conviction in Canterbury Crown Court in 2008 when you were sentenced to concurrent sentences of imprisonment for 12 years for conspiracy/handling stolen goods and conspiracy/possessing explosives for unlawful purposes.

“I note what is contained in the two letters tendered on your behalf. Whilst it may reflect well on you that your service was such that the army were prepared to consider the possibility of your rejoining, I cannot go behind the facts of the convictions returned and the sentences imposed.

“I have no power to make a return order under section 16 of the Prisoners and Criminal (Proceedings) Scotland Act 1993. Given the terms of section 204A of the Criminal Procedure (Scotland) Act 1995 and section 265 of the Criminal Justice Act 2003, it is not open to me to order the sentences I am passing today to run consecutively to the sentence on which you were released but have now been recalled to prison.

“Nevertheless, committing the crimes on this indictment whilst subject to early release for such crimes is a material aggravation. Since you have been recalled to prison, I am not going to backdate sentence.

“On charge 25, having regard to the nature of your previous convictions, your being subject to early release for somewhat similar offending, and a community payback order, and noting also that you had ammunition, only the maximum sentence of imprisonment for 10 years would be appropriate. Since I am imposing the maximum allowed by statute, I am not on this charge adding to the sentence by virtue of the section 29 aggravation. The sentence is reduced to nine years for your plea of guilty.

“On charge 27, I would have selected a sentence of four years to include six months for the section 29 aggravation which is reduced to 43 months for the plea of guilty. Given the overall effect of the sentences, and because I have treated this charge as an aggravation on charge 25, this sentence will run concurrently with the sentence on charge 25.

“Charge 3 is a different crime, and an appropriate sentence would be 30 months, to include four months for the section 29 aggravation. Since it will run consecutively to the sentence on charge 25, I will reduce the sentence to 20 months and discount to 18 months.

“Accordingly you will go to prison for 10 years and six months from today.

“As I have already indicated, I continue consideration of the Crown’s applications for Serious Crime Prevention Orders in all cases to tomorrow.”