GARY JOHN HUNTER and RODERICK McLEAN SNR v. HER MAJESTY'S ADVOCATE

Charge 2 proceeded on a recital that the accused knew that officers of H.M. Customs & Excise or other officers of law might seek to intercept the Ocean Jubilee and prevent the importation of the cannabis resin. The accused were charged with the following acts:

For the appellant McLean Mr. Murray submitted that the two sentences of 14 years imposed on his client were excessive, both individually and cumulatively. He took no objection to the fact that they were made consecutive with each other.

As regards the second charge, the same general considerations also applied. Mr. Murray pointed out that in sentencing McLean the trial judge expressed the view that his culpability on this charge was no less than on the first charge, and so he imposed the same period of imprisonment. Mr. Murray disputed the soundness of this view. Earlier in his remarks the trial judge observed setting fire to cannabis resin would endanger not only the vessel but also McLean's own life and the lives of officers attempting to seize the vessel and its cargo. He continued:

"Nevertheless you put this deadly plan into operation endangering the lives of a number of officers of Her Majesty's Customs & Excise bravely doing their duty and, indeed, causing the death of one such gallant officer. Had you been, as your counsel envisaged, charged and convicted of his homicide, I would have had no hesitation in sentencing you to life imprisonment".

Mr. Murray did not dispute that head (c) of the charge was concerned with danger to lives arising directly out of the fire or any action which was a reasonable and foreseeable consequence of that fire. However, in the present case, no doubt for good reason, the Crown had not chosen to charge the accused with culpable homicide. Mr. Murray said that in these circumstances it was improper for the trial judge to treat McLean as if he had been responsible for causing the death of the Customs & Excise officer.