Scottish Criminal Case Reports, Issue 1, 2016 by Thomson Reuters

Appeal Sheriff Appeal Court—Leave to appeal refused—Whether appeal to High Court against refusal of leave to appeal to Sheriff Appeal Court competent Mackay v Murphy (SAC) 83

Fraud—Fraudulent scheme to acquire parental rights— Whether three years’ imprisonment excessive VG v HM Advocate

February 2016 2016 S.C.C.R. 1−108 97

Lewd and libidinous conduct including attempted sodomy against boy of ten—No long-term adverse effect on complainer—Whether three years imprisonment unduly lenient HM Advocate v SSK 74

Bail Condition prohibiting contact with complainer in charge of domestic violence—Comments on imposition of condition Dunn v Porch 55

Misuse of drugs—Accused director of operation of supplying large quantities of high purity heroin—Whether 18 years’ imprisonment excessive Sutherland v HM Advocate 41

Compatibility issue Bail—Condition prohibiting contact with complainer in charge of domestic violence—Whether compatible with right to family life—European Convention on Human Rights, art.8 Dunn v Porch 55

Non-harassment order—Whether can be made in respect of person not named as victim in charge SJS v HM Advocate 12

Statements by children to investigators used as evidence at taking of evidence from children on commission— Commission taking place some time after interviews— Whether delay compatible with accused’s right to examine witnesses against him MacLennan v HM Advocate 101 Contempt of court Failure to answer witness citation because of domestic emergency—Whether failure wilful—Whether sheriff should have heard evidence—Whether contempt of court Strathern v Harvie 22

Rape—Oral rape by person in position of trust—Whether less serious than vaginal penetration—Whether three years’ imprisonment unduly lenient HM Advocate v AB 47 Rape—Whether prior relationship with complainers relevant—Whether two years’ imprisonment unduly lenient HM Advocate v SSK 74 Risk assessment report—Effect of failure to follow guidelines Kinloch v HM Advocate 25 Statutory offence Misuse of drugs—Admissibility of evidence—Search of vehicle following information that vehicle carrying drugs—

Rape—Corroboration—Whether complainer’s evidence of penetration during rape on bed corroborated Palmer v HM Advocate 71

Whether reasonable grounds for search

Road traffic Sentencing—Disqualification—Suspension of disqualification—Whether competent to seek suspension of driving licence from Sheriff Appeal Court pending appeal to High Court from refusal of leave to appeal to Sheriff Appeal Court Mackay v Murphy (SAC) 83

Possession of offensive weapon—Reasonable excuse—

Sentencing Delay—Whether sufficient account taken of delay between police charge and trial Sentencing—Consecutive sentences— Whether cumulative effect excessive WA v HM Advocate 51 Extended sentence—Accused aged 44—Whether extended period of two years sufficient HM Advocate v SSK 74

*657935*

Borland v HM Advocate

Whether fear of attack reasonable excuse Lunn v HM Advocate

2016 S.C.C.R. 1–108

Evidence Irregularly obtained—Search under Misuse of Drugs Act— Search of vehicle following information that vehicle carrying drugs—Whether reasonable grounds for search Borland v HM Advocate 8

Order for lifelong restriction—Offence committed by prisoners against prisoner—Whether circumstances of offence satisfy criteria for imposition of order Kinloch v HM Advocate

SCOTTISH CRIMINAL CASE REPORTS

Art and part Art and part by presence—Whether circumstances showed participation Gay v HM Advocate 87

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD

Threatening or abusive behaviour—Defence that behaviour reasonable—Whether onus on defence evidential or persuasive—Whether defence of self-defence available Urquhart v HM Advocate Warrant Warrant to search for drugs—Accused seeking to set aside warrant by bill of suspension on ground that granted on incomplete and doubtful evidence—Motion to remit to evidential hearing Stewart v Harvie

Borland v HM Advocate Dunn v Porch Gay v HM Advocate HM Advocate v AB HM Advocate v SSK Lunn v HM Advocate Kinloch v HM Advocate Mackay v Murphy (SAC) MacLennan v HM Advocate

8 55 87 47 74 17 25 83 101

Palmer v HM Advocate Stewart v Harvie SJS v HM Advocate Strathern v Harvie Sutherland v HM Advocate Urquhart v HM Advocate VG v HM Advocate WA v HM Advocate

71 1 12 22 41 33 97 51

A Bill of Suspension

17 February 2015

MICHAEL STEWART

Complainer

against DAVID HARVIE (Procurator Fiscal, Glasgow)

Respondent

[2015] HCJAC 13 Warrant—Warrant to search for drugs—Accused seeking to set aside warrant by bill of suspension on ground that granted on incomplete and doubtful evidence—Motion to remit to evidential hearing— Whether bill relevant—Whether remit appropriate—Misuse of Drugs Act 1971 (c.38), s.23(3) Section 23(2) of the Misuse of Drugs Act 1971 gives a constable power to search a person he reasonably suspects to be in possession of controlled drugs, and s.23(3) entitles a magistrate or sheriff to grant a warrant to search premises if he is satisfied by information on oath that such drugs are on any premises. The complainer presented a bill of suspension seeking to suspend a search warrant granted by a JP under s.23(3) of the Act on the ground that it was granted on the basis of an incomplete understanding of the evidence that was not complete, and that the factual nexus of some of the information put before the JP was subject to criticism and/or doubt. The JP had taken evidence on oath from a police officer and it was not suggested that the police had acted in bad faith. The complainer asked the court to remit the matter to an evidential hearing to arrive at an assessment of the behaviour of the police, particularly with reference to the fact that the relevant surveillance logs did not seem to support certain of the information presented to the JP on oath by the police officer. Held (1) that in order to suspend the warrant the court would have to be satisfied that this was a case where the police had acted in bad faith and presented information they knew to be false or clearly unreliable, and that averments that they may have been guilty of over-interpretation of the information available to them or may be unable to refer everything to an entry in the logs was very different from bad faith (para.7); and (2) that this was not an appropriate case for a remit to an evidential hearing, that the complainer’s averments were insufficient to make a case that the JP was not entitled to grant the warrant, and that it is only if it can be said that no reasonable JP would have granted the warrant in the circumstances that the court would be entitled to suspend it (para.8); and suspension refused. Observed (1) that our criminal procedure does not, and indeed should not, provide for a second-guessing of a decision to grant a warrant, that it was different when a police officer acted on his own purportedly in terms of the power conferred by s.23(2) of the Act, where the admissibility of the recovered evidence can be objected to and whether the constable had a reasonable suspicion can be explored, if necessary after an evidential hearing, that the statutory scheme is to confer jurisdiction to grant the warrant to the JP and with it the jurisdiction to consider whether the statutory criterion for granting the warrant has been met (para.12); and (2) that a warrant can be suspended by the court if the JP has proceeded on the basis of no, or clearly insufficient, evidence, or if his decision was vitiated by the police knowingly having supplied him with erroneous information, but

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that the court has no power to evaluate, in the light of the quality of all available information, the quality and completeness of what was put before the JP, with a view to revisiting his decision (para.13). Cases referred to in the opinion of the court:

Allan v Tant, 1986 S.C.C.R. 175; 1986 J.C. 62 Birse v MacNeill, 2000 S.C.C.R. 505; 2000 J.C. 503; 2000 S.L.T. 869 Coalter v HM Advocate [2013] HCJAC 115; 2013 S.C.C.R. 668 Evans v PF Glasgow, Appeals no XJ767/12 and XJ811/12 Herd v HM Advocate, 1999 S.C.C.R. 315; 1999 S.L.T. 927 O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] A.C. 286; [1997] 2 W.L.R. 1; [1997] 1 All E.R. 129 Stuart v Crowe, 1992 S.C.C.R. 181; 1992 J.C. 46; 1993 S.L.T. 438. Michael Stewart brought a bill of suspension in the High Court seeking the suspension of a warrant granted by a JP for the search of premises in terms of s.23(3) of the Misuse of Drugs Act. 1971.

C The bill was heard on 18 January 2015 by Lord Brodie, Lord Drummond and Judge Stephen. For the complainer: C M Mitchell, instructed by Capital Defence Lawyers, Solicitors, Edinburgh, for Fitzpatrick & Co, Solicitors, Glasgow. For the respondent: Erroch AD.

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On 17 February 2015 Lord Brodie delivered the following opinion of the court. LORD BRODIE [1] In terms of s.23(3) of the Misuse of Drugs Act 1971 if a justice of the peace, a magistrate or a sheriff, is satisfied by information on oath that there are reasonable grounds for suspecting that any controlled drugs are in the possession of a person on any premises, he may grant a warrant authorising any constable, inter alia, to search the premises and any persons found therein and to seize any controlled drugs found. [2] The complainer in this bill of suspension is Michael Stewart. On 4 April 2012, on an application having been made to him, a justice of the peace granted a warrant in terms of s.23(3) of the 1971 Act to search the premises occupied by the complainer at 5 Daniel McLaughlin Place, Kirkintilloch. The complainer has now been indicted in the High Court along with six co-accused charged with contraventions of s.4(3)(b) of the 1971 Act. The complainer understands that the Crown intends to lead evidence at trial as to what may have been found during the search of the premises at 5 Daniel McLaughlin Place under the authority conferred by the warrant dated 4 April 2012. The complainer wishes to suspend the warrant by reason of it having been granted in circumstances which were wrongous, unjust and incompatible with the complainer’s human rights with the object of rendering any evidence as to what may have been found during the search inadmissible. [3] The Lord Advocate has lodged answers to the bill of suspension. No point is taken on competency, either generally or in respect of the proposal in the bill that the matter should be remitted to an evidential hearing presided over by either a sheriff or a single judge “to establish whether the information provided to the JP was correct, and to provide an assessment to the court on the behaviour of the police”. We would see that position as being correct;

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where a warrant has been granted by a justice of the peace in exercise of power conferred, for example, by s.23 of the 1971 Act, and it is proposed to lead evidence about what may have been seized in execution of that warrant in a forthcoming High Court trial, then application can be made to a quorum of this court by way of bill craving suspension of the warrant on the basis of illegality: see eg Birse v MacNeill. On such an application the powers of this court include power to remit to a single judge to determine any issues of disputed fact; see eg, Evans v Procurator Fiscal, Glasgow. While the consequent procedure can be seen as cumbersome: see Stuart v Crow; Herd v HM Advocate and Sir Gerald Gordon’s associated commentaries, the decision in Allan v Tant makes it clear that where the contention is that an ex facie valid warrant should not have been granted, it is not open, at least to a sheriff, to “go behind the warrant”. The warrant has to be suspended, or reduced or set-aside and that is something that only the High Court can do. It was not argued to us that the power of the High Court could be exercised by a single judge at, for example, a preliminary hearing in terms of s.72 of the Criminal Procedure (Scotland) Act 1995. It is presumably because of a consensus on that point that, in the knowledge of the complainer’s intention to proceed by way of bill of suspension, a continued preliminary hearing in the case was discharged and 24 February 2015 fixed as a new diet. [4] Before turning to the averments in the bill it is convenient to set out the terms of the report by the justice of the peace on the circumstances in which he granted the warrant. “This report concerns a bill of suspension by Michael Stewart in respect of a warrant granted by me on 4 April 2012. “On 4 April 2012, Detective Constable Elizabeth Blair, Strathclyde Police, stationed at Paisley Police Office and under secondment to SCDEA [Scottish Crime and Drug Enforcement Agency], called at my home at (an address in Glasgow) and indicated that she wished to apply for a search warrant under the Misuse of Drugs Act 1971. The said officer was duly placed on oath and then informed me that she had reasonable grounds for suspecting that a quantity of controlled drugs were to be found in the possession of a person at premises occupied by Michael Stewart, at 5 Daniel McLaughlin Place, Kirkintilloch. “When placed on oath, DC Blair informed me that as a result of ongoing police surveillance and current intelligence, categorized as B2, being received that (a) Michael Stewart, Gary Grant and Barry Letham were frequently involved in the use and distribution of controlled drugs; (b) on 3 April 2012 Stewart and Grant had supplied a source in Airdrie; (c) Letham intended to have a criminal meeting with a Lee Wood in order to obtain cocaine and money from the said Lee Wood; (d) police witnesses had observed Letham attend outside 1 Daniel McLaughlin Place, Kirkintilloch, the home of Grant and meet there with Wood; (e) Letham and Wood thereafter entered 1 Daniel McLaughlin Place with a weighted carrier bag; (f) within a space of minutes, Grant exited 1 Daniel McLaughlin Place whilst carrying a small child and an unidentified object and walked to 5 Daniel McLaughlin Place, the home of Stewart; and (g) Grant thereafter left 5 Daniel McLaughlin Place with the child but without the aforementioned object. “Having examined the informant on oath and having considered her application and being satisfied that there was reasonable ground for suspicion, I granted the warrant.” [5] The basis of the challenge to the warrant is set out in statements 3 and 4 in the bill. These statements are in the following terms:

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“3. That this warrant was sought and granted on the basis of information provided to the justice which it is contended did not provide a comprehensive position to the JP, such that a proper consideration of all the information could inform the JP’s decision. Moreover it is contended that (at least as presently disclosed) some of the information about disclosure is not borne out by the information having been given to agents. “The justice appears from the report not to have been told that, at the time the warrant was sought, the accused had been searched with negative result shortly earlier, nor that his car had been searched with the same negative result, nor that his girlfriend had also been searched and nothing of evidential value found. Moreover, at the time of the present warrant being sought Barry Letham had also been subject to personal search with negative result. The accused, at the time the warrant was sought was arguably being illegally detained. “Of the matters the justice was provided with, as set out in the justice report of 16 October 2014 there are the following criticisms. The criticisms follows the (a)–(g) reasons as reported by the JP: (a) The ‘B2’ information provided (information apparently which is ‘mostly reliable’ and ‘known personally to source but not to officer’ is inspecific in that it does not identify how current this information is, and why there is a belief that the accused has drugs in his home at that time. (b) There has been no disclosure to the defence of any surveillance log to support assertion ‘b’. (c) There is nothing in this information which relates to the accused or his property or gives an indication of when this purported meeting was due to take place. (d) The police had observed this, but again, this provides no reason as to why a warrant was required at that time for the accused’s house. (e) The ‘weighted carrier bag’ assertion is not supported by the surveillance logs, and the Crown having precognosced the police some considerable time later, the statements produced still do not go so far as to support this proposition. (f) The ‘unidentified object’ assertion is not supported by the surveillance logs, and the Crown having precognosced the police some considerable time later, the statements produced still do not go so far as to fully support this proposition. Moreover, it cannot be said that the witness walked to the home of Stewart. The best that can be said is that he entered a block of flats, one of which flats belonged to the accused. (g) Again, the best that can be said is the witness left a block of flats one of which flats belonged to the accused. “In the circumstances the decision to grant the warrant was based on an understanding of the evidence that was not complete. Moreover, it is now contended that the factual nexus of some of the information put before the JP is subject to criticism and/or doubt. 4. That in the circumstances a sheriff/judge ought to preside over an evidential hearing, to establish whether the information provided to the JP was correct, and to provide an assessment to the court on the behaviour of the police (particularly with reference to the fact the surveillance logs do not seem to support the assertions made about meetings and the carrying of bags, etc). That after such an assessment is made and a report is provided to this court, that court can have the opportunity to consider whether the grant of warrant in these circumstances should stand.” [6] After an initial false start, the advocate depute confirmed that the Crown position was that the bill should be refused without further procedure.

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[7] The first question to consider is whether the complainer’s averments set out a relevant basis on which this court might be persuaded to suspend the search warrant granted by the justice of the peace on 4 April 2012. In our opinion they do not. It is to be borne in mind that what this court is being asked to exercise is not an appellate jurisdiction but rather a supervisory jurisdiction, the object of which is to determine whether the party with the relevant jurisdiction, here the justice of the peace, has exercised the jurisdiction conferred on him (and him alone) by statute in a lawful manner. Thus, in order to suspend the warrant, this court would have to be satisfied that the justice of the peace was not entitled to form the requisite suspicion on the basis of the information presented to him on oath by the police officer. There may of course be cases where it is said that police officers acted in bad faith and presented information to a justice of the peace which they knew to be false or clearly unreliable. This is not such a case. True, the complainer avers that police may have been guilty of over-interpretation of the information available to them and may be unable to refer everything to an entry in a surveillance log, but that is something very different from bad faith. [8] It is to be stressed that the information available to the police did not depend exclusively on surveillance but included what was described as B2 intelligence. Here the justice of the peace put the police officer on oath and obtained from her information which satisfied him that there was a basis for the suspicion necessary before he could grant a warrant in terms of s.23(3) of the 1971 Act. That was the proper procedure for him to follow. In considering DC Blair’s application and in granting the warrant the justice of the peace was carrying out a judicial function. He understood that. An application for a warrant should never be regarded as no more than a formality.The requirement that a magistrate, justice of the peace or sheriff be satisfied as to the requisite suspicion is an important safeguard against arbitrary search: Birse v MacNeill at para.10. However, what is required is reasonable suspicion, not full proof. Of necessity, an application for a warrant to authorise or search must accommodate the reasonable operational requirements of law enforcement agencies. The bill of suspension sets out a number of criticisms of the quality of the information provided by the police and it questions (but does not positively deny) the accuracy of some of that information, with a view to suggesting that the matter should be remitted to an evidential hearing in order that a single judge or sheriff can hear the relevant evidence and then report back (although on precisely what is not clear). We do not exclude the possibility of such a procedure, unwieldy as it undoubtedly is, being followed in an appropriate case. This, however, is not an appropriate case. In our opinion, the complainer’s averments here are insufficient to make a case that the justice of the peace was not entitled to grant the warrant that he did. It is nothing to the point that another justice of the peace or a judge or sheriff faced with the same information might not have formed the necessary suspicion. It is only if it can be said that no reasonable justice of the peace would have granted a warrant in the circumstances which applied on 4 April 2012 that this court would be entitled to suspend the warrant. [9] As it appeared to us, Ms Mitchell, who appeared for the complainer, accepted that the bill did no more than present rather diffident or tentative criticisms of the quality of the information presented to the justice of the peace. That no criticism whatsoever is made of the justice would seem to be made explicit by the averments: “In the circumstances, the decision to grant the warrant was based on an understanding of the evidence that was not complete. Moreover, it is now

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contended that the factual nexus of some of the information put before the JP is subject to criticism and/or doubt.” Just what is meant by “nexus” in this context may not be clear, but it is not said that the justice was not entitled to decide as he did on the basis of the information put before him. The question for him was whether what was spoken to by DC Blair, in her deposition on oath, satisfied him that there were reasonable grounds for suspecting that controlled drugs were in the possession of a person in the premises to which the application related. He was entitled to proceed on hearsay information from the constable: cf, Birse v MacNeill and Renton and Brown Criminal Procedure at 5–05, and that remains so even if it later turns out to have been wrong: Lord Hope of Craighead in O’Hara v Chief Constable of the Royal Ulster Constabulary at p.298, followed in Coalter v HM Advocate. [10] While it might be different if the case were that the justice had been deliberately deceived by the police officer who deponed before him or, possibly, by other officers who had provided the deponing officer with information, that this bill of suspension contains no averments to the effect that no justice could reasonably have granted a warrant on the basis of the information provided to this justice, means that it is irrelevant and therefore cannot be passed. [11] We attempted, but failed, to elicit from Ms Mitchell what exactly she maintained had to be established by the complainer in order that the warrant should be suspended, reduced or otherwise set aside. She agreed with the suggestion by the court that if behaviour constituting bad faith on the part of the police were established, that would justify suspension of a warrant that had been granted by reason of that behaviour, but beyond that Ms Mitchell had no sharp criterion or bright line to offer. Her approach was a different one. Here, she did not go the distance of averring bad faith; she could not do so. However, as counsel, she explained that her role was to be satisfied that any warrant on the faith of which evidence prejudicial to her client had been seized was lawful. Where, as here, a warrant had been granted on the application of a police officer and without prior notice to the complainer, she had very little information as to the basis upon which the justice granted the warrant. This was in fact the second bill of suspension that had been presented by the complainer in this case. It was only on presentation of the first bill that the complainer and his representatives were provided with the justice’s report and therefore placed in a position to advance criticisms of the evidential basis upon which the warrant had been granted. She had averred all that she could. In order for her to say more she required to explore matters at an evidential hearing. Thus, the purpose of the remit was essentially an inquiry at large in order to arrive at, as it is put in the bill: “[A]n assessment. . .on the behaviour of the police (particularly with reference to the fact (that) the surveillance logs do not seem to support the assertions made about meetings and the carrying of bags etc). . .(so that) the court can have the opportunity to consider whether the grant of a warrant in these circumstances should stand.” [12] In our opinion, our criminal procedure does not, and indeed should not, provide for such a second-guessing of the decision by a justice of the peace, magistrate or sheriff to grant a search warrant, in exercise of the power conferred by s.23(3) of the 1971 Act. It is different when a police officer at his own hand, purportedly in terms of the power conferred on a constable with the requisite suspicion by s.23(2) of the Act, has searched the person of an

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accused person or his vehicle. Then, the admissibility of any evidence recovered during such a search can be objected to and the issues as to whether the constable did indeed have both the requisite suspicion and whether objectively he had reasonable grounds for forming it, can be explored, if necessary after the leading of evidence at an evidential hearing in terms of ss.72(6)(b) and 79(2)(b)(iv) of the 1995 Act. A reason for the difference is that in the case of a s.23(3) warrant, authority for the search only arises through the intervention of “an independent judicial figure who actually considers the circumstances and decides whether to grant the warrant”: Birse v MacNeill at para.10. The statutory scheme is to confer the jurisdiction to grant the warrant to the justice of the peace and with it the jurisdiction to consider whether the statutory criterion for granting the warrant has been met. That criterion is no higher than the justice’s satisfaction that there is reasonable ground for suspecting and, consistent with the frequent need for expedition, hearsay (and indeed hearsay of hearsay) may be enough to supply the justice with the necessary information. [13] This is not to say that a s.23(3) warrant cannot be suspended by this court. If the justice’s decision has proceeded on the basis of no or very clearly insufficient information, that would permit this court to suspend a warrant. Similarly, if the justice’s decision was vitiated by the police knowingly having supplied him with erroneous information, this court could intervene. There may be other circumstances in which a relevant case could be pled. However, as is usually the case with litigation, at least as conducted in Scotland, if a party has a case he must plead it and do so with reasonable specification. Only then, if the averments are relevant and it is necessary to do so, will he be allowed to go to proof. In other words his pleadings must state in terms why he is entitled to the remedy he seeks before he is allowed to lead evidence in support of his case. It is not good enough to say that he does not know whether he has a case or not but that he might, and that therefore the court should help him to find out what that case may be. That is often described as “fishing”. At best that is what the complainer is seeking to do here, that is to embark on a hearing with a view to acquiring information which might allow him to plead a relevant basis for setting aside the warrant granted on 4 April 2012. We say “at best” because at least some of what appears in the bill and some of what was said by Ms Mitchell seemed to suggest that it might be open to this court to evaluate, in the light of all available information, the quality and completeness of what was put before the justice, with a view to revisiting the decision to grant a warrant. This court has no power to do that. [14] For these reasons we refuse to pass the bill of suspension.

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A Appeal from Preliminary Diet

1 July 2015

ROBERT BORLAND

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2015] HCJAC 95 Evidence—Irregularly obtained—Search under Misuse of Drugs Act— Search of vehicle following information that vehicle carrying drugs— Whether reasonable grounds for search—Misuse of Drugs Act 1971 (c.38), s.23(2)

Statutory offence—Misuse of drugs—Admissibility of evidence— Search of vehicle following information that vehicle carrying drugs— Whether reasonable grounds for search—Misuse of Drugs Act 1971 (c.38), s.23(2) Section 23(2) of the Misuse of Drugs Act 1971 provides that if a constable has reasonable grounds to suspect that any person is in possession of a controlled drug he may detain and search him and any vehicle in which he suspects the drug may be found. The appellant was the sole occupant of a car which was searched for drugs by a constable, G, in the course of a large-scale surveillance. G conducted the search on the basis of information from another police officer, K, who was engaged in the surveillance operation and gave him details of the car and said that he had information that it was carrying drugs. K did not discuss the details of his intelligence, but, as G understood it, K knew that there were drugs in the car. The appellant was charged with being concerned in the supply of those drugs and took a preliminary objection to G’s evidence on the ground that G did not have grounds to suspect the presence of the drugs. Held that G had information directly from a detective engaged in an active on-going surveillance operation that there were, and not merely that he suspected there might be, drugs in the car, that while the detaining officer must have his own reasonable suspicion that could come from hearsay information from another officer, as was the position here (para.11); and appeal refused. McAughey v HM Advocate [2013] HCJAC 163; 2014 S.C.C.R. 11 distinguished. Cases referred to in the opinion of the court:

HM Advocate v B [2013] HCJ 71; 2013 S.C.C.R. 361; 2013 S.L.T. 810 Lawrie v Muir, 1950 J.C. 19; 1950 S.L.T. 37 McAughey v HM Advocate [2013] HCJAC 163; 2014 S.C.C.R. 11 McGovern v HM Advocate, 1950 J.C. 33; 1950 S.L.T. 133 McKenzie v Murphy, [2015] HCJAC 59; 2015 S.C.C.R. 88; 2015 S.L.T. 613 O’Hara v The Chief Constable of the Royal Ulster Constabulary, [1997] A.C. 286; [1997] 2 W.L.R. 1; [1997] 1 All E.R. 129. Robert Borland was indicted in the High Court with being concerned in the supply of drugs and took a preliminary objection to the evidence of the finding 8

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of the drugs. The objection was repelled by Lord Stewart and Borland appealed to the High Court against that decision on the grounds referred to in the opinion of the court. The appeal was heard on 1 July 2015 by the Lord Justice Clerk (Carloway), Lady Paton and Lord Bracadale. For the appellant Mullan, instructed by Faculty Services Lt., for Blantyre Criminal Lawyers Solicitors, Blantyre. For the respondent: Erroch AD.

On 1 July 2015 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK [1] This is an appeal from the determination of an objection, raised by way of preliminary issue, to the admissibility of evidence obtained during a search carried out under s.23 of the Misuse of Drugs Act 1971. The search was of a grey Fiat Punto, which had been stopped on the M90 near to Kinfauns. The appellant was the driver and sole occupant. The search, which was carried out later at a police office, revealed 500g of diamorphine hidden in the central console. [2] The stopping of the appellantâ&#x20AC;&#x2122;s car formed part of a large-scale police operation investigating the suspected supply of Class A controlled drugs in Central Scotland. The police were of the view that the drugs were being distributed to couriers from the premises of a waste-disposal company in Shotts. [3] The judge at first instance, having heard evidence, reports that the police operation involved a surveillance team and an investigating team. DS McKay was in charge of the investigating team. The officers were linked in a radio talk group. The surveillance operations were reported to the group. [4] The investigating team were privy to intelligence about the Fiat Punto, the identity of its driver, its predicted route along the M90, and its intended destination in Dundee. They had information that it was carrying controlled drugs. DS McKay accordingly telephoned the Perth Roads Policing Department and spoke with PC Gillies. He told PC Gillies that there was active on-going surveillance on the car. He gave PC Gillies details of the car and its driver and said that it was believed to be en route to Dundee. He said that he would like the car stopped before it arrived in Dundee. He told him that he had information that there were controlled drugs in the car. He did not discuss the details of the intelligence with him, but, as PC Gillies understood it, DS McKay knew that there were controlled drugs in the car. [5] PC Gillies took up a position at a point where the M90 becomes the A90 on the way to Dundee. He and a colleague stopped the car. PC Gillies told the appellant that he was being detained in terms of s.23. He had detained the appellant because, as he put it, he had been given information that there were controlled drugs in the car and he felt it was proportionate to detain the appellant for the purposes of a search. The investigating team officers arrived immediately thereafter and also told the appellant that he was being detained under s23. They were told that that had already been done. [6] It was submitted to the judge by the Crown that PC Gillies had effected a valid detention, having had reasonable grounds to suspect. In any event, a second detention had been carried out immediately afterwards by officers who had undoubtedly had reasonable grounds. Since there was no prejudice to the

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appellant or unfairness, any irregularity ought to be excused. The appellant contended that there had been no reasonable grounds to suspect on the part of PC Gillies, as distinct from the investigating officers, and that the purported detention was unlawful. Nothing done thereafter repaired that irregularity. [7] The trial judge distinguished the circumstances from McAughey v HM Advocate. In his view, McAughey had been concerned with a mere instruction to detain. In contrast, this case was that: “PC Gillies had enough information from the (investigating) team to form his own suspicion,. . .he did form his own suspicion and. . ., applying both the subjective and objective tests referred to in the case law, he personally had ‘reasonable grounds to suspect’ and therefore a lawful basis for effecting the detention. . . .if PC Gillies did not effect a lawful detention, any irregularity ought to be excused having regard to all the circumstances. . . .the irregularities in Lawrie (v Muir)and in McGovern (v HM Advocate 33) were not excused but. . .the principles set out in those cases justify excusal in the present case.” The trial judge accordingly repelled the objection. [8] The submission for the appellant essentially repeated that which had been presented to the judge at first instance. In particular, emphasis was placed on the circumstances of McAughey v HM Advocate and HM Advocate v B. There was no good reason for the investigating officers not to have given such information to the detaining officer as would have allowed him to have formed his own conclusion on whether reasonable grounds to suspect existed. Officers who sought to exercise a statutory authority to detain persons ought to know the precise limits of that authority. They should be held to exceed these limits at their peril (see Lawrie v Muir and McGovern v HM Advocate). The fact that investigating officers arrived shortly after the detention did not excuse the irregularity. [9] The Crown accepted that, on the strength of McAughey v HM Advocate, the detention was irregular, but maintained that the irregularity ought to be excused in all the circumstances. [10] The issue is whether PC Gillies was in possession of sufficient information to provide him with reasonable grounds to suspect that there were controlled drugs in the car. In this area of the law, each case will depend upon its own particular facts and circumstances (McKenzie v Murphy, Lord Malcolm at para.18). It is true that PC Gillies was following instructions received from DS McKay. However, the judge at first instance has found in fact that PC Gillies had sufficient information to provide him personally with reasonable grounds to suspect. PC Gillies had been told by a detective officer engaged in an active, on-going surveillance operation that he (the officer) was aware that the car was carrying drugs. That was sufficient in the context of this type of case for a reasonable suspicion to be formed, without the need for further interrogation of the source officer. [11] The court in McKenzie v Murphy explained that the ratio of McAughey v HM Advocate was that a reasonable suspicion could not be created in the mind of a detaining officer merely on the basis of an instruction to detain from a fellow officer. In McAughey, all that the detaining officer had was information conveyed to him second hand that the Scottish Crime and Drug Enforcement Agency thought that a particular car might be carrying drugs. In this case, in contrast, the detaining officer had information conveyed to him directly from a detective engaged in an active, on-going surveillance operation. That information was that there were drugs in the car; and not merely that DS McKay suspected that there might be. Following Lord Steyn’s dictum in

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Oâ&#x20AC;&#x2122;Hara v The Chief Constable of the RUC, Lord Malcolm in McKenzie confirmed (in para.15) that it was not enough for a superior officer, who had reasonable suspicion, to order a detention by another officer. The detaining officer must have his own reasonable suspicion. However, it was stressed that that suspicion could come from hearsay information emanating from another officer. That is the position here. [12] In these circumstances it is not necessary to go on to consider whether any irregularity in the search ought to be excused. The appeal against the decision at first instance is refused.

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A Note of Appeal Against Sentence

8 July 2015

SJS

Appellant against

HER MAJESTY’S ADVOCATE B

Respondent

[2015] HCJAC 64 Sentence—Non-harassment order—Whether can be made in respect of person not named as victim in charge—Criminal Procedure (Scotland) Act 1995 (c.46), s.234A—Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s.15

Section 234A of the Criminal Procedure (Scotland) Act 1995, as amended by s.15 of the Criminal Justice and Licensing (Scotland) Act 2010, provides that where a person is convicted of an offence involving misconduct towards a person (“the victim”) the prosecutor may apply to the court to make a nonharassment order against the offender requiring him to refrain from such conduct in relation to the victim as may be specified in the order. The appellant was convicted of a contravention of s.38 of the Criminal Justice and Licensing (Scotland) Act 2010 by causing fear to his wife, K. Evidence was given that the appellant’s conduct had caused fear to K and to the parties’ children, but there was no reference to the children in the charge. The sheriff made a non-harassment order against the appellant requiring him to refrain from contacting K and the children. The appellant appealed to the High Court against the order insofar as it related to the children. Held (1) that the sheriff was entitled to come to the view on the basis of the evidence which had been led before the jury that the children had been adversely affected by the misconduct of the appellant, that that misconduct could be regarded as harassment and that there was a basis for apprehending that the children might be further harassed (para.8); (2) that a ‘victim’ for the purposes of s.234A need not have been a person specifically referred to by name in the charge in respect of which the accused has been convicted, but that a charge can be relevantly framed without any mention of a particular person points away from the offence specified in the charge being “an offence involving misconduct towards” that person (para.8, p.14–15); and (3) that unless the relevant offence, as it is libelled, can be said necessarily to involve misconduct towards a particular person, the court cannot make a nonharassment order in respect of that person (para.9, p.16B); and appeal allowed, and order quashed and order restricted to non-harassment of K substituted. Robertson v Vannet, 1998 S.C.C.R. 669; 1999 S.L.T. 1081 distinguished. Case referred to in the opinion of the court Robertson v Vannet, 1998 S.C.C.R. 669; 1999 S.L.T. 1081. SJS was convicted of a contravention of s 38 of the Criminal Justice and Licensing (Scotland) Act 2010 in the terms set out in the opinion of the court after trial in the sheriff court at Kirkcaldy before Sheriff Williamson and a jury, and on 17 March 2015 was made the subject of a non-harassment order. He appealed to the High Court against the order as excessive

The appeal was heard on 8 July 2015 by Lord Brodie and Lady Clark of Calton. 12

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SJS v HM Advocate

For the appellant: Martin, Solicitor advocate, instructed by Martin, Johnston & Socha Solicitors, Dunfermline. For the respondent: Bain AD.

On 8 July 2015 Lord Brodie delivered the following opinion of the court LORD BRODIE [1] The appellant was convicted after trial on indictment of the following charge: â&#x20AC;&#x153;(1) [O]n various occasions between 19 May 2012 and 20 September 2013, both dates inclusive, at [specified addresses] and elsewhere you S J S did engage in a course of conduct which caused K M G, c/o The Police Service of Scotland, fear and alarm in that you did repeatedly contact her by email, text message and telephone, post correspondence to her, repeatedly attend at her home address and repeatedly kick her door, stand in front of a car she was driving and make threatening and abusive comments and gestures to her: contrary to s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.â&#x20AC;? [2] In his report to this court the sheriff explains that the evidence led at trial disclosed that the appellant and the complainer, K M G, are married. They separated in May 2012. They have three children, A, B and C. In a series of incidents between 19 May 2012 and 20 September 2013, the appellant caused significant distress to the complainer and her children. His behaviour included contacting her by phone, text and emails; attending at her home; repeatedly kicking her door; standing in front of her car and making threatening and abusive comments. The complainer and her children had given evidence. It was clear from that evidence that the complainer was terrified of the appellant. It was clear to the sheriff from the evidence of the children A and B that they also were frightened of the appellant and wanted nothing more to do with him. [3] Having obtained a criminal justice social work report, the sheriff imposed a community payback order in respect of the appellant with a requirement that he undertake 240 hours of unpaid work. In addition, having been satisfied on the balance of probabilities that it was appropriate to protect the complainer and her children from further harassment at the hands of the appellant, the sheriff made a non-harassment order, purportedly in terms of s.234A of the Criminal Procedure (Scotland) Act 1995 for a period of three years. The terms of the order were to require that the appellant refrain from approaching or contacting or attempting to approach or contact K M G, A, B or C in any way. [4] The appellant appealed to this court. The ground in respect of which he was granted leave to appeal was that the non-harassment order was inappropriate and excessive in relation to the children A, B and C. That ground is developed in the appellantâ&#x20AC;&#x2122;s written case and argument by reference to the difficulties anticipated by reason of the making of the non-harassment order in respect of family proceedings for contact. [5] Although the point had not been taken on behalf of the appellant in the ground of appeal when the case called, the court enquired of parties whether it was accepted that the sheriff had power to make a non-harassment order in the terms that he did. Mr Martin, on behalf of the appellant, indicated that he had doubts about the matter although he acknowledged that he had not taken the point in his grounds of appeal. Competency is, however, pars judicis. We accordingly asked to be addressed on the matter by the advocate depute.

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14 A

SJS v HM Advocate

2016 S.C.C.R.

Having heard the advocate depute we were satisfied that the sheriff did not have power to make a non-harassment order in respect of conduct towards the children A, B and C. We accordingly quashed the order and substituted an order restricted to conduct in respect of the complainer K M G. Our reasons are as follows. [6] Section 234A of the Criminal Procedure (Scotland) Act 1995 is in the following terms: “(1) Where a person is convicted of an offence involving misconduct towards a person (‘the victim’) the prosecutor may apply to the court to make a non-harassment order against the offender requiring him to refrain from such conduct in relation to the victim as may be specified in the order for such period (which includes an indeterminate period) as may be so specified, in addition to any other disposal which may be made in relation to the offence. (2) On an application under subsection (1) above the court may, if it is satisfied on a balance of probabilities that it is appropriate to do so in order to protect the victim from harassment (or further harassment), make a nonharassment order”.

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[7] As appears from s.234A the court may make a non-harassment order (in addition to any other disposal made in relation to the offence) if an application is made in terms of subs.(1) and the court is satisfied that on a balance of probabilities it is appropriate to do so in order to protect “the victim” from harassment. An application may be made under subs.(1) if, but only if, a person is convicted of an offence involving misconduct towards the victim. There is therefore a threshold requirement to be met before the court can exercise the power conferred by s.234A(2). That is that the convicted person has been convicted of “an offence involving misconduct towards. . .the victim”. Equally, in exercise of the power, the court may only make an order if it is appropriate to do so in order to protect “the victim”. The questions that therefore arise before the power can be exercised are what is “an offence involving misconduct towards the victim” and who is “the victim” for the purposes of s.234A. [8] We do not question that the sheriff was entitled to come to the view on the basis of the evidence which had been led before the jury that the children had been adversely affected by the misconduct of the appellant, that that misconduct could be regarded as harassment (as defined by s.234(7) of the 1995 Act under reference to s.8 of the Protection from Harassment Act 1997) and that there was a basis for apprehending that the children might be further harassed. That, however, does not determine the question as to whether the sheriff had power to make an order in respect of the children. The indictment originally contained a charge of contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in relation to a specific incident which named the children A and B as persons at whom the appellant shouted. That charge was, however, withdrawn by the prosecutor. The only charge in respect of which the appellant was convicted, that being charge (1), makes no mention of any of the children. While we understand that the children gave evidence in support of the allegation contained in the charge, and we proceed upon the basis that the children were witnesses to the conduct described there, we do not see charge (1) as specifying “an offence involving misconduct towards” the children. Rather, it is an offence involving misconduct towards K M G. We do not go the distance of saying that a “victim” for the purposes of s.234A must necessarily have been a person specifically referred to by name in the charge in respect of which the accused has been convicted but, in our opinion that a charge can be relevantly framed without any mention of a

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SJS v HM Advocate

particular person points away from the offence specified in the charge being “an offence involving misconduct towards” that person. It follows, in our opinion, that even if the children in the present case were distressed by the conduct specified in charge (1) and, indeed, might be said to be harassed by it, they cannot be regarded as victims as the term “victim” is used in s.234A(2). It follows from that that while the sheriff did have power to make an order in respect of K M G, he did not have power to make an order in respect of A, B or C. [9] In attempting to persuade us that the sheriff did have power to make the order in the terms that he did, the advocate depute referred us to the case of Robertson vVannet. In that case it had been argued that it had been incompetent to make an order prohibiting the appellant from contacting his former girlfriend’s father where it appeared that, when the appellant made the telephone calls complained of he would speak to his girlfriend and that in the course of speaking to her he would make threats to her and to her father. The appellant did not actually speak to the father. In these circumstances it had been submitted that the father was not “a victim” in terms of s.234(A)(1). That argument was rejected. The opinion of the court (delivered by Lord Justice General Rodger) in Robertson v Vannet included the following: “For the purposes of s 234A(1) ‘harassment’ includes ‘causing the person alarm or distress’ (subs (3)). The appellant pled guilty to making telephone calls ‘threatening violence to’ both Miss Donald and her father on a number of occasions. In his report the sheriff recounts that one of the reasons which the procurator fiscal gave for seeking the order was ‘the fears of the two witnesses’. As counsel accepted, this shows both that the father knew of the threats directed at him and that they aroused fear in him. That being so, he was ‘a victim’ in terms of section 234A(1)”. The charge referred to by the Lord Justice General had been one of breach of peace where the narrative included the allegation that the accused had threatened violence to his girlfriend and her father, both of whom were named. The argument which Lord Rodger was addressing would therefore appear to have been to the effect that that was not enough if the father had not been threatened directly. Lord Rodger deals with it by pointing to the information which had been available to the sheriff when he made the non-harassment order that the father knew of the threats and that they had aroused fear in him; “that being so, he was ‘a victim’ in terms of s.234A (1)”. In our opinion the last two sentences in the passage that we have quoted from the opinion of the court in Robertson must be understood by reference to their context and, in particular, the context provided by the immediately preceding sentences. The father was a victim because he knew of the threats and was consequently fearful and therefore was “a victim” but that was in a context where one of the charges to which the accused had pled guilty had specifically libelled the threatening of violence to “said Catherine Donald and said Thomas Donald”, Thomas Donald being the father of the accused’s girlfriend, Catherine Donald. Lord Rodger describes counsel for the appellant in Robertson having “presented his points succinctly”. The law report does not identify the precise focus of the objection to the competency of the making of an order in respect of Thomas Donald but it would seem to have been that, once it was accepted that only Catherine Donald had received the telephone calls, the accused’s misconduct was not “towards” her father in the sense of having some impact upon him and therefore he was not a victim. The information referred to by Lord Rodger provided a complete answer to that point and, taken with the

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16 A

SJS v HM Advocate

2016 S.C.C.R.

terms of the charge, removed any question as to whether it had been open to the sheriff to make a non-harassment order. However, the decision in Robertson does not mean that simply because the court has heard evidence of misconduct on the part of the accused that can be regarded as having been directed â&#x20AC;&#x153;towardsâ&#x20AC;? some person or another, it is open to the court to consider whether to make a non-harassment order in respect of that person in the event of the accused being convicted of an offence where, on the face of the charge, that offence has nothing to do with that person. In our opinion unless the relevant offence, as it is libelled, can be said necessarily to involve misconduct towards a particular person, the court cannot make a non-harassment order in respect of that person.

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A Appeal Against Conviction

15 October 2015

LAURA LUNN

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 103 Statutory offence—Possession of offensive weapon—Reasonable excuse—Whether fear of attack reasonable excuse—Criminal Law (Consolidation) (Scotland) Act 1995 (c.39), s.47(1)(1A) Section 47(1)(1A) of the Criminal Law (Consolidation) (Scotland) Act 1995 provides that it is a defence to a charge of possessing an offensive weapon in a public place contrary to s.47(1) of the Act for the accused to show that he had a reasonable excuse for his possession. The appellant was charged with, inter alia, assaulting S by brandishing a broken glass bottle and attempting to strike him with it (charge (3)) and with possessing the bottle contrary to s.47(1) (charge (4)). She lodged a defence of self-defence (defence of her partner) in respect of charge (3) and relied on the defence of reasonable excuse in respect of charge (4). She gave evidence to the effect that S had attacked her and her partner in the street, and that she had grabbed the bottle out of a bin because she was petrified and just wanted to frighten S away from her partner. The trial sheriff directed the jury that fear did not constitute a reasonable excuse under the Act. The appellant was acquitted of charge (3) and convicted of charge (4), and appealed to the High Court on the ground of misdirection. Held (the Crown conceding that the appeal should be allowed) that it was for the jury to determine whom to believe and that at least one of the versions of events put before them suggested that the appellant had come into possession of the bottle when under attack and in extremis had used it solely to attempt to prevent further attack (para.9), that the jury had not been able to form their own view about the evidence they had heard, and a miscarriage of justice might have occurred (para.10); and appeal allowed and conviction quashed. Grieve v MacLeod, 1967 J.C. 32; 1967 S.L.T. (Notes) 28 distinguished.

Cases referred to in the opinion of the court: Donnelly v HM Advocate, 2009 S.C.C.R. 512; 2009 G.W.D. 20–338 Grieve v McLeod, 1967 J.C. 32; 1967 S.L.T. (Notes) 28. Laura Lunn was convicted of a contravention of s.47 of the Criminal Law (Consolidation) (Scotland) Act 1995 in the terms and circumstances set out in the opinion of the court after trial in Edinburgh Sheriff Court before Sheriff Ritchie Q.C. and a jury, and appealed to the High Court against conviction on the ground referred to in the opinion of the court. The appeal was heard on 15 October 2015 by Lady Paton, Lord Bracadale and Lord Malcolm. For the appellant: Dow, instructed by Wardlaw Stephenson & Allen, Solicitors, Edinburgh. For the respondent: Niven Smith AD.

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18 A

Lunn v HM Advocate

2016 S.C.C.R.

On 15 October 2015 the appeal was allowed. Lady Paton subsequently delivered the following opinion of the court. LADY PATON [1] The issue in this appeal is whether the sheriff’s charge allowed the jury properly to consider whether or not the appellant had a reasonable excuse for being in possession of an offensive weapon, namely a broken bottle, in a public place, contrary to s.47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. [2] Section 47(1) provides: “(1) Any person who has with him in any public place any offensive weapon shall be guilty of an offence, and shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment, to imprisonment for a term not exceeding four years or a fine, or both.

5039.indd 18

(1A) It is a defence for a person charged with an offence under subsection (1) to show that the person had a reasonable excuse or lawful authority for having the weapon with the person in the public place.” [3] The appellant faced an indictment with four charges, all arising out of an incident on 30 November 2013 in Guthrie Street, Edinburgh. Read short, charge (1) was a statutory breach of the peace. Charge (2) was an assault on Elliot Murgatroyd by punching him on the head. Charge (3) was an assault on Tomasz Skierqa by attempting to punch him, brandishing a broken glass bottle, lunging towards him and attempting to strike him on the body with the bottle. Charge (4) was having in a public place without a reasonable excuse or lawful authority an offensive weapon, namely a broken glass bottle, contrary to s.47(1) of the 1995 Act. [4] After a trial in which evidence was given by, inter alios, Mr Murgatroyd, Mr Skierqa and the appellant herself, the jury returned the following verdict. Charge (1) not proven; charge (2) guilty under provocation; charge (3) not proven; charge (4) guilty. [5] The appellant has appealed only against the conviction in respect of charge (4). In her note of appeal, the appellant explains that in respect of charge (3), she relied upon the special defence of self-defence, specifically that she was acting in defence of her partner. The appellant’s position was that she had a reasonable excuse for having possession of the broken glass bottle, having picked it up during the incident and brandished it in defence of her partner who was under attack. The sheriff had directed the jury that fear of an attack was not a reasonable excuse for having possession of an offensive weapon, but the jury ought to have been directed that self-defence could be a reasonable excuse if an attack was imminent or ongoing. As a result of the sheriff’s misdirection, a miscarriage of justice had occurred. But for the misdirection there was a real possibility that the jury might reasonably returned a different verdict. [6] The sheriff’s report summarises the evidence. The appellant and her female companion became involved in confrontation with several men, in particular with Elliot Murgatroyd and Tomasz Skierqa. At one stage the appellant took a bottle out of a bin. The bottle fell on the ground and was smashed. She picked up the broken bottle and brandished it at Mr Skierqa and another man. The appellant’s evidence is noted at paras 8 and 9 of the sheriff’s report as follows:

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Lunn v HM Advocate

“The appellant gave evidence. She gave evidence to the effect that she had been in Guthrie Street with her partner (Alexandra Ceolins) in the early hours of 30 November 2013. There was no argument between them. She became aware of a male laughing and recording them. He was being ‘very, very intimidating’ and calling them lesbians. Another man came up. He was laughing and making comments towards the appellant and her partner. He swore at her. She was scared. It was all to do with their sexuality. She was up against a wall. She had then punched him in the face to defend herself. She then became aware of what she had thought was Mr Skierqa recording them again on a mobile phone. She went over to him to get him to stop. He punched her hard. She said ‘I ran over to him to stop him from recording. I just wanted him to stop recording me.’ He then punched her to the floor. It was sore. This made her feel ‘absolutely petrified’. She got up. Mr Skierqa went to go to her partner. She thought that the two men were both still recording on their mobile phones. Mr Skierqa pushed her partner. She, the appellant’s partner, hit her head off the kerb. The appellant then went over to a bin about two or three metres away. She managed to get up into the bin to grab anything. She told Mr Skierqa to ‘get the fuck away from us now’. Mr Skierqa had attacked her twice and had attacked her partner as well. The appellant grabbed a bottle out of the bin. It fell onto the floor and smashed. She picked up the smashed part of it and held it while she was walking backwards. She said that she was walking backwards telling Mr Skierqa to stay away from her and her partner. She said said ‘Alex (her partner) had got up by this point’. The appellant told the court that she, the appellant, was then attacked again. She had had no intention of doing anything. As she put it ‘it was an attempt to scare him away from us’. Mr Skierqa then pushed her, the appellant, onto the ground and she hit her head. She injured her wrist. She confirmed that she had sustained the injuries shown in defence production 1, which comprised a number of photographs. [9] In cross-examination in relation to Mr Skierqa, the appellant confirmed that she had gone towards him to stop him recording. She was then attacked by him. He then hit her partner. She went to look in the bin for anything ‘hopefully to scare him away’. She told the court that she was ‘petrified. . .not so much annoyed; it was fear’. She was asked if she had been aware that holding a smashed glass bottle was dangerous and she responded ‘I just wanted to frighten him away from my partner’.”

[7] In speeches to the jury, we understand that while the procurator fiscal invited the jury to reject the defence of reasonable excuse, he did not elaborate in any way on the interplay between charges (3) and (4). As for the appellant’s solicitor’s jury speech, that is summarised by the sheriff in para.12 of her report as follows: “In her speech to the jury, Ms Gibson, solicitor, told the jury that the appellant’s position was that she had been acting in self-defence in relation to charges (2) and (3) but that, in relation to charge (4), the appellant was seeking to rely on the statutory defence of ‘reasonable excuse’, and she told the jury that I would give them directions in relation to this. She did not elaborate on precisely what she was suggesting constituted the ‘reasonable excuse’ in relation to charge (4).”

In particular, the solicitor did not elaborate upon the interplay between the special defence of self-defence lodged in respect of charge (3) and the question of “reasonable excuse” in respect of charge (4). [8] Had the matter been focused appropriately in the speeches, the advocate depute conceded that no doubt the sheriff would have given appropriate directions. As it was, the sheriff’s charge was “textbook” and followed the

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Lunn v HM Advocate

2016 S.C.C.R.

guidelines in the jury manual. The sheriff sets out in para.18 of her report how she charged the jury: “I took the view that it would be appropriate to direct the jury along the lines suggested in the Jury Manual at ch.54.2. My direction included the following commencing at p.56, line 6 and concluding at p.58, line 15: “ ‘If the position is that you are satisfied that the broken glass bottle, however it came to be broken, if you are satisfied that it was an offensive weapon, the position is that the legislation nevertheless provides that in relation to such. . .any such allegation, there is a statutory defence. This has been mentioned by Ms Gibson. Because you will see an essential part of the offence is that, in line 2, it is said that Miss Lunn “did, without reasonable excuse or lawful authority, have with her an offensive weapon in the form of the bottle. It’s not suggested here that there was. . . .that the accused, Miss Lunn, was acting with lawful authority but the defence that is being advanced here is one of what’s called reasonable excuse. Now, the position is that legislation provides that that can indeed be. . .in fact, would, if you are satisfied that that is the case. . .that that would be. . .indeed would represent a full defence to the charge. So, in this case the accused is saying that she had a reasonable excuse for having the bottle with her in Guthrie Street at the point in time about which you’ve heard. Now, proof of that lies on her, in the sense that she has to raise that for your consideration and she has. . .it means that she has to satisfy you. . .and it’s on a balance of probabilities; not beyond reasonable doubt. But the legislation provides that she has to satisfy you on a balance of probabilities that she had a reasonable excuse for having the bottle with her at that point in time in Guthrie Street. Now, the reasonable excuse must apply to having the bottle with her in a public place. As the fiscal said, the intention of the legislation is to deter people from having things that are actually offensive weapons in a public place. Now, the position is, I have to tell you, that fear of an attack is not a reasonable excuse. Evidence to support the accused’s position does not need to be corroborated. If you think that she has proved on a balance of probabilities that she had indeed a reasonable excuse, then you must acquit her. Now, proof on a balance of probabilities is a lower burden than proof beyond reasonable doubt. It means more probable, or more likely than not, but is certainly a lower burden than beyond reasonable doubt’.” [9] Before us today the advocate depute, in a helpful submission, advised that the Crown had given careful consideration to the appeal, and had come to the view that the appeal was well founded and ought to be conceded. Partly as a result of the oral submissions today and partly in view of a letter sent in advance of today’s hearing, we understand the Crown’s position to be that taking possession of an offensive weapon in anticipation of or fear of future violence would not constitute a reasonable excuse (cf the Lord Justice Clerk in Grieve v McLeod at p.36). However matters would be different where a person took possession of a weapon during an incident where he or she was under attack, for the purpose of preventing or discouraging further violence. It was pointed out to us that the jury manual was based more on the circumstances in Grieve v McLeod, whereas in the circumstances of the present case a more flexible approach was necessary as it was for the jury to decide whom to believe and whom to disbelieve, and at least one of the versions of events which was put before the jury in the course of the trial suggested that the appellant, when under attack and in extremis, had come into possession of the bottle and used it solely to attempt to prevent further attack (cf dicta of Lord Carloway at para.7 of Donnelly v HM Advocate).

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Lunn v HM Advocate

[10] For these reasons the advocate depute conceded that there had been a misdirection; that the jury had not been able to form their own view about the evidence which they had heard; and that a miscarriage of justice may have occurred. In the particular circumstances of this case, we agree with the submissions advanced by the advocate depute. We note that the jury manual may require some further refinement. [11] In all the circumstances, we shall allow the appeal and quash the conviction on charge (4).

B COMMENTARY See also Urquhart v HM Advocate, infra, p.33.

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A Bill of Suspension

20 October 2015

JOHN STRATHERN

Complainer

against B

DAVID HARVIE (Procurator Fiscal, Paistey)

Respondent [2015] HCJAC 107

Contempt of court—Failure to answer witness citation because of domestic emergency—Whether failure wilful—Whether sheriff should have heard evidence—Whether contempt of court

The complainer was found to be in contempt of court by reason of his failure to answer a citation to attend court as a witness. He appealed to the High Court by bill of suspension on the ground that his failure was not wilful. He explained that his son had fallen and broken a shoulder bone the night before which required him and his partner to attend the hospital, and that he had suffered stress and anxiety. The sheriff accepted his explanation as true, but did not hear evidence. In his report to the High Court the sheriff said that he considered that a person under lawful citation who was not wilfully defying the court or intending disrespect to the court, if unforeseen circumstances made it impossible to attend, would have made contact on the morning of the trial diet or at least at the earliest opportunity to explain and seek to resolve the situation, which was not done. Held that the action of not walking to or travelling to the court was wilful in one sense, but that it did not amount to a wilful defiance of the court, that the sheriff did not have sufficient information about the circumstances in which no contact was made on the morning of the diet to form a view (para.9); and that the court was not satisfied in the particular circumstances of this case that the high test for contempt had been met (para.10; and bill passed and finding of contempt quashed. Chappel v Friel,, 1997 S.L.T. 1325 distinguished. Cases referred to in the opinion of the court: Cameron v Orr, 1995 S.C.C.R. 365; 1995 S.L.T. 589 Chappell v Friel, 1997 S.L.T. 1325 Cryans v Robertson, 2009 S.C.C.R. 620 Scott v Dunn [2014] HCJAC 134; 2015 G.W.D. 1–12.

John Strathern was found guilty of contempt of court in respect of his failure to attend as a witness in the sheriff court at Paisley on 1 June 2015, and appealed by bill of suspension to the High Court against conviction on the grounds referred to in the opinion of the court. The appeal was heard on 20 October 2015 by Lady Paton, Lord Bracadale and Lord Turnbull. For the complainer: A Ogg, Solicitor advocate, instructed by Gilfedder & McInnes, Solicitors, Edinburgh for McCusker McElroy & Gallanagh, Solicitors, Paisley. For the respondent: A Brown QC, AD. 22

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Strathern v Harvie

On 20 October 2015 Lady Paton delivered the following opinion of the court. LADY PATON [1] The complainer is aged 28. On 1 March 2014 he was the victim of an assault. He was cited as a witness to give evidence at the trial of his alleged assailant on 15 April 2015. He duly attended, but another witness failed to attend. A warrant was granted for her arrest and the trial was adjourned. [2] The complainer was cited to attend the next trial diet on 1 June 2015. He failed to attend. A warrant was granted for his arrest. Three Crown witnesses failed to attend and the case was deserted simpliciter.The complainer was duly arrested and appeared before Sheriff McCartney on 29 June 2015. After hearing from the complainer’s solicitor, the sheriff found the complainer to have been in contempt. The complainer then brought this bill of suspension. [3] On behalf of the complainer, Miss Ogg presented three arguments. The first concerned the minute of proceedings on 29 June 2015. That minute states: “Accused: John Strathern – Present “Represented by: Gallanagh “The accused in answer to the complaint pled not guilty to charge (3) “The court adjourned the diet in terms of s.201 of the Criminal Procedure (Scotland) Act 1995, for defence to provide vouching of reason for non-attendance and Crown to produce previous convictions and for the purpose of obtaining the following reports: criminal justice social work report.” [4] We understand that the minute was produced in this form because of the programming of the court computer. There was no dispute before us that the minute was inaccurate. The computer system may have to be revised and improved so as to deal with contempt hearings. Meantime it might be advisable to produce a manuscript minute which would more accurately record what occurred. Miss Ogg’s contention was that as s.155(2) of the Criminal Procedure (Scotland) Act 1995 had not been complied with, the finding of contempt should be quashed. However the advocate depute referred us to the court’s powers in terms of s.299(4). We decided to adopt the procedure in s.299(4) and continued to consider and determine the appeal as if the minute were corrected. [5] The second argument presented on behalf of the complainer was that the sheriff failed to take up the invitation to hear evidence before making any finding of contempt. It was pointed out that, had further enquiry been made, fuller information could have been provided to the sheriff. We agree, for although the sheriff accepted the complainer’s explanation, a hearing of evidence might have cast further light on the complainer’s failure to contact the court on the morning of the trial diet. [6] We turn to the final argument presented on behalf of the complainer. That submission was that the failure to attend was not wilful. The courts have frequently emphasised that contempt is “wilfully defying the court or. . .intending disrespect to the court”. Those are the words of Lord Ross in the case of Cameron v Orr. That guidance is reflected in the observation of Lady Dorrian in the case of Scott v Dunn: “The test of wilfulness is a high one, and should not be met in circumstances where an appellant’s behaviour might be categorised as careless or negligent.”

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Further, as Lord Reed pointed out in Cryans v Robertson at para.8, “everything turns on the circumstances of the particular case, which require to be considered by the sheriff”. [7] The advocate depute referred us to the circumstances in Chappell v Friel. There a witness, two days before the trial, requested her mother to look after her children so that she could attend court. Her mother refused. The witness made no further attempts to arrange for the care of her children. The witness was found to be in contempt. In particular, the dictum of Lord Rodger at p.1326E–F was drawn to our attention. There it is emphasised how important it is for the administration of justice that citations are obeyed. “If people do not attend when cited as witnesses, then justice simply cannot be done.” [8] We accept the force of Chappell v Friel and the dicta contained therein. Nevertheless we consider that the particular circumstances of this case are distinguishable. What happened was that the night before the court diet, the complainer’s eight-year-old son fell from a tree and suffered a broken shoulder bone. That son suffers from ADHD. He required surgery and a two-day period in hospital. He also required readmission for further treatment.The complainer had intended to attend the court hearing on 1 June 2015, but the emergency which occurred the night before, the need to attend hospital, the fact that his partner also had to attend hospital and the stress and anxiety caused by the accident and continuing treatment resulted in his failing to attend court. The sheriff in his report makes it clear that he accepted the explanation as a true one. However he relied to some extent on the fact that there had been no communication from the complainer on the morning of the trial diet. [9] In our view, the circumstances outlined above were different from those in Chappell v Friel.The unexpectedness of the accident, its serious consequences, the fact that both the complainer and his partner required to be with their child in hospital, and the stress and anxiety suffered, made the case, in our opinion, very different. The result is that we consider that what occurred did not amount to a wilful defiance of a court order. No doubt the action of not walking to or travelling to the court was “wilful in one sense” as Lord Ross comments in Cameron v Orr, but he continues: “but that is not the question. . . .What the sheriff should have asked himself was whether he could conclude in the circumstances that the complainer was wilfully defying the court or was intending disrespect to the court”. We note that the sheriff specifically states at the foot of p.2 of his report: “I considered that a person under lawful citation who was not wilfully defying the court or intending disrespect to the court, if unforeseen circumstances made it impossible to attend, would have made contact on the morning of the trial diet or at least at the earliest opportunity to explain and seek to resolve the situation. That was not done.” We consider however that the sheriff did not have sufficient information about the circumstances in which no contact was made on the morning of the diet to form a view. [10] For all the reasons noted above, we are not satisfied in the particular circumstances of this case that the high test for contempt has been met. Accordingly we shall pass the bill and quash the finding of contempt.

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A Appeal Against Sentence (Solemn)

21 October 2015

ANDREW KINLOCH JAMES QUINN

Appellants

against HER MAJESTY’S ADVOCATE

Respondent

[2015] HCJAC 102 Sentence—Order for lifelong restriction—Offence committed by prisoners against prisoner—Whether circumstances of offence satisfy criteria for imposition of order—Criminal Procedure (Scotland) Act 1995 (c.46), ss.210B–210F—Criminal Justice (Scotland) Act 2003 (asp 7), s.1

Sentencing—Risk assessment report—Effect of failure to follow guidelines—Criminal Procedure (Scotland) Act 1995 (c.46), s.210C(3)—Criminal Justice (Scotland) Act 2003 (asp 7), s.1 Section 210F of the Criminal Procedure (Scotland) Act 1995, as inserted by s.1 of the Criminal Justice (Scotland) Act 2003, provides for the making of an order for lifelong restriction (OLR) following on a risk assessment report (RAR) on a person convicted of certain offences whose circumstances are such that it appears to the court that he has a propensity to commit such offences. The risk criterion is whether if at liberty the offender will seriously endanger the well-being of members of the public, and s.210C(3) requires the assessor, having regard to any standards or guidelines issued by the Risk Management Authority (RMA), to state whether the risk is high, medium or low. The appellants both pled guilty to assault and abduction. They and the complainer were prisoners and the appellants entered the complainer’s cell, presented knives at him, and repeatedly refused to release him unless their demands for transfer to another prison were met, and detained him for about five hours. Both appellants had criminal records, including convictions for assault and possession of offensive weapons. The sentencing judge called for RARs. The RARs stated that they were high risks and fulfilled the criteria for an OLR. They appealed to the High Court against the orders. Held that the language of the legislation was clear in requiring not only that there be a serious risk posed by the offender but also a link between the offence and that risk, that if there is no such link, the risk criteria cannot be satisfied, irrespective of the risk posed by the offender in terms of the RAR, that in this case there was no sufficient link between the offence and the risk, that the circumstances were specific to the appellants’ incarceration, involved no injury nor any attempt to injure, and that, looked at in isolation, they could not be said to demonstrate a likelihood that they would seriously endanger the public at large (para.27); and that the risk of repeat offending by the appellants did not flow from the offence but from their general recidivist tendencies, and the statutory test for the imposition was not met (para.28); and appeals allowed, OLR’s quashed and extended sentences substituted. Observed that it was not necessary to consider whether the RAR on the second appellant complied substantially with RMA’s standards and guidelines, but that the absence of any reference to education, social work and medical

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records called into question whether the statutory requirements for an RAR were met (para.30). Case referred to in the opinion of the court: Ferguson v HM Advocate [2014] HCJAC 19; 2014 S.C.C.R. 244; 2014 S.L.T. 431.

Andrew Kinloch and James Quinn pled guilty on 14 November 2013 in the High Court at Edinburgh before Lord Uist to the charge set out in the opinion of the court and on 25 May 2015 they were made subject to orders for lifelong restriction. They appealed to the High Court against the orders on the grounds referred to in the opinion of the court. The appeal was heard on 17 September 2015 by the Lord Justice Clerk (Carloway), Lord Drummond Young and Lord Eassie. For the first appellant: Jackson QC, D R Macleod, instructed by Paterson Bell, Solicitors, Edinburgh, for Douglas Wright, Solicitors, Kilmarnock. For the second appellant: L Ewing, Solicitor advocate, instructed by Turnbull McCarron, Solicitors, Glasgow. For the respondent: Prentice, QC, AD. On 21 October 2015 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK

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Introduction

[1] On 14 November 2013, at the High Court in Edinburgh, the appellants pled guilty, under the procedure set out in s.76 of the Criminal Procedure (Scotland) Act 1995, to the following charge: “[O]n 12 June 2013 at HMP Edinburgh, Stenhouse Road, Edinburgh you. . .did assault J McL, a prisoner there, place your arm around his neck, repeatedly place knives at his throat, repeatedly present. . .knives at him, utter threats against him and did abduct (him), make demands for food, tobacco and an immediate transfer to another prison, confine (him) within a cell for a period of approximately five hours, repeatedly refuse to release him unless your demands were met and detain him against his will.” [2] This case thereafter had a lengthy procedural history. The court appointed Dr Lisa Cameron, clinical forensic psychologist, and Dr Rajan Darjee, consultant forensic psychiatrist, to prepare risk assessment reports [RARs] in respect of each appellant in terms of s.210B of the 1995 Act. In due course the RARs were produced. Mr Quinn lodged a note of objections to his assessment, supported by a report from Dr Lorraine Johnstone, consultant clinical and forensic psychologist. On 26 May 2014 a note of objections for Mr Kinloch and an “updated” note of objections for Mr Quinn were lodged. A hearing, which included testimony from the doctors, took place on 29 and 30 September 2014 and 12 January 2015. The case was then adjourned to allow Mr Kinloch’s report to be updated. On 3 March 2015 Mr Kinloch sought a lengthy adjournment to allow him to be treated for adult ADHD [attention deficit hyperactivity disorder]. [3] It was only on 25 May that the court proceeded to sentence. Both appellants were made subject to orders for lifelong restriction [OLR], with a punishment part, in Mr Kinloch’s case, of two years and seven months and, in Mr Quinn’s case, of three years and four months.

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27 A

Circumstances of the offence

[4] The appellants were incarcerated in Saughton Prison. They shared a cell. On 12 June 2013 they entered the complainer’s cell, pretending that they had something to tell him. They closed the cell door. Mr Quinn put a bladed weapon to the complainer’s neck while Mr Kinloch stood nearby. They used the cell intercom to contact staff to say that they had a hostage. They held the complainer hostage with the use of two homemade weapons. Demands were made for Kentucky Fried Chicken, Chinese food, a pouch of tobacco and a bus to Barlinnie prison. The motivation behind the incident was a desire on behalf of both appellants to be transferred to the west. The incident lasted six hours, after which it was resolved peacefully.

Personal circumstances Mr Kinloch

[5] Mr Kinloch was aged 25 at the time of the offence. He had been raised as an only child in Paisley and Stewarton by his mother. His mother had mental health problems. She was also the subject of domestic abuse; something which Mr Kinloch saw. He attended mainstream schooling and displayed “early oppositional defiant behaviours” at home and at school. He was eventually diagnosed with ADHD at the age of eight. He was displaying features of a conduct disorder in childhood and juvenile delinquency by the age of 17. He engaged in truancy, substance abuse and offending. Generally he associated with an anti-social group. He has never had any substantial period of employment. He did have one relationship and has two children. He has a long-standing history of drug and alcohol abuse and dependence. He has a background involving anxiety, paranoia, suicidal and violent ideation. He is prescribed anti-psychotic medication. He meets the diagnostic criteria for dissocial (antisocial) personality disorder with traits of paranoid and emotionally unstable personality disorder. He is not psychopathic. [6] Dr Cameron’s RAR recorded that he had “a pervasive history of violence/aggression dating from childhood”. He had a number of appearances before the children’s hearing. His first adult conviction, in 2006, was for “culpable and reckless fire-raising”, which attracted a community service order. Shortly after that, he was put on probation for a year for a breach of the peace. In the latter part of the year, and into 2007, sentence was deferred on several occasions in respect of offences of dishonesty (fraud), breach of bail conditions, and violence (assault with a bottle). Short custodial sentences followed. [7] In June 2007 Mr Kinloch was sentenced to 12 months’ detention for assault and robbery. The next highlight was in January 2010, when he was imprisoned for 15 months for possession of an axe. There were further sentences for summary matters, including public order offences. In 2011 he acquired three statutory breach of the peace convictions, which attracted sentences of four, six and nine months. Finally, in 2013 he was sentenced to 33 months with a supervised release order for the assault and robbery of children. The RAR comments that Mr Kinloch has had no significant periods of desistence from offending and his record includes a “pervasive propensity towards non-compliance in terms of supervision requirements”. He has breached bail, probation and CSOs [community service orders]. This is a critical feature in the RAR. [8] The “Summary formulation” in the RAR highlighted these factors, noting that Mr Kinloch has a:

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“propensity to utilise threats and coercion alongside physical violence in order to achieve his aims. His actions are underpinned by violent ideation and intent, use of aggression in order to maintain his self-esteem and feelings of control and assessed personality disorder/psychopathic traits that affect his attitudes, perceptions and behaviours.” Overall, the RAR concluded that Mr Kinloch fell within the “high-risk” category. He was not likely to be amenable to change. Treatment was not likely “to mitigate the need for supervision or close monitoring over the long-term and whilst at liberty”. [9] The RAR had suggested a psychiatric assessment. The sentencing judge obtained a report from Dr John Crichton, consultant psychiatrist, dated 22 April 2014. He had been asked whether Mr Kinloch was suffering not just from a personality disorder but a paranoid illness, such as schizophrenia. Dr Crichton did not consider that to be likely. [10] Mr Kinloch produced a report from Dr C R Steer, consultant paediatrician, dated 31 December 2014. Dr Steer had seen Mr Kinloch in his childhood and had recommended Ritalin. He had last seen him in 2005, when Mr Kinloch had been engaging in alcohol binges and the abuse of cannabis and ecstasy, amongst other pursuits. A question arose as to whether Mr Kinloch was suffering from adult ADHD. Dr Cameron was asked whether that might alter her view on risk. She said that it would not. Ultimately, the sentencing judge heard evidence on the matter from Drs Cameron, Crichton and Premal Shah, an expert in adult ADHD. Dr Shah, in a report dated 28 February 2015, stated that Mr Kinloch did have features of adult ADHD, as well as the secondary effects of substance misuse and antisocial traits. ADHD treatment “may attenuate” his risk profile by reducing the core symptoms of ADHD and potentially ameliorating his substance misuse and some aspects of his antisocial behaviour. Mr Quinn

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[11] Mr Quinn was aged 28 at the time of the offence. He had grown up in Glasgow. The RAR reported that he too had been the subject of, and had perpetrated, violent and anti-social conduct as a child and adolescent. He had been in care in his teens and had not developed any secure attachment to any parental figure. His parents had separated when he was nine or ten. His father had been heavily engaged in crime. His mother suffered from depression and was prone to self-harm. His primary education involved him in fighting and fire-raising. He did achieve several standard grades at secondary level. He has never had permanent accommodation. He has no history of employment. He has abused alcohol and drugs. He has had one long-term relationship and has two sons. [12] Mr Quinn’s criminal record is worse than that of Mr Kinloch. It started in 2003 with the possession of a knife, for which he was fined. In the same year he was, amongst other things, detained for three months for assault. A further period of three months was imposed for another assault in the following year. He was put on probation for 18 months, but soon breached that and was the subject to further periods of detention. In November 2004 he was sentenced to 18 months for assault to severe injury and permanent disfigurement by stabbing his mother’s partner. Further summary penalties followed for offences of violence, public disorder and dishonesty. In November 2008, he was sentenced to four years for an assault to severe injury on his infant child, with a further four-year extended period of supervision. In 2010

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Kinloch v HM Advocate

he received a further nine months for another breach of the peace. In August 2013 a sentence of 16 months was imposed for possession of an offensive piece of wood. [13] The RAR reported Mr Quinn as having “a personality disorder characterised by persistent and pervasive self-centredness, lack of concern for others, impulsivity, aggressive and antisocial attitudes, poor anger control, lack of trust and stubbornness”. The assessor, Dr Darjee, considered that he posed an ongoing risk of violence including seriously harmful violence. He was assessed as falling into the high-risk category because of the many risk factors for violence and the lack of protective factors. Treatment would be very difficult. [14] Dr Johnstone provided a commentary on the RAR in her report of 3 May 2014. This criticised what were said to be limitations in the data supporting the assessment and the lack of analysis and explanation. A number of shortcomings were identified by Dr Johnstone in the RAR which, in her view, failed to meet the RMA guidelines. She concluded that there were significant omissions in the evidence base. She noted a lack of information from sources other than the court proceedings in which the RAR had been instructed. For example, while Dr Darjee had listed the indictment, Crown narrative, notice of previous convictions, judge’s report, prison social work records and prison records, he had omitted to access additional social work records, and GP or medical records. Dr Darjee had not had access to historical records such as those held by education, children and families and/or youth justice social work services, the Scottish children’s reporters administration, and the children’s homes where Mr Quinn had resided. [15] Dr Darjee provided a supplementary report (undated) in which he responded to Dr Johnstone’s critique. He noted that he only interviewed Mr Quinn for five hours, because Mr Quinn had refused further interviews. Mr Quinn had refused to allow him to interview his family members. Although he did not specifically access police, GP or child records, Dr Darjee explained that he did have access to comprehensive social work and prison records covering Mr Quinn’s teenage years onwards. Despite the acknowledged omissions, Dr Darjee considered that he had had sufficient information to assess risk.

Submissions Mr Kinloch

[16] It was submitted that the judge had erred in determining that the risk criteria had been met. The offence had not been part of a pattern of offending. The motivation behind the offence was that the appellant had requested to be moved to Barlinnie in order that his disabled mother could visit him in custody. The appellant had been frustrated when his attempts to be moved had been unsuccessful. He had committed the offence as an act of desperation. [17] Mr Kinloch had never been supervised in the community, with the threat of an immediate return to custody should he re-offend. He had never been a long-term prisoner. He had never been subject of an extended sentence. An extended sentence would have been an appropriate disposal. The appellant’s psychological profile was not exceptional or rare vis-à-vis the general prison population (Ferguson v HM Advocate). At the time of the offence the appellant had been suffering from undiagnosed adult ADHD and had not been receiving any medication for his condition. [18] The sentencing judge had not attached sufficient weight to the personal circumstances of the appellant. He was a young immature man with a

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recognised medical condition, which was potentially treatable with medication. Dr Cameron had testified that the appellant was a “borderline” high risk, even before she became aware that the appellant suffered from adult ADHD. The sentence was not proportionate. Dr Cameron was not able to say that the appellant would require supervision for the rest of his life. [19] If the risk criteria were met; the imposition of an OLR was premature. The appellant’s ADHD was potentially treatable with medication. There was a possibility that, if the appellant received such medication, his level of risk could be significantly reduced. Mr Quinn

[20] It was submitted that, in the light of the evidence of Dr Johnstone, the sentencing judge had not been entitled to conclude that the RAR had been prepared in accordance with the standards and guidelines. The sentencing judge ought to have provided reasons for rejecting the criticisms made by Dr Johnstone and preferring the evidence of Dr Darjee. Sentencing should be contingent upon the outcome of a professional RAR which complied with the RMA’s standards framework (Ferguson v HM Advocate at para.10). The appellant’s expert had identified a number of failures to follow the RMA guidelines. Those criticisms included the failure adequately to reference the evidence base for the report. [21] In short, the categorisation of the appellant as a high risk was not supported by reference to the relevant element of the definition. The key issue of serious endangerment to the public at large had not been addressed. Sentencing judge’s report

[22] The sentencing judge concluded that, even if Mr Kinloch had suffered from some form of treatable adult ADHD (upon which he reached no firm conclusion), that could not account for his planned and instrumental violence. The ADHD was but one of the risk factors applying to Mr Kinloch. He accepted the evidence of Dr Cameron that this would not reduce the risk to the public below “high”. He accepted Dr Cameron’s assessment in that regard. He stated that, had Mr Kinloch been sentenced to a fixed period after trial, the period of imprisonment would have been eight years. Since he had pled guilty at an early stage, he would have discounted that period to five years four months, thus entitling Mr Kinloch to apply for parole after two years and seven months (this should have been two years eight months). [23] In Mr Quinn’s case, the sentencing judge did not accept the criticisms of Dr Darjee’s report. He considered them to be matters of style rather than substance. He considered that Dr Darjee had had sufficient information to make a risk assessment and that that assessment had not been flawed. The judge would, in light of Mr Quinn’s criminal record and this offence, have been “greatly surprised” if he had been assessed at anything other than high risk. Nevertheless, the sentencing judge agreed with the overall assessment of high risk. In view in particular of his record, the judge would have imposed a determinate sentence of ten years for the offence, discounted to six years eight months for the early plea. He therefore fixed the punishment part at three years and four months. Decision

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[24] If an individual has been convicted of a sexual or violent offence, the court “if it considers that the risk criteria may be met, shall make. . .a ‘risk assessment order’. . . .” (s.210B(2)). The risk criteria are that:

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Kinloch v HM Advocate

“the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large” (s.210E). The threshold is whether there is a “likelihood” of “serious” endangerment (Ferguson v HM Advocate at p.255), but that must stem from the nature or circumstances of the commission of the offences or from a pattern of behaviour of which the offence forms a part. [25] The consequent RAR must be considered by the sentencing judge. The assessor must include in the RAR his opinion on whether the risk, having regard to the standards and guidelines issued by the RMA, is high, medium or low (s.210C(3)). If the judge is satisfied, “having regard to any RAR. . .and any other information before it, that on a balance of probabilities the risk criteria are met”, he must make an OLR (s.210F). [26] The RMA’s “Standards and Guidelines for Risk Assessment” (updated 1 March 2013) provide directions to an assessor on the method and format of the RAR. The assessor must review a substantial range of documents about the offender’s social, criminal and medical context in order to inform his assessment. All documents cited should be fully referenced in the report evidence base section at the end of the report. The assessor should set out his views on the reliability of the various items of evidence. [27] The language of the legislation is clear in requiring not only that there be a serious risk posed by the offender but also a link between the offence and that risk. If there is no such link, the risk criteria cannot be satisfied, irrespective of the general level of risk posed by the offender in terms of the RAR. In these appeals, there is no sufficient link between the offence and the risk. The offence took place during the appellants’ incarceration. The circumstances were specific to the appellants’ circumstances at the time of the offence, namely their incarceration. The incident, whilst serious in terms of prison discipline, involved no injury nor any attempt to injure the hostage taken. Looked at in isolation, an incident of this limited nature cannot be said to demonstrate a likelihood that either appellant would seriously endanger the lives, or physical or psychological well-being, of members of the public at large. [28] The risks of repeat offending by these appellants do not flow from the offence, but from their general recidivist tendencies. The problem with this, in terms of the statutory criteria, is that, whilst both appellants have significant records, it is not possible to fit this offence into a pattern of behaviour within the scope of the risk criteria. The offence is not similar to those in the appellants’ records, other than in the most general of terms. It may be that Mr Kinloch has accumulated a record for possessing weapons, but he appears to have only one limited conviction for using one; that being dealt with by a short custodial sentence in 2007. Mr Quinn does have a serious record involving violence, but it is limited and linked to domestic circumstances. It is not linked to the incident in prison. In the circumstances, the risk criteria are not satisfied and the statutory test for the imposition of an OLR are not met. [29] Accordingly, the OLRs will be quashed. Having now obtained criminal justice social work reports, the court will substitute extended sentences. In the case of Mr Kinloch, this will be an extended period of six years, with a custodial term of four years and an extension period of two years. In the case of Mr Quinn, it will be an extended sentence of eight years and four months, with a

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custodial term of five years and four months and an extension period of three years. Each sentence reflects a one-third discount for the early plea. [30] In these circumstances, it is not necessary to explore in detail the issue of whether Dr Darjee’s RAR complied substantially with the RMA standards and guidelines. Suffice it to say, whilst recognising that Dr Darjee might justifiably have considered that he had ingathered sufficient information upon which to base an accurate risk assessment, the absence of any reference to Mr Quinn’s education, social work and medical records certainly calls into question the issue of whether the statutory requirements for a RAR were met. COMMENTARY

This is a rare successful appeal against an OLR, but it is significant because the decision depended on the essential importance of the circumstances of the index offence as what might be called the gateway to any OLR and makes it clear that OLR’s are not just an alternative to the preventive detention of anyone with a relevant history of offending: cf, McFadyen v HM Advocate [2010] HCJAC 120; 2011 S.C.C.R. 759 and the commentary thereto.

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A Appeal Against Conviction

11 November 2015

ROBERT URQUHART

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 101 Statutory offence—Threatening or abusive behaviour—Defence that behaviour reasonable—Whether onus on defence evidential or persuasive—Whether defence of self-defence available—Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s.38(1) Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 provides that it is an offence for a person (i) to behave in a threatening or abusive manner, if (ii) the behaviour would be likely to cause fear or alarm and (iii) the person intends to cause or is reckless as to whether the behaviour would cause, fear or alarm. Section 38(2) provides that it is a defence for an accused to show that the behaviour was reasonable in the circumstances. The appellant was charged with, inter alia, a contravention of s.38 by brandishing a sword at two police constables, one of whom was in uniform, who had entered his house to enforce a warrant. He lodged a special defence of self-defence to the effect that he thought he was dealing with intruders who had come to rob him. The presiding sheriff directed the jury that self-defence was not available as a defence to the charge, and that there was an onus on the accused to establish on balance of probabilities that his behaviour was reasonable, ie, that the onus was persuasive (or legal) and not merely evidential. The appellant was convicted and appealed to the High Court on the ground of misdirection in both those respects. Held (1)(i) that the defence of self-defence could not have any relevance to parts (i) or (ii) of the offence, that it was inevitable that if a person conducts themselves in a manner which accords with the descriptions in parts (i) and (ii) and the reason for him doing so was that he was acting in self-defence in the sense that he genuinely thought he was in danger, he is bound to have intended to cause fear and/or alarm his assailant, so that, however cogent the case of self-defence might be, it could not, accordingly, prevent part (iii) being established (para.15, p.38A); and (ii) that the statutory defence afforded by s.38(2) was plainly wide enough to cover all and anything that an accused person might wish to advance to the effect that he was in fact acting in self-defence (para. 15, p. 38B); (2) that the essence of the statutory defence was that the accused behaved reasonably in all the circumstances, that the assessment of reasonableness was an objective matter and not, of itself, amenable to proof, that the defence might be asserted without the introduction of any evidence independent of the Crown case, that s.38(2) did not itself add any new ingredient, that, whilst it would be open to the accused to rely on some other factor, his doing so had not been envisaged by Parliament as being central to the defence, and that the defence was not “so closely conditioned by the accused’s own knowledge and state of mind” that it was considered to be reasonable and proportionate to interpret it as imposing a legal burden (para.24); and that the maximum sentence (five years) did not support the contention that the burden was legal (para.25); and that the burden on the defence was therefore only evidential and the jury had been misdirected in that regard (para.27); but

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(3) that, if the police evidence was accepted—as it must have been—looking at matters objectively, the accused could not, on any view, reasonably have thought that he was dealing with intruders or was otherwise in need of defending himself, and that in these circumstances, notwithstanding the sheriff’s misdirection, there had been no miscarriage of justice (para.28) and appeal refused. Glancy v HM Advocate [2011] HCJAC 104; 2012 S.C.C.R. 52 distinguished. Cases referred to in the opinion of the court:

Adam v HM Advocate [2013] HCJAC 14; 2013 S.C.C.R. 2009; 2013 J.C. 221; 2013 S.L.T. 235 Derrett v Lockhart, 1991 S.C.C.R. 109 Glancy v HM Advocate [2011] HCJAC 104; 2012 S.C.C.R. 52 McMurdo v HM Advocate, 2015 HCJAC 37; 2015 S.L.T. 277 R v Johnston [2003] UKHL 28; [2003] 1 W.L.R. 1736 [2003] 3 All E.R. 884; [2003] 2 Cr. App. R Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 A.C. 264; [2004] 3 W.L.R. 976; [2005] 1 All E.R. 237; [2005] 1 Cr. App. R. 28. Robert Urquhart was convicted of the charges set out in the opinion of the court on 16 February 2015 after trial in Perth Sheriff Court and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 7 October 2015 by Lady Smith, Lord Bracadale and Lady Clark of Calton. For the appellant: Renucci, instructed by Faculty Services Ltd, Solicitors, Edinburgh. For the respondent: Niven Smith, AD. On 11 November 2015 Lady Smith delivered the following opinion of the court. LADY SMITH Introduction

[1] The appellant was convicted by the jury at Perth Sheriff Court on 16 February 2015 of two charges: “(1) [O]n 23 December 2013 at 203 Primrose Crescent, Perth you. . .did assault Edward Rankin, Constable, The Police Service of Scotland then acting in the course of his duty and did strike him on the leg with a sword to his injury; and (2) on 23 December 2013 at 203 Primrose Crescent, Perth you. . .did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear and brandish a sword at Constables Rory Duncan and Ian Bailey of the Police Service of Scotland then in the execution of their duties: contrary to s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.” [2] The issues raised by this appeal—which relates only to charge (2)—are:

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1. Is the special defence of self defence available in relation to a charge under s.38(1) of the 2010 Act? 2. Does the defence available under s.38(2) of the 2010 Act impose a legal burden on an accused as opposed to an evidential one?

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Background

[3] On 23 December 2013, at about 11 am, police officers attended at the appellant’s home address in Perth to enforce a warrant. They attempted to force open the front door. The appellant was inside, behind the door. He was clad only in a t-shirt. The police officers cut a hole in the door and he thrust a sword through it on a number of occasions. The sword was about four feet long and it struck the police officer named in charge (1), on the leg. Charge (1) related to that matter. The appellant’s position at trial was that he had no idea who was at the door and thought there was about to be a break-in and a robbery or suchlike. A special defence of self-defence had been lodged but the jury convicted him of that charge. [4] Turning to the events to which charge (2) relates, they are as follows. Meanwhile, two other police officers had entered the house through the back door. One of them—Constable Rory Duncan—was in uniform. Both officers moved through the house and into the living room. Whilst doing so, they repeatedly shouted “police”. The appellant was in the living room. He was brandishing the sword and he shouted and swore constantly. He was standing about two metres from Constable Duncan and shouted “fuck off” to the police officers in the room. They were unnerved by his actions. Constable Duncan took out his CS spray and repeatedly told the appellant to put down the sword. The appellant initially refused to do so and continued to swear and brandish the weapon. A woman appeared and stood by the appellant. She asked Constable Duncan to refrain from using the spray and the appellant lowered his sword. Constable Duncan walked forward and wrenched it from his grasp.

Sheriff’s directions

[5] In his charge, the sheriff directed the jury that they could only consider the special defence of self-defence in relation to the first charge; it played “no part whatsoever” in relation to the second charge (pp.19–20). [6] Regarding the second charge, the sheriff directed the jury: “. . .in general terms there’s no burden of proof on an accused person. There is an exception to this in this case and I, I shall give you specific directions later” (p.13) E

and “If you accept . . .the evidence from the two officers, then you’ll have to consider whether the behaviour of the accused, in all the circumstances, was reasonable. This is a defence. The . .Act of Parliament which brought in this offence says that if an accused person. . .proves that. . .the behaviour was, in all the circumstances, reasonable, that amounts to a defence to the charge. Now, what this means is that an accused person has to satisfy you on a balance of probabilities that his behaviour was reasonable at the time he so acted” (p.31).

Criminal Justice and Licensing (Scotland) Act 2010, s.38

[7] The terms of the provisions relating to the statutory offence are fundamental to the issues raised in this appeal. They are: “38 Threatening or abusive behaviour (1) A person (‘A’) commits an offence if— (a) A behaves in a threatening or abusive manner, G

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(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and (c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm. (2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.” Submissions for the appellant Availability of self-defence

[8] Counsel for the appellant submitted that self-defence could be relevant to a charge under s.38(1) and the sheriff was wrong to have excluded it. He accepted that it would depend on the facts of the individual case. It might, however, be an answer to any or all constituent parts of the offence. In particular, it might be relevant to mens rea, the third element. He submitted that it would have been relevant to it in the present case. Counsel accepted that any issue of self-defence could also be raised under the umbrella of s.38(2). He relied on the case of Derrett v Lockhart and on the Crown’s stated position in their written argument which was to concede that since, on the authority of Derrett, self-defence could be available in answer to a common law charge of breach of the peace, it must also be available in answer to a charge under s.38(1). We should record that, given the Crown’s concession, counsel had not anticipated being pressed on this issue by the court; we do not criticise him for that and commend him for having, in the event, assisted the court with detailed argument as noted above. Burden of proof—s.38(2)

[9] Regarding the second issue, counsel submitted that it was clear that s.38(2) imposed only an evidential burden on an accused person. The sheriff had erred in directing the jury that they required to be satisfied he had established the defence on a balance of probabilities. The circumstances of the present case could be distinguished from those in the cases of Glancy v HM Advocate and McMurdo v HM Advocate, where the court had confirmed that a legal burden of proof was imposed in relation to statutory defences to, on the one hand, a charge of carrying a knife in public and, on the other hand, a charge of possessing indecent images of children. Those were far more serious offences. Here, the nature of the public interest was different and of lesser nature. There was no need to impose a legal burden and it was disproportionate to do so. Submissions for the Crown Availability of self-defence

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[10] The advocate depute, whilst acknowledging the concession contained in the Crown’s written submission as referred to above, very frankly explained that he now had reservations about it. The common law crime of breach of the peace was not identical to an offence under s.38(1); the common law crime was more serious in respect that something greater than mere irritation was required with a reasonable apprehension of disturbance to the public peace being an essential element of the common law offence. That being so, Derrett did not assist when considering the s.38(2) defence. Further, the defence available under s.38(2) was wide; that was the context in which any issue of self-defence fell to be raised.

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Burden of proof—s.38(2)

[11] The advocate depute submitted that the statutory defence imposed a legal burden on the accused. The wording supported that conclusion and was not incompatible with art.6(2) ECHR; it should, therefore, be given effect to (R v Johnston, paras 44–46, Lord Nicholls of Birkenhead). Insofar as that interpretation would constitute an interference with the presumption of innocence, it was justified. It was not unreasonable or arbitrary; the appellant had a full opportunity to show that he was unaware of the identity of those trying to enter his home and was afraid for his own safety. These were matters so closely conditioned by his own state of knowledge and state of mind that it was—to use the terminology of Lord Bingham of Cornhill—“more appropriate” to require him to prove them on a balance of probabilities: Sheldrake v Director of Public Prosecutions at para.41 as followed in Adam v HM Advocate at para.24. [12] When consideration was given to the words used in the statute, the activity prohibited and the balance to be struck between the public interest and the rights of the individual (Glancy v HM Advocate; McMurdo v HM Advocate) it should be concluded that the burden was a legal one. He contrasted the present circumstances with those where the burden had been determined to be an evidential one; it was relevant that, unlike those offences under the Misuse of Drugs Act 1971 that carried a maximum sentence of life imprisonment—where the defence under s.28(2) of that Act imposed only an evidential burden—the maximum sentence available for a contravention of s.38(1) was five years’ imprisonment and/or a fine. He referred to the case of Glancy, and observed that the maximum punishment available (four years’ imprisonment) did not prevent it being concluded that the relevant burden was a legal one. That was indicative of the level of punishment available not being such as should tip the balance against a legal burden being imposed in the present case. [13] In any event, even if the sheriff had misdirected the jury regarding the burden on the accused, there had been no miscarriage of justice on the facts of the present case. It could not, he submitted, be concluded that the appellant’s conduct was reasonable. The police officers were in front of him; at least one of them was in uniform; they had been shouting “police”; the incident occurred at about 11 o’clock in the morning; the appellant had repeatedly been told to put his sword down but had failed to do so; one police officer had been preparing to use his CS spray; the appellant had, throughout the incident, been shouting and swearing incoherently. None of his conduct could, on any view, be classed as having been reasonable. The appeal should, accordingly, be refused.

Discussion and decision Whether self-defence available?

[14] Section 38(1) is often loosely referred to as being a “statutory breach of the peace” but as the advocate depute accepted, there are significant differences between the two offences. The reason for the association of one with the other is obvious but the present issue regarding self-defence illustrates why it is important to recognise that s.38(1) is not simply a statutory embodiment of the common law offence. [15] It is, we consider, important to remember that it is clear from the structure of the statutory provision that the crime has three distinct elements. It is committed if: (i) the accused behaves in a threatening or abusive manner; and (ii) his conduct would cause a reasonable person to suffer fear and alarm;

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and (iii) he intended his conduct to cause fear and alarm or he was reckless as to whether or not it would do so. We do not accept that the special defence of self-defence could have any relevance to parts (i) or (ii). Whilst there may seem to be some initial attraction in the proposition that it could be relevant to mens rea—part (iii)—we conclude that that cannot be right. There are two reasons for that. First, it seems to us inevitable that if a person conducts themselves in a manner which accords with the descriptions in parts (i) and (ii) and the reason for him doing so was that he was acting in self-defence in the sense that he genuinely thought he was in danger, he is bound to have intended to cause fear and/or alarm to his assailant. However cogent the case of self-defence might be, it could not, accordingly, prevent part (iii) being established. Secondly, the statutory defence afforded by s.38(2) is plainly wide enough to cover all and anything that an accused person may wish to advance to the effect that he was in fact acting in self-defence. Further, when doing so, it would not be necessary for the accused to meet all the requirements of selfdefence that apply when pled as a special defence. The availability of a reasonable alternative means of escape from the danger would not, for instance, deprive him of the defence. There would be no prejudice to the accused in directing him to s.38(2) if he seeks to raise any issue of self-defence. He may in fact be in a better position than if he were constrained by the requirements of the special defence. We are satisfied that the relevant statutory intention clearly was that that is where any such issue should be raised. [16] Accordingly, we reject the first ground of appeal; the sheriff did not misdirect the jury when he told them that the special defence of self-defence had no relevance to the second charge. Burden of proof—s.38(2)

[17] The presumption of innocence is precious and ought not to be dispensed with lightly. Article 6(2) of the Convention, in providing that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, recognises that. The presumption is not, however, absolute. Limited inroads may be justified. [18] So it is that, where a statute which provides an accused person with a defence to a statutory charge—such as s.38(2)—involves placing a burden on an accused person, an issue arises as to the nature of that burden. Is the onus reversed so as to require the accused to prove the matter referred to on a balance of probabilities (often referred to as a “legal burden”)? Or, need he only raise the issue in evidence (often referred to as an “evidential burden”)? The imposition of a legal burden obviously involves a far more serious interference with the presumption of innocence than if he only requires to put some evidence before the court—in which case, any interference with the presumption, whilst not illusory, is of far lesser order. [19] Where, as here, it is contended that a legal burden is imposed, the Crown requires, accordingly, to show justification for its imposition; the legislative interference involved must not be greater than necessary. The appropriate way to approach resolution of the issue has been discussed in the helpful analysis of the relevant authorities by Lord Menzies in paras 19–22 of the opinion of the court in Adam v HM Advocate and we would adopt it. [20] On that analysis, it is necessary to consider (i) the relevant statutory provisions, (ii) the activity prohibited and the measures directed at it by the statute, and (iii) bearing in mind the context set by (i) and (ii), what justification there may be for a departure from the presumption of innocence, balancing the interests of the public and the fundamental rights of the accused.

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[21] Regarding the terms of the relevant provisions, we consider that the language used in s.38(2), whereby the accused has “to show” not “to establish” or “to prove” that his behaviour was reasonable, supports the conclusion that the burden is but an evidential one. [22] Regarding the activity prohibited, we consider that the nature of the offence created by s.38(1) does not obviously support the imposition of a legal burden. The spectrum of behaviour potentially covered by its provisions is so wide that it cannot be said that it falls to be read as having been enacted to deal with serious mischief or activities involving a serious risk of physical harm, unlike, for example, the statutory offences in relation to the carrying of bladed or other offensive weapons (Criminal Law (Consolidation) (Scotland) Act 1995, ss.47(1A), 49(4)), dangerous dogs being out of control in public places (Dangerous Dogs Act 1991, s.3) and the possession and control of indecent photographs of children (Civic Government (Scotland) Act, s.52A(1), (2)), where it has been held that the statutory defences available in each case place a legal burden on the accused. [23] Turning to whether the Crown have shown justification for tipping the balance in favour of a legal burden when weighing proportionality, the Crown contend that justification can be found under reference to the circumstances of the present case. They were said to illustrate that the defence is within the category of defences that relate to matters likely to be so closely conditioned by the accused’s own knowledge or state of mind at the time that to require him to prove them on a balance of probabilities does not infringe the presumption of innocence beyond reasonable limits: Sheldrake v Director of Public Prosecutions; Adam v HM Advocate; McMurdo v HM Advocate. The contention is that, in such circumstances, the Crown are likely to face particular difficulty in displacing the defence if a legal burden is not imposed. To put it another way, the Crown are likely to encounter difficulties which can only be overcome by the imposition on the accused of a legal burden. [24] We are not persuaded that the s.38(2) defence falls within that category. Our principal reason is that the essence of the defence is that the accused behaved reasonably in all the circumstances; the assessment of reasonableness is an objective matter and not, of itself, amenable to proof. The defence may be asserted without the introduction of any evidence that is independent of the Crown case. That would, in fact, be the paradigm case. Section 38(2) does not itself add any new ingredient. Also, whilst it would be open to the accused to rely on some other factor, his doing so has not been envisaged by Parliament as being central to the defence. That is unlike, for example, the defence in s.3(2) of the Dangerous Dogs Act 1991 where the accused requires to prove not only that the dog was in the charge of another person at the material time but also that that person was one whom he had reason to believe was a fit and proper person to undertake that responsibility. That defence is, as it was put in Sheldrake “so closely conditioned by the accused’s own knowledge and state of mind” that it was considered to be reasonable and proportionate to interpret the statutory defence as imposing a legal burden. [25] Turning to the level of sentence, we accept that it may be relevant to proportionality. The nature and extent of the possible sentence may be important when evaluating the reasons advanced by the Crown in support of their contention that, absent a legal burden, the public interest will be prejudiced to such an extent that its imposition is justified. The more serious the available punishment, the more compelling will the justification for imposing a legal burden require to be: Lord Nicholls of Birkenhead in R v Johnstone, para.50. If, for example, the maximum sentence is life imprisonment,

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that would weigh very heavily indeed in the proportionality exercise, against the imposition of a legal burden. But it would, we consider, be false logic to suggest that where the maximum sentence is comparatively low, that will weigh in its favour. We consider that, in those circumstances, the sentence point will be neutral. It is not a matter of comparative arithmetic. The accused will still be facing the possibility of punishment. We, accordingly, do not find the maximum sentence in the present case (five years) supports the contention that a legal burden is imposed. [26] As regards the Crown’s reliance on the case of Glancy, whilst the maximum sentence there was, as a matter of fact, four years, that was not the reason for the conclusion that a legal burden was imposed; in fairness to the advocate depute, he appreciated that. Ultimately, the point was no more than that the fact of a four-year maximum sentence did not prevent it being concluded that a legal burden was imposed. [27] In all these circumstances, we are not satisfied that s.38(2) imposes a legal burden on an accused person; the sheriff did, accordingly, misdirect the jury regarding this matter. Miscarriage of justice

[28] We turn then to the question of whether or not the sheriff’s misdirection led to a miscarriage of justice. The relevant evidence was as summarised by the advocate depute: see para.13 above. In these circumstances, we consider that if the police evidence was accepted—as it must have been—looking at matters objectively, the accused’s behaviour could not, on any view, be characterised as having been reasonable. He could not reasonably have thought that he was dealing with intruders or was otherwise in need of defending himself. In these circumstances, notwithstanding the sheriff’s misdirection, there has been no miscarriage of justice and the appeal is accordingly refused.

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A Appeal Against Sentence

13 November 2015

ALEXANDER SUTHERLAND

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 115 Sentence—Misuse of drugs—Being concerned in supply—Accused director of operation of supplying large quantities of high purity heroin—Whether 18 years’ imprisonment excessive—Misuse of Drugs Act 1971 (c.38), s.4(3)(b) The appellant pled guilty at a continued preliminary hearing to being concerned in supplying a large quantity of high purity heroin and was sentenced to three and a half years’ imprisonment reduced from 18 years because of the plea. He was described as being the director of an operation at the highest level of the UK drug supply network. He appealed against the sentence as excessive. Held that the sentence was nor excessive, and appeal refused. Authorities reviewed

Cases referred to in the opinion of the court: Attorney General’s Reference Nos. 82 and 90 of 2014 [2015] EWCA Crim 2884; [2015] 2 Cr. App. R. (S.) 1 Attorney General’s Reference No. 8 of 2015, [2015] EWCA Crim 620 Dumani v HM Advocate [2013] HCJAC 144; 2013 G.W.D. 37–725 Hamill v HM Advocate, 2000 G.W.D. 13–480 HM Advocate v Blenkinsop, Lord Doherty, 4 October 2011, unreported HM Advocate v Carnall, 1999 S.C.C.R. 904; 1999 G.W.D. 31–1485 HM Advocate v Donnelly, Lord Boyd, 4 April 2014, unreported HM Advocate v Jones, Lord Doherty, 16 August 2013, unreported HM Advocate v McIntyre, Lord Boyd, 18 January 2013, unreported HM Advocate v McKenzie, Lord Matthews, 16 September 2013, unreported HM Advocate v Nisbet, Lord Armstrong, 9 October 2015, unreported McGovern HM Advocate, 26 March 2009, unreported R v O’Neill [2015] EWCA Crim 1438 R v Tourh [2009] EWCA Crim 874 R v Welsh [2014] EWCA Crim 1027 Wright v HM Advocate, 2006 G.W.D. 27–604.

Alexander Sutherland pled guilty at a continued preliminary diet on 19 June 2015 in the High Court at Glasgow before Lord Turnbull to being concerned in the supplying of heroin and was sentenced to 13½ years’ imprisonment. He appealed to the High Court against the sentence as excessive.

The appeal was heard by the Lord Justice Clerk (Carloway), Lord Brodie and Lord Matthews. For the appellant: Jackson QC, Glancy, instructed by Paterson Bell, Solicitors, Edinburgh, for David Kinloch & Co, Solicitors, Glasgow.

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For the respondent: R Goddard AD. On 13 November 2015 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK Introduction

[1] On 19 June 2015, at a continued preliminary hearing in the High Court at Glasgow, the appellant pled guilty to a charge which libelled that: “(13) [B]etween 24 October 2011 and 1 May 2013, . . .at (various addresses in Scotland) you. . .(and others) were concerned in the supplying of a controlled drug namely Diamorphine, commonly known as ‘Heroin”, a Class A drug. . .to another or others in contravention of s.4(1) of the aftermentioned Act: contrary to the Misuse of Drugs Act 1971, s.4(3) (b). . . .” He was sentenced to 13½ years imprisonment. This had been discounted by 25 per cent from 18 years for the early plea. Eight co-accused had their pleas of not guilty accepted. The plea resolved a prosecution which would otherwise have involved a trial lasting weeks, and possibly months. The narrative

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[2] There was a narrative agreed by the Crown and the appellant. It must be said in limine that the content of this narrative, like many others of its type, is bedevilled by irrelevant evidential material. No doubt for reasons of expediency, it has the air of being cut and pasted from the Crown Office precognition report. It thus contains, for example, references to the nature and extent of the police investigation and to what a particular courier, described as the “assisting offender”, is reported to have said. It is difficult to extract what essential facts were agreed without considerable editorial effort. That exercise having been completed, it appears that the appellant was the “director” of an organised criminal gang based in Glasgow which was concerned in the acquisition, adulteration and onward supply of heroin to associates in Edinburgh. The supply operation ran from March 2012 until one of the appellant’s couriers was detained on 27 March 2013, in possession of two kilograms of heroin, which he had been due to deliver to Edinburgh. [3] The appellant would source what the narrative expressly describes as “ ‘pure’ ie, unadulterated” heroin in Glasgow, for which he paid between £36,000 and £42,000 per kilo. He would arrange for this to be collected by or delivered to the courier, typically in one-kilo amounts. The courier would adulterate the heroin, by breaking down the pressed bricks, quadrupling the weight with adulterants, and re-pressing the powder. In this way, one kilogram would become four kilograms. The courier would deliver the drugs, usually in four-kilo quantities, to Edinburgh. The courier made ten such deliveries in the period libelled (ie, 40 kilograms). The wholesale price of such a kilo was between £12,250 and £15,000. Thus each kilo bought by the appellant would become worth between £49,000–£60,000—producing a profit of £7,000– £24,000 per kilo; the price paid being taken back to the appellant. Once further adulterated and split into quantities for sale to end users at street level, the 40 kilos of heroin would ultimately have been sold for about £2.8 million. Although it is not touched upon in the narrative, the heroin, which was found in possession of the courier, had a purity of between 8 and 11 per cent. Assuming an unusually precise quadrupling of the bulk by the courier, the

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purity of the “unadulterated” heroin sourced by the appellant could be assumed to have been between 32 and 44 per cent. [4] The appellant had a record which included the possession of weapons. Of particular significance, he had a previous conviction dated March 2013 from Dumbarton High Court for concern in the supply of drugs. This had attracted a sentence of 42 months, part of which had remained unexpired at the date of the offending. [5] In mitigation, the sentencing judge was asked to regard the appellant as a young man who had come from a background of “well-known extensive criminality”. He had entered the family business. The appellant’s involvement had been more in the nature of a director, rather than the chief executive. His profit had been somewhere in the region of £70,000–£240,000, rather than the millions reflected in the total theoretical value at street level. [6] The sentencing judge reports that he had never previously encountered a convicted person who had had access to such quantities of “unadulterated heroin”. This placed the appellant and his associates at the highest level of the drug supply network in the UK. He had reached that conclusion because “they must have had first access to heroin directly upon its importation into this country”. He regarded it as important to take the opportunity of: “expressing firmly the court’s, and society’s, view of the level of criminality associated with those who operate at the top end of the drug supply network and who take so much advantage of so many below them for substantial illegal financial gain”. [7] In his sentencing statement the judge made a powerful reference to the extent to which the abuse of heroin had: “[B]lighted communities, robbed families of their children, destroyed lives which would otherwise have been productive and. . .led to an associated crime wave indulged in by users in an attempt to fund their ongoing habits.” He drew upon his own extensive experience and sought to impose an appropriate sentence by reference to the many cases with which he had familiarity. These included Hamill v HM Advocate, which involved an 18-year sentence for concern in the supply of £1.5m of heroin, valued at street level, and McGovern v HM Advocate in which the same judge had considered 12 years as an appropriate starting-point for concern in the supply of £0.5m of heroin where he was also imposing a consecutive sentence, with a startingpoint of eight and a half years, for a firearms offence. The judge reports that an appeal against sentence was refused.

Submissions

[8] There was no challenge to the level of the discount. The appellant’s central contention was that the starting-point of 18 years was too high. It was in excess of the Definitive Guideline produced by the Sentencing Council of England and Wales. That suggested a range of 12–16 years for the most serious offences. It was incorrect both to place this case in that category, and to consider that there were aggravating factors justifying a greater headline sentence. [9] The sentencing judge had referred in his report to the appellant having sourced pure “unadulterated” heroin. No purity analysis had been contained within the agreed narrative. The actual analysis had demonstrated that the heroin had not been “unadulterated”. That word had only been used in the narrative to describe a level of purity above that existing at street level. The

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sentencing judge had misunderstood that. The appellant had not been involved in the importation of heroin. He had sourced it in Glasgow. [10] A report by William Percy, a retired police officer, dated 15 October 2015, had been lodged for the appellant as support for the proposition that the sentencing judge had erred in sentencing the appellant on the basis that he and his associates were placed at the highest level of the drug supply network in the UK. This stated that a kilo of heroin could be bought in Turkey for about £8,000. It could be bought in the UK for between £15,000 and £22,000. It would have a purity level of about 66 per cent, although this could be as low as 42 per cent. In the UK the cheapest source was in the West Midlands of England, where purity would be about 50 per cent. If, as was said, the appellant had paid £36,000 or above for the heroin, he was not doing so from the “top tier of UK-based drug traffickers”. The heroin which the appellant had bought had been adulterated after importation. [11] The appellant also produced, for the appeal, a precognition of Detective Sergeant Kenneth Simpson, one of the potential witnesses in the prosecution. DS Simpson said that persons in the drug trade who referred to “pure” heroin were only saying that the purity was above street level (2–15 per cent). In all these circumstances, the sentencing judge had sentenced on the basis of an error in relation to the appellant’s part in the drug supply chain. [12] The sentencing judge had failed to give sufficient weight to: the pressures upon the appellant brought about by being brought up by a criminal family; and the limited amount of profit received. The judge appeared also to have assumed an involvement in drug supply wider than the 40 kilos sent to Edinburgh by means of the courier. [13] The 18-year starting-point was out of kilter with similar cases. Reference was made to a number of first instance sentences. These were: (a) HM Advocate v Blenkinsop, when 12 years was imposed for the importation over a two-anda-half year period of £40m of cocaine, cannabis and amphetamine. The offender had previously served a four-year sentence for drug dealing in Spain; (b) HM Advocate v Donnelly, when 12 years was selected as a starting-point for directing a supply of two kilos of heroin during an unexpired sentence by an accused with two analogous convictions; (c) HM Advocate v Nisbet, when 12 years was selected for the person directing the supply over seven months of £1m of heroin from prison. He had been serving a life sentence for murder and the sentence was to run from the expiry of his punishment part (unspecified); (d) HM Advocate v McIntyre, where 12 years was the starting-point for the supply of £300,000 (2.5kg) of heroin; (e) HM Advocate v McKenzie, where ten years was the starting-point for almost £1m of cocaine; and (f) HM Advocate v Jones, where 14 years was the starting-point for playing a senior role, over eight months in the supply of £200,000 of cocaine and four months in the supply of almost £0.5m of cannabis resin. At appellate level, there was (a) Dumani v HM Advocate in which a 12-year sentence was reduced to ten years where the appellant had been concerned in the supply of between £600,000 and £1.2m of cocaine over a ten-day period. The cocaine had been sourced by the appellant in “relatively pure” condition and the task of turning it into pellets was “perhaps the largest cocaine processing operation ever encountered in Scotland”; and (b) HM Advocate v Carnall where ten years was selected for concern in the supply of 5 kilos (£665,000) of heroin from England to Scotland. Respondent

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[14] The Crown submitted that the sentencing judge’s description of the appellant’s offending was correct: he had been the director of a very high-level

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drug supply enterprise, involving a massive amount of heroin over a period of 18 months against the background of an analogous previous conviction. [15] The Sentencing Council Definitive Guideline provided that sentences of 20 years or above might be appropriate where the operation was on the most serious and commercial scale involving a quantity of heroin in excess of five kilos.The guideline had been applied to offenders whose primary offending occurred within Scotland as part of a wider conspiracy (R v Welsh). It would be undesirable to have a significant divergence in sentencing in the different UK jurisdictions in relation to large-scale drug dealing. The sentence could not be described as excessive. In R v O’Neill, 20 years was considered not to be excessive where the head of an organised crime group had been involved in the supply of 28 kilos of adulterated cocaine over two years. In Attorney General’s Reference Nos. 82 and 90 of 2014 sentences of 15 years were increased to 20 years for the importation of 52 kilos of cocaine with a street value of between £5m and £10m over a period of one and a half years and involving 30 trips. In Attorney General’s Reference No. 8 of 2015 a sentence of eight years was increased to 16 years for the importation of 52 kilos of cocaine (78 per cent pure) and three kilos of heroin (48 per cent) with a total value of £11.5m. In R v Welsh sentences of between 22 and 25 years were regarded as unappealable where there was a supply of at least 23 kilos of Class A drugs between criminal gangs in Liverpool and Glasgow over a period of a year. A sentence of 22 years was selected for the possession with intent to supply 60 kilos of cocaine in R v Tourh. The offender had no relevant criminal record. In Wright v HM Advocate a starting-point of 22 years had been reduced to 18 on appeal where the appellant was the ringleader in Scotland of a very substantial operation processing £2.15m of heroin. The appellant had a bad criminal record and had been on licence at the time of the offence. In Hamill v HM Advocate 18 years was not excessive for the mastermind behind the supply of £1.5m of heroin.

Decision

[16] The sentencing judge is a very experienced trial judge who would be relatively familiar with the nature and extent of the importation and supply routes of heroin into and around the UK. He was told in the agreed narrative that the heroin was “ ‘pure’ ie, unadulterated”. However, the judge would have been aware that this did not mean that the drugs would be pharmaceutically 100 per cent diamorphine. Given the results of the tested samples, the purity of the heroin as sourced was between 32 and 44 per cent. It is possible that it came into the UK in that state but, at least on the basis of Mr Percy’s report, it is marginally more likely that it underwent some adulteration en route to Glasgow. This may have occurred if it came through the English Midlands. Whatever may have been the true position (and presumably the appellant knows that), the judge was aware that there was no charge of importation and that the appellant had sourced the heroin in Glasgow and not abroad or in the Midlands. It was nevertheless in a state permitting substantial re-bulking before it reached street level. [17] The appellant was described in the narrative as a director of the operation, from receipt in Glasgow to onward wholesale supply in Edinburgh. Given the quantities and nature of the operation involved, any difference, between the judge’s description of the facts as “placing the appellant and his associates at the highest level of the drug supply network within the United Kingdom” and the position advanced as the reality at the appeal hearing, would have had a minimal effect in terms of sentencing. Any error made by

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the judge in relation to the volume of dealing falls into the de minimis category, when the overall amounts are realised. [18] The sentence imposed was one which was in line with those considered by the High Court, sitting in its appellate capacity, as appropriate for persons directing large-scale heroin supply networks in Scotland. Notably, it is consistent with Wright v HM Advocate, where the ringleader in Scotland of a cross-border supply chain involving 21.5 kilos of heroin (valued at £2.15m at street level) was sentenced to 16 years, discounted from 18, standing a record which included (as the appellant’s does too) a previous High Court conviction for a drug offence for which he was on licence at the material time. It is also comparable to Hamill v HM Advocate where 18 years for the mastermind of a £1.5m heroin supply chain was deemed not to be excessive. [19] In using these comparators, not only is it the offender’s role which is important but also the street value of the drug. It is that value which is the prime indicator of the damage caused to society by this pernicious trade. The dealer’s particular profit, whilst relevant, is far less significant for sentencing purposes. It is important to note that, amongst the Class A drugs, heroin has a particularly dangerous part to play in societal terms. It is unique and care should be taken when using precedents involving other drugs, even those in the same classification. Such a distinction would apply to several of the first instance cases cited. In others, there was a consecutive element to the sentences, thus producing a different but significant difference. In yet others, the volume of dealing was lower. [20] Definitive Guidelines from the Sentencing Council of England and Wales often provide a useful cross-check for sentences in Scotland especially where the offences are regulated, as here, by a UK statute and there are identical sentencing maxima. They should not, however, be applied in Scotland in a rigid or mechanistic fashion, given the differences in sentencing purposes, practices and regimes between the two jurisdictions. Suffice it to say, in this case, had the appellant been sentenced in England, it would appear that he would have received a much longer custodial term. This is borne out by that part of the definitive guideline (p.4) which states that: “Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than (five kilos), sentences of 20 years and above may be appropriate, depending on the role of the offender.” This policy is amply demonstrated by the sentences of 20 years or more in R v O’Neill; Attorney General’s Reference Nos. 82 and 90 of 2014; and R v Tourh all being cocaine cases, and R v Welsh. [21] The appellant raised an interesting point about the effect of an offender coming from a criminally oriented family. This may be seen as reducing moral culpability but it is a factor more than outweighed by the need to discourage endemic criminality. [22] It is important to remember in addition that it is the overall sentence which the court must consider. Whilst the appellant did not, of course, challenge the discount for the early plea, that discount was a very generous one for a sentence of this length even against a background of substantial utilitarian value. Be that as it may, the final sentence arrived at was a reasonable one in all the circumstances. The appeal is refused. Note: This case is reported because of the extensive reference to authorities.

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A Appeal Against Sentence

18 November 2015

HER MAJESTY’S ADVOCATE

Appellant

against AB

Respondent B

[2015] HCJAC 106 Sentence—Rape—Oral rape by person in position of trust—Whether less serious than vaginal penetration—Whether three years’ imprisonment unduly lenient—Sexual Offences (Scotland) Act 2009 (asp 9), s.1 Section 1 of the Sexual Offences (Scotland) Act 2009 defines rape so as to include oral penile penetration. The respondent was convicted of orally raping his cohabitee’s 14-year-old daughter and was sentenced to three years’ imprisonment, on the ground, inter alia, that there had been no activity that physically damaged the complainer’s physical integrity, and the Crown appealed against the sentence as unduly lenient. Held (1) that Parliament has re-categorised penile penetration of the mouth as rape, that the court must sentence upon that basis, and that the court also recognises, as it may always have done, that an act of oral rape may be as abhorrent, demeaning and traumatising as vaginal rape (para.11); (2) that it must always be a question of facts and circumstances whether an act of oral rape will attract a higher sentence than vaginal rape or vice versa (para.12); and (3) that in the circumstances of this case the sentence was unduly lenient (para.14); and appeal allowed, sentence quashed and sentence of five years’ imprisonment substituted.

Cases referred to in the opinion of the court: Lord Advocate’s Reference (No. 1 of 2001) 2002 S.C.C.R. 435; 2002 S.L.T. 466 HM Advocate v AJV [2014] HCJAC 126; 2015 S.C.C.R. 50 HM Advocate v Bell, 1995 S.C.C.R. 544 HM Advocate v Graham [2010] HCJAC 50; 2010 S.C.C.R. 641; 2011 J.C. 1; 2010 S.L.T. 715 HM Advocate v Shearer, 2003 S.C.C.R. 657; 2003 S.L.T. 1354 Milligan v HM Advocate [2015] HCJAC 84 R v Ismail [2005] EWCA Crim 397; [2005] 2 Cr. App. R. (S.) 88 Tough v HM Advocate [2012] HCJAC 119; 2012 G.W.D. 32–656.

F A B was convicted on 2 June 2015 of rape in the terms set out in the opinion of the court after trial in the High Court at Aberdeen before Lady Wise and a jury and was sentenced to three years’ imprisonment. The Crown appealed to the High Court as unduly lenient. The appeal was heard on 9 October 2015 by the Lord Justice Clerk (Carloway), Lord Bracadale and Lord Matthews. For the appellant: Niven-Smith AD. G 47

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HM Advocate v AB

2016 S.C.C.R.

For the respondent: D McKenzie, instructed by Burkinshaw Criminal Defence, Solicitors, Peterhead. On 15 October 2015 the Lord Justice Clerk delivered the following opinion of the court. Introduction

[1] On 2 June 2015 at the High Court in Aberdeen, the respondent was found guilty of a charge which libelled that: “(2) [O]n 1 February 2014. . .you did assault [N D] then aged 14 years. . .utter threats of violence, pull down her trousers and pants, penetrate her mouth with your penis and you did thus rape her: contrary to s.1 of the Sexual Offences (Scotland) Act 2009.” On 30 June 2015 the trial judge imposed a sentence of three years’ imprisonment. The Crown appeals against the sentence on the grounds of undue leniency.

Evidence

[2] N D, the complainer, was 14 years old at the time of the offence. She lived with her mother, brother and three sisters aged eight, four and two. The respondent was her mother’s partner and the father of her three younger sisters. The complainer called him “Dad”. On the date libelled, the respondent told the complainer to go into the bathroom. He said that she was to put his penis in her mouth. He said that he would hit her if she refused. She had to move his penis up and down with her hand. The incident lasted for two or three minutes. The incident ended when the complainer’s mother came into the bathroom and shouted at the respondent. Her mother slapped the respondent. The respondent told the mother that N D had asked him to do it. By this time the complainer was distressed and screaming. The respondent had left the house. The police were called. Meantime, the complainer was sitting hugging herself and crying. She said “I’m sorry mum, I’m guilty. . . I know you hate me.” Her mother took this to mean that her daughter was blaming herself for what had occurred.

Mitigation and sentence

[3] The respondent was aged 31 at the time of the offence. He had lived with N D’s mother since he was 21, first in his native Poland and latterly (since 2007) in Scotland. In recent times, his relationship with his partner had been troubled.The criminal justice social work report concluded that the respondent had no insight into the offence or to the harm caused. He did not accept responsibility and maintained that his former partner must have “planted” the semen which had been found on the complainer’s face. Since the respondent denied the commission of the offence, there was little information on which to analyse the risk factors. However, he was assessed as at medium risk of re-offending. [4] The respondent had three previous convictions, one assault in 2008 and two road traffic offences. All had attracted fines. He had been in full-time employment prior to the prosecution. Trial judge’s reasoning

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[5] The trial judge states that she was satisfied that custody was the only appropriate disposal. She acknowledged that the respondent had been in a

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position of trust. She took into account: the lack of analogous offending; the absence of “penile penetration or other activity that physically damaged the complainer’s physical integrity”; and the violence being limited to a single threat. She did not consider that there required to be a minimum period of imprisonment simply because of the nomen criminis.

Submissions

[6] The ground of appeal is that: “In all of the circumstances the sentence imposed fails to recognise the gravity of the offence which involved a significant breach of trust against a child, in the family home, perpetrated with threats of violence. The sentence imposed failed to satisfy the need for retribution and deterrence.” In submissions, this ground was substantially developed. [7] The 2009 Act had broadened the definition of rape to include anal and oral penile penetration. A similar situation had arisen earlier after the court had redefined rape to include what had hitherto been clandestine injury (Lord Advocate’s Reference (No. 1 of 2001)). This had resulted in sentences previously imposed for clandestine injury being regarded as unreliable for future use once the offence had been reclassified as rape (HM Advocate v Shearer, LJG (Cullen) at para.11). The maximum penalty was life. The legislation did not differentiate between the different modes of rape for the purposes of sentencing. [8] The government’s policy memorandum accompanying the bill had stated that the new definition of rape more accurately reflected what ought to be considered as the offence of rape. “Penile violation of a person’s. . .mouth is as severe an infringement of sexual autonomy as violation of a vagina” (para.38, quoting Scottish Law Commission’s 2007 Report on Rape and Other Sexual Offences (para.3.23)). In England, similar changes had been prompted by the view expressed by the Minister for Citizenship and Immigration (Beverley Hughes) that the great weight of persuasive evidence submitted during the government’s review of the matter was that “forced penile penetration of the mouth can be just as abhorrent, demeaning and traumatising as other forms of penile penetration and as psychologically harmful as vaginal. . .rape, and in some instances even more so” (Hansard, House of Commons Standing Committee B, first sitting, 9 September 2003, col.9). The advocate depute attempted a comparison between an impassive submission to intercourse and the visual and choking aspects of oral penetration. [9] The Sexual Offences Definitive Guideline (2014) published by the Sentencing Council for England and Wales included a series of factors relevant to categories of harm and culpability for use in calculating a starting-point for sentencing, before taking account of any previous convictions and other mitigatory or aggravating factors. Applying the guideline, the starting-point for this offence would have been seven years, with a range of six to nine years within which the sentence should fall, unless the interests of justice required otherwise. It would be unusual if the sentence in Scotland were half of the minimum applicable in England. In Tough v HM Advocate, three years had been selected as a starting-point for oral rape in circumstances where the accused had been of extremely low intelligence, the victim was unrelated and there had been no violence. [10] The respondent reminded the court that sentencing guidelines did not remove judicial discretion. They should not be applied too rigidly so as to produce a mechanistic approach (HM Advocate v Graham at paras 21 and 22;

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Milligan v HM Advocate at para.5). Especially with the advent of the Scottish Sentencing Council, it would be premature to pay too much attention to the guideline from England and Wales. In this case, the trial judge had paid due attention to deletions from the original libel of attempted anal penetration. She had not said that she had sentenced on the basis that the offence was one of indecent assault as distinct from rape. She had sentenced on the basis of the evidence, and having regard to the fact that the respondent had been entitled to proceed to trial given the complainerâ&#x20AC;&#x2122;s account, which was departed from, of actual anal penetration and other assaults of a physical nature. Having regard to the respondentâ&#x20AC;&#x2122;s lack of analogous offending and good work record, the sentence was within the range reasonably to be considered appropriate (HM Advocate v Bell at p.550; HM Advocate v A J V). Decision

[11] The court recognises at once that Parliament has re-categorised penile penetration of the mouth as rape. It must sentence upon that basis. In this context it also recognises, as it may always have done, that an act of oral rape may be as abhorrent, demeaning and traumatising as vaginal rape. The situation in England and Wales may have been different, given that the two separate offences carried different maximum penalties (see now R v Ismail at para.12). At common law the sentences available in Scotland in respect of rape and indecent assault were unrestricted. [12] It must always be a question of facts and circumstances whether an act of oral rape will attract a higher sentence than a vaginal rape or vice versa. The factors to be considered will include, in each case: the level of violence used; the relationship between the offender and the victim; the age or other vulnerability of the victim; the degree of psychological as well as physical harm caused; the age, previous convictions and character of the offender and any degree of remorse. There are, of course, many other variables. [13] The Sexual Offences Definitive Guideline is a useful comparator from a neighbouring jurisdiction, but one which should not be applied too rigidly (HM Advocate v Graham, LJC (Gill) at paras 21 and 22). It must be borne in mind that in England and Wales there are statutorily defined sentencing purposes (Criminal Justice Act 2003, s.142) which are not directly applicable in Scotland. Nevertheless, the relevant sentencing range is a matter with which a sentence selected in Scotland might be cross-checked to see if any major disparity appears. [14] It is unfortunate that the trial judge appears to have had no information on the psychological effects of the offence on the complainer (cf Criminal Justice (Scotland) Act 2003, s.14 and in England R v Ismail, para.8). She was, however, aware that this was a rape of a 14-year-old child by a 31-year-old adult who was in a position of trust over her. Although the respondent is otherwise of reasonably good character and has been in steady employment, he has shown no remorse and remains in a state of denial. In all these circumstances, the court is bound to hold that the sentence of three years is unduly lenient, as falling outwith the range reasonably open to the trial judge. This is so, notwithstanding the deference which requires to be shown to the judge who saw and heard the complainer, although not the accused, who did not give evidence. The court will substitute instead a sentence of five yearsâ&#x20AC;&#x2122; imprisonment

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A Appeal Against Sentence

18 November 2015

Appellant against

HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 105 Sentencing—Delay—Whether sufficient account taken of delay between police charge and trial Sentencing—Consecutive excessive

sentences—Whether

cumulative

effect

The appellant was charged by the police in September 2010 with a number of serious sexual offences allegedly committed between 2008 and 2010 and released by the police on an undertaking to appear in court. Crown counsel then instructed that the undertaking be cancelled and further investigations carried out. Thereafter nothing happened for about a year except for a negative report from the investigating officer in March 2011 and a letter from the appellant to the procurator fiscal asking about progress to which no reply appeared to have been sent. In September 2011 the police were asked for further information. The case was again reported to Crown Office in April 2013 and proceedings were instructed. The appellant appeared on petition on and was subsequently indicted to a preliminary hearing in April 2014 when trial was fixed for July 2014, but the trial was postponed a number of times and did not start until March 2015. The appellant was convicted of four offences, including one rape and was sentenced to consecutive sentences amounting to 16 years’ imprisonment. He appealed to the High Court against sentence on, inter alia, the grounds that the sentencing judge had failed to take full account of the delay in bringing him to trial and that the cumulative effect of the consecutive sentences had produced an excessive total sentence. Held (1) that it was clear that the trial judge did not have before her the detail in relation to the significant and unexplained delay which emerged in the timeline made available to the court, and that she did not take sufficient account of the delay (para.23); and (2) that in addition to the issue of delay, the cumulative effect of the consecutive sentences had produced an overall sentence which was excessive, particularly in the case of a first offender (para.24); and appeal allowed to the extent of altering sentences so as to impose an overall sentence of 12 years. W A was convicted of the offences set out in the opinion of the court after trial on 23 March 2015 after trial in the High Court at Edinburgh before Lady Wolffe and a jury.

The appeal was heard on 9 October 2015 by the Lord Justice Clerk (Carloway), Lord Bracadale and Lord Matthews. For the appellant: C Mitchell, instructed by Martin Johnston & Socha, Solicitors, Dunfermline. For the respondent: Niven-Smith AD. On 18 November 2015 Lord Bracadale delivered the following opinion of the court.

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2016 S.C.C.R.

LORD BRACADALE Introduction

[1] On 23 March 2015 after trial at the High Court at Edinburgh the appellant was convicted of sexual offences in relation to S A, his teenaged daughter and L M, the teenaged stepdaughter of one of his work colleagues. The charges of which he was convicted were as follows: “(1) [O]n various occasions between 1 February 2008 and 6 March 2010, both dates inclusive, at (an address in) Dunfermline, (an address in) Methil, both Fife and within a car in various places in Fife you did use lewd, indecent and libidinous behaviour and practices towards (S A), born 1 February 1995, your daughter, (. . .), a girl then of or above the age of 12 years and under the age of 16 years, kiss her on the lips, put your tongue in her mouth, induce her to touch your penis and to masturbate you, penetrate her mouth with your penis, remove her clothing, make indecent remarks to her, touch and lick her vagina,: contrary to s.6 of the Criminal Law (Consolidation) (Scotland) Act 1995; (2) on various occasions between 1 February 2008 and 6 March 2010, both dates inclusive, at (an address in) Dunfermline, you did assault (S A), born 1 February 1995, your daughter, (. . .), aged between 13 and 15 years, lie on top of her and rape her by penetrating her vagina with your penis; (3) on various occasions between 1 September 2009 and 3 June 2010, both dates inclusive, at (an address in) Dunfermline, Fife, you did use lewd, indecent and libidinous behaviour and practices towards (L M), born 13 February 1995, (. . .), a girl then of or above the age of 12 years and under the age of 16 years, kiss her on the lips, put your arms around her, push her against a wall, penetrate her mouth with your penis, put your hands inside her clothing, touch her breasts, touch her private parts: contrary to s.6 of the Criminal Law (Consolidation) (Scotland) Act 1995; and (4) on an occasion between 1 September 2009 and 3 June 2010, both dates inclusive, at (an address in) Dunfermline, Fife, you did assault (L M), born 13 February 1995, (. . .), aged 14 or 15 years, kiss her on the neck and lips, pin her down by her arms, touch her body and rape her by penetrating her vagina with your penis.” [2] The appellant had no previous convictions. The trial judge imposed the following sentences: five years’ imprisonment on charge (1) and ten years’ imprisonment on charge (2), the sentences being ordered to run concurrently; five years’ imprisonment on charge (3) and six years’ imprisonment on charge (4), the sentences being ordered to run concurrently with each other and consecutively to the sentences imposed in respect of charges (1) and (2). The total period of imprisonment was 16 years. The circumstances of the offences

[His Lordship gave an account of the evidence against the appellant, with which this report is not concerned and continued:] ... The sentencing judge’s reasons for the sentence imposed

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[14] The case was continued for the preparation of a criminal justice social work report.The author of the report found it difficult to analyse the appellant’s offending behaviour given that he continued to deny the offences. He was, however, assessed as being likely to re-offend. The report’s author recognised that a custodial sentence was the only appropriate disposal and suggested that consideration be given to imposing a period of post-release supervision. Very little was said by way of mitigation by the solicitor advocate for the appellant

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WA v HM Advocate

at the sentencing diet. The appellant was a first offender. The appellant continued to maintain his innocence. [15] The sentencing judge explains that she imposed the sentences which she did as the whole evidence disclosed that the appellant was a calculating and predatory individual who sexually abused two vulnerable teenaged girls, one of whom was his daughter, over an extended period of time.

Submission

[16] In submitting that the sentences imposed by the trial judge were excessive, Ms Mitchell advanced three arguments. First, the trial judge had failed to give sufficient weight to the appellantâ&#x20AC;&#x2122;s lack of previous offending. Secondly, she had failed to take fully into account the length of time during which the appellant was waiting for trial. He was first interviewed in 2008 in relation to S A but no proceedings were taken at that time. He was charged with offences against the two complainers in September 2010. The trial did not take place until March 2015. The appellant was entitled to a trial within a reasonable time. Thirdly, it was submitted that even if the trial judge had properly considered all the relevant matters, the cumulative effect of the sentences had produced an excessive total sentence.

Discussion and decision

[17] At the request of Ms Mitchell the Crown had prepared a timeline of the preparation of the case which disclosed the following history. In September 2010 the appellant was charged by the police with offences against the two complainers and was released on an undertaking to appear at court on 30 September 2010. The police report was submitted to the procurator fiscal on 21 September 2010. On 28 September 2010 the procurator fiscal reported the case to the National Sex Crimes Unit at Crown Office. On 29 September 2010 Crown counsel instructed the procurator fiscal to cancel the undertaking that the appellant should attend court on 30 September and to attend to various matters before the appellant was placed on petition: both of the complainers were to be carefully precognosced; all previous statements made by S A in 2008 were to be included and she was to be precognosced in relation to her retraction of the allegations at an earlier stage; the witness to whom the complainer S A disclosed the abuse in 2008 was to be precognosced; the mobile phones and computer of the appellant were to be examined; psychological reports were to be obtained addressing the facts of the case and the retraction of the allegations; medical and social work records in respect of each complainer were to be obtained and examined. We pause to observe that these were the sort of instructions to be expected in a case of this kind which did not appear to have any unusual or complex features. [18] Not much appears to have happened for about five months. On 2 March 2011 a memo was sent to the reporting officer in relation to the examination of the phone and computer of the appellant. On 3 March 2011 the reporting officer advised that these had been examined and no relevant evidence obtained. [19] On 25 August 2011 the appellant wrote to the procurator fiscal asking about progress. Although the letter was drawn to the attention of the principal procurator fiscal depute, no reply appears to have been sent. [20] On 6 September 2011 a memo was sent to the police requesting documentary productions. On 5 October 2011, more than one year after receipt by the procurator fiscal of Crown counselâ&#x20AC;&#x2122;s instructions, the case was allocated to a precognition officer for pre-petition precognition.

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54 A

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[21] On 13 February 2012 further information was sought from the police. On 13 and 15 February 2012 follow-up requests were sent to the psychologist requesting reports (it is not clear when these were ordered). On 13 March 2012 the psychological reports were received. On 12 March 2012 L M failed to attend for precognition. On 22 March 2012 S A was precognosced. On 25 May 2012, some 18 months after the issue of Crown counsel’s instructions, the procurator fiscal reported the case to Crown Office. On the same date Crown counsel’s further instructions were received. In mid-October 2012 the papers were passed to the principal procurator fiscal depute. On 14 December 2012 the case was allocated to a procurator fiscal depute to undertake outstanding work instructed. In April 2013 the case was again reported to Crown Office and on 10 April 2013 Crown counsel instructed the procurator fiscal to proceed by placing the appellant on petition. [22] The appellant was indicted to a preliminary hearing on 15 April 2014 when the case was appointed for trial in July 2014. After a number of postponements the case finally went to trial in March 2015. [23] In her report the trial judge explained that she took into account the fact that the appellant had been under risk of prosecution since September 2010 when he was initially cautioned and charged by police, and that he had had to deal with the stress of having the allegations hanging over him for a period of over four and a half years. It is, however, clear that the trial judge did not have before her the detail in relation to the significant and unexplained delay which emerged in the timeline made available to us. We consider that the trial judge did not take sufficient account of the delay. [24] We agree with the observations made by the trial judge in passing sentence that the offences of which the appellant had been found guilty were extremely serious. As the trial judge put it in her sentencing statement, they involved: “calculated and predatory sexual abuse for your own sexual gratification of two vulnerable girls in their early teens and in respect of whom you were in a position of trust. Sexual crimes involving children are particularly odious. Such abuse is not acceptable in a modern society, and it is the responsibility of the court to reflect that understanding”. Given the course of conduct in relation to two separate complainers we consider that Ms Mitchell was correct to concede that consecutive sentences were appropriate. Where consecutive sentences are imposed the sentencing judge requires to consider the cumulative effect of the sentences. Sentences which, when looked at individually may be within the appropriate range, may, when made consecutive, produce an overall sentence which is excessive. We consider that in this case, in addition to the issue of delay, the cumulative effect of the consecutive sentences has produced an overall sentence which is excessive, particularly in the case of a first offender. [25] In these circumstances we shall allow the appeal against sentence to the extent of quashing the sentence of ten years’ imprisonment on charge (2) and substituting a sentence of eight years’ imprisonment. In relation to charges (3) and (4), while the sentences imposed were individually within the range open to the trial judge, in order to avoid an overall sentence which is excessive we consider that the appropriate course is to quash the sentences on both charges and impose instead concurrent sentences of four years’ imprisonment on each charge.This will result in an overall sentence of 12 years’ imprisonment.

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A Reference to High Court

24 November 2015

JOHN DUNN (Procurator Fiscal, Alloa) against

Prosecutor

ROSS PORCH

Accused B [2015] HCJAC 111

Compatibility issue—Bail—Condition prohibiting contact with complainer in charge of domestic violence—Whether compatible with right to family life—European Convention on Human Rights, art.8 Compatibility issue—Reference to High Court—Whether anyone other than parties to case entitled to appear at hearing of reference— Criminal Procedure (Scotland) Act 1995 (c.46), s.288ZB—Scotland Act 2012 (c.11), s.35

Compatibility issue—Reference to High Court—Observations on duty of judge making referral—Criminal Procedure (Scotland) Act 1995 (c.46), s.288ZB—Scotland Act 2012 (c.11), s.35—Act of Adjournal (Criminal Procedure Rules) 1996 (SI 1996/513), r.46.10—Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2013 (SSI 2013/72) Bail—Condition prohibiting contact with complainer in charge of domestic violence—Whether complainer has any locus to oppose condition

Bail—Condition prohibiting contact with complainer in charge of domestic violence—Comments on imposition of condition Article 8 of ECHR provides everyone with a right to respect for his private and family life. Rule 40. 10 (2) of the Act of Adjournal (Criminal Procedure Rules) 1996, as inserted by the Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2013, which deals with references of compatibility issues to the High Court, provides that a court which makes such a reference shall give its reasons for doing so. The accused was charged with assaulting the complainer, his pregnant girl friend, and was released by the sheriff on bail with a condition that he should not approach or contact her. He subsequently applied to the sheriff to remove that condition. The sheriff was made aware that the complainer supported the application, but she was not represented at the proceedings. The sheriff refused to remove the condition and the accused appealed to the High Court. In the course of the appeal the bail judge made a reference to the High Court, and the complainer was represented at the hearing of the reference. The reference sought the view of the High Court on the following matters: (1) whether (i) the accused’s, or (ii) the complainer’s, art.8 rights were engaged in determining whether the condition should be imposed or removed; (2) whether, esto the complainer’s art.8 right was engaged in the process, she had a right to be heard and to make effective representations to the court; and (3) (i) whether she had a right of access to the court (sic) to review its determination;

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and (ii) whether if she had such right she had the right to legal representation funded by the state if necessary. It was not argued that the condition in itself was incompatible with art.8, but that the Crown had adopted a blanket policy of seeking to impose conditions of this kind, and that the court had to balance the allegations against the complainer’s wish for the accused to return. The accused’s position was that it was incompatible with art.8 for the Crown to insist on special conditions in circumstances where the complainer’s art.8 interests were not outweighed by countervailing factors and there was no good reason to seek their imposition, and that it would be a breach of a complainer’s rights if the court were to acknowledge them as a relevant factor but to impose conditions without carrying out any balancing exercise. The Crown accepted that it was rarely that they did not seek special conditions in cases such as this but stated that the decision whether to do so was made on a case-by-case basis. They stated further that it was their practice to seek the views of complainers in such cases and to place those views before the court and that in this case a lengthy interview was conducted with the complainer who explained that she and the accused had never lived together and did not intend to do so until after the conclusion of proceedings. Held (1) that the sheriff carried out an appropriate balancing exercise in which the complainer’s views were taken into account and that accordingly no compatability issue arose on the arguments for the accused or the complainer, and that the conditions were imposed not because of any Crown policy, but because the court considered them to be necessary and appropriate (para.28); (2) that the absence of any formal mechanism to place the views of the complainer before the court did not create any incompatibility with her Convention rights, that her views might be a relevant factor in the bail decision, but that she did not thereby obtain any entitlement to seek to vindicate in the criminal process any rights or interest which she may have, and that a compatibility issue does not arise just because the art.8 rights of another may be affected by a decision taken in a criminal process not affecting her (para.33); (3) that the fact that the proceedings were intimated to the complainer did not make her a party, that the only parties competent under a reference are the Crown, the defence, and, in certain cases, the Advocate General, and that the legislation clearly anticipated that the parties were be those who were entitled to be parties according to our criminal law and procedure (para.34); (4) that the imposition of special conditions such as these might be considered necessary in an attempt to ensure the observance of the standard conditions that the accused should not interfere with witnesses, obstruct the course of justice or commit further offences against the complainer, that where the complainer did not wish the conditions to be imposed the court had to consider the situation in the context of its obligations in relation to the protection of victims of domestic violence (para.40); and (5) that there was no merit in the submissions of the accused or the complainer, and questions in the reference answered as follows: (1) that proceeding on the basis that the accused and complainer had art.8 rights which had been sufficiently engaged, they had not been infringed and that the procedures which exist in relation to bail applications of this kind are Convention compliant; (2) that the complainer had no right to be represented in court or address the court, but that that did not mean that there is no mechanism for drawing her views to the attention of the court; (3) No (para.41). Observed that in making a reference the court is required to give a reason for doing so, and that in cases such as this it may be preferable for the bail judge to continue the case to a further hearing so that a full debate may take place, and that the court expects High Court judges to be able to address a compatibility issue within the first instance process, leaving the normal

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appellate courses open in the event that either party wishes to challenge the decision reached (para.42).

Cases referred to in the opinion of the court: Bevacqua and S v Bulgaria, App no 71127/01, 12 June 2008 C McL v HM Advocate [2013] HCJAC 46 Criminal Proceedings v Gueye [2012] 1 W.L.R. 2672; [2012] 1 C.M.L.R. 26 Gorrie v MacLeod [2014] HCJAC 10; 2014 S.C.C.R. 187 HM Advocate v Collins [2014] HCJAC 11 Kidd v MacLeod [2012] HCJAC 163; 2013 G.W.D. 1–19 O’Leary v HM Advocate [2014] HCJAC 45; 2014 S.C.C.R. 421; 2014 S.L.T. 711 Opuz v Turkey [2009] ECHR 870; [2010] 50 E.H.R.R. 28 R v Nunn [1996] 2 Cr. App. R. (S.) 136 R (T B) v Combined Court at Stafford [2006] EWHC 1654 (Admin) Sabiu v Wylie [2013] HCJAC 160; 2014 S.C.C.R. 59 Scottish Criminal Cases Review Commission v Swire [2015] HCJAC 76; 2015 S.C.C.R. 333; 2015 S.L.T. 556 Wilson v UK (2014) 58 E.H.R.R. SE10. Ross Porch was charged in the sheriff court at Alloa with assault in the context of domestic violence and released on bail with a special condition that he did not contact or approach the complainer. He sought to have this condition removed on the ground that the complainer did not desire it. That application was refused and he appealed to the High Court and presented a compatibility minute on the ground that the condition was in breach of his and the complainer’s rights under art.8 of ECHR. On 10 July 2015 the bail judge referred to the High Court the questions set out in the opinion of the court. The reference was heard by Lady Paton, Lady Dorrian and Lord Drummond Young. For the prosecutor: McSporran AD. For the accused: Jackson QC, C M Mitchell, instructed by Virgil M Crawford, Solicitors, Stirling. For the complainer: Johnston, Solicitor advocate, instructed by Martin Johnston & Socha, Solicitors, Kirkcaldy.

On 24 November 2015 Lady Dorrian delivered the following opinion of the court. LADY DORRIAN Background

[1] This is a reference to the High Court of Justiciary under s.288ZB of the Criminal Procedure (Scotland) Act 1995 which arises in the context of the prosecution of one Ross Porch. On 2 February 2015 he appeared from custody on a complaint of assaulting his pregnant girlfriend by repeatedly pushing her, throwing a set of ladders at her, sitting on top of her, holding her down and spitting on her, all to her injury, and whilst he was subject to two bail orders. The assault is said to have taken place at the address of the complainer in Tullibody, Alloa. The complaint contained a second charge of damaging property at that address contrary to s.8(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The accused, having pled not guilty, was admitted to bail on standard conditions, and with the additional conditions,

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which he accepted, that he should not enter the street in Tullibody, where the complainer lived, nor should he approach, contact or attempt to approach or contact the complainer. [2] On 14 April 2015 the accused again appeared on summary complaint, which this time contained three charges. The first charge was that on 5 April 2015, in the aforesaid street in Tullibody, he had with him a knife, without reasonable excuse. The second charge was that he there behaved in a threatening and abusive manner by shouting and brandishing a knife, contrary to s.38 of the 2010 Act. The third charge alleged a breach of the conditions of bail imposed on 2 February 2015. The accused pled not guilty to charges (1) and (2), but tendered a plea of guilty to charge (3), which plea was not accepted. At that stage he was refused bail. Bail was granted on 18 May, when a trial diet was adjourned. The conditions upon which bail was granted were again the standard conditions plus the two special conditions referred to above. The conditions were again accepted, and must impliedly have been accepted by the accused on 8 June when the case, and bail, was continued in his presence. Thereafter, on about 18 June 2015, in respect of both cases, an application for variation of the bail conditions was lodged, seeking to remove the bail condition preventing contact with the complainer. On 23 June 2015 the sheriff refused to vary the conditions. In his report, the sheriff noted that the view of the complainer was only one matter which had to be considered. The allegations of carrying a knife in a public place, on bail, and whilst breaching s.38 of the 2010 Act, as well as breaching special conditions of bail previously imposed, were very serious ones. Having regard to these various factors, the prior record of the accused, and the fact that a relatively early trial diet had been set, the sheriff did not consider that it was in the public interest to remove the conditions. The previous convictions of the accused consist of the following: • September 2014, breach of s.38 involving a scaffolding pole, and assault to injury using a pool cue; • December 2014, assault to severe injury; • February 2015, breach of a community payback order.

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The accused appealed against the sheriff’s review decision, and in the course of the appeal presented a compatibility minute, averring, in short, that the complainer did not wish the accused to be subject to the special conditions, and that the acts of the Lord Advocate in seeking them, and then objecting to their removal, and of the court in imposing them, and then refusing to recall them, were in breach of the art.8 rights of the accused and of the complainer. [3] After continuation to allow the Crown to consider the compatibility minute and for discussion regarding further procedure, the case came before the bail judge on 10 July. Having heard from counsel for the accused and the advocate depute, the bail judge considered it appropriate to make a reference of the compatibility minute to the High Court of Justiciary in terms of s.288ZB: “[I]n light of the proposition advanced on behalf of the (accused) which is that given the particular facts and circumstances of the situation pertaining to both bail appeals there is no basis on which a refusal to grant variation of the special conditions currently in place would not result in a breach of the art.8 rights of both the (accused) and the complainer.” He thereafter continued the matter to allow a reference to be drafted. When the matter came before a different bail judge, that judge considered that the

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matter should be intimated to the legal representatives of the complainer. The case was again continued for discussion, and on 5 August the reference as adjusted was approved by a third bail judge. The reference states that the parties to the reference are the accused, the Crown and the complainer. [4] The statement of facts narrates that in neither of the original bail hearings did the Crown or the court seek the views of the complainer in person, although the Crown was aware of her views at the outset, and these were taken into account at the time of both requesting the special conditions of bail and opposing their removal. During the review hearing, the sheriff was advised that the complainer was within the court building and able to confirm her views, but her views were provided to the Crown and the court by the legal agent for the accused. Notwithstanding the views of the complainer, the Crown opposed the removal of the said conditions in each case and the sheriff refused each application. [5] In the proceedings on appeal, it was contended that: “(a) [T]he Crown in requesting the additional conditions and subsequently opposing an application for removal of same, and (b) the court, in imposing the said conditions and thereafter in refusing to remove the same were acting in a way incompatible with both the (accused’s) and the complainer’s right to private and family life in terms of art.8 of the European Convention on Human Rights.” [6] Article 8 provides: “Respect to private and family life (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” [7] The nature of the art.8 right which was said to exist was not explained at any stage. The nature of the relationship between the complainer and the accused was not explained. It was stated that the complainer was pregnant with the accused’s child, and that she had two other children, but the circumstances in general surrounding her relationship with the accused were not explained. For example, it was not apparent until the production of the bail review report at a second hearing that they did not cohabit, or that the accused was not the father of her other two children. We are not suggesting that no relationship relevant to art.8 exists, but whether the issue under consideration amounts to a family life or relates to private life, was ultimately unclear. [8] The issues referred to the High Court of Justiciary are identified in the reference as follows: “(a) Is the (accused’s) art.8 right engaged in relation to determining whether a bail condition preventing contact or communication with the complainer should be imposed when bail is granted and, thereafter, in determining whether it should be removed? (b) Is the complainer’s art.8 right engaged in relation to determining whether a bail condition upon the (accused) preventing contact or communication with the complainer should be imposed when bail

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is granted and, thereafter, in determining whether it should be removed? (c) Esto the complainer’s art.8 right is engaged in this process, does the complainer have a right to be heard and to make effective representation to the court in relation to the determination of her art.8 right? (d) Esto the complainer’s art.8 right is engaged in this process, does she have a right to access the court to review its determination? (e) Esto the complainer does have a right to be heard and to make effective representation to the court, does she have the right to legal representation, with such representation being funded by the state if necessary?” Although the terms of the reference identified three parties to it, it was clear that when the original bail judge made the reference it was on the understanding that there would be two parties involved, the Crown and the accused. That is apparent from the terms of the interlocutor of 10 July. A subsequent hearing was intimated to the complainer, but the basis upon which that was done is not made clear, nor is the basis upon which the third bail judge allowed the reference to be finalised in terms which indicate three parties to it, notwithstanding the interlocutor of 10 July. Accordingly, this court was addressed at the outset on the competency of the complainer being represented in the reference. Having heard submissions, we concluded that it would be appropriate to hear the solicitor advocate for the complainer, subject to all questions of competency, not least because the issue of competency was intricately related to the subject-matter of the reference. Submissions for the accused

[9] Senior counsel for the accused had no objection to the complainer being represented in the reference, or elsewhere. [10] He submitted that the art.8 rights of the complainer were “plainly engaged” in the circumstances. There may be many occasions where it would be appropriate to impose bail conditions such as these. Moreover, he recognised that it would not be appropriate for the wishes of the complainer alone to be determinative. A complainer may genuinely have been the victim of domestic abuse but may nevertheless wish to reconcile with the accused for other reasons—family pressure, for example. A balancing exercise must be carried out. In the present case, the Crown appeared to have adopted a blanket policy of seeking to impose conditions such as these in cases of domestic abuse, and to resist review of the conditions in all such cases. It was understandable that the Crown were anxious to deal with domestic abuse and should be applauded for so doing, but a blanket policy should not be applied. At first, counsel submitted that it would not be inappropriate to impose these conditions in all such cases at the outset, but that the problem arose at the review stage, where he understood that despite a complainer’s wishes to the contrary, the Crown would routinely oppose removal of the conditions. However, he later submitted that in fact there would be cases in which it would be inappropriate to impose the conditions even at the outset, there being situations where to keep the accused from the family home may make matters worse, where the situation has stabilised or where the level of offence would never merit a custodial sentence. [11] In the present case, the court had to balance the serious events alleged against the complainer’s wish for him to return when she had two young children and was pregnant by the accused with a third.

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[12] In summary, counsel did not suggest that the legislation was incompatible, either in requiring standard conditions, or allowing special conditions to be imposed. Moreover, where a complainer indicated that she did not want the condition imposed there was nevertheless no incompatibility in saying that was only one factor, and could not be determinative, either at the outset of a bail application or at any review stage. However, the adoption of a blanket policy as referred to above, amounted to an incompatible act, there being no good reason to overcome the wishes of the complainer. [13] When pressed to identify exactly the nature of the incompatibility contended for, counsel said that it was: “[F]or the Crown to insist on special conditions, in circumstances where the art.8 interests of the complainer were not outweighed by countervailing factors, and there was no good reason to seek the imposition of the conditions.” It was argued that if the court were to acknowledge the art.8 rights of the complainer as a relevant factor, but to impose the conditions without carrying out any balancing exercise, it would constitute a breach of a complainer’s rights. [14] The written submissions asserted that art.8 gave rise to both negative and positive obligations, and that a positive obligation arose in the circumstances of this case. Pressed to identify the nature of the obligation, and the precise circumstances which created it, counsel submitted that the court had a positive obligation to protect someone’s art.8 rights, and to ensure that there was no infringement of those rights. Submissions for the complainer

[15] The solicitor advocate for the complainer submitted that the bail judge, in making the reference, had concluded that there was no basis upon which a refusal would not result in a breach of the art.8 rights of both the accused and the complainer. (In fact that is not the case—as will be seen below, the bail judge did not decide any aspect of the matter: he merely referred it under s.288ZB on the basis that this was the tenor of the argument advanced for the accused.) The hearing of 29 July was intimated to the complainer’s representatives, and the solicitor advocate representing her had appeared on two occasions to consider the terms of the draft reference, which was approved on 5 August. From this background, it had been assumed that the court thought it appropriate to give the complainer an opportunity to be represented and to address any unlawful act on the part of the Crown in failing to take into account her position. Her argument was that the Crown had failed properly to take account of or to represent her interests. In a situation such as this, it was inadequate protection of the complainer’s rights for her position to be put before the court either by the Crown, who have a different interest, or the representatives of the accused, who has an interest in conflict, since the Crown intend to cite her to give evidence which they consider will be incriminating of the accused. Reference was made to R (T B) v Combined Court at Stafford. In that case, a complainer whose medical records were being sought was allowed to make representations on the issue. In circumstances such as the present, there should be a mechanism in place formally to allow the complainer’s views independently to be represented to the decision-maker. [16] In terms of r.40.12.1 the court may make such order as it considers just and equitable pending determination of a compatibility issue. That would enable the complainer to be represented during the hearing of a reference

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thereon. In any event, having been included as a party she could not now be excluded for want of competence. In terms of the Human Rights Act 1998, s.7, parties were entitled to bring proceedings or rely on Convention rights in any legal proceedings if he were or would be victim of an unlawful act. When the Crown sought imposition of these conditions, the complainer became the victim of an unlawful act and entitled to rely upon her Convention rights in these proceedings. [17] The complainer’s argument was not that the legislation was incompatible: the incompatibility arose from the way in which the Crown operated the legislation. It was understood that the Crown sought conditions of this kind as a matter of course in domestic abuse cases, adopting a blanket policy of maintaining opposition to their removal. [18] In the case of Gorrie v MacLeod, an argument had been advanced that in imprisoning the accused, the court had failed to give weight to the art.8 rights of the accused’s minor son, whose interests held a primacy of importance. The court noted that current sentencing practice required the court to take account of the effect of sentencing on other family members, including children, but where such a matter was advanced as a mitigatory feature, it remained for the offender to advance any argument predicated upon such a feature, being the person best placed to advise the court thereanaent. It was submitted that Gorrie could be distinguished, because in the present case the accused was an inappropriate person to supply the information. The views of the complainer as to the bail conditions came uniquely from her and she should be represented in order for those views to be furnished. [19] The complainer was only the complainer on one of the complaints, so there was no reason for the condition to be maintained in relation to the other one. [20] The art.8 rights of the complainer were engaged by the process of adding in the additional condition of bail, yet that was done without her position being independently explained, and in circumstances where she was not represented. The result was the imposition of a condition which breached her entitlement to respect for her family life. The actions of the Crown and the court thus constituted acts incompatible with the ECHR.Without a mechanism to enable the complainer’s views to be presented independently the Crown use of s.24 was not Convention compatible. Such an approach accorded with the terms of the Victims and Witnesses (Scotland) Act 2014, s.1 of which provided that in carrying out his functions: “insofar as those functions relate to a person who is or appears to be a victim or witness in relation to a criminal investigation or criminal proceedings”, the Lord Advocate must have regard to the principle that: “insofar as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings”. [21] The absence of a formal mechanism for the complainer to be heard or to place her views independently before the court constituted a breach of her rights. There was a positive obligation on the court to find out the position of the complainer. Submissions for the Crown

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[22] The advocate depute submitted that the complainer had no standing in these proceedings, and that neither the statute nor the Act of Adjournal made

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provision for anyone other than the accused, the Crown and, in certain circumstances, the Advocate General being a party. The genesis of this hearing lay in the interlocutor of 10 July when the bail judge decided to make the reference. Procedure thereafter was not relevant to the question whether the complainer could competently appear in these proceedings. At the time of the reference the parties were the Crown and Ross Porch: it was neither possible nor competent to read the terms of the reference in any other way. Even if r.40.12 could apply as suggested for the complainer, its application depended on an order of the court having been pronounced and there had been none. The rule could not apply by silence or acquiescence. There was no mechanism by which a witness, whether a complainer or not, could become a party to criminal proceedings or have a say in any procedural aspect of the case, including a bail order. [23] The assertion that there was an incompatibility was hard to square with the concession that the legislation was compatible. It was clear from the authorities that a compatibility issue did not arise in isolation, but required to be associated with some remedy in the process. An individual may have interests or rights capable of being breached in the criminal process but that did not necessarily give rise to a compatibility issue, or entitle them to be heard in the criminal process. An incompetence had crept in at an early stage but not when the reference was made at which point there were only two parties. [24] The logical result of the submission was that all family members who might be affected would be entitled to be represented at every stage when bail was considered. It was not fanciful to suggest that the argument could be extended to neighbours, whose own art.8 rights might be affected by the potential consequences of the return of an accused to the family home. [25] The advocate depute suggested that it was in any event rather difficult to discern the nature of the incompatibility being complained of. It was disputed that the Crown adopted an unthinking blanket policy. There was in place a system of legislation and domestic law, acknowledged to be compatible, which included several safeguards to protect not only the rights of an accused but of witnesses. It was difficult to say that any incompatibility came from the acts of the Crown when the final decision was one for the sheriff, who made his decision on the basis of representations from the Crown who had informed themselves of the attitude of the complainer, and advised the sheriff accordingly. It was by no means conclusive what the result should be in such circumstances, since the attitude of the complainer was merely one of several factors to take into account. The domestic law provided amply and on an on-going basis for review and reconsideration of information relating to bail. The arguments advanced for the complainer would apply equally to a complainer who wanted to maintain special conditions to prevent an accused being in contact or residing at her address. There may be some household members who wanted special conditions to be imposed, and others who objected. It was not explained why giving voice independently to a complainer should make any difference to the decision in this case or in general. The court was furnished with all the information it required to make a decision. This included that the allegation was of a domestic nature, that the complainer was eight and a half months pregnant at the time of the alleged assault, that the accused had two recent convictions for assault to injury or severe injury, and that the complainer was a reluctant witness who wanted the condition removed. The public interest in the proper prosecution of domestic matters was also a consideration. The decision was a discretionary one for the sheriff. (C McL v HM Advocate.)

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[26] Almost all offenders would have a private or family life, with the interests of others capable of being affected, but the central question was one of proportionality. The effect on a third party such as a complainer, of a condition of bail, was relevant only as a factor relating to the circumstances of the accused (Gorrie). The special conditions of bail pertained only to the accused and the prosecution against him, it was not competent in that prosecution to assert a breach of the rights of a third party. The remedy of removal of the conditions was one which could be afforded only to an accused person. A compatibility minute did not arise in isolation and had to be related to some procedural process for which a remedy is available (HM Advocate v Collins; Sabiu v Wylie). The criminal justice system did not allow victims or relatives of victims to be direct participants in criminal proceedings (Scottish Criminal Cases Review Commission v Swire and Mosey). If the complainer wished to assert that her rights were infringed that was a separate matter to be dealt with in civil proceedings or by challenging the compatibility of the relevant sections of the 1995 Act under s.7 of the Human Rights Act 1998 (HM Advocate v Collins; Kidd v MacLeod). It could not be said that the decision here amounted to a disproportionate interference with the complainer’s rights. [27] It was well known that domestic violence was a crime which often went on unreported and often for some time before a complaint was made and that a resumption of relations pending prosecution could give rise to an increased risk which was not present in other cases. Care had to be adopted to ensure that as far as practicable those risks were minimised. The particular vulnerability of victims of domestic violence and the need for active state involvement in their protection has been emphasised in a number of international instruments. Member States have been urged to regard all forms of violence within the family as criminal and to put in place the interim measures necessary to protect victims, including prohibiting the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas and to penalise all breaches of the measures imposed upon the perpetrator. Reference was made to Bevacqua and S v Bulgaria and ‘Recommendation of the Council of Europe’, Rec (2002) 5 of 30 April 2002 on the Protection of Women Against Violence. Special conditions of the kind under consideration in the present case were often necessary in cases of domestic abuse to ensure that undue pressure was not placed upon the complainer in relation to on-going proceedings, victims of domestic violence being in a particularly vulnerable position. The special conditions were consistent with the state’s obligations to protect victims of domestic abuse and were necessary and proportionate for the prevention of disorder or crime and for the protection of the rights and freedoms of others. Discussion

5039.indd 64

[28] It will be apparent from the narrative of submissions given above that the argument that the acts of the court gave rise to a compatibility issue was not insisted in by senior counsel for the accused. His formulation of the alleged incompatibility related solely to the actings of the Crown. Although he maintained that it would be a breach of the complainer’s rights were the court to fail to take account of her views at all, or to carry out the appropriate balancing act, it was not suggested that this had occurred in the present case. Indeed, it is apparent that the sheriff carried out an appropriate balancing exercise, and the statement of facts clearly states that the complainer’s views were taken into account both at the original hearing and subsequently when

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2016 S.C.C.R.

Dunn v Porch

their removal was sought. Accordingly, no question of incompatibility arose on the arguments advanced for the accused. The ultimate decision on bail is one for the court, carrying out the careful exercise of balancing all the relevant factors, in which neither the attitude of the Crown nor the views of a complainer will be determinative. Given that the ultimate decision is one for the court, which may or may not be persuaded by the representations from the Crown, it is difficult to see how the attitude of the Crown or the arguments advanced on their behalf could give rise to an incompatibility issue. The conditions were imposed not because of any Crown policy, but because the court considered them to be necessary and appropriate. As far as any rights or interests of the complainer are concerned, the accused has no locus to assert these, in these proceedings or elsewhere. On the arguments for the accused, therefore, we are satisfied that no compatibility issue arises. [29] For the complainer, it was again not disputed that the legislation was compatible. The argument was that the way in which the Crown approached the matter, by use of a blanket policy created an incompatibility. This argument falls to be discarded for the reasons just given. In any event, as noted below, there was no such policy. [30] The Crown’s policy on these matters was explained to us in a letter dated 11 September 2015. When the case is first reported, the police provide information as to the complainer’s views on special conditions of bail. If that has been omitted for some reason, it will usually be checked prior to the first calling of the case. The system is under review to ensure that the information is provided at the time of reporting. When there is a bail review, the police should interview the complainer at home to obtain a full and proper assessment of her situation and views, which are then communicated to the court. It will be rarely that the Crown do not seek special conditions in cases such as these, but the decision whether to seek them, or oppose their removal, is done on a case-by-case basis. In this case, an inquiry was not made for the hearing on 23 June but the information had been obtained previously and had been given to the court, and following the original request for a bail review (which had first been made in May, prior to the adjournment of the trial), in accordance with local practice, a bail review was carried out by a “bail officer” employed by the social services department of Clackmannanshire Council, who submitted a report for the court’s consideration. A lengthy interview was conducted with the complainer who explained that she and the accused had never lived together, and did not intend to do so until after the conclusion of proceedings and on her anticipated move to a new address. [31] The bail officer reported as follows: “([T]he complainer) presents as a vulnerable young woman who is 20 yrs old and although she wishes the special bail conditions to be removed, it was clear throughout the interview that she is in denial about the alleged offence which resulted in (the accused) appearing from custody and I believe she could be at risk if these conditions are removed at this stage. . . .([T]the accused’s) supervising social worker shares my view regarding the removal of the special bail conditions and my consultation with (the childcare social worker) resulted in her also expressing some concern about any change to the special bail conditions.” The conclusion of the report was that: “I do not believe that any change should be made to the special bail conditions which were put in place principally to provide a level of protection for (the complainer) as I consider that she is at risk.”

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Dunn v Porch

2016 S.C.C.R.

The system thus provides for the gathering of detailed information as to the views of a complainer in a case such as this. In addition, experience shows that it is not infrequently that the court is presented with a letter from the complainer, in which she has made her views known to the Crown or the defence. [32] It was further argued for the complainer that the absence of a mechanism to allow her views to be placed “independently” before the court, or to allow her to be represented independently during the bail proceedings, “created an incompatibility”. We agree with the advocate depute that this assertion is hard to reconcile with the concession that the legislation, which makes no provision for the complainer to be heard, is compatible. It was no part of the argument that the imposition of special conditions in circumstances such as the present would not be justifiable in terms of art.8(2). The sole point was that to impose them without giving the complainer a right of audience would somehow itself be in breach of art.8. [33] In any event, we do not agree that the absence of any formal mechanism to place the views of a complainer before the court creates any incompatibility with her Convention rights. The complainer’s views may be a relevant factor in the bail decision which requires to be taken regarding the accused, but the complainer does not thereby obtain any entitlement to seek to vindicate in the criminal process any rights or interest which she may have. A compatibility issue does not arise simply because the art.8 rights of another may be affected by a decision taken in a criminal process not relating to that person. The consequence of this argument is that every complainer, indeed every family member who might be affected by the bail decision, would be entitled to independent representation at every stage of the bail process, and that would be so whether or not he or she contested the imposition of the conditions, which would impose an impossible or disproportionate burden on the system. [34] The fact that the proceedings were intimated to the complainer does not make her a party. It is clear from the interlocutor of 10 July, and the relevant legislation, that the only parties anticipated, or indeed competent, under a reference are the Crown, the defence, and in certain circumstances the Advocate General. The solicitor advocate for the complainer was unable to rely on any statutory provision to support her argument that the complainer was competently a party to the reference. Her attempt to rely on r.40.12.1 cannot succeed since that rule operates only once a reference has been made and the parties determined. Its purpose is largely to preserve the status quo pending resolution of any compatibility issue arising, and as the Crown have pointed out, its operation requires an order of the court in any case. The legislation clearly anticipates that the parties will be those who are entitled to be parties according to our criminal law and procedure. That does not include the complainer. As the Lord Justice Clerk noted in SCCRC v Swire (para.20): “The Scottish criminal justice system does not, at present, allow victims or relatives of victims to be direct participants in criminal proceedings.”

[35] As has already been pointed out, a compatibility minute does not arise in isolation, and must be associated with a remedy available in the proceedings in which it arises. A distinction requires to be made between a person who is entitled to participate in a court process for the purpose of obtaining an order or determination in their favour, and an individual who is not so entitled. This distinction explains the cases of Stafford and K relied upon by the complainer. In the latter case the individual concerned was a party to the proceedings in terms of the legislation, but was being prevented from discharging that

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2016 S.C.C.R.

Dunn v Porch

role effectively. The situation is quite different here, where the individual concerned is not, and cannot be a party to the proceedings in which the order is made. [36] The complainer was unable to identify any authority to suggest that the Scottish practice that victims do not directly participate in criminal proceedings was other than Convention-compatible. It should be remembered that the fact that a victim has no right to participate directly in the criminal process does not mean that there is no method by which information from the victim, or views of a complainer on a matter such as bail conditions, may be conveyed to the court. As already noted, it is commonplace for information about a complainer’s views relating to bail conditions to be placed before the court, and the Crown has developed a policy designed to achieve that. The pressures which can exist in relation to victims of crime, particularly in relation to domestic abuse, are recognised by the Sentencing Guidelines Council for England and Wales in their guidelines entitled “Overarching principles: Domestic Violence”, paras 4.1–4.4 of which were quoted by the [European Court of Human Rights] ECtHR in Wilson v UK [at pp.147–148] and read as follows: “As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim. “There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence: • it is undesirable that a victim should feel a responsibility for the sentence imposed; • there is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender; • the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim.” In a sentencing context, it has been observed that ensuring that the court is kept properly informed of the suffering of a victim does not involve requiring that the victim plays a positive part in the sentencing process. In R v Nunn (referred to in Wilson), the court observed [at p.140]: “We mean no disrespect to the mother and sister of the deceased, but the opinions of the victim, or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence. If the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways leading to improper and unfair disparity, and even in this particular case, as the short judgment has already indicated, the views of the members of the family of the deceased are not absolutely identical.

“If carried to its logical conclusion the process would end up by imposing unfair pressures on the victims of crime or the survivors of a crime resulting in death, to play a part in the sentencing process which many of them would find painful and distasteful. This is very far removed from the court being kept properly informed of the anguish and suffering inflicted on the victims by the crime.” G

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68 A

5039.indd 68

Dunn v Porch

2016 S.C.C.R.

This echoes the approach of the Lord Justice Clerk in Gorrie. [37] The currently applicable bail provisions are to be found in the Criminal Procedure (Scotland) Act 1995. They provide that, save in certain solemn cases, bail is to be granted unless there is a good reason for refusing to do so in the public interest (s.23B). The grounds upon which it may be determined that there is a good reason for refusing bail include the grounds, relevant here, that there is a substantial risk that the individual may commit another offence, interfere with witnesses or otherwise obstruct the course of justice (s.23C(1) (b), (c)). In assessing any of those grounds the court is required to have regard to all relevant considerations, including whether the person was already on bail, and any previous convictions (s.23C(2)). Whenever the court grants or refuses bail, it must state its reasons (s.24(2A)). In granting bail, the court requires to impose certain â&#x20AC;&#x153;standardâ&#x20AC;? conditions. These are specified in s.24(5) and include a condition that the accused does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. It is worth noting that it was not suggested that the imposition of such conditions would be anything other than Convention compliant, being conditions designed to prevent interference with the course of justice. [38] Apart from the standard conditions, the court requires to impose such further conditions as the court considers necessary to secure that the standard conditions are observed. Frequently no additional conditions will be required. In cases of assault where the accused and complainer are known to each other, it may be the case that additional conditions are imposed requiring the accused to refrain from contact with the witness, or to avoid a certain locus. In some cases these conditions may be an unnecessary precaution, but they are usually accepted without demur, and there is seldom any debate as to the extent to which they are necessary to secure the observation of the standard conditions. [39] Cases of domestic violence raise delicate issues in this regard. The issue of violence against women, and in particular domestic violence, has been recognised as a particular problem in our society. Following a pilot in Glasgow in 2004, specialist domestic abuse courts now exist in Edinburgh and Glasgow. [40] The solicitor advocate for the complainer accepted that one of the main problems in domestic violence cases related to victim retraction due to the close and often intimate relationship between the accused and victim. It was also accepted that the reason why special conditions such as these were often added in domestic abuse cases was that the intimate and particular nature of the relationship created an increased risk that the standard conditions may not be obtempered, standing the relationship and the vulnerable position of victims of domestic violence. In many cases, the complainer will be anxious not to have contact with the accused in any way, and may be vulnerable to pressure or influence from the accused were such contact to take place. The imposition of special conditions of the kind which were imposed in the present case may be considered necessary in an attempt to ensure the observance of the standard conditions that the accused should not interfere with witnesses, obstruct the course of justice or commit further offences against the complainer. In circumstances where the complainer has indicated that she does not wish conditions imposed, or where she would rather they were removed, the court has to consider the situation in the context of the obligations in relation to the protection of victims of domestic violence. Victims of domestic violence are of a particular vulnerability and the need for active state involvement in their protection has been emphasised in a number of international instruments, for example those referred to in Opuz v Turkey. The

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2016 S.C.C.R.

Dunn v Porch

steps which should be taken may include ensuring that the public prosecutor can continue a case even in the face of a retraction by the alleged victim (see Wilson v UK para.49). In the case of Criminal Proceedings v Gueye, to which this court drew counsel’s attention, the ECtHR considered that the duty to enable victims properly to take part in criminal proceedings did not preclude a mandatory injunction in domestic violence cases preventing the accused from being in contact with the complainer for a specified period of time, even when the complainer sought a reconciliation. [41] In all the circumstances we do not consider that there is merit in the submissions for either the accused or the complainer. There is no basis for considering, under either domestic law or European jurisprudence, that it is necessary to grant a right of audience to a complainer in the circumstances of a case such as the present. We shall accordingly answer the questions in the reference (set out in para.8 above) as follows: (a) We proceed on the basis that the accused has art.8 rights which are sufficiently engaged, but in our view they have not been infringed. For the reasons given above, we consider that the procedures which exist in relation to bail applications of this kind are Convention compliant. (b) We proceed on the basis that the complainer also has art.8 rights which are sufficiently engaged, but in our view they have not been infringed. For the reasons given above, we consider that the procedures which exist in relation to bail applications of this kind are Convention compliant. (c) For the reasons given in this opinion, we consider that the complainer has no right to be represented in court or to address the court in the circumstances desiderated.That does not mean that there is no mechanism for drawing her views to the attention of the court. (d) No, for the reasons given in this opinion. (e) No, for the reasons given in this opinion. [42] A further matter of procedure arises. In making this reference, the bail judge appears to have heard no significant debate, and does not appear to have considered determining the matter himself, deciding simply to refer the matter “in light of the proposition advanced”. The legislation provides that a court, other than a court consisting of two or more judges of the High Court, may, instead of determining a compatibility issue, refer in terms of s.288ZB, but in doing so the court must: “give its reasons for making the reference and cause those reasons to be recorded in the record or minute of proceedings”. We accept that in a case such as this, the bail judge may be placed in a position of some difficulty, as the time allotted for bail appeals cannot usually accommodate a debate of any length or complexity. In such circumstances it may be preferable to continue the case to a further hearing so that a full debate may take place. As the court observed in the case of O’Leary v HM Advocate (para.26): “Finally, it is somewhat unusual for a judge of the High Court to refer a case to a bench of three without at least providing his own analysis of the problem and proposing a solution. The removal of a case from first instance proceedings to appellate level is of course competent, where a compatibility issue is raised (1995 Act, s.288ZB). However, other than in quite exceptional cases, the court expects judges at the level of the High Court to be able to address a compatibility issue properly raised and to determine it within the first instance process, leaving the normal appellate courses open in the event that either party wishes to challenge the actual decision reached.”

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70 A

Dunn v Porch

2016 S.C.C.R.

COMMENTARY The remark in para.28 that given that the decision was one for the court it was difficult to see how the attitude of the Crown could raise a compatibility issue is reminiscent of the decisions in HM Advocate v Robb, 1999 S.C.C.R. 971; 2000 J.C. 127 and HM Advocate v Campbell, 1999 S.C.C.R. 980 on whether asking the court to do something is an act of the Lord Advocate for the purposes of Human Rights cases, and follows the decision in Monterosso v HM Advocate, 2000 S.C.C.R. 974 that the Lord Advocate was not â&#x20AC;&#x153;actingâ&#x20AC;? in breach of ECHR merely by contending that a bail application was incompetent, the decision being one for the court. All that, however, ceased to be important once the Human Rights Act 1998 came into force and the court as well as the Crown was required to act only in ways compatible with ECHR.

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A Appeal Against Conviction

26 November 2015

ARCHIBALD PALMER

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 126 Evidence—Rape—Corroboration—Traces of accused’s semen in-mixed with complainer’s DNA found on bedcover—Evidence that DNA could have come from complainer’s vagina—Whether complainer’s evidence of penetration during rape on bed corroborated Rape—Evidence—Traces of accused’s semen in-mixed with complainer’s DNA found on bedcover—Evidence that DNA could have come from complainer’s vagina—Whether complainer’s evidence of penetration during rape on bed corroborated The appellant was charged with raping the complainer, the daughter of his partner who lived with him and the complainer. The rape happened on the complainer’s bed. The complainer had left the house immediately afterwards and had not returned to it. About two months later, after the complainer’s mother and her partner had also left the house, the complainer’s bedroom was searched by the police who found a duvet on the bed underneath another duvet and a bedspread. The complainer said in evidence initially that she did not think the duvet had been on her bed at the time of the incident but thereafter accepted that it had been. A forensic scientist identified semen traces with DNA matching the appellant’s profile on the duvet in a sample containing a mixed profile of three people, the two major contributors being the complainer and the appellant, and gave evidence that one possible explanation for her findings was that sexual activity had taken place as alleged by the complainer. The appellant was convicted and appealed on the ground that the complainer’s evidence was not corroborated. Held (1) that the jury could infer from the finding of the duvet cover by the police that it had been on the complainer’s bed at the time of the incident (para.10); and (2) that the finding of the appellant’s semen, in-mixed with the DNA of the complainer, was indicative that there had been sexual activity involving ejaculation by the appellant on that bed, which provided sufficient support or confirmation of the complainer’s evidence that penetration had taken place (para.11); and appeal refused. HM Advocate v Donaghy, Glasgow High Court, 23 May 2014, unreported, distinguished.

Cases referred to in the opinion of the court: Fox v HM Advocate, 1998 S.C.C.R. 115; 1998 J.C. 94; 1998 S.L.T. 335 HM Advocate v Donaghy, Glasgow High Court, 23 May 2014, unreported Munro v HM Advocate [2014] HCJAC 40; 2015 J.C. 1. Archibald Palmer was convicted of the charge referred to in the opinion of the court on 11 February 2015 after trial in the High Court at Glasgow before

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72 A

Palmer v HM Advocate

2016 S.C.C.R.

Judge Beckett and a jury and appealed to the High Court against conviction on the grounds referred to in the opinion of the court. The appeal was heard on 26 November 2015 by the Lord Justice Clerk (Carloway), Lady Smith and Lord Bracadale. For the appellant: McElroy, instructed by Paterson Bell, Solicitors, Edinburgh. For the respondent: Edwards AD.

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On 26 November 2016 the appeal was refused. The Lord Justice Clerk subsequently delivered the following opinion of the court. LORD JUSTICE CLERK [1] On 11 February 2015, at the High Court in Glasgow, the appellant was convicted of the rape of the 14-year-old daughter of his then partner, with whom he had lived for many years. On 9 March 2015, he was sentenced to six and a half years’ imprisonment. [2] The allegation was that, between 1 May and 7 June 2013, the appellant had entered the complainer’s bedroom, forcibly removed her clothes, held her down on her bed and vaginally raped her. According to the complainer, the act of intercourse had lasted for some time, although she could not say whether the appellant had ejaculated. After the incident, she had locked herself in the bathroom, and then gone to the flat of a neighbour. She had been upset and crying, but had told her neighbour that that was because she had found out that her parents had been taking drugs. The complainer did not return to live at the flat, but stayed with the neighbour for a period of two or three weeks before being placed into foster care. [3] On 19 August 2013, some time after the appellant and the complainer’s mother had also left the property, it was searched by the police. Photographs of the complainer’s bedroom were taken and a duvet cover was recovered from the single bed. The bed had had multiple layers of bedclothes. The duvet cover had been underneath another duvet cover and a bedspread. The complainer testified initially that she did not think that the first duvet cover had been on her bed at the time of the incident, but thereafter accepted that it possibly had been. She did identify other items of bedding shown in the photographs as having been on the bed. [4] A forensic scientist identified semen traces with DNA matching the profile of the appellant on the duvet cover. The sample contained a mixed profile with the DNA of three people, but the two major contributors were the complainer and the appellant. The scientist was not able to say that the cells containing the complainer’s DNA had come from the complainer’s vagina. That was one possibility, since they were likely to have come from either her skin or her vagina. The conclusion in the forensic scientist’s report, which was spoken to during the course of the trial, was that one possible explanation for her scientific findings was that sexual activity had taken place as alleged by the complainer. [5] The appellant gave evidence that he had continued to live in the flat for some weeks after the date of the incident. He stated that, on a number of occasions, he and the complainer’s mother had had sexual intercourse on the duvet cover, which would account for his semen being found upon it. It was, he said, a spare cover which was quite often in the living room where he and his partner sometimes had intercourse. He had not put the cover onto the complainer’s bed. He was unable to say how it had come to be there. It must have been put there by his partner. Under cross-examination, he accepted that

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2016 S.C.C.R.

Palmer v HM Advocate

he viewed the complainer’s room as “sacred”; the implication being that he did not normally go into it, although he might have done so on occasion to give the complainer a telling off. [6] The ground of appeal is that the trial judge erred in failing to sustain the submission that there was insufficient evidence. First, the evidence about whether the duvet cover had been on the bed at the relevant time had been equivocal. The forensic scientist could not say where the DNA from the complainer had come from. The scientific evidence had been insufficient to corroborate the testimony of the complainer that penetration had occurred. [7] Secondly, it was accepted that the test to be applied was that in Munro v HM Advocate, but the appellant relied also on HM Advocate v Donaghy, in which the Crown had similarly relied on forensic evidence recovered from a duvet within a house. In that case, there was a mixed profile involving the DNA of the accused and the complainer, but Lord Turnbull had determined that the evidence had been insufficient. [8] In reply, the advocate depute submitted that there was sufficient evidence from which it could be inferred that the duvet cover had been on the complainer’s bed at the material time. Given the association of the emission of semen with the act of sexual intercourse, it was sufficient corroboration of the complainer’s account of penetration. The circumstances in Donaghy v HM Advocate could be distinguished. [9] The complainer testified that she had been raped by the appellant on a bed in her own bedroom. She had left the house that day and never returned. Some weeks later a duvet cover was recovered from the bed, on which the appellant’s semen was found mixed with the DNA of the complainer, probably from her vagina or skin. [10] There was sufficient evidence from which the jury could infer that the duvet cover had been on the complainer’s bed at the time when the incident was alleged to have occurred. That inference could be drawn from the finding of the cover there at the time of the search. The remaining question is whether there was sufficient corroboration of the complainer’s account of sexual intercourse. A piece of evidence is corroborative of testimony of a fact in issue if it can be said to support or confirm that testimony (Munro v HM Advocate, Lord Carloway at para.7 following Fox v HM Advocate, LJG (Rodger) at p.126, Lord Gill at pp.148–149). The corroborating piece of evidence does not, of itself, have to point exclusively to the fact in issue. Each case will depend upon its own facts and circumstances. This case is distinguishable from Donaghy v HM Advocate in respect that in Donaghy there was no evidence about which of the four beds in the house the duvet had been recovered from. The recovery post-dated the alleged incident by at least four years and it was made in a different house in a different town from that in which the complainer alleged that intercourse had taken place. The complainer’s evidence in Donaghy had been that no such cover had been on the bed at the time of the incident. [11] Here matters are significantly different. There is evidence that the duvet cover had been on the complainer’s bed at the material time. The finding of the appellant’s semen, in-mixed with the DNA of the complainer, was indicative that there had been sexual activity involving ejaculation by the appellant on that bed. That provided sufficient support or confirmation of the complainer’s evidence that penetration had taken place. [12] In these circumstances, the appeal must be refused.

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A Appeal Against Sentence

26 November 2015

HER MAJESTY’S ADVOCATE

Appellant

against SSK B

Respondent [2015] HCJAC 114

Sentence—Rape—Whether prior relationship with complainers relevant—Whether two years’ imprisonment unduly lenient Sentence—Lewd and libidinous conduct including attempted sodomy against boy of ten—No long-term adverse effect on complainer— Whether three years imprisonment unduly lenient C Sentence—Rape—Observations on appropriate sentences Sentence—Extended sentence—Accused aged 44—Whether extended period of two years sufficient

The respondent was convicted of using lewd practices, including penile oral penetration (charge (1)), and indecent assault in the form of attempted sodomy (charge (2)) both against his wife’s nine–ten-year-old son, and of lewd practices, including digital vaginal penetration towards his mistress’s 12–14-year-old daughter (charge (7)) to both of whom he was in a relation of trust. He was also convicted of the anal rape of his wife on one occasion (charge (19)) and of assaulting amounting to what would now be anal rape and also of anal rape of his mistress (charges (13), (15) and (18)). Evidence was led in the course of the trial of the participation of the appellant and the adult complainers in ‘swinging’ parties. The trial judge imposed concurrent sentences of imprisonment amounting to three years on charges (1), (2) and (7), and to two years concurrent on charges (13), (15) (18) and (19), but consecutive to the sentences on charges (1), (2) and (7), the total sentence being an extended sentence of seven years with a custodial element of five years, the extended period being referable to charges (13), (15) and (18), and the Crown appealed to the High Court against the sentences as unduly lenient. In his report to the High Court the trial judge referred to his impression of the effect of the offences on the children as less than was common, and expressed concern about the negative impact a severe sentence might have on them. He described the other offences as essentially non-violent. Held (1)(i) that charges (1) and (2) included repeated oral penetration and attempted sodomy of a boy over whom the respondent was in a position of trust, a matter which does not require a separate libel, over a considerable period and that this degree of sexual abuse is rightly regarded as particularly serious, even if the child has coped with it in later years in a manner which might not have been anticipated (para.24, pp.80–81); and (ii) that charge (3) although more limited was still serious and significant, particularly when seen in light of charges (1) and (2), and could be seen as a course of conduct which could have been disposed of by a cumulative penalty, and that in the modern era, even for an offender with no analogous previous convictions, a custodial sentence of at least four years would be appropriate for such lewd practices (para.24, p.81B); 74

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2016 S.C.C.R.

HM Advocate v SSK

(2) that culpability may be diminished in rape cases where there has been consensual sexual activity immediately prior to the offending, but that a complainer’s general sexual experience prior to being raped should not be regarded as a significant factor in gauging culpability, that there is no separate regime for sexual violation of a spouse or partner or those who have previously been in a relationship, that the existence of a continuing relationship may bear upon sentence insofar as it may (or may not) indicate the impact on the victim, but that, given the status of crime as a public wrong, the victim’s view, even if regarded as genuine, normally cannot overwhelm the outcome (para.26); (3) that the trial judge had afforded too much weight to the past sexual experience of the complainers and to the existence of both prior and continuing sexual relationships, that had the offences in charges (13), (15), (18) and (19) stood alone a sentence in the region of six years might have been regarded as appropriate, but that, since it was appropriate that these offences should attract a consecutive sentence to that for the offences against the children, regard must be had to their cumulative effect, and that a consecutive period of four years was appropriate to produce an overall custodial element of eight years (para.27); and (4) that an extended sentence was appropriate, but that as the appellant was only 44 and would be eligible for parole in advance of his 50th birthday, the period of supervision should be considerably longer than that considered appropriate by the trial judge (para.28); and appeal allowed, sentences quashed, and extended sentence of 12 years with a custodial element of four years substituted. Dicta in Queen v A M, [2010] 2 N.Z.L.R. 50 adopted.

Cases referred to in the opinion of the court: Adams v HM Advocate, 2000 G.W.D. 29–1137 Carter v HM Advocate, 1997 G.W.D. 28–1425 Geddes v HM Advocate [2015] HCJAC 43; 2015 S.C.C.R. 230; 2015 S.L.T. 415 Gill v Thomson [2010] HCJAC 99; 2010 S.C.C.R. 922; 2012 J.C. 137 HM Advocate v AB [2015] HCJAC 106; 2015 G.W.D. 38–609 HM Advocate v Bell, 1995 S.C.C.R. 244; 1995 S.L.T. 350 HM Advocate v Briody, 2000 G.W.D. 29–1138 HM Advocate v Carpenter, 1998 S.C.C.R. 706; 1998 S.L.T. 1273 HM Advocate v Cooperwhite [2013] HCJAC 88; 2013 S.C.C.R. 461; 2013 S.L.T. 975 HM Advocate v Graham [2010] HCJAC 50; 2010 S.C.C.R. 641, 2011 J.C. 1; 2010 S.L.T. 715 HM Advocate v McManus [2010] HCJAC 3; 2010 J.C. 84 HM Advocate v Malley, 2005 G.W.D. 12–207 HM Advocate v Ross, 1996 S.C.C.R. 107; 1996 S.L.T. 729 HM Advocate v Roulston [2005] HCJAC 12; 2005 S.C.C.R. 193; 2006 J.C. 1 Kelly v HM Advocate, 1998 G.W.D. 18–922 McGovaney v HM Advocate, 2002 S.C.C.R. 762 Milligan v HM Advocate [2015] HCJAC 84; 2015 G.W.D. 32–529 Murphy v HM Advocate, 2001 G.W.D. 25–958 Petrie v HM Advocate [2011] HCJAC 1; 2011 S.C.C.R. 140; 2012 J.C. 1 Queen v A M [2010] 2 N.Z.L.R. 750 R v Milberry [2002] EWCA Crim 2891; [2003] 1 W.L.R. 546; [2003] 2 All E.R. 939 Ramage v HM Advocate, 1999 S.C.C.R. 592 SS v HM Advocate [2015] HCJAC 63; 2015 S.L.T. 531 Stallard v HM Advocate, 1989 S.C.C.R. 248; 1989 S.L.T. 469.

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S S K was convicted of lewd practices, indecent assault and rape, as described in the opinion of the court, after trial on 6 May 2015 after trial in the High Court at Glasgow before Lord ??? and a jury and was sentenced as set out in the opinion of the court. The Crown appealed to the High Court against the sentence as unduly lenient on the grounds referred to in the opinion of the court. The appeal was heard on 9 October 2015 by the Lord Justice Clerk (Carloway), Lord Bracadale and Lord Matthews. For the appellant: Niven-Smith AD. For the respondent: A Ogg, Solicitor advocate, instructed by J C Hughes & Co, Solicitors, Glasgow. On 26 November 2015 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK

General

[1] On 6 May 2015, at the High Court in Glasgow, the respondent was found guilty of seven charges involving sexual offences against two of his former partners and their children. The first (charge (1)) was one of using lewd practices on various occasions against Ad M, a boy aged between nine and ten, in 2007–08, including handling the boy’s penis, attempting digital penetration of his anus, compelling the boy to masturbate him and oral penetration of the boy with his penis. The second (charge (2)) was indecent assault, again on various occasions during the same time period, against the boy in the form of attempted sodomy. The third (charge (7)) was using lewd practices on various occasions against T D, a girl aged between 12 and 14, in 2008–10, including digital vaginal penetration, contrary to s.6 of the Criminal Law (Consolidation) (Scotland) Act 1995. In relation to the adult complainers, the fourth and fifth (charges (13) and (15)) were libels of indecent assault against C D in 2008–10 in the form, first, of one incident of continued penile penetration of the anus after the withdrawal of consent and, secondly, of penile penetration of the anus on various occasions. The sixth (charge (18)) involved anal rape of C D on various occasions from 2010 to 2013, contrary to s.1 of the Sexual Offences (Scotland) Act 2009. The seventh (charge (19)) was the anal rape of A M, his wife, on one occasion in 2013, contrary to the same statutory provision. [2] The trial judge imposed what ultimately amounted to an extended sentence of seven years, with a custodial element of five years’ imprisonment. This was made up from separate custodial periods for each charge, viz: charge (1), two years; charge (2), three years concurrent; charge (7), 18 months concurrent; charges (13), (15) and (18), two years consecutive; and charge (19), one year concurrent with that on charges (13), (15) and (18). The extended element related only to charges (13), (15) and (18). The trial judge explains that, had he been sentencing on charges (13), (15) and (18) separately, he would have selected periods of one, two and two years concurrent. Facts

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[3] From 2006, the respondent was in a relationship with A M, who had two children, including Ad M. He lived with A M periodically in 2007 and 2008 and they had a child together. Towards the end of 2008 all of the children became the subject of child protection orders. Shortly after that, the respondent

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and A M were married. Meantime, from 2009, the respondent had developed a relationship with C D, whom he described as his mistress. She had a daughter T D. The respondent stayed initially with C D overnight only occasionally, but came to live with her on a more frequent basis from 2011. [4] Following the grant of an application under s.275 of the Criminal Procedure (Scotland) Act 1995, evidence was led of the participation of the respondent and both adult complainers, who did not know each other, in the “swinging” (partner swapping) scene in Glasgow and Paisley. There was evidence about the sexual promiscuity indulged in at swinging parties and the publication of many photographs of this conduct on social networking media. [5] The respondent and A M had sex with various people at these parties. The judge refers to A M as a person who “acknowledged few if any sexual boundaries”. He quotes from her testimony about her sexual exploits, which provoked periodic “incredulous mirth” amongst the jurors. The respondent and A M had consensual anal sex at home. However, on one occasion, shortly before they separated, the respondent had returned home and told A M that he was going to have anal sex with her. She had refused to participate, but he had then done so forcibly. The trial judge describes the degree of force as “not great”. The libel included injury, but the judge was not clear on whether there was evidence of this. This rape was not reported to the police at the time. The judge classified the level of criminality and level of harm suffered as “minor”, involving only “a transient sense of violation”. He considered rape to be a species of aggravated assault and that this incident equated with an assault to injury which might have been prosecuted at summary level. [6] A M described the events libelled in charges (1) and (2) as occurring “loads of times” in his home when he was aged only nine or ten. [7] The respondent had met C D through an internet dating agency. The trial judge describes her as “sexually confident” in relation to her involvement in the swinging scene. C D described an occasion when she had, at the respondent’s request, agreed to try anal sex for the first time. This had been on the basis that they would stop if it were painful. It was painful, but the respondent had not stopped when asked to do so. He had had anal sex with her on three or four occasions without her agreement. None of the anal rapes were reported to the police at the time. They would not have been reported but for the police inquiries. Under reference to Stallard v HM Advocate (LJG (Emslie) at p.255), the judge refers to C D “condoning” or “acquiescing in” the rapes. He refers to C D freely choosing to continue to live with the respondent after the rapes had occurred. This he regarded as such “powerful mitigation” that he might have considered an admonition as an option, had the convictions involving C D stood alone. [8] T D spoke to being sexually pestered by the respondent in her bedroom on frequent occasions, when she was about 13, and being digitally penetrated by him when she was 15. There were only two episodes involving physical contact.

Sentence

[9] The respondent was aged 44 at the time of sentence. In terms of the criminal justice social work report [CJSWR], he was assessed as at medium risk of re-offending. He had continued to deny any sexual involvement with the children. His own childhood had involved sexual abuse. [10] The trial judge acknowledges that the custodial element of the sentence which he imposed was “unlikely to be regarded as excessive”. However, he states in relation to the children that he had regard to his:

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“impression of the effect of the offending on (the children) and of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved”. The trial judge had been impressed by both children. Ad M had forgotten his experiences, until the investigation had awakened his memories. The judge did not regard T D as vulnerable, but rather “robust and knowing”. He therefore attached little weight to her impact statement (not produced in the appeal). He had discounted any element of breach of trust (as distinct from power) in relation to the children as no such aggravation was libelled. A libel that Ad M had been the respondent’s stepson had correctly been deleted. [11] In relation to the adult complainers, the main thrust of the plea in mitigation was the impact of the offences against the background of general sexual promiscuity. The judge describes the offences as “essentially nonviolent relationship rapes”. He reports that juries do not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences are disproportionate. In this context, he challenges the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped, then subject to: (a) the investigative process; (b) the wait for trial; (c) the cross-examination; (d) a possible acquittal; and (e) a return to the community with the stigma of having been disbelieved. The judge points to the spectrum of seriousness in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline (infra). He asks whether there is a lower custodial limit for rape sentences. He speculates that, but for the existence of two adult complainers and the libel of anal (as distinct from vaginal) penetration, no convictions would have followed. However, whilst considering that the rapes were “at the lower end of the seriousness scale” he reports that he did not regard the respondent’s relationships with the complainers as mitigatory per se. [12] The trial judge considered that the sentence was proportionate overall, in the sense of being “no more than is necessary”. He had originally considered that either a custodial or an extended term of eight years might possibly have been appropriate, but had revised his view in light of the mitigation. The judge had regarded the respondent, who had not given evidence, as a “coward and a bully”, eking out “a benefit-grubbing existence. . .sponging off women”. He did not regard him as representing a risk to the general public, as distinct from a class of vulnerable women and their children. The period of custody selected would suffice as a deterrent and the risk posed by the respondent would be managed during the years of supervision. Note of appeal and submissions Appellant

[13] The note of appeal contends that the overall sentence imposed fails to give adequate weight to the gravity of the crimes, the extended period over which they took place and the effect on the complainers. The crimes against the children had been committed when the respondent had been in a position of trust and in their own homes. They had involved force and threats. [14] Had the Definitive Guideline on Sexual Offences applicable in England and Wales been applied, a much higher sentence would have been imposed. The anal rapes would have had a sentencing range of four to seven years each, with a starting-point of five years’ imprisonment. The trial judge had had

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HM Advocate v SSK

regard to the fact that the respondent had been in an ongoing relationship with the adult complainers. The mitigatory impact of that circumstance had been judicially doubted (HM Advocate v Cooperwhite at paras 17 et seq). In South Africa, it was provided by statute that a prior relationship between the offender and the victim did not constitute a “substantial and compelling ‘circumstance’ justifying the imposition of a lesser sentence”. (Criminal Law Amendment Act 105 of 1997, s.51(3)(aA)). In New Zealand, “culpability is not reduced by any sense of entitlement associated with a current or previous relationship” (The Queen v A M at para.61). The Definitive Guideline did not list an ongoing relationship as a mitigatory factor. However, culpability would have been diminished where there had been consensual sexual activity immediately prior to the offending (paras 54 and 55). The selection of two years as a custodial element for offences, all of which would now be classified as rape, was derisory. The Crown did not, however, consider that guidelines were appropriate in this case, given the interaction of the adult complainer with those involving children. [15] The conduct in relation to both children took place when the respondent had been in a relationship with their mothers. He had been in a position of trust. The oral penetration involving the boy would now be libelled as rape. It would have attracted a sentencing range of eight to 13 years, with a starting-point of ten years in England and Wales. The offending relative to the girl would have had a range of four to ten years, with a starting-point of five years. In both cases, it was not necessary to libel a position of trust. It was sufficient that one had been proved. It was an aggravating factor (see eg, Definitive Guideline p.39; The Queen v A M at para.50). The judge had had no basis for his theories about feelings of guilt in abused children or for reducing any sentence on account of his impression of the robustness of the children. [16] The appellant’s written submission made reference to sentences in other Commonwealth jurisdictions, notably Canada, South Africa and New Zealand. In each, the offences would have attracted much lengthier custodial terms. [17] The CJSWR had not been positive. It stated that the respondent had no insight into his offending or its consequences. There was no acceptance of responsibility or remorse. The respondent was assessed as presenting a serious risk of harm, notably sexual violence, to any women, with whom he formed an intimate relationship, and their children. He had been formally assessed as at medium risk of re-conviction for a sexual offence, although the author of the CJSWR thought that this was an underestimate.

Respondent

[18] The respondent stressed that the trial judge had heard all the evidence and had been best placed to make an appropriate assessment. In that light, the sentence had not fallen outwith the range of reasonable disposals (HM Advocate v Bell; HM Advocate v Ross; and HM Advocate v Carpenter). [19] The material from outwith Scotland should not be taken into account. Although guidelines from England might be looked at in the case of offences defined in a UK statute, they should otherwise be treated with care because of divergent sentencing powers and practices (Gill v Thomson at para.20). They should not be applied in a mechanistic fashion (Geddes v HM Advocate; Milligan v HM Advocate). They should not be used where the offence in Scotland was at common law and that in England was under statute (S S v HM Advocate at para.46; HM Advocate v McManus at para.15). Even when both jurisdictions’ offences involve similar statutory provisions, care was

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required (HM Advocate v Roulston at para.17; HM Advocate v Graham at para.24). It was evident from the Definitive Guideline that the English approach to sexual offences such as rape was relatively rigid and inflexible. [20] Although statute had re-categorised non-consensual oral and anal penetration as rape, the court had always treated these offences as serious (eg, for sodomy: Murphy v HM Advocate; Morison, Sentencing Practice; Kelly v HM Advocate; McGovaney v HM Advocate; cf. Carter v HM Advocate; and for oral penetration: HM Advocate v Ross; Adams v HM Advocate). The redefinition of rape had not changed anything and no alternative to the pre-existing approach to sentencing was required. It was evident that Scottish sentencing practice in relation to rape involved a flexible approach. Sentences varied from three and a half years to life imprisonment (Morison, ch N19). In certain circumstances a non-custodial sentence could be imposed. [21] The sentences selected had not been unduly lenient. The trial judge had noted that the offending against Ad M had involved no actual anal penetration and those against T D had involved no penile penetration at all. It had been a matter for the judge to assess the impact on the victims. The offences involving the adult complainers had to be considered against their extraordinary background. In relation to C D, any force had been minimal. She would not have reported the incident to the police. Her relationship with the respondent had continued. The existence of a relationship both before and after the offences was relevant and significant. It was indicative of the level of distress. The occurrence of consensual sex before an offence was also a factor to be taken into account. The respondent had no previous convictions and posed only a medium risk of future harm. Decision

[22] In his report, the trial judge has made a number of observations about the sentencing of sexual offences involving both children and adults. Some of these may be regarded as controversial. For example, there is his equiparation of rape to an aggravated assault. Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a personâ&#x20AC;&#x2122;s sexual integrity. It has, in that context, a separate sentencing regime. In relation to the children, the judge expresses a concern about the negative impact a severe sentence might have on them, having regard to other cases in which such an impact may have occurred. There is no basis for such speculation in this case, where the impression, which the judge was certainly entitled to hold, was of relatively robust teenagers getting on with their lives. [23] The trial judge has also made some pithy remarks about prosecution policy, jury reaction and related matters. It may be that others may share some of his thoughts, but many will undoubtedly not. The short point is that, whatever a judgeâ&#x20AC;&#x2122;s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice. He is entitled to have regard to sentencing guidelines in other jurisdictions, especially in neighbouring countries such as England and Wales. However, such comparators must not be applied too rigidly (HM Advocate v A B, LJC (Carloway) at para.13). [24] In relation to the conduct libelled in charges (1) and (2), this included the repeated oral penetration and attempted sodomy of a nine- or ten-year-old boy over whom the respondent was in a position of trust; a matter which does not constitute a formal aggravation of the offence requiring a separate libel.

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2016 S.C.C.R.

HM Advocate v SSK

The behaviour went on for a considerable period of time. This degree of sexual abuse committed against a child of this age is rightly regarded as particularly serious. That is so even if, as may be the position here, the child has coped with it in later years in a manner which might not otherwise have been anticipated. Although the conduct in relation to the girl T D was more limited, it was still serious and significant, particularly when seen in light of the offending against the boy. The offences against the children can be seen as a course of conduct which could (but need not) have been disposed of by a cumulative penalty. In the modern era, even for an offender with no analogous previous convictions, a custodial sentence of at least four years would be appropriate for such lewd practices (see eg, HM Advocate v Malley; HM Advocate v Briody). [25] In relation to the rapes of the adult complainers, the obiter dictum in HM Advocate v Cooperwhite at para.17 was intended to call into question the thinking in Ramage v HM Advocate at p.594; and Petrie v HM Advocate at para.7 to the effect that the existence of a prior relationship between offender and victim was per se a mitigatory factor. The thinking included a comparison of so-called “stranger” rapes with those occurring in a domestic context. Although regard might be had to the fact that a rape in the context of a relationship included a breach of trust, a sexual past was, it was said, still regarded as a matter to which substantial weight required to be attached. In Coopewhite at para.21 the court drew attention to the contrary approach to “relationship rape” in England and Wales, notably the terms of the Sexual Offences Act 2003 – Definitive Guideline (2007) replacing the guidelines in R v Milberry but establishing a general principle that the same starting-point should be selected for “relationship” or “acquaintance rape” as for “stranger rape”. [26] It is at least clear that in England and Wales, the simplified new Definitive Guideline (April 2014) does not consider the existence of a previous relationship as either a mitigatory or an aggravating factor. In Queen v A M the New Zealand Court of Appeal provides some helpful comment from another jurisdiction. This is that, first, depending on the circumstances, culpability may be diminished where there had been consensual sexual activity immediately prior to the offending (see paras 54–60). This makes it clear that a complainer’s general sexual experience prior to being raped should not be regarded as a significant factor in gauging culpability. Secondly, culpability is not reduced by “any sense of entitlement associated with a current or previous relationship . . . There is no separate regime for sexual violation of a spouse or partner or those who have previously been in a relationship” (para.61). That is not to say that the existence of a continuing relationship is irrelevant. It may bear upon sentence insofar as it may (or may not) indicate the impact on the victim. However, given the status of crime as a public wrong, the victim’s view, even if regarded as genuine, “normally cannot overwhelm the outcome” (para.64). [27] The court finds the general reasoning of the New Zealand Court of Appeal in this area as generally persuasive and reflective of modern thinking. It follows that it considers that the trial judge has afforded too much weight to the past sexual experience of the complainers and to the existence of both prior and continuing sexual relationships. Had the offences in charges (13), (15), (18) and (19) stood alone, a sentence in the region of six years might have been regarded as appropriate (see eg, HM Advocate v Cooperwhite at para.15). However, since it is appropriate that these offences should attract a consecutive sentence to that imposed for the lewd conduct against the children, regard must be had to their cumulative effect. In such circumstances, a

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consecutive period of four years is appropriate, to produce an overall custodial element of eight years. [28] The court agrees that an extended sentence was appropriate, given that the respondent clearly poses a threat of serious harm to the public (notably women with young children). However, the respondent is only 44. He will be eligible for parole in advance of his 50th birthday. In such circumstances, the period of supervision should be significantly longer than that considered appropriate by the trial judge. The court will select a period of four years to produce an extended sentence of 12 years. The appeal is accordingly allowed.

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A Application for Suspension of Disqualification DAVID MACKAY

1 December 2015 Appellant

against LIAM MURPHY (Procurator Fiscal, Inverness)

Respondent

[2015] SAC 2 Appeal—Sheriff Appeal Court—Leave to appeal refused—Whether appeal to High Court against refusal of leave to appeal to Sheriff Appeal Court competent—Criminal Procedure (Scotland) Act 1995 (c.46), s.194ZB—Courts Reform (Scotland) (asp.18), s.119—Act of Adjournal 1996 (SI 1996/513), Form 19E.1-B—Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (No.4) (Sheriff Appeal Court) (SSI 2015/295) Road traffic—Sentencing—Disqualification—Suspension of disqualification—Whether competent to seek suspension of driving licence from Sheriff Appeal Court pending appeal to High Court from refusal of leave to appeal to Sheriff Appeal Court—Criminal Procedure (Scotland) Act 1995 (c.46)—Road Traffic Offenders Act 1988 (c.53). ss.39, 41—Courts Reform (Scotland) Act 2014 (Consequential Provisions No.2) Order 2015 (SSI 2015/338)—Act of Adjournal 1996 (SI 1996/513), Rule 19E, Form 19E.1-B—Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (No.4) (Sheriff Appeal Court) (SSI 2015/295) Section 39 of the Road Traffic Offenders Act 1988 provides that a court which has disqualified a driver under the Act may suspend that disqualification pending appeal, and s.41 of that Act, as amended by the Courts Reform (Scotland) Act 2014 (Consequential Provisions No.2) Order 2015 (SSI 2015/338), empowers the appeal court to do likewise. Section 194ZB of the Criminal Procedure (Scotland) Act 1995, as inserted by s.119 of the Courts Reform (Scotland) Act 2014, provides that any party to an appeal to the Sheriff Appeal Court (SAC) may appeal to the High Court against any decision of the SAC with the permission of the High Court, and r.19E, which governs such appeals, provides that the minutes of proceedings in them shall be in the form set out in Form 19E.1-B of the 1996 Act of Adjournal, as inserted by the Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (No.4) (Sheriff Appeal Court) (SSI 2015/295). That Form provides a form of minute for the grant or removal by the SAC of an interim suspension of a driving licence. The appellant pled guilty to a summary complaint of a road traffic offence and was ordered to be disqualified. He appealed to the SAC and the disqualification was suspended by the SAC pending the appeal. Leave to appeal was refused by both sifts of the SAC, which brought the appeal to an end with the resultant removal of the suspension of the disqualification. The appellant then lodged a note of appeal to the High Court and applied to the SAC to suspend the disqualification pending that appeal. Held (1) that if an appeal requires leave, there is no appeal before the court unless and until leave is granted and a note of appeal which is refused leave is

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of no effect and is incompetent, and the SAC’s decision to grant or refuse leave cannot be appealed (para.10); and (2) that Form19E.1-B likewise envisages that appeals under s.194ZB are taken against a decision of the SAC in the sense of a decision on an appeal and where there is a judgment of the court (para.11); and interim suspension refused as the underlying note of appeal was incompetent. David Mackay pled guilty in the sheriff court at Inverness on 22 September 2015 to being in charge of a vehicle with an excess proportion of alcohol in his breath and was disqualified from driving. He appealed to the Sheriff Appeal Court against the disqualification and the sentencing sheriff refused to grant interim suspension of the disqualification. The SAC, however, granted interim suspension, but subsequently leave to appeal to the SAC was refused by both sifts. The appellant then lodged an appeal to the High Court and applied to the SAC for interim suspension of the disqualification pending the conclusion of that appeal. The appeal was heard on 1 December 2015 by Appeal Sheriffs Stephenson (President), Pyle and Lewis. For the appellant: Forbes, instructed by Faculty Services. For the respondent: Edwards. On 1 December 2015 the application was referred Sheriff Principal Stephen Subsequently delivered the following opinion of the court.

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SHERIFF PRINCIPAL STEPHENSON [1] In this application David Mackay, the appellant, has lodged a note of appeal seeking permission of the High Court of Justiciary to appeal this court’s refusal to grant leave to appeal against the sentence imposed at Inverness Sheriff Court on 22 September 2015. [2] The background to this case is that the appellant, who is aged 63, pleaded guilty to an amended complaint of being in charge of a vehicle after having consumed so much alcohol that the proportion of alcohol in his breath was 104mgs of alcohol in 100mls of breath, nearly five times the legal maximum. The plea was tendered at the intermediate diet. The offence took place on 29 June 2015 on a road near Inverness. [3] On 22 September the appellant was fined £500 and disqualified from holding or obtaining a driving licence for eight months. On the same day, a note of appeal was lodged seeking, inter alia, interim suspension of the disqualification which was refused by the sheriff. The note of appeal challenged the sheriff’s decision to impose a period of disqualification and also his refusal to discount the period of disqualification. On 29 September this court allowed interim suspension. Subsequently leave to appeal was refused at both the first and the second sift following which the interim suspension was automatically recalled. [4] On 11 November the appellant lodged a note of appeal in terms of s.194ZB(1) of the Criminal Procedure (Scotland) Act 1995 seeking the permission of the High Court of Justiciary to appeal the decision by the Sheriff Appeal Court [SAP] to refuse leave to appeal the sheriff’s sentencing decision. The current note of appeal includes the same or similar grounds of appeal to the original note of appeal. [5] We now refer to s.194ZB of the 1995 Act which regulates and makes provision for appeals from this court to the High Court of Justiciary. The first two subsections are of particular importance. They state: “(1) An appeal on a point of law may be taken to the High Court against any decision of the Sheriff

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Mackay v Murphy (SAC)

Appeal Court in criminal proceedings, but only with the permission of the High Court. (2) An appeal under subsection (1) may be taken by any party to the appeal in the Sheriff Appeal Court.” [6] We also refer to the Act of Adjournal Criminal Procedure Rules 1996, Sched.2, Pt.IVA, r.19E which makes provision for the lodging and determining of such appeals. The rules require in the first instance that the note of appeal be lodged with this court (r.19E.2) and provides for the documents including the judgment of the SAC to be sent to the High Court of Justiciary (r.19E.3). Form 19E.1-B is the form of minute of procedure in a note of appeal under the section. It can be seen that this minute provides for interim suspension of orders for disqualification in terms of s.41(2) of the Road Traffic Offenders Act 1988 (or refusal to suspend such orders) by this court. [7] This court accordingly has a function in respect of appeals where the note of appeal seeks to appeal to the High Court of Justiciary and where permission of that court is required. In our opinion this court is therefore entitled to take notice of questions of competency on the lodging of any appeal in terms of s.194ZB and of course when considering interim suspension. This court may only consider whether to suspend the sheriff’s order ad interim if the note of appeal is competent in terms of the statute. [8] The appellant today argues that the appeal is competent. The relevant section allows an appeal to the High Court of Justiciary against any decision of the SAC and we were referred to various provisions in the 1995 Act including s.187 where reference is made to a “decision” in the context of the first and second sift procedure. Reference has also been made to s.194ZK which provides for finality of proceedings in the High Court there being no equivalent provision in respect of decisions of this court. Indeed, counsel for the appellant doubted whether this court had jurisdiction to hear an application for interim suspension at all standing the terms of s.41(2) of the Road Traffic Offenders Act 1988 which provides: “(2) Where a person ordered to be disqualified appeals, whether on appeal against a summary conviction or a conviction on indictment or his sentence, the court (hearing the appeal) may, if it thinks fit, suspend the disqualification on such terms as it thinks fit.” Therefore, it is for the court which hears the appeal to consider whether or not to suspend ad interim the disqualification imposed in the lower court. [9] The advocate depute submitted with reference to s.194ZB(2) that the appeal was not competent as there had been no appeal before this court which would allow a further appeal in terms of s.194ZB. [10] We are of the opinion that the application for interim suspension cannot be entertained by this court as the note of appeal on which it depends is incompetent. The appellant is not and has not been a party to any appeal before this court. If an appeal requires leave, there is no appeal before the court unless and until leave is granted. The right of appeal under ss.175 and 186 of the Criminal Procedure (Scotland) Act 1995 is subject to the requirement of leave which in an appeal against sentence in summary criminal jurisdiction is regulated by s.187. Therefore the right if appeal is restricted. Where leave to appeal is required a note of appeal which is refused leave is of no effect and is incompetent. Section 187 of the 1995 Act confers power on this court to grant or refuse leave. It is our view that this court’s decision to grant or refuse leave cannot be appealed. Section 187 is clear in its terms and it appears to us that no other court or authority has vested in it the statutory power to consider leave to appeal or to review the SAC’s decisions on leave to appeal. Nothing we say derogates from the High Court of Justiciary’s exercise of its nobile officium or inherent jurisdiction in criminal matters.

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[11] We have carefully considered s.194ZB and the ancillary rules which support our conclusion. Section 194ZB(2) provides that an appeal may be taken by “any party to the appeal” in this court. The appellant was refused leave at the first and second sifts which has the result of rendering his note of appeal as originally lodged of no effect and incompetent. The rules to which we have referred likewise envisage that appeals under s.194ZB are taken against a decision of this court in the sense of a decision on an appeal and that there is a judgment of the court. This is evident from consideration of the rules which provide for the court’s judgment to accompany the papers to the High Court of Justiciary or to follow when finalised. Form 19E.1-B is the minute of procedure which required to clerk to certify that the judgment is transmitted and therefore that the statutory requirements have been met. For these reasons we refuse the interim suspension as the underlying note of appeal is incompetent and we direct the clerk to refuse the note appeal as incompetent. COMMENTARY

1. Although this was an application under the Road Traffic Offenders Act 1988 for interim suspension of a disqualification pending an appeal to the High Court from a decision of the SAC, it was refused on the basis that such an appeal was open only to a party to the appeal to the SAC, and that there was no appeal to the SAC extant, since an appeal to the SAC requires leave, and that once leave is refused there is no appeal to the SAC. The right to appeal to the High Court under s.194 ZB, it was held, applies only to the decision of the SAC in an appeal for which it has granted leave and issued a judgment. 2. The question is, of course, novel, and might as such be regarded as of sufficient importance to merit a decision of the High Court, which would not have been the case if the appeal to that court had been restricted to the correctness of the original disqualification. The refusal of the application is supported by the provision in the Form of Minutes for a minute of the decision of the SAC on the question of suspension, and by the inclusion of the SAC’s opinion in the papers to be sent to the High Court. But the decision of the application is based on a wider issue which applies to all refusals of leave to appeal to the SAC, and the case in general raises questions as to when an appeal comes into, or alternatively goes out of, existence. 3. The relevant Form for an appeal in a case such as this, depends on the substitution of “appeal court” for “High Court” in the RTOA provisions as part of a whole raft of provisions which are consequential on the creation of the SAC. It might therefore be arguable that the power of the ‘appeal court’ to suspend a disqualification was not intended to apply to appeals from the SAC to the High Court, but applied only to appeals to the SAC. It might also be argued that a refusal of leave by the second sift, applications to which are applications to the SAC and refusals of which require to be accompanied by reasons, are decisions of the SAC and so appealable under s.194ZB. 4. If a refusal of leave to appeal to the SAC cannot be appealed, then the SAC can effectively leave a potential appellant without any recourse to the High Court under s.194ZB, merely by refusing him leave to appeal to itself— which may or may not be what the legislature intended.

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A Appeal Against Conviction

15 December 2015

JEROME GAY

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 125 Art and part—Art and part by presence—Whether circumstances showed participation Section 19 of the Sexual Offences (Scotland) Act 2009 creates the offence of sexual assault of a young child by penetration of, inter alia, his mouth, with anything, including a penis, and s.20 of the Act creates the offence of sexual assault of a young child by, inter alia, sexual touching, including penetration of his anus by any means. The appellant was charged on indictment that he: “. . .whilst acting with two juveniles, did assault LT born 17/06/2000. . .being a child who had not attained the age of 13 years, and did lift him from his bed whilst sleeping, remove his clothing, instruct said juveniles to rape him and insert a finger into his anus, record the whole incident on your mobile telephone and show same to another or others and did thereby cause one of said juveniles to sexually penetrate the said LT’s anus with their finger: contrary to ss.19 and 20 of the Sexual Offences (Scotland) Act 2009.” The appellant was aged 16, and the two juveniles were his younger brother and G, who was known to the appellant as a vulnerable person with special education needs who was easily led. They and L T were along with others in the same dormitory at a cadet camp, the appellant being the senior cadet in the dormitory and the person in charge of the others. There was evidence that the appellant filmed the incident, in the course of which G touched the complainer, caressed and rubbed himself against his body, simulated sexual activity with him and put his finger into his anus. The appellant was described as giggling at the time. The complainer remained asleep while all this was going on, and when he woke up and asked the appellant what had happened the appellant told him he was “being a little bitch” and should “grow a pair”. The appellant subsequently showed the film to another cadet. In the course of his speech to the jury the depute procurator fiscal, as recorded in the minutes, amended the indictment by replacing “said” with “a” and “juveniles” with “juvenile” where they appear at the end of the charge. The trial sheriff gave the jury the standard directions on art and part, by reference, inter alia, to the classic bank robbery, and went on to say that where the crime was spontaneous, the acts done by one member of the gang that are known, or must have been known, to the others involved, who then continue with their participation in the crime, became the responsibility of everyone concerned, but that acts outwith their knowledge are not. She subsequently, in answering a question by the jury as to whether the amendment “impacted on the statement caused”, directed them that the question of causation was one of fact for them to decide. The appellant was convicted under deletion of the words “instruct a juvenile to rape him and insert a finger into his anus”, and appealed to the High Court on the ground that the sheriff had misdirected the jury by focusing on causation rather than concert in his answer to the jury.

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Held (1) that the jury were entitled to conclude that they were not satisfied on the evidence that any express instruction was given (and therefore to delete that part of the charge), but nevertheless to form the view that the evidence established an atmosphere of encouragement, hilarity, and approbation on the part of the participants including the appellant, together with an absence of any instruction to cease assaulting the complainer or any threat of disciplinary measures if the assault continued, that they were entitled to conclude that the evidence established that the atmosphere had caused or induced one of the juveniles to escalate his activities and to carry out the act of sexual penetration which he did, that they were entitled to conclude that the evidence demonstrated that the appellant was the senior participant and in effect the leader of the group, and were a fortiori entitled to view his behaviour as causing or inducing a more junior member of the group to carry out the acts he did, that they were further entitled to conclude that the appellant’s failure to prevent the more serious assault, together with his giggling and laughing as he filmed the incident involving G touching L T in a sexual fashion up to and including the anal penetration, his behaviour and words towards the complainer after the incident, and his subsequent showing of the video to another person, amounted to his active association with the escalated level of criminality of the spontaneous common criminal purpose of the group (para.19); and (2) that the sheriff did not misdirect the jury and that, even if there had been a misdirection in answering the jury’s question, there was ample evidence of words and behaviour on the part of the appellant, the senior member and in effect the leader of the group, to entitle the jury to reach the verdict they did (para.20); and appeal refused. Jerome Gay was charged on indictment in the terms set out in the opinion of the court and was convicted in the terms described by the court after trial in Livingston Sheriff Court before Sheriff Craig and a jury. He appealed to the High Court against conviction on the grounds referred to in the opinion of the court. The appeal was heard on 22 October 2015 by Lady Paton, Lord Bracadale and Lord Turnbull. For the appellant: N Allan, Solicitor advocate, instructed by Harley & Co, Solicitors, Edinburgh. For the respondent: Brown QC, AD.

On 15 December 215 Lady Paton delivered the following opinion of the court. LADY PATON Introduction

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[1] The appellant faced the following charge: “(1) Between 3 November 2012 and 4 November 2012, both dates inclusive, at Army Cadet Centre. . .you. . . whilst acting with two juveniles, did assault L T born 17/06/2000. . .being a child who had not attained the age of 13 years, and did lift him from his bed whilst sleeping, remove his clothing, instruct said juveniles to rape him and insert a finger into his anus, record the whole incident on your mobile telephone and show same to another or others and did thereby cause one of said juveniles to sexually penetrate the said L T’s anus with their finger; contrary to sections 19 and 20 of the Sexual Offences (Scotland) Act 2009.” On 2 to 6 February 2015, a five-day trial took place before Sheriff Craig in Livingston Sheriff Court. The procurator fiscal depute led nine witnesses on behalf of the Crown. No evidence was led on behalf of the defence.

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The evidence

[2] The evidence is summarised in the sheriff’s report as follows: “[8] In November 2012 the appellant, who was 16 at the time and a member of the Sea Cadets, attended a training camp held at an Army Cadet Centre. . . .He held the rank of Able Seaman. Along with seven other cadets from his unit the appellant was accommodated in a dormitory with bunk beds. He was the senior cadet and in charge of the other boys in the dormitory who were predominantly 12 or 13 years old; one of them was his brother. [9] It was the birthday of two of the cadets in the dorm (they were twins) and the cadets had been celebrating with cake and soft drinks. One of the twins—G—had special education needs, was vulnerable and easily led. The appellant was aware of his vulnerabilities. [10] By around 10pm the boys had gone to bed. At least one of them, the complainer, L T, had fallen asleep. He was 12 years old. He was not particularly popular with some of the cadets and had been snoring loudly. [11] The appellant remained awake and, initially at least, lay on his bunk. He was playing on his mobile phone. [12] There was an exchange between some of the boys about L T. The appellant got out of his bed, roused his brother and G and got them out of their beds. Together they lifted L T from his bed and placed him on the floor in the middle of the dorm, undressed him and took away his pyjamas. He was naked but still asleep. The accused, his brother and G were all giggling as they undressed L T. They carried on laughing as the assault progressed. [13] While standing over L T the appellant still had his phone out, with the torch on to light the scene, and was filming what was happening at the same time. [14] The appellant continued to film as G started touching L T, caressing his body and rubbing himself against his body. He simulated sexual activity with LT. He put his finger into LT’s anus. [15] The appellant—who, along with his brother and G, had stripped L T naked—had a clear view of what G was doing. He took no steps to intervene; instead he carried on filming as L T was being sexually assaulted. The appellant knew he was in charge, that G was vulnerable and easily led but did not step in to prevent the incident as it unfolded, or to intervene up to and including the act of penetration. [16] Instead, the appellant was giggling and filming while G assaulted L T. That he was doing so was obvious to G. They were next to each other. G knew the appellant was in charge. The tenor of the evidence was that G took that as active encouragement by the appellant of his actions. [17] L T slept through the assault. When it finished the boys went back to their bunks leaving L T lying, still naked, in the middle of the room. [18] Very shortly afterwards L T woke up. He was distressed and upset to find himself in the middle of the room, naked. He was crying and his distress was obvious. He asked the appellant what had happened. The appellant did not tell him. Instead he said to L T that he was being ‘a little bitch’; that he should ‘grow a pair’ and go back to bed. [19] L T asked where his pyjamas were. The appellant told him that they were ‘over there’, and gestured to the back of the dorm. He did not assist L T in any way. [20] L T got up off the floor, found his pyjamas, went to the bathroom where he washed his face and then got back into bed. [21] At a point thereafter there was contact between the appellant and his line of command, a petty officer, to say that there had been a disturbance in the dorm. The appellant reported that L T had been causing trouble ‘shouting’ that he had been ‘raped’. The appellant did not tell his petty

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officer what had in fact happened or that he had been with G when he penetrated L T with his finger. [22] The petty officer took no action that night and did not enter the dorm or speak with L T. [23] The following day the appellant had discussions with his senior officers in which he reported that LT was accusing him of pulling him out of bed and taking his clothes off. He lied to the officers, telling them that allegations were untrue. [24] Two days later, at the Sea Cadet’s own unit, the appellant asked another cadet if he ‘wanted to see something’. The appellant took out his phone and played him a film of the assault. It showed G simulating sexual activity on L T while he (L T) was naked. [25] When senior officers investigated the allegations other cadets confirmed that they had seen the appellant and others lift L T out of bed and strip him naked. They confirmed that they had seen G touch L T in a sexual manner and penetrate his anus, all while the appellant filmed the assault on his phone. [26] When interviewed by the police about the incident the accused denied any involvement. He denied any knowledge of the assault. He denied filming the assault or showing the film to others. [27] Both G and the appellant’s brother were dealt with through the Children’s Panel. [28] Following the investigations, the appellant’s father, who was one of the most senior ranking officers within the Unit, was asked to remove the appellant. The appellant later resigned from the Cadets. Observations on the evidence

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[29] Although obviously a matter for the jury I make the following observations about the evidence led for such assistance as that might provide to your Lordships. [30] The complainer was an impressive witness. It was clear that he had not been a popular member of the Cadets before the incident and that since he had been subjected to criticism and derision for having reported it. He had had a difficult time at school (all the cadets, bar the appellant who had left school aged 16, were at school together) and that had caused considerable tension. It appeared that much of the blame for the incident was being placed at the door of the complainer and that the derogatory comments made by the appellant that L T should ‘grow a pair’ echoed a view commonly held about him. [31] A number of other witnesses—all children—gave evidence, speaking to the assault on L T and to the appellant’s active participation, and indeed, instigation, in that assault. In my view they were credible and the jury would have been entitled to place reliance on their evidence. [32] The jury also heard from a number of adults, including the Head Teacher at the school all the cadets had attended. He spoke to the significant vulnerabilities experienced by G and to his being easily led and manipulated. Evidence was led from the officer who investigated the incident—once it was brought to his attention—and from the petty officer who was told of the allegations on the night of the incident but who made no enquiries at all. It would be fair to record that he appeared embarrassed, and perhaps a little ashamed, of his lack of action at the time. [33] The evidence suggested a troubling thread of bullying behaviour running through the Unit and the minimisation of such behaviour by at least one of the more senior officers (i.e. the petty officer); that what had happened was regarded by others as ‘just a prank’ and that it was the complainer who was at fault for reporting the assault in the first place.

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Gay v HM Advocate

[34] It was against that background that the jury required to consider the evidence and which set the scene for consideration of the appellant’s own actions and culpability vis-à-vis, concert. [35] The significant elements of that evidence were: • that the actings of the appellant, his brother and G were spontaneous and unplanned; • that LT was unpopular; • that the appellant was by far the oldest as well as the most senior member of the group; • that the appellant was in charge of the dorm and was supposed to keep order; • it was the appellant who encouraged the other two to join him in lifting L T out of bed, laying him on the floor and stripping him naked, • that the appellant was giggling and laughing as he filmed the incident involving G touching L T in a sexual fashion up to and including the anal penetration; • that the appellant was using his phone as a camera and as well as using it as a torch to light the scene; • that the appellant did not intervene or tell G to stop albeit that he had a clear view of what was happening; • that the appellant left L T lying naked on the floor; • that when L T asked the appellant for help he gave none but was contemptuous and critical of him; • that the appellant still had the film of the assault on his phone two days later; • that he showed it to one of the other cadets.

Amendment of the charge during speeches

[3] On 5 February 2015, the procurator fiscal interrupted his speech to the jury and sought leave to address the sheriff in relation to a legal matter. The jury were taken out. As is noted in the minutes of proceedings: “There being no objection from Mr Harley (the defence solicitor advocate) the indictment was amended in line 19 of the charge by the replacement of the word ‘said’ with the word ‘a’; and the amendment of the word ‘juveniles’ in line 19 to now read ‘juvenile’. . . .” [4] The jury were brought back, instructed to amend their copies of the indictment, and the prosecutor resumed his address to the jury.

The sheriff’s charge

[5] Later on 5 February 2015 the sheriff charged the jury. At p.28 line 7 et seq of her charge, the sheriff directed the jury on concert. She gave standard directions, including examples of a planned bank robbery, a spontaneous street fight, a situation where a participant did not know and could not reasonably have anticipated that another participant would use a knife in a spontaneous assault, and an explanation that a participant in a spontaneous assault might nevertheless be held responsible for the knife if he continued to participate in the assault after he was aware that a knife was being used. As the sheriff put it: “Where (the crime) is spontaneous, the acts done that are known, or must have been known to the others involved, who then continue with their participation in the crime, become the responsibility of everyone concerned, but acts outwith their knowledge aren’t. . .”(p.32 lines 13–19) Later in her charge, the sheriff directed the jury about their power to delete parts of the charge, as follows:

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“If your verdict is guilty you could delete any part of the charge that has not been proven to your satisfaction. But what is left must define a crime and describe how it has been carried out. I can tell you that if you are not satisfied on the evidence that there was a sexual attack, assault but you are satisfied that an assault took place it is open to you to delete the sexual element from the charge and bring back a verdict of common law assault, but you must be satisfied that what is left amounts to the crime of assault. “Now, if that is the course that you are going to take, that is to say a deletion, when the clerk asks you for your verdict you should say our verdict is guilty subject to deletions. The clerk will then ask you what those deletions are.” The jury’s question

[6] After the charge, the jury were sent out to consider their verdict. In the course of their deliberations, they put the following question to the court: “Does the initial deletion impact on the statement ‘cause’ in line 8?” C

[7] After some discussion in the absence of the jury, involving the procurator fiscal depute and the defence solicitor advocate, the jury were brought back to court. The sheriff answered their question as follows: “[T]he question that I have been given to answer is, and I will read it back to you. Does the initial deletion impact on the statement ‘cause’ in line 8? Now, my answer to that as a matter of law is no. And it’s my job to give you direction on the law, and as a matter of law the charge, even after the initial deletion, is still a competent charge and therefore no is the correct answer to that. “However, I am not sure that fully addresses the question that you are proposing of me. So I can give you the following comment, which is, that if what is troubling you is the question of causation then that is a matter for you. You have to decide that point on the evidence. So the question of does A cause B that is a question of fact for you to decide. “Now, with that answer in mind I am going to discharge you for the day. . . .” [8] The jury were then sent home for the night. [9] The following day, 6 February 2015, the jury returned to court, and were further directed as follows: “[W]hat I’m going to do is simply repeat what I said yesterday just so it’s then fresh in your minds, and you’ll forgive me if I just go back to my notebook and take your, the question that you had posed, you will remember is ‘Does the initial deletion impact on the statement ‘cause’ in line 8’, and I think I highlighted for you that I was understanding that to mean the deletion that the fiscal had made in the course of his speech, and my direction to you was, as a matter of law, because it’s for me to direct you on the law, that, no, it doesn’t have an impact on that, but if the matter that was, that you were asking about was one of causation, then it’s for you to decide on the evidence and, in particular, if what you were asking is, ‘Does A cause B?’ then that is a matter for you on the facts. “So, with that in mind, I’m going to discharge you back to the jury room to continue with your deliberations.” The verdict

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[10] The jury ultimately returned a verdict of guilty under deletion of the words “instruct a juvenile to rape him and insert a finger into his anus”. The sheriff imposed a community payback order with two years’ supervision and

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Gay v HM Advocate

300 hours unpaid work.The appellant was made subject to the sexual offenders notification requirement for a period of two years.

The appeal

[11] The appellant appealed against conviction and sentence. The grounds of appeal argued were in the following terms: “2. The sheriff erred in the direction given to the jury after they returned to the court with a question (see transcript ‘Jury Question’ in preference to the transcript of the charge, where the number 8 appears to be omitted). The jury appear to have asked (p.5, lines 22–23) ‘Does the initial deletion (thought to be a minor amendment made by the procurator fiscal depute) impact on the statement cause in line 8?’ The sheriff, having answered that question in the negative, then gave a direction on causation (‘Question’ transcript, p.6, lines 7–13, charge transcript p.44, lines 10–19) which was entirely misguided. Although the Crown had chosen to use the word ‘cause’ the question for the jury was not one of causation but of concert. The direction ‘the question of does A cause B that is a question of fact for you to decide’ left it open for the jury to convict the appellant art and part if they were satisfied that his encouragement emboldened one of the juveniles to commit the act of penetration even if such an act was not and had never been in the contemplation of the appellant. 3. The sheriff’s errors resulted in a miscarriage of justice.”

Submissions for the appellant

[12] At the outset, the solicitor advocate for the appellant accepted that the sheriff’s directions in relation to spontaneous concert were accurate and adequate. The focus of the appeal was therefore the sheriff’s handling of the jury’s question. [13] It was submitted that the additional guidance given by the sheriff in answer to the jury’s question was so wrong that reading the charge as a whole would not neutralise the crucial misdirection. As a result, the conviction of penetration in terms of s.19 could not stand. In answering the jury’s question, the sheriff had misdirected herself by focusing on causation rather than concert. Her answer focused the jury’s attention in the wrong direction, and in so doing completely negatived the previous adequate directions on spontaneous concert. The jury retired with the words “Did A cause B” at the forefront of their minds. That left them in a position whereby they could reason back and look at the incident from the standpoint of the juvenile who was carrying out the various physical acts. They could conclude that the juvenile’s perception was such as to drive him on to do something which was not in the appellant’s contemplation. They were left with nothing from the concert instructions (for example, about how acts outwith the knowledge of other participants in the concert were the responsibility only of the participant who committed the acts). [14] The act of penetration was the most serious part of the libel. The only sensible interpretation of the jury’s question and their later deletion was that the jury were contemplating deleting these words, and were in doubt about what “caused” the juvenile to penetrate the victim with his finger. [15] In answering the jury’s question, the sheriff should have re-visited her directions concerning spontaneous concert; emphasised that acts outwith the knowledge of one participant were the sole responsibility of the person carrying out the acts; told the jury again that they could only convict the appellant of the act of penetration if they concluded that penetration was part of the

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common criminal purpose, or alternatively that the appellant’s continuing conduct once penetration was initiated demonstrated that he actively associated himself with the escalated, more serious, sexual assault. The jury had been sent off with a substantial misdirection. The conviction should be quashed so far as relating to penetration by deleting the words “and did thereby cause one of said juveniles to sexually penetrate the said LT’s anus with their finger” and also the reference to s.19 of the 2009 Act (leaving the reference to s.20 of the 2009 Act).

Submissions for the Crown

[16] The charge was an amalgamation of ss.19 and 20 of the 2009 Act, with the filming of events properly characterised as an aggravation. The libel was based on the active participation of the appellant in the assault (including subsequently showing the video to someone). There had been proper and accurate directions about concert, including spontaneous concert. While the indictment alleged that the appellant had “instructed” a juvenile to rape the complainer and insert a finger into his anus, that was simply one allegation within the generality of concert. If the jury were not satisfied that such an instruction was proved (and the sheriff had described the evidence about that matter as “rather thin”: para.58 of her report) they were entitled to consider the remaining evidence and to assess whether the appellant’s behaviour “caused” one of the boys to carry out that sexual penetration. The sheriff set out the significant elements of that evidence at para.35 of her report. The sheriff’s answer to the jury’s question was not a misdirection. [17] Even if it was thought that the sheriff’s answer might be criticised, there was no miscarriage of justice as there was ample evidence of active participation by the appellant in the spontaneous concert during which the sexual assault took place. Discussion

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[18] In our opinion, the sheriff’s answer to the jury’s question cannot be criticised.While we accept that it is likely that the Crown framed the indictment on the basis that, inter alia, an express instruction had been given to a juvenile to penetrate the complainer’s anus with a finger, that was simply one element in a case which was properly categorised as spontaneous concert. Such concert can, depending on the circumstances proved, comprise not only words uttered but also acts carried out and attitudes adopted by those involved. The sheriff’s charge clearly warned the jury that a participant who had not known what another participant was about to do in escalation of an assault would not be responsible unless he continued with his involvement in the knowledge of the escalation, thus demonstrating that the escalation of the crime was indeed part of the joint criminal purpose. [19] The evidence at the trial established that the participants in the spontaneous concert behaved in the way outlined in the sheriff’s report, particularly para.35. On the basis of that evidence, and armed with the sheriff’s accurate directions about, inter alia, concert and the ability to delete parts of the charge, we consider that the jury were entitled to conclude that they were not satisfied on the evidence that any express instruction was given (and therefore to delete that part of the charge), but nevertheless to form the view that the evidence established an atmosphere of encouragement, hilarity, and approbation, on the part of the participants including the appellant, together with an absence of any instruction to cease assaulting the complainer or any threat of disciplinary measures if the assault continued. Further the jury were

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Gay v HM Advocate

entitled to conclude that the evidence established that the atmosphere had caused or induced one of the juveniles to escalate his activities and to carry out the act of sexual penetration which he did. The jury were entitled to conclude that the evidence demonstrated that the appellant was the senior participant and in effect the leader of the group, all as described in the sheriff’s report. The jury were a fortiori entitled, in our opinion, to view his behaviour as causing or inducing a more junior member of the group to carry out the acts he did. They were further entitled to conclude that the appellant’s failure to prevent the more serious assault, together with his giggling and laughing as he filmed the incident involving G touching L T in a sexual fashion up to and including the anal penetration (para.35 sixth bullet point in the sheriff’s report), his behaviour and words towards the complainer after the incident, and his subsequent showing of the video to another person, amounted to his active association with the escalated level of criminality of the spontaneous common criminal purpose of the group. [20] We are not therefore persuaded that the sheriff misdirected the jury. But even if it were thought that there had been a misdirection in answering the jury’s question (which we do not accept), there was ample evidence of words and behaviour on the part of the appellant, the senior member and in effect the leader of the group, to entitle the jury to reach the verdict they did. [21] The appeal against conviction is therefore refused.

COMMENTARY This case offers an interesting example of the factors which may be relevant in determining whether a person who is present at the commission of a crime is a participant or merely a spectator. In particular it includes failure by a person in some kind of superior position to prevent the crime. The case will also provide a useful source for examination questions and tutorial discussion All that is offered here are a few comments, “induced” by a reading of the court’s opinion. 1. The indictment is hardly a recommendation for the literary talents of Crown Office. Apart from being no doubt influenced by the current obsession for political correctness which leads to an abolition of the distinction between singular and plural, it shows a failure to appreciate the importance of word order in an uninflected language like English, which leads it to say that the inaccurately named “rape” was caused by the appellant taking a film of the events and showing them to another party, an activity which seems to interest the Crown in other connections too: see McHugh v Harvie [2015] HCJAC 86; 2015 S.C.C.R. 430. The insertion of ‘to’ before ‘insert’ would also have removed a possible ambiguity. Nor are matters helped by the last-minute amendment which, at least as minuted, produces a charge of causing an unidentified juvenile to penetrate the complainer. (I have not seen the indictment, but I assume from what is said in the opinion that it related to the second appearance of those words in the indictment.) 2. The appellant’s taking (and perhaps also his showing) of the film were of course relevant as evidence of his attitude at the time of the incident, but were not part of the offence, and, pace para.19 of the opinion of the court, did not “amount” to his active association with the penetration, and it is not clear why the Crown libelled them, thus committing the sin of pleading evidence. 3. Nor am I convinced that this was a case of spontaneous concert, rather than, as the sheriff appears to have realized, an example of the common case of an agreement to commit one crime in the course of the commission of which one of the group commits another crime, so that the question in issue

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is whether that second crime should have been within the reasonable expectations of his co-accused. The incident can, I think, be best seen as one of art and part by presence, the question being, as is clear from the courtâ&#x20AC;&#x2122;s decision, whether the circumstances were such as to show that the appellant was a participant and not a spectator (whether or not one with an interest in pornographic photography). It would be interesting to know on what charge, if any, the appellantâ&#x20AC;&#x2122;s brother was brought before a Childrenâ&#x20AC;&#x2122;s Hearing 4. Indeed, until the jury deleted the averment of instruction this looked more like a case of art and part by incitement, albeit one where the incitor was present at the crime scene when he incited it, which may account for the references in the indictment to instructing and causing. Incidentally, it will be noted that the court seemed to treat causing and inducing as synonymous, at least for the purposes of this case. 5. And then, of course, there is the 1999 Act, an example of the dangers of consolidation, at least with provisions which are as puzzling as those in the Act. Before the coming into force of that Act, there would have been a single charge of lewd practices, with the penetration included as part of the modus. The indictment does contain only one charge, but it is said to constitute two offences, being contrary to both s.19 and s.20 of the Act, and includes an averment of instruction to commit rape, rape of a young child being a crime under s.18 of the Act which requires penile penetration and to which no reference is made in the indictment. None of these sections, incidentally, makes any reference to causing, inciting or instigating. The appropriate way of drafting indictments in circumstances such as are set out in this case, does not seem to have been considered by the appeal court yet, but sufficient unto the day. . . . In the event, it seems that everyone treated the incident as being in two parts, involving two charges, one of sexual assault and one of sexual assault by penetration. The jury should have been directed that if they deleted the averment of penetration, they must also delete the reference to s.19. Note. For a recent reconsideration & English law, see R v Jagee [2016] UKSC 8.

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A Appeal Against Sentence

17 December 2015

VG CY

Appellants against

HER MAJESTY’S ADVOCATE

Respondent

[2016] HCJAC 1 Sentence—Fraud—Fraudulent scheme to acquire parental rights— Whether three years’ imprisonment excessive The appellants were convicted of forming a fraudulent scheme to have Y obtain parental rights as the father of G’s child, B, whose true father was N. They pretended to N that G had terminated her pregnancy of B, and thereafter pretended to the registrar that Y was the father of B and induced him to register Y as B’s father whereby Y obtained parental rights in relation to B. N raised a civil action to establish B’s paternity, and after more than two years Y provided a DNA sample in response to a court order which proved that N was the father. The appellants were each sentenced to three years’ imprisonment and appealed to the High Court against the sentences as excessive. Held that having regard to the callous, complex and sustained nature of the fraudulent scheme of which the appellants were convicted the sentence selected by the sheriff was appropriate and could not be said to be excessive (para.10); and appeals refused.

Case referred to in the opinion of the court: R v Kayani; R v Solliman [2011] EWCA Crim 2871; [2012] 1 W.L.R. 1927; [2012] 2 All E.R. 641; [2012] 1 Cr. App. R. 16. V G and C Y were convicted of fraud as described in the opinion of the court after trial in Perth Sheriff Court before Sheriff Wood and a jury and were each sentenced to three years’ imprisonment. They appealed to the High Court against the sentences as excessive. The appeal was heard on 17 December 2015 by Lady Dorrian and Lord Bracadale. For the first appellant: Jones, instructed by Faculty Services Ltd. For the second appellant: Keane, instructed by Faculty Services Ltd. For the respondent: Hughes AD.

On 17 December 2015 the appeal was refused. Lord Bracadale subsequently delivered the following opinion of the court. LORD BRACADALE [1] The appellants, V G and C Y, were convicted after trial of forming a fraudulent scheme to have Mr Y obtain parental responsibilities and rights as the father of baby B, born 15 February 2011, of whom Ms G was the mother. The charge narrated that in furtherance of the scheme the appellants made a

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number of pretences. They pretended to Mr N, the true father of baby B, and others, that Ms G had terminated the pregnancy of baby B. They created and used a profile on Facebook in the name of Claire Green; they pretended to various people that a female by the name of Claire Green was pregnant and was acting as the surrogate mother of a child for Mr Y; that she had gone on to give birth to a female child; and that Mr Y had taken full custody of the child. They pretended to the registrar for the relevant district that Mr Y was the father of baby B. They pretended to officials of the local authority that Ms G had terminated the pregnancy of the child of which Mr N was the father. The charge went on to aver that the truth was that Ms G continued with the pregnancy and gave birth to baby B; Mr Y was not the father of baby B; and Mr N was the true father. The appellants did thereby induce Mr N to believe that he was not father of baby B and induce the registrar to register Mr Y as the father of baby B in terms of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 and thereby Mr Y obtained parental responsibilities and rights in relation to baby B. [2] The sheriff sentenced each of the appellants to imprisonment for three years. Against that sentence each of the appellants was granted leave to appeal. [3] The circumstances as they emerged in the evidence were as follows. In the course of 2010 Ms G and Mr N entered into a sexual relationship as result of which baby B was conceived. The relationship came to an end during the pregnancy and Ms G advised Mr N that she intended to have a termination. [4] Mr Y knew Mr N and was a close friend of Ms G. Mr Y was homosexual and, according to the witnesses at the trial who knew him, had never been in a heterosexual relationship. Mr Y wished to bring up a child. Together, the appellants hatched a scheme whereby Ms G would pretend to have had a termination but would not in fact do so. They created a fictional individual called Claire Green, a lesbian lawyer from Edinburgh. They went as far as to create a Facebook page for Ms Green. The story was that Ms Green was to act as surrogate mother for Mr Y. The appellants even identified the method to be used for insemination at home. The appellants told Mr N that Ms G had terminated the pregnancy and that Mr Y had accompanied her when the procedure was carried out. They told Mr N the story about Claire Green. The appellants told a number of friends about the termination and the arrangement with Ms Green. Thereafter, whenever Mr N saw Ms G she was wearing a loose-fitting pink coat which she did not remove. On 15 February 2011 Ms G gave birth to baby B. On 21 February 2011 both appellants attended at the registry office where they signed the Register of Births registering Ms G as mother and Mr Y as father. [5] In the course of February 2011 Mr N became aware that Mr Y had been seen with a baby girl. He also saw a picture of baby B on Ms G’s Facebook page and thought that the baby resembled himself. Being suspicious that the baby might in fact be his own daughter, he challenged Ms G about the child. Ms G told him that child was the baby conceived by Mr Y and the surrogate mother Claire Green. [6] Things moved on, and in June 2011, the social work department of the local authority, having discovered that Ms G had indeed given birth to a child, so advised Mr N. Mr N then pursued a civil case to establish the paternity of the child. In this respect Mr Y consistently refused for more than two and a half years to cooperate with DNA testing. It was only in the summer of 2013, as a result of a court order, that DNA samples were obtained from the appellants which proved that Mr N was the baby’s biological father. Mr N described the experience as having been “four years of a nightmare”.

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VG v HM Advocate

[7] In his report the sheriff noted what he described as the â&#x20AC;&#x153;necessary artful and persistent deceitâ&#x20AC;? required in the commission of the offence. He considered it to be a callous and selfish scheme designed to provide Mr Y with a child, regardless of the cost to, or impact on, others. No consideration had been given to the potential impact on the child. Both appellants had been wickedly indifferent to the consequences of their actions. Even when civil proceedings had been raised, they determined to continue their deceit and obstruct the investigations that eventually exposed it. The sheriff was satisfied that a custodial sentence was the only appropriate disposal. The sheriff recognised that the case was highly unusual and that guidance on sentence in respect of any directly analogous case was unavailable. He considered that some assistance could be found in cases of child abduction under the Child Abduction Act 1984. He noted R v Kayani and R v Solliman in which sentences of imprisonment respectively of five years and three years were upheld. Taking into account the complexity, persistence and widespread nature of the fraud involving a child, the sheriff considered that the appropriate sentence was one of three yearsâ&#x20AC;&#x2122; imprisonment in respect of each appellant. [8] Mr Jones, who appeared on behalf of Ms G, departed from the ground of appeal, which had asserted that a custodial disposal was not appropriate. He accepted that it was. Ms G was a woman of 29 years of age who had a limited record of previous convictions, albeit these were for matters of dishonesty including deceit. The criminal justice social work report had indicated that there was unlikely to be any repeat of the offence; there was no serious risk of harm: no public protection concerns were identified. Ms G had had a troubled life. Her first child had died as a result of a cot death. She had developed depression and a drink problem and it was only after these offences were committed that she obtained counselling.This would be her first custodial sentence. The sheriff had misdirected himself by relying on Kayani and Solliman. These cases could be distinguished from the present case. These were cases of abduction. It was clear from the judgment that there were concerns about the prevalence of cases of that nature in England: deterrent sentences had been required. There was little information given on the personal circumstances of the accused persons and it was difficult to draw a comparison with the case of the appellants. Mr Jones submitted that taking all these considerations into account the length of sentence selected by the sheriff was excessive. [9] Ms Keane, who appeared on behalf of Mr Y, said that he was a 35-year-old man who had no previous convictions. The charge was an unusual one. According to the criminal justice social work report the appellant was not considered to pose a risk of serious harm to the community. He was assessed as suitable for a community payback order. There was a clear alternative to custody available. The circumstances of the offence were not sufficiently serious to justify the imposition of a custodial sentence on a first offender. In this respect she contrasted the position of Mr Y to that of Ms G. Mr Y had no previous convictions. In any event, if a sentence of imprisonment was appropriate, the length of the sentence was excessive and was unnecessarily severe. Ms Keane adopted the submissions of Mr Jones in relation to the cases on child abduction. [10] On any view this offence comprised a carefully planned scheme which involved a web of deceit and the telling of many lies, not only to the father of baby B, but also to acquaintances of the appellants as well as the authorities. The deceit was sustained over a period of years and it was only in the face of court orders that Mr Y agreed to provide a DNA sample. The impact of the

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offence on Mr N and the potential impact on baby B were significant. In our view the sheriff was entitled to characterise the offence in the way that he did (see para.7) and to conclude that a sentence of imprisonment in respect of both appellants was the only appropriate disposal. He clearly carefully addressed his mind to the appropriate length of the sentence. He recognised that there were no cases in point. While he found some â&#x20AC;&#x153;parallelsâ&#x20AC;? in the child abduction cases, he recognised that they were of limited assistance and it is clear that he considered this unusual case on its own merits. We consider that having regard to the callous, complex and sustained nature of the fraudulent scheme of which the appellants were convicted the sentence selected by the sheriff was appropriate and cannot be said to be excessive. The appeals must be refused.

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A Appeal Against Conviction

23 December 2015

MARK WILLIAM PATRICK MACLENNAN

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2015] HCJAC 128 Compatibility issue—Statements by children to investigators used as evidence at taking of evidence from children on commission— Commission taking place some time after interviews—Whether delay compatible with accused’s right to examine witnesses against him— European Convention on Human Rights, art.6(1), (3)(d) Witnesses—Child witnesses—Observations on delay in taking evidence on commission—Criminal Procedure (Scotland) Act 1995 (c.46), ss.271C, 271I, 271M—Victims and Witnesses (Scotland) Act 2014 (asp 1) Article 6 of ECHR gives an accused the right to a fair trial and art.(6)(3)(d) gives him a right to examine witnesses against him. The Criminal Procedure (Scotland) Act 1995, as amended by the Victims and Witnesses (Scotland) Act 2014, provides for special measures to be taken in the case of vulnerable witnesses. In particular s.271M allows for a witness’s evidence in chief to take the form of a prior statement, and s.271I provides for the taking of a witness’s evidence on commission. The appellant was charged with sexual offences against children. The children were interviewed at joint investigative interviews (JII) in the summer of 2013. The case was reported to Crown Office in February 2014 and the appellant was served with an indictment in March 2014, and the Crown applied for special measures under ss.271M and 271I, without any formal objection by the defence. The evidence on commission was taken on 1 and 2 July 2014. In August 2014 the defence lodged a minute claiming that the accused, because he had been deprived of an opportunity to question the children shortly after the JII’s, had not had an adequate and proper opportunity to effectively participate in their cross-examination. That minute was repelled and the appellant was convicted of two offences of child abuse. The appellant appealed to the High Court against conviction on the ground that there had been an unjustified delay in initiating the commission process, and that the process had been inherently unfair because the Crown had not referred to the JIIs at the commission, thus requiring the defence to remind the children of their incriminating statements before seeking to challenge them. Held (1) that the appeal was based exclusively on a contention that the appellant’s art.6 right to a fair trial, especially his subsidiary art.6(3) right to examine witnesses, had been breached because he did not have “an adequate and proper opportunity to challenge the key witnesses against him” (para.20); (2) that the task of the court in determining whether a criminal trial has been art.6 compliant, is to ascertain whether the proceedings in their entirety, including the way in which the evidence was taken, were fair, that the startingpoint is the principle that all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument, and that as a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either

101

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when the witness made his or her statements or at a later stage of the proceedings, but that they do not provide an accused with an unlimited right to secure the appearance of witnesses in court, that it is normally for the national courts to decide whether it is necessary or advisable for the court to hear oral testimony, and that the use in evidence of statements obtained at the stage of the police investigation is not inconsistent with article 6, provided that the rights of the accused have been respected (para.23); and (3) that in the circumstances it was not possible to classify the trial as unfair in a Convention sense (para.27); and appeal refused. Observed (1)(i) that ss.271 and 271A of the 1995 Act, which authorise the use of a commission to take the evidence of children, only apply once an indictment or a complaint has been served, that that, in solemn proceedings, will have the effect of substantially delaying any formal examination or cross-examination, but that this problem could be solved by introducing a relatively simple provision permitting the evidence of young children to be taken on commission at any time after the appearance on petition, and that that may be a matter which the government might consider in the relatively short term (para.30); and (ii) that the second expedient would be to move away from the traditional approach and adopt one more akin to the Scandinavian model, which would see defence involvement, if an accused so wished, very soon after, or even at, the JII, that this may be seen as a more radical step, but that it may be the most appropriate in the modern era, and that such a move would herald an end to seeing young children being questioned in a court or commission setting with the legal formalities of examination in chief and cross, but that for such a system to be regarded as acceptable in domestic terms, far greater controls and training would need to be devised to ensure the fairness of the interview process, and that this may be something to which consideration can be given in the longer term (para.31); and (2) that, given the extensive material now available to lawyers on what constitutes a fair interview of a young child, the assessment of fairness is for the lawyers, and ultimately the judge, to determine, and not for expert opinion from a psychologist (para.32). Cases referred to in the opinion of the court:

Al Khawaja v United Kingdom [2011] ECHR 2127; (2012) 54 E.H.R.R. 23 Asch v Austria [1991] ECHR 541; (1993) 15 E.H.R.R. 597 Bricmont v Belgium [1989] ECHR 12; (1990) E.H.R.R. 217 Buchan (1833) Bellâ&#x20AC;&#x2122;s NotesÂ 246 HM Advocate v Hunter (1905) 7 F. 73 Horncastle v United Kingdom [2014] ECHR 1394; (2015) 60 E.H.R.R. 31 Kostovski v Netherlands [1989] ECHR 20; (1989) 12 E.H.R.R. 434 N v HM Advocate, 2003 S.C.C.R. 378; 2003 J.C. 140; 2003 S.L.T. 761 R v B [2010] EWCA Crim 38 R v M [2008] EWCA Crim 2751 R v Maliki [2009] EWCA Crim 365 R v Powell [2006] 1 Cr. App. R.Â 468 Saidi v France [1993] ECHR 39; (1994) 17 E.H.R.R. 251 S N v Sweden (2004) 39 E.H.R.R. 304. Mark William Patrick MacLennan was convicted of the offences referred to in the opinion of the court and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

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The appeal was heard by the Lord Justice Clerk (Carloway), Lord Brodie and Lord Drummond Young.

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103

For the appellant: Alonzi, D Hughes, instructed by John Pryde & Co, SSC, Solicitors, Edinburgh, for Jim Friel Solicitors, Solicitors, Glasgow. For the respondent: Harper AD.

On 23 December 2015 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK Background

[1] On 23 May 2013 a boy, namely R O, aged just three, reported certain matters of concern to his parents. These involved the appellant, whom he knew as “Mark” and who was a manager at the Nevis Nursery, Fort William. The police were informed and a joint investigative interview (JII) took place on the following day. This was described as a “negative” interview by the advocate depute. The appellant was detained and interviewed on the same day. [2] On 29 May, a questionnaire was sent out to other parents of children attending the nursery. As a result, a JII was conducted with a girl, M L, aged five. She spoke to an occasion when the appellant had tickled her between her legs using what the trial judge describes as a fleeting touch. On 31 May, the appellant was interviewed about this. He was then arrested. The matter was reported to the procurator fiscal. The appellant appeared on petition on 4 June 2013. He was charged only with a sexual assault on M L, contrary to s.20 of the Sexual Offences (Scotland) Act 2009. [3] On 11 June, R O was re-interviewed. He was asked certain pointed questions, such as “you don’t like Mark, what does he do that you don’t like” and repeatedly “what does Mark do that’s scary”. He was able to say that he and his father had “willies” but that he hadn’t seen anyone else’s. However, he went on to say that he had told his parents that Mark had put his willie in his mouth and hurt his teeth. He placed his fingers in his own mouth and made choking noises to demonstrate what had happened. It is fair to say that the interviewers had considerable difficulty in focusing R O’s attention. His conversation naturally wandered into other areas more immediately relevant to him. [4] Following a degree of publicity, A G, then aged 17, came forward. She gave an account of being involved with a youth music theatre group for which the appellant did voluntary work as a “chaperone” for some of the children, including A G. When she was 12, in 2007, the appellant had persuaded her to remove all her lower clothing to assist in measurements for her pantomime costume. He had touched her in the area of the vagina. A similar incident of a more lasting duration occurred during the following year and yet more episodes happened at various locations subsequently. The final one was in 2010. [5] Another boy from the nursery, namely C K, was interviewed on 9 July 2013. The trial judge reports that this JII was not well conducted. The child asked on nine occasions whether he could go and see his mother in the next room. He was then questioned after having been wrongly told that he would only be kept for another minute or so. The questioning was “leading in the extreme”. The judge describes it as of “dubious evidential value”. He was, for example, asked if the appellant had “touched his bum”. He had agreed with this. [6] All the JIIs were sent to a psychologist, who was asked to report on their quality and to recommend how best to take the young children’s evidence. On

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21 October 2013, the psychologist reported that the interviews were of reasonably high quality. The best way of taking their evidence would be on commission. [7] It was only on 18 February 2014 that the case was reported to Crown Office. The report did not advise on the state of the young children’s memories by this time, now at least nine months after the alleged incidents. On 26 February, Crown counsel instructed an indictment in respect of all four complainers, with the JIIs being used as part of the examination in chief. Transcripts of the JIIs had all been disclosed to the appellant on 14 August 2013, notwithstanding that he had still only appeared on a petition regarding the incident with M L. [8] An indictment was served on the appellant on 17 March 2014. It contained six charges, the first four being statutory sexual offences (Criminal Law (Consolidation) Act 1995, s.6; 2009 Act ss.20, 18 and 19) involving respectively the complainers A G, M L, R O and C K. The remaining charges concerned the appellant’s collection of child pornography (Civic Government (Scotland) Act 1982, s.52A(1) and 52(1)(a)). [9] On 4 April 2014, the Crown lodged applications in respect of each of the young child complainers M L, R O and C K for non-standard special measures; in particular for their respective JIIs to be taken as their evidence in chief (Criminal Procedure (Scotland) Act 1995, s.271M), with their crossexamination and re-examination to take place on commission (s.271I). These applications were continued to the preliminary hearing [PH] set for 24 April. The defence had by then instructed their own psychologist and a report on the methodology used at the JIIs was anticipated. It was minuted that the defence might lodge a preliminary issue minute challenging the admissibility of the JIIs, but this was never done. At a PH on 10 June, the court granted the Crown’s applications for special measures. There had been no objection to this. [10] The commissions were fixed for 1 and 2 July 2014 at Inverness. They took an interesting, if predictable, course. They were being held over a year after the children’s first reports. M L was cross-examined by senior counsel. He began by asking a series of questions about M L’s family, friends and school. M L confirmed that she had been at nursery, but said that the teachers had all been female. She had only been at one nursery. She did not know what it was called. It was not in Fort William, but in Upper Achintore (which is in Fort William). No men had worked at the nursery. Although asked a number of other questions in cross- and re-examination, M L was not asked about the incident involving “Mark”, which she had spoken about in her JII. [11] R O’s commission involved a prolonged exchange with other persons, with the judge only managing to get a look in on p.14 of the transcript and counsel asking his first question thereafter. After sundry pleasantries, R O was asked about his, and his father’s, “willies”. Eventually (p.32), there is this passage: “Q. . . .Do you remember going to nursery in Fort William? A. Ding! Eh, eh. Q. Don’t remember going to nursery in Fort William. A. No. ...

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Q. . . .Do you remember anything about Fort William? A. Nope. . . .”

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MacLennan v HM Advocate

105

Once again there was no direct questioning by either party about the facts in the libel. [12] C K’s commission was not very different. He did remember going to nursery, but a different one from that in the libel. He recalled a teacher called “Jack”. Again the alleged incident was not mentioned. [13] On 18 August 2014, the defence lodged a minute raising a compatibility issue under s.288ZA(2) of the 1995 Act. This complained that the appellant had “not had an adequate and proper opportunity to challenge the key witnesses against him in breach of the (appellant’s) Convention rights under Article 6, Article 6(3). . .”. It was said that the appellant had had no opportunity to question the children “shortly” after the JIIs. He was thus deprived of an opportunity “to effectively participate in the cross-examination process”. He did not have an equality of access to the witnesses. The judge who heard the initial argument rejected these contentions. She did not consider that it was inevitable that any trial would be unfair in a Convention sense. [14] The trial commenced on 26 January and concluded on 30 January 2015. The Crown withdrew charge (4), involving C K. The appellant’s guilt on the child pornography charges (5) and (6) was not disputed. The jury found the appellant guilty of charges (1) and (3), relating to A G and R O. They found charge (2), involving M L, not proven.

Submissions Appellant

[15] The appellant contended that there had been unjustified delay in initiating the commission process. Though the appellant had been given the opportunity to cross-examine the witnesses at the commission, the process had been inherently unfair. The Crown had chosen not to refer to the JIIs at the commission. The practical result of that was that the defence had been faced with the prospect of reminding the children of what they had said at their JII in order to conduct any meaningful cross-examination. The defence would have had to have reminded the children of their incriminating statements before seeking to challenge them. [16] The appellant had a Convention right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him (art.6(3)(d)). It was clear that the children’s memories had been severely affected by the passage of time. Either the children had not understood the questions put to them at the commission or they had had no recollection of any of the matters they had previously spoken about at the JIIs. The attempts to cross-examine the children had been futile. A comparison was made with the test for the competence of a child witness in England (R v Powell; R v B; R v M; R v Maliki). [17] The evidence upon which the appellant had been convicted had been based solely or decisively on the statements of the young child complainers. Charge (1), in respect of A G, required mutual corroboration from the evidence on either charges (2) or (3) in respect of M L or R O. The jury had heard, and would have been entitled to take into account, the testimony of C K on charge (4), even although it had been withdrawn by the Crown. [18] There was no equality of arms, in terms of the Crown’s reliance on the JII statements, since contemporaneous cross-examination had not been possible. There was no pre-trial confrontation hearing in Scotland as there was in other legal systems. Whilst special measures may be appropriate in some cases, they could not be allowed to prejudice the fundamental right to a fair trial.

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Respondent

[19] Mutual corroboration must have been applied by the jury in order to convict the appellant on charges (1) and (3). The trial judge had directed the jury to exercise extreme caution with the evidence of the child witnesses at the JIIs and on commission. He had also emphasised the length of time between the JIIs and the commissions. Such directions accorded with N v HM Advocate (LJC (Gill) at para.37). There were adequate safeguards in place, including: judicial oversight of the commissions; appropriate directions to the jury; and the opportunity to cross-examine during the commission. Such measures ensured that the appellant’s art.6 right had not been violated (Al Khawaja v United Kingdom; Horncastle v United Kingdom). The jury had been properly directed on how to consider the evidence. That evidence did not stand alone. It was corroborated by that of A G on charge (1). The cross-examination at the commission had proceeded under judicial control and oversight. It had been skilful and fruitful. It had founded cogent submissions to the jury about the children’s reliability. There had been no miscarriage of justice. Decision

[20] It is important at the outset to define the limits of this appeal. It is based exclusively on a contention that the appellant’s art.6 right to a fair trial, especially his subsidiary art.6(3) right to examine witnesses, had been breached because he did not have “an adequate and proper opportunity to challenge the key witnesses against him”. There is no challenge to the convictions based on the domestic right, or privilege, to cross-examine witnesses. There is no appeal based upon the court’s decision to allow the JIIs to be used as evidence in chief under s.271M of the Criminal Procedure (Scotland) Act 1995. There was no opposition to that course, which converted what might otherwise have been regarded as hearsay, under domestic rules of evidence, into admissible testimony. There is also no appeal based on delay, even if lapse of time features in the principal argument. There is no appeal based upon the application of mutual corroboration between charges (1) and (3). [21] It is equally important to recognise the general problem which arises with the examination of very young children. It has long been recognised that “in criminal cases, where the facts are usually simple, and justice requires a full investigation, children, however young, may. . .be examined on facts within their comprehension” (Dickson, Evidence (Grierson edn), para.1544 citing Buchan, which involved an alleged sexual offence against a complainer aged four). The problem in the modern era, especially, but not exclusively, with very young witnesses is the time which it takes before their formal evidence is taken. There is also an increasing recognition of the psychological effect of prolonged criminal proceedings on witnesses in general and those of a vulnerable nature, including children, in particular. [22] The guarantees in art.6(3) of the Convention are specific aspects of the art.6 right to a fair trial; the two provisions require to be examined together (Asch v Austria at para.25). The European Court has repeatedly emphasised that the admissibility of evidence is primarily governed by domestic law. As a rule, it is for the national courts to assess that evidence (S N v Sweden at para.44). [23] The task, in determining whether a criminal trial has been art.6 compliant, is to ascertain whether the proceedings in their entirety, including the way in which the evidence was taken, were fair (Asch, para.26; SN, para.44). The starting-point is the principle that all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial

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argument. “As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when the witness made his or her statements or at a later stage of the proceedings” (Saidi v France, para.43; S N, para.44). However, they do not provide an accused with an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable for the court to hear oral testimony (Bricmont v Belgium, para.89; S N, para.44). The use in evidence of statements obtained at the stage of the police investigation is not inconsistent with art.6, provided that the rights of the accused have been respected (Saidi v France, para.43; Kostovski v Netherlands, para.41). [24] In S N v Sweden, the European Court recognised (para.47) the special features of criminal proceedings involving sexual offences, which are often conceived of as an ordeal by the victim, particularly in the case of child complainers. In assessing a complaint under art.6, regard has to be had to the right to respect for the private life of the complainer. Against that background, the Court accepted that, provided that they could be reconciled with an adequate and effective exercise of the rights of the defence, certain measures may be taken for the purpose of protecting the alleged victim. [25] In S N v Sweden there was no violation where the decisive evidence came in the form of police interviews of the only child complainer; the first being conducted during the investigative phase with no defence representative present; and the second taking place, by agreement, in the absence of a defence representative but with written questions prepared by the defence being put to the child. There was no violation where there was no oral testimony at all; only the playing of the video of the interviews. The latter had enabled a challenge to the child’s credibility. The court was conscious that some of the detail in the child’s evidence had been vague, uncertain and lacking in detail. It also had regard to the leading nature of some of the questions. The court was nevertheless satisfied that the necessary care had been applied by the domestic court in the evaluation of the child’s evidence. [26] In this case, the appellant had the opportunity, through his senior counsel, to question the child witnesses directly in a judicial setting. He was not restricted to pre-prepared written questions. In short, the appellant had a full opportunity to cross-examine, in a domestic sense, the children. He took that opportunity. At the trial diet, he was able to challenge the reliability of the children’s accounts at the JIIs having regard both to the content of the JIIs themselves and the answers obtained at commission. The fact that it appeared, on a somewhat limited probing of the children, that they could not immediately recall the alleged offences, does not carry with it any implication that the cross-examination was not effective. On the contrary, the appellant’s counsel must have been reasonably content with the responses he obtained. He did not, no doubt advisedly, seek to delve any deeper, which he could have done by referring, for example, specifically to the incidents libelled. He could have questioned the witnesses much more closely, had that course been advised. This may, or may not, have prompted a recall of memory. [27] The appellant could have objected to the JIIs being treated as the child complainers’ evidence in chief (s.271C(4A)). He did not do so. The grant of this measure unopposed, as already noted, converted the JIIs into testimony. There can be little force in a general objection which seeks to prevent a recorded interview taken in the initial stages of a police investigation being used as proof of fact in the case of a very young child complainer. That material is likely to be the most accurate account of events, at least if the questioning is such that does not suggest the answers. The loss of memory, if that is what

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occurred, does not render the consideration of such material unfair in Convention terms. There are other aspects of the system which protect the accused’s right. These include the very fact that the JIIs are recorded electronically and capable of scrutiny by the jury in light of the crossexamination at commission. There are also what were in this case directions from the trial judge on the degree of care required when analysing this sort of evidence. There was also the mutual corroboration, which it was accepted could apply between charges (1) and (3), even if the criminal acts libelled in each charge had some dissimilarities. In all these circumstances, it is not possible to classify this trial as unfair in a Convention sense. The appeal must accordingly be refused. [28] There is nevertheless an obvious concern about the delay which took place between the JIIs and the commissions. Whether a more rapid strategy by the Crown would have altered the position is doubtful, given that such commissions can only take place after an indictment has been served (see infra). Had the Crown actually treated the case as if the time bar in custody cases had applied, there would still have been a substantial gap in time before the defence were able to enter the fray in any judicial setting. [29] For the future, it may be that two expedients might be considered. The first uses the existing commission procedure. At common law, evidence on commission in criminal cases was not competent (HM Advocate v Hunter), being contrary to the Act of 1587, which requires all the proceedings to be in the presence of the accused. This was substantially modified in relation to witnesses who were abroad, ill or infirm by s.32 of the Criminal Justice (Scotland) Act 1980. This provision, which was the precursor to s.272 of the 1995 Act, allowed evidence on commission “in any criminal proceedings” on the application of either the prosecutor or the defence. It appears, from its reference to applications where the trial court is not yet known, that a commission can be requested by either party in advance of service of the indictment. [30] Sections 271 and 271A of the 1995 Act, which authorise the use of a commission to take the evidence of children, only apply once an indictment or a complaint has been served (see s.271(3)). That, in solemn proceedings, will have the effect of substantially delaying any formal examination or crossexamination. This problem could be solved, however, by introducing a relatively simple provision permitting the evidence of young children to be taken on commission at any time after the appearance on petition. That may be a matter which the government might consider in the relatively short term. [31] The second expedient would be to move away from the traditional approach and adopt one more akin to the Scandinavian model, seen in S N v Sweden. This would see defence involvement, if an accused so wished, very soon after, or even at, the JII. This may be seen as a more radical step, but it may be the most appropriate in the modern era. Such a move would herald an end to seeing young children being questioned in a court or commission setting with the legal formalities of examination in chief and cross. It seems plain, however, that, for such a system to be regarded as acceptable in domestic terms, far greater controls and training would need to be devised to ensure the fairness of the interview process.This may be something to which consideration can be given in the longer term. [32] It is worth adding that, given the extensive material now available to lawyers on what constitutes a fair interview of a young child, the assessment of fairness is for the lawyers, and ultimately the judge, to determine, and not for expert opinion from a psychologist.

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February 2016 2016 S.C.C.R. 1−108 97

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Misuse of drugs—Accused director of operation of supplying large quantities of high purity heroin—Whether 18 years’ imprisonment excessive Sutherland v HM Advocate 41

Non-harassment order—Whether can be made in respect of person not named as victim in charge SJS v HM Advocate 12

Rape—Corroboration—Whether complainer’s evidence of penetration during rape on bed corroborated Palmer v HM Advocate 71

Whether reasonable grounds for search

Possession of offensive weapon—Reasonable excuse—

*657935*

Borland v HM Advocate

Whether fear of attack reasonable excuse Lunn v HM Advocate

2016 S.C.C.R. 1–108

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SCOTTISH CRIMINAL CASE REPORTS

Art and part Art and part by presence—Whether circumstances showed participation Gay v HM Advocate 87

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD

Borland v HM Advocate Dunn v Porch Gay v HM Advocate HM Advocate v AB HM Advocate v SSK Lunn v HM Advocate Kinloch v HM Advocate Mackay v Murphy (SAC) MacLennan v HM Advocate

8 55 87 47 74 17 25 83 101

Palmer v HM Advocate Stewart v Harvie SJS v HM Advocate Strathern v Harvie Sutherland v HM Advocate Urquhart v HM Advocate VG v HM Advocate WA v HM Advocate

71 1 12 22 41 33 97 51