Scottish Criminal Case Reports, Issue 5, October 2016

Oppression Extension of time limit on indictment for alleged offence in April 2013 refused in 2015—Case reduced to summary five months later—Whether summary proceedings oppressive Potts v Gibson (SAC) 412

Compatibility issue Delay—Extension of time limit on indictment for alleged offence in April 2013 refused in 2015—Case reduced to summary five months later—Whether trial in October 2016 would involve unreasonable delay Potts v Gibson (SAC) 412

Sentence Misuse of drugs—Being concerned in supply of heroin—18year-old offender—Whether custody excessive Smart v HM Advocate (Sy) 433

Evidence Accused as witness—Cross-examination as to character— Accused charged with assault making reference in evidence to quarrelsome nature of complainer and dishonesty of Crown witness—Whether allowance of cross-examination of accused on his record for dishonesty fair and proportionate McLeish v HM Advocate 422 Admissibility—Sexual offence—Character of complainer— Evidence of alleged false claims by complainer of pregnancy after incident—Whether admissible at common law— Whether admissible under statute Kerseboom v HM Advocate 386 Corroboration—Mutual corroboration—Incidents of domestic and sexual violence in period of 20 years—Whether Moorov doctrine applicable McAskill v HM Advocate 402 Evidence of crime not libelled—Unexpected answer given to question directed to other matters—Whether trial should be deserted McAskill v HM Advocate 402

Sufficiency—Two charges of extortion from same complainer in similar circumstances—One charge fully proved—Whether available to corroborate identity of accused in other charge Wilson v HM Advocate 425

Road traffic—Drink driving—Whether competent to take account of provision for application of removal of disqualification Stevenson v McPherson (SAC) 399 Solemn procedure Judge’s charge—Comment that evidence of defence witness of very limited significance—Whether appropriate McAskill v HM Advocate 402 Judge’s charge—Rape—Failure to give specific direction on need to corroborate complainer’s evidence of penetration— Whether misdirection leading to miscarriage of justice Miller v HM Advocate (Sy) 432 Statutory offence Threatening behaviour—Hunt protestors following hunt vehicle with faces covered—Whether behaviour reasonable Milne v Harrower (SAC) 392 Witness Expert witness—Drugs—Member of drug squad—Whether qualified as expert witness Jones v HM Advocate 381 Expert witness—Drugs—Police officer involved in investigation—Whether qualified as expert witness Jones v HM Advocate

381

2016 S.C.C.R. 381–436

Identification of accused—Admission made in answer to Road Traffic Act requirement—Whether can be used as evidence of identity in charge of linked non-traffic offfence How v Harvie (Sy) 435

Road traffic—Drink driving—Breath level of 153 mg—Whether disqualification for six years excessive Stevenson v McPherson (SAC) 399

October 2016 2016 S.C.C.R. 381−436

SCOTTISH CRIMINAL CASE REPORTS

Appeal Dangerous dogs—Destruction order—Failure by sheriff to take account of relevant facts—Whether destruction order excessive Luckhurst v Harrower (Sy) 436

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD How v Harvie (Sy) Jones v HM Advocate Kerseboom v HM Advocate Luckhurst v Harrower (Sy) McAskill v HM Advocate McLeish v HM Advocate Miller v HM Advocate (Sy)

*657939*

435 381 386 436 402 422 432

Milne v Harrower (SAC) Potts v Gibson (SAC) Smart v HM Advocate (Sy) Stevenson v McPherson (SAC) Wilson v HM Advocate

392 412 433 399 425

The Scottish Criminal Case Reports are published by Thomson Reuters (Professional) UK Limited trading as W Green, 21 Alva Street, Edinburgh, EH2 4PS (Registered in England & Wales, Company No 1679046. Registered Office and address for service: 2nd floor, 1 Mark Square, Leonard Street, London, EC2A 4EG).

Typeset by LBJ Typesetting Ltd. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire.

No natural forests were destroyed to make this product: only farmed timber was used and replanted.

ISSN 0263-2381 Orders to: W. Green, PO Box 1000, Andover, SP10 9AF. Tel: 0345 600 9355. Email: TRLUKI.orders@thomsonreuters. com. Individual back issues of the Scottish Criminal Case Reports are available for the years 1986-2015.

The views expressed in the commentaries to the Scottish Criminal Case Reports are those of the contributors and not necessarily those of the Law Society of Scotland.

Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Crown Copyright legislation is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO. All rights reserved. No part of this publication may be reproduced or transmitted in any form, or by any means stored in any retrieval system of any nature, without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material, including permission to reproduce extracts in other published work should be made to the publishers. Full acknowledgment of the author, publisher and source must be given.

Thomson Reuters and the Thomson Reuters Logo are trademarks of Thomson Reuters. Š 2016 Law Society of Scotland

A Appeal Against Decision at First Diet

17 March 2016

ANDREW RICHARD JONES

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 65 Witness—Expert witness—Drugs—Member of drug squad—Whether qualified as expert witness Witness—Expert witness—Drugs—Police officer who had been involved in investigation of alleged offence called on to produce report at short notice—Whether qualified as expert witness

C Statutory offence—Dangerous drugs—Whether member of drugs squad who had been involved in investigation of alleged offence called on to produce report at short notice qualified as expert witness— Misuse of Drugs Act 1971 (c.38), s.4(3)(b) The appellant was charged with contraventions of the Misuse of Drugs Act 1971 involving drugs of the cathinone family, and took a preliminary objection to the competence of a police witness who was a member of the drugs squad, on the grounds: (1) that he did not possess the necessary experience of the drugs in question; and (2) that he had been asked by the police to give an earlier initial valuation of the drugs and his report, without which the Crown case would fall, had been required from him by the Crown at 24 hours’ notice and that this, together with his membership of the drug squad, gave rise to an appearance of lack of independence and of impartiality and created an impression of his being placed under pressure to which he had succumbed.

The sheriff repelled the objection at the first diet, having heard evidence from the witness of his familiarity with the literature regarding the drug concerned, and regular consultation of relevant databases and attendance at relevant forum meetings. He had also been involved in five cases concerned with mephedrone, a member of the cathinone family.

The appellant appealed to the High Court.

Held (1) that the witness’s evidence was based on sufficient expertise and knowledge about cathinones (para.11); and (2) that the fact that a police officer had prior operational involvement in a case does not per se render evidence of opinion subsequently inadmissible and that an informed observer would not conclude from this or from the circumstances of the request for the report that it was lacking in impartiality or independence (para.13); and appeal refused.

D

E

F

Cases referred to in the opinion of the court: Hainey v HM Advocate [2013] HCJAC 47; 2013 S.C.C.R. 309; 2014 J.C. 33; 2013 S.L.T. 525 Johnston v HM Advocate [2015] HCJAC 118; 2016 S.L.T. 42 Kennedy v Cordia Services [2016] UKSC 6; 2016 S.C.L.R. 203; 2016 S.L.T. 209 Ul Haq v HM Advocate, 1987 S.C.C.R. 433 White v HM Advocate, 1986 S.C.C.R. 224.

G

381

5281.indd 381

09/11/16 10:29 AM

382 A

B

Jones v HM Advocate

2016 S.C.C.R.

Andrew Richard Jones was charged on indictment in Stirling Sheriff Court with a contravention of s 4(3)(b) of the Misuse of Drugs Act 1971, and took a preliminary objection to the evidence of a Crown witness on the grounds referred to in the opinion of the court. The objection was repelled by Sheriff Robertson on 16 February 2016 after hearing evidence from the witness in question and the accused appealed to the High Court on the grounds referred to in the opinion of the court.

The appeal was heard on 17 March 2016 by Lord Menzies, Lord Bracadale and Lady Cosgrove.

For the appellant: C M Mitchell instructed by Virgil M Crawford, Solicitors, Stirling.

For the respondent: Goddard AD. On 17 March 2016 the appeal was refused. Lord Menzies subsequently delivered the following opinion of the court.

C

D

E

F

G

5281.indd 382

LORD MENZIES [1] The appellant, Andrew Richard Jones is charged on an indictment with a total of 11 charges involving controlled drugs, involving allegations of contraventions of s.4(3)(b) of the Misuse of Drugs Act 1971 and s.170(2) of the Customs and Excise Management Act 1979.

[2] The case was set down for a trial before a sheriff and jury at Stirling Sheriff Court at a sitting in February 2016. The appellant lodged an objection by way of minute in terms of s.71(2) of the Criminal Procedure (Scotland) Act 1995 to the admissibility of evidence of a witness whom the Crown had given notice that it intended to lead at the trial, namely Crown witness number 28, Detective Constable Kevin Plank.

[3] The sheriff heard evidence from DC Plank as to his qualifications and experience between 11 and 15 February 2016 and on 16 February 2016 he repelled the appellant’s minute. It is against that decision that the appellant has now appealed to this court.

[4] There are two broad grounds on which the appellant relies in his objection to the admissibility of DC Plank’s evidence. These are (first), that expert evidence of Kevin Plank is not admissible on the basis that he does not have the relevant qualifications, competence, expertise and experience necessary to provide an opinion in relation to the issues arising in the case and (second), separatim, he is not an independent witness who provides an impartial opinion based upon facts presented to him and accordingly ought not to be regarded as an “expert” witness in the case. These grounds were amplified in the very full note of appeal to this court and in submissions to us

by Miss Mitchell today. We have also had the benefit of a very comprehensive note by the sheriff and written and oral submissions for the Crown.

[5] The sheriff had before him the judgment of the UK Supreme Court in Kennedy v Cordia Services, which was issued on the day prior to the hearing before him on this minute, and he applied his mind to the four considerations set out at para.44 of the judgment which was said to govern the admissibility of skilled evidence. Only two of those considerations were said to be in issue in the present case, namely the second, whether the witness has the necessary knowledge and experience and the third, whether the witness is impartial in his or her presentation and assessment of the evidence. With regard to the knowledge and experience of the witness, Miss Mitchell submitted that although he had a generalised knowledge of controlled drugs, on the basis of

09/11/16 10:29 AM

2016 S.C.C.R.

Jones v HM Advocate

383

his own evidence, he did not have sufficient experience of the drugs in question which were all within a family of drugs known as cathinones namely methylethcathinone, pentedrone hydrochloride, clephedrone and dibutylone.

In respect of the third of these clephedrone, this drug had only been recovered twice in Europe before. Miss Mitchell submitted that some of the content of DC Plank’s report, Crown label 16, was, on his own admission, lifted almost word for word from the Ask Frank Government-funded website and this should not be cloaked with the respectability of an expert opinion.

[6] As the sheriff observes in the final paragraph of his note: “The jury will not however form a view upon the basis of the report but will do so by evaluating the witness’s whole evidence. The form and content of the witness’s report exposes him to the prospect of considerable challenge under cross-examination and part of that may be attributable to the unreasonable haste with which it was perforce prepared. The style is unsophisticated, in certain respects unprofessional and much of the content based upon factual assumption or hearsay statements which should be differently phrased. These aspects go to the quality of the evidence which it is for the jury to assess for themselves. My concern in relation to the present minute is with the admissibility of this witness’s evidence. For all of the reasons I have discussed, I cannot be persuaded that in the final analysis, the evidence of DC Plank is inadmissible by being incapable of meeting the required criteria and so I repel the minute.”

We agree with those views.

[7] As was observed by the UK Supreme Court in Kennedy v Cordia Services at para.42: “It is common in Scottish criminal trials for the misuse of drugs for the Crown to adduce the evidence of the policeman who has the experience and knowledge to describe the quantities of drugs that people tend to keep for personal use rather than for supply to others. Recently in Myers, Brangman and Cox v The Queen [2015] UKPC 40; 2015 3 WLR 1145 the Judicial Committee of the Privy Council approved of the use of police officers, who had special training and considerable experience of the practices of criminal gangs, to give evidence on the culture of gangs, their places of association and the signs that gang members used to associate themselves with particular gangs. In giving such factual evidence, a skilled witness can draw on the general body of knowledge and understanding in which he is skilled, including the work and literature of others. But Lord Hughes, in delivering the advice of the Board at para.58, warned that ‘care must be taken that simple, and not necessarily balanced, anecdotal evidence is not permitted to assume the robe of expertise’. To avoid this, the skilled witness must set out his qualifications, by training and experience, to give expert evidence and also say from where he has obtained information, if it is not based on his own observations and experience.”

[8] These matters have been the subject of authoritative statements of the law in Scottish criminal appeals—e.g. White v HM Advocate; Ul Haq v HM Advocate; Hainey v HM Advocate; and Johnston v HM Advocate. We note in passing that in the last case the experience and knowledge of the witness objected to but eventually allowed does not appear to have been as great as that of DC Plank.

[9] What is objected to in the present case is not just the report, Crown label 16, but the whole of the intended evidence of DC Plank. We consider that on the basis of the evidence heard by the sheriff, the attack on DC Plank’s expertise and experience is unfounded. In para.7 of his note the sheriff records that the witness:

5281.indd 383

A

B

C

D

E

F

G

09/11/16 10:29 AM

384 A

B

C

D

E

F

G

5281.indd 384

Jones v HM Advocate

2016 S.C.C.R.

“undertook further training from time to time, attending a one-week Drugs Course at the Police College in about 2009 and a four-week Detection of Crime Course. The latter included telecommunication tactics, means of gathering information from and analysing mobile telephones. He attended a two-day course in Kent on cannabis cultivation in about 2012. In about November of that year he engaged in a two-day conference on Legal Highs along with other STOP colleagues. It was a multi-agency event involving drug addiction workers, NHS staff, social workers as well as police. Attendees learned about the effects of substances, saw images of the forms of substances and learned how they were sold. The conference heard from individuals who had personal experience of abusing substances”.

In para.8 the sheriff notes that DC Plank has provided input to a course on legal highs in relation to the Khat plant from which cathinone substances such as clephedrone and mephedrone are derived. At para.12 the sheriff notes that the witness: “explained that he regularly undertakes what he characterised as open source research by reading books, examining social media and the internet.

The BBC was said to be one of the best sources. He is at court often and prepares by looking through the internet for potential trends. An example of a website he might visit is Blue Light, a forum for drug users to exchange views on information and drug use. In relation to the drug clephedrone he could gain an understanding about usage amounts, effects and symptoms.

He also consults on an almost daily basis the Scottish Police Intelligence Database. Every day there are new intelligence submissions relating to drugs, who is dealing, prices paid and where drugs are sold from”.

[10] At para.14 the sheriff notes that “every six months DC Plank in his capacity as a member of the STOP Unit meets with similar STOP officers throughout the country.They exchange files and liaise with each other regarding practices and developments in the world of illicit drug supply, drug culture and relating matters”. He went on to state that the witness was able to identify the terminology by which cathinones are associated and said the National Crime Agency and Air Freight Traffic Association send out details of drugs from time to time. In para.27 he noted as follows: “With regard to pricing of the drugs, some of which were unknown to DC Plank he agreed that price was dependent upon availability and effect or perceived effect. He explained, however, as they were all cathinones they were all broadly priced similarly to mephedrone. This was a drug of which he had greater experience; in the year before January 2016 he had been involved in about five mephedrone cases.When challenged on his knowledge and experience of cases involving mephedrone, he confirmed that there was no formal body recording data from those cases and that no one had taken time to collect information about them. The cases were not readily available.

His experience of this drug predated the date at which they became illegal and in addition to the five cases in the year to January 2016, he had five or six years of experience with the drug in addition to speaking to his STOP colleagues throughout Scotland.”

[11] We are satisfied that the evidence of DC Plank is based on sufficient expertise and knowledge to allow him to give opinion evidence about, amongst other things, cathinones. We reject the attack on admissibility based on his experience and knowledge.

[12] With regard to the argument about impartiality, Miss Mitchell was at pains to make it clear that she was not suggesting that DC Plank was in fact partial, but there was an apparent lack of independence and impartiality. This

09/11/16 10:29 AM

2016 S.C.C.R.

Jones v HM Advocate

385

she submitted arose from two sources—first, that he was asked by the police to give an initial valuation of the drugs recovered and he did this in August 2015. This, together with the fact that he was himself a member of the drug squad, gave rise to an appearance of lack of independence and impartiality.

Miss Mitchell accepted that membership of the drug squad by itself was not enough to give rise to such an impression, but given DC Plank’s involvement at an early stage of this investigation, the impression was created. There required to be greater protective partitions between him and the investigating officers. The second source was that he was only asked to provide his report Crown label 16 by the procurator fiscal on 13 January 2016 and he was told that if he did not provide it by the following day, the case would fall. The impression created by this was that he was placed under pressure to provide a report which would support the Crown case in an impossibly short timescale and that he succumbed to this pressure. He was therefore likely to be perceived as lacking in independence and impartiality.

[13] We do not consider that an informed observer, seized of all the relevant circumstances, would infer that DC Plank was not independent or impartial because of either of these factors. The fact that a police officer has prior operational involvement in a case does not per se render his evidence of opinion subsequently inadmissible. Johnston v HM Advocate is an example of a police officer who had much greater involvement than DC Plank in the investigation itself, but whose opinion evidence was held admissible. The fact that the procurator fiscal only sought the report label 16 from DC Plank on 13 January and told him the case would fall if it was not provided the following day, does not reflect well on the Crown and explains many of the shortcomings which the sheriff noted in the report. However we do not consider it would cause the reasonable informed observer to conclude that the witness by producing the report in this timescale was lacking in impartiality or independence.

[14] In conclusion we agree with the reasoning and conclusion of the sheriff. We can find no error of law in his approach to this matter and this appeal is accordingly refused.

Note: the following is an extract from the opinion of the court in Johnston (Lady Paton, Lord Bracadale and Lord Malcolm), delivered by Lord Bracadale: [4] DC Gordon was 35 years of age with seven years’ police service. He had . . . worked . . . as a community officer in the Stirling area during which he specialized in drug cases. He had had daily contact with drug users and had reported more than 200 drug-related cases to the Crown. (He) had completed a three-week drug detection course at the police training college in 2013; (he) had been trained in testing drugs and had been involved in that work for some five years; he had also attended various other training courses, including a drugs detective officers’ course in 2015. He also gave evidence of his experience in interrogating mobile phones . . . He considered himself able to give an opinion about whether a person found in possession of drugs was concerned in supply . . . He also confirmed that he had been operationally involved in the appellant’s case, having been present when the warrant was executed and having interviewed the appellant. . . .

[9] In our opinion the evidence of DC Gordon was of similar nature to the evidence given by the police officers in (White and Ul Haq). The fact that members of STOP regularly give evidence does not mean that an officer with appropriate experience who is not a member of the unit is not able to give such evidence.

5281.indd 385

A

B

C

D

E

F

G

09/11/16 10:29 AM

A Appeal Against Decision at Preliminary Hearing MICHEL KERSEBOOM

1 April 2016 Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 51 Evidence—Admissibility—Sexual offence—Character of complainer— Evidence of alleged false claims by complainer of pregnancy after incident—Whether admissible at common law—Whether admissible under statute—Criminal Procedure (Scotland) Act 1995 (c.46), ss.274, 275—Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), ss.7, 8

C

D

E

F

Section 274 of the Criminal Procedure (Scotland) Act 1995, as substituted by s.7 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, prohibits the leading of evidence that the complainer in a sexual offence is not of good character unless, in terms of s.275 of the 1995 Act, as substituted by s.8 of the 2002 Act, the court is satisfied that, inter alia, the proposed evidence relates to facts demonstrating the complainer’s behaviour or, in terms of s.275(1)(a)(ii), any condition or predisposition to which the complainer is or has been subject which are, in terms of s.275(1)(b), relevant to establishing whether the accused is guilty, and, in terms of s.275(1)(c), its probative value is significant and likely to outweigh any risk of prejudice to the proper administration of justice, including the appropriate protection of a complainer’s dignity and privacy.

The appellant was charged with rape and lodged a defence of consent. He sought leave under s.275 of the Criminal Procedure (Scotland) Act 1995 to lead evidence of false statements allegedly made by the complainer after the incident that she was pregnant, on the ground that they were relevant to her credibility, and it was proposed to prove the falsity of those statements by reference, inter alia, to her medical records. The judge at the preliminary hearing held that the proposed evidence fell within the statutory exceptions as being relevant to the complainer’s credibility, demonstrating that she persistently lied about matters directly connected with and flowing from her sexual encounter with the appellant, and also that she had persisted in those lies as a form of attention-seeking behaviour, and so were relevant to the appellant’s guilt, but refused to allow its admission, holding that it would be of such little evidential value that it could not be said that its probative value would outweigh the risk to the administration of justice from its admission. The appellant appealed to the High Court.

Held (1) that the evidence was collateral and thus inadmissible at common law, and the preliminary hearing judge erred in holding that the evidence would be admissible (para.16); but (2) that the preliminary hearing judge was correct in deciding that in the circumstances the evidence would be of such little evidential value that it could not be said that its probative value would outweigh the risk to the administration of justice from its admission (para.16); and appeal refused.

CJM v HM Advocate [2013] HCJAC 22; 2013 S.C.C.R 215; 2013 S.L.T. 380 followed.

G 386

5281.indd 386

09/11/16 10:29 AM

2016 S.C.C.R.

Kerseboom v HM Advocate

387

Cases referred to in the opinion of the court:

A

Brady v HM Advocate, 1986 S.C.C.R. 191; 1986 J.C. 68; 1986 S.L.T. 686 CJM v HM Advocate, [2013] HCJAC 22; 2013 S.C.C.R 215; 2013 S.L.T. 380 Moorov v HM Advocate, 1930 J.C. 68; 1930 S.L.T. 596 Wright v HM Advocate [2005] HCJAC 117; 2005 S.C.C.R 780 Michel Kerseboom was charged with rape and applied for leave to lead evidence as to the complainer’s character. The application was refused by Lord Boyd of Duncansby at a preliminary hearing on 29 January 2016 in the High Court at Glasgow and he appealed to the High Court.

B

The appeal was heard on 1 April 2016 by Lady Smith, Lady Dorrian and Lord Bracadale.

For the appellant: Alonzi, instructed by John Pryde & Co, Solicitors, Edinburgh.

For the respondent: Erroch, AD. C On 1 April 2016 Lady Dorrian delivered the following opinion of the court LADY DORRIAN Decision

[1] This is an appeal under s.74 of the Criminal Procedure (Scotland)Act 1995 arising from the refusal at a preliminary hearing of an application under s.275 of that Act. [2] The indictment contains one charge of rape, alleged to have been committed on 6 June 2011 at an address in Lybster. The defence has lodged a special defence of consent. A s.275 application was presented on behalf of the appellant. So far as relevant to this appeal, s.275 provides as follows: “Exception to restrictions under section 274 (1) The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that— (a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating— (i) the complainer’s character; or (ii) any condition or predisposition to which the complainer is or has been subject; (b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.

(2) In subsection (1) above— (a) the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature; (b) “the proper administration of justice” includes— (i) appropriate protection of a complainer’s dignity and privacy; and

5281.indd 387

D

E

F

G

09/11/16 10:29 AM

388 A

B

C

D

E

F

G

5281.indd 388

Kerseboom v HM Advocate

2016 S.C.C.R.

(ii) ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury’s verdict, and, in that subsection and in sub-paragraph (i) of paragraph (b) above, “complainer” has the same meaning as in section 274 of this Act.” The application contains reference to the evidence sought to be elicited or admitted as follows: “(a) That the complainer menstruated between 1 and 6 June 2011. (b) That from around 24 June 2011 the complainer falsely claimed to work colleagues that she was pregnant with the accused’s child. In particular, on 24 June 2011 she falsely claimed to defence witness Aileen Grogan that her period was over a week late. In the course of further text messaging the complainer falsely implied that she was due to be given a pregnancy scan; and on 6 July 2011 the complainer stated that she had been to the doctor that day and falsely claimed to have had a third positive pregnancy test; that she was undecided about whether to have a termination, but that her mother was making an appointment for termination. Later that day she claimed to be having a possible miscarriage and falsely stated that she was due to see a gynaecologist the following morning. On 7 July she texted that it had not been a miscarriage; and subsequently she falsely claimed to be having a termination performed on 11 July 2011. (c) That following the alleged rape, the complainer would constantly bring the matter up in conversations at work despite the efforts of her colleagues not to speak about it. She appeared to enjoy people speaking about the alleged incident and being the centre of attention.”

It was said that the evidence in respect of (a) would demonstrate the falsehood of the complainer’s purported concern regarding her period being overdue. The false nature of the claims referred to in (b) would be established by comparison of her medical records with the evidence of her work colleagues. The records would show that a pregnancy scan was never contemplated, that she had two pregnancy blood tests, both negative, with no suggestion of any test being positive. No issues arose regarding termination, miscarriage or attendance with a gynaecologist.

[3] The application asserted that the evidence was relevant to the proper assessment of the credibility of the complainer, demonstrating that she persistently told lies about matters directly connected with and flowing from her sexual encounter with the accused. The evidence also demonstrated that she has persisted in those lies as a form of attention-seeking behaviour. The appellant’s submissions to the procedural hearing judge echoed the contents of the application. Both the accused and the complainer had indicated that there had been no ejaculation during the incident. At medical examination the complainer had indicated that she had just finished her period, yet 18 days later told others that she was concerned that her period was late. She told lies about the blood tests.

[4] The Crown opposed the application, submitting that the matter was far from as straightforward as suggested. By her own admission she had unprotected sexual intercourse with the accused. The evidential basis for the allegations was slim, coming in the form of a hearsay report from one witness and a vague recollection from another. Exploration of the issue would require detailed examination of the complainer’s medical records at the expense of her privacy and dignity.

09/11/16 10:29 AM

2016 S.C.C.R.

Kerseboom v HM Advocate

389

[5] The complainer had previously been receiving treatment for an ovarian cyst. After the incident she had been advised to get the morning after pill because she had had unprotected sex. She was concerned that her period was late, so her mother, working at the local hospital, spoke to a gynaecologist, and obtained a home pregnancy test. That had been positive, so she was advised to get a blood test, in respect of which samples were taken on three occasions. The medical records disclosed that the complainer was worried about pregnancy.

The complainer had a complicated medical history, and it was possible that the bleeding she experienced on 6 July was not menstruation but was connected with an ovarian cyst which was present.

[6] The Crown submitted that the proposed line was sensationalist, and would make the complainer’s medical records the focus of the trial. The probative value of the evidence was insufficient to outweigh the risk of prejudice to the proper administration of justice, which included the protection of the complainer’s dignity and privacy.

[7] The preliminary hearing judge proceeded on the basis that the behaviour may be relevant to the credibility of the complainer, in the broadest sense, and thus to whether the accused is guilty of the offence with which he is charged, on which basis he was satisfied that s.275(1)(b) was established.

[8] However, he considered that: (a) Before the jury could consider whether the allegation of rape was part of attention-seeking behaviour on the part of the complainer they would have to weigh and consider much disputed evidence which would not be directly related to the allegations in the indictment; (b) Given that the complaint of rape was made very soon after the incident, and when the complainer was intoxicated, the relevance of the alleged subsequent behaviour to the question of consent was very limited; and (c) The medical records of the complainer would require to be examined in detail, despite the assertions to the contrary made on the appellant’s behalf.

Noting that under s.275(2)(b)(i) the proper administration of justice includes the appropriate protection of the complainer’s dignity and privacy, the preliminary hearing judge concluded that any probative value which the evidence might have did not outweigh any risk to the administration of justice.

[9] The submissions before us largely repeated the submissions made to the preliminary hearing judge.

[10] In our view the preliminary hearing judge was correct to refuse this application. The preliminary hearing judge, who was unfortunately not given the benefit of reference to authority, was content to proceed on the basis that the requirements of s.275(1)(b) were met. We do not think that is the case. It is not every matter which by any conceivable margin may bear on credibility which is relevant for this purpose. Evidence which is remote or collateral is not relevant to establishing whether the accused was guilty of the offence with which he is charged. A clear distinction must be made between that which is admissible and material evidence, and that which is collateral. As was pointed out in CJM v HM Advocate, the reason that collateral evidence is inadmissible is because it requires inquiry into and assessment of evidence which does not have a direct and material bearing on the issue for the jury: that clearly applies here, where there is considerable dispute about both the nature and extent of the evidence which may be available, and where, as the advocate depute

5281.indd 389

A

B

C

D

E

F

G

09/11/16 10:29 AM

390 A

B

C

D

E

F

Kerseboom v HM Advocate

2016 S.C.C.R.

correctly identified to the preliminary hearing judge, proper exploration of the issues would involve detailed examination of the complainer’s medical records on matters which are not germane to the issue of consent. To allow that would be inexpedient and would distract the jury from the principal issues. As was noted in M (C J) there are recognised exceptions to the rule against the admission of collateral evidence in situations where the collateral fact could be demonstrated instantly and could not be challenged—that is so very far removed from the situation here.

[11] The only significance of the evidence would be to support an argument that having lied about having a positive pregnancy test, and associated matters, the complainer’s credibility in relation to her assertion that intercourse with the appellant was not consensual was suspect, and that she was lying about the course of events. The background of the matter, as explained to the procedural hearing judge by the Crown, is that although the complainer did not have a positive blood test, it is said that she did return a positive test on a home pregnancy kit. It is also said that she did have several blood tests, which indicate a certain degree of concern about the possible consequences of the incident, a concern which cannot be negated by the fact that ejaculation did not take place. There are potential complications in the evidence arising from the history of an ovarian cyst. This is clearly an area of dispute, not a case of facts which could be demonstrated instantly and without challenge.

[12] The evidence sought to be relied upon appears to be in the same category as the evidence in CJM v HM Advocate. It is clearly evidence of character, since the defence position is that she wholly fabricated evidence relating to events subsequent to the night in question. As was said in M (C J) (para.29) by the Lord Justice Clerk, Lord Carloway: “What is sought to be admitted here is evidence that, at least on one view, has no direct or indirect connection with the facts in issue, but may conceivably affect the weight to be attached to testimony which does have direct relevance to the facts (see Phipson, Evidence (17th edn), para.7-04).

There is no doubt that this type of evidence can be admissible in certain situations; but these situations are strictly regulated. The Scots law is reasonably clear . . . . evidence of either good or bad character is, in general, inadmissible . . . . because it is collateral to the issues for decision as defined in the libel.”

[13] In that case, the reason for this rule was noted (para.31, Lord Carloway): “The reason for this rule is that: ‘. . . it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand’ (A v B, Lord President Robertson at p.404 cited in Walker and Walker on Evidence (3rd edn) at para.7.1).”

[14] In Moorov v HM Advocate it was observed that: “A certain alleged fact may be relevant in so far that, if established, it might help a fair mind to come to a certain conclusion. Nevertheless, it may fall to be excluded if its ascertainment raises a separate issue from that which is being tried. The alleged fact if put in cross and admitted may be relevant, but nevertheless it may be of a kind which cannot otherwise be proved, for, if it is disputed, it would require to be tried as carefully as the issue before the Court, and the allowance of such collateral inquiries would make proofs endless” (Lord Sands at, p.87).

G

5281.indd 390

09/11/16 10:29 AM

2016 S.C.C.R.

Kerseboom v HM Advocate

391

[15] More recently, the rule and its justification have been phrased as follows: “The general rule is that it is not admissible to lead evidence on collateral matters in a criminal trial. Various justifications have been put forward for this rule. The existence of a collateral fact does not render more probable the existence of the fact in issue; at best a collateral matter can only have an indirect bearing on the matter in issue; a jury may become confused by having to consider collateral matters and may have their attention diverted from the true matter in issue. Whatever the justification for it, the general rule is clear� (Brady v HM Advocate, the Lord Justice Clerk, Lord Ross at pp.197–198).

[16] We accordingly are not satisfied that the evidence would be admissible at common law. However, even proceeding, as the procedural hearing judge did, on the basis that it would be admissible, we consider that the procedural hearing judge was correct in deciding that in the circumstances it would be of such little evidential value that it could not be said that the probative value of it would outweigh the risk to the administration of justice from its admission.

There is a great deal of speculation in the matter; there is a significant dispute as to the nature and extent of the evidence; a considerable amount of time is likely to be taken up with examining the medical records and other matters which are incidental to the issues in the trial. All that would be at the expense of the privacy and dignity of the complainer. Leaving aside the additional question of examination of the police investigation, which was mentioned in passing, there was ample reason to refuse the application. In deciding as he did the procedural hearing judge was acting within the bounds of his discretion, and as illustrated in Wright v HM Advocate this court should be slow to interfere with such a decision. We decline to do so, being satisfied that the conclusion which he reached was one within a reasonable exercise of his judgment in the circumstances.

A

B

C

D

E

F

G

5281.indd 391

09/11/16 10:29 AM

A Stated Case

26 July 2016

COLIN MILNE AMY ELIZABETH JAY LILBURN BEVERLY GWEN BERNICE MILNE

Appellants

against B

JENNIFER HARROWER (Procurator Fiscal, Perth)

Respondent [2016] SAC (Crim) 26

Statutory offence—Threatening behaviour—Hunt protestors following hunt vehicle with faces covered—Whether behaviour reckless— Criminal Justice and Licensing (Scotland) Act 2010 (asp.13), s.38(1) C Statutory offence—Threatening behaviour—Defence of reasonable behaviour—Hunt protestors following hunt vehicle with faces covered to find out if hunt legal and gather evidence—Whether behaviour reasonable—Criminal Justice and Licensing (Scotland) Act 2010 (asp.13), s.38(2)

D

E

F

Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 makes it an offence to behave in a threatening manner reckless of whether the behaviour would cause fear or alarm to a reasonable person, and s.38(2) makes it a defence to show that the behaviour was, in the particular circumstances, reasonable.

The appellants, having received information about a fox hunt, proceeded to the locus in a car, and, having covered their faces, followed a vehicle containing a number of foxhounds for about two hours. They were charged with a contravention of s.38(1) and sought to rely on the s.38(2) defence.

The trial sheriff repelled a submission of no case to answer, rejected the defence, and convicted them. They appealed to the sheriff appeal court.

Held (1) that the persistence of the appellants’ conduct and pursuit of the complainers over a significant period of time when no fox hunt was taking place meant that their behaviour might be construed as reckless in the sense of being utterly indifferent to the consequences of their actings to a reasonable person; and appeal against submission of no case to answer repelled (para.16); and (2) that even allowing that a wish to prevent a criminal activity from taking place could, in certain circumstances, amount to reasonable behaviour, if, as suggested, the behaviour of the appellants was a response to their belief that an illegal activity was about to take place, there were options available to them such as speaking to the complainers or contacting the police or indeed speaking with police officers, who were present for a short period before the hunt vehicle drove off, and that in any event, there was no imminent illegal activity that required to be stopped, that the evidence was of a persistent pursuit for a lengthy period through country roads in Perthshire, and that the sheriff was entitled to reject the suggestion that the appellants’ behaviour had been reasonable in the circumstances (para.17, p.398E); and appeals refused.

G 392

5281.indd 392

09/11/16 10:29 AM

2016 S.C.C.R.

Milne v Harrower (SAC)

393

Cases referred to in the opinion of the court:

A

Allan v Paterson, 1980 J.C. 57; 1980 S.L.T. 77 Hayes v Willoughby, [2013] UKSC 17; [2013] 1 W.L.R. 935; [2013] 2 All E.R. 405 M v Harvie, [2015] HCJAC 7; 2015 G.W.D. 6-119 Paterson v Harvie, [2014] HCJAC 87; 2014 S.C.C.R. 521; 2015 J.C. 118; 2014 S.L.T. 857 Smith v Donnelly, 2001 S.C.C.R. 800; 2002 J.C. 65; 2001 S.L.T. 1007 Urquhart v HM Advocate, [2015] HCJAC 101; 2016 S.C.C.R. 33; 2015 S.L.T. 853.

B

Colin Milne, Amy Elizabeth Jay Lilburn and Beverly Gwen Bernice Milne were convicted on the charge set out in the opinion of the court on 27 January 2016 after trial at Perth Sheriff Court before Sheriff Wood and appealed to the sheriff appeal court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 26 July 2016 by Sheriffs Principal Stephen QC (President) and Lewis and Sheriff Braid For the appellants: Mackintosh.

For the respondent: McCormack AD.

C

On 26 July 2016 the appeals were refused. Sheriff Principal Stephen subsequently delivered the following opinion of the court.

SHERIFF PRINCIPAL STEPHEN [1] The appellants appeal by stated case their convictions on charge (1) of the complaint, namely, a contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act, 2010.

[2] Following trial at Perth Sheriff Court which concluded on 27 January 2016 the appellants were found guilty of charge (1) as amended in the following terms: “(1) On 13 March 2015 at various roads from Snaigow Estate, including Blairgowrie to Dunkeld Road, A923 you did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear and alarm in that you did with your faces masked repeatedly follow Angus Broad and Edward Broad . . . then in their vehicle on various roads within Perthshire from Snaigow Estate including the Blairgowrie to Dunkeld Road A923 all to their fear and alarm: contrary to s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.”

We observe that the appellants were charged in the alternative with the common law offence of breach of the peace.

[3] At the close of the Crown case the appellants made a submission of no case to answer in terms of s.160 of the Criminal Procedure (Scotland) Act 1995 which the sheriff repelled in respect of charge (1) and sustained in respect of charge (2) being a contravention of s.68(1) of the Criminal Justice and Public Order Act 1994—(Aggravated trespass).

[4] The first and third appellants are a married couple and the second appellant is the daughter of the third appellant and the step-daughter of the first appellant.

[5] The questions posed for the opinion of this court in each of the stated cases are in identical terms as follows:

D

E

F

G

5281.indd 393

09/11/16 10:29 AM

394 A

B

C

D

E

F

G

5281.indd 394

Milne v Harrower (SAC)

2016 S.C.C.R.

“(1) Did I err in rejecting the submission by the appellant’s agents in terms of s.160(1) of the Criminal Procedure (Scotland) Act 1995?

(2) On the facts stated, was I entitled to convict the appellant?”

Counsel for the appellants addressed us on questions of law 3 and 4 proposed by the first and third appellants and rejected by the sheriff at the stage of adjustment of the stated case. He did not insist on question 4 but argued that proposed question 3 ought to be allowed as it addressed the question of “reasonableness” found in the statutory defence in terms of s.38(2) of the 2010 Act. We considered it was proper to allow the additional question 3 in the stated case for the first and third appellants, but restricted as follows: “Question 3 Did I err in rejecting as a s.38(2) defence the appellants’ position that he/she was acting reasonably in monitoring the activities of the witnesses Edward Michael Broad and Angus Edward Broad?”

We reject the remaining parts of the proposed question as unnecessary or as the sheriff states superfluous. No such question was proposed on behalf of the second appellant.

[6] The context to events on 13 March 2015 is a fox hunt which had been organised by the head gamekeeper to the Snaigow Estate and comprised a number of people armed with shotguns, two houndsmen who managed a pack of 22 dogs and the gamekeeper who was in charge of the hunt.The complainers, Angus and Edward Broad, are the houndsmen who controlled the pack of dogs. As narrated in finding in fact 2 the gamekeeper had identified two woods where foxes might be found and the hounds, under the control of the complainers, would be put in at one end of the wood with a view to flushing the fox out of the wood where it would be shot by those participants with guns.

The sheriff found, in finding in fact 3, that the hunting of foxes in the planned manner is lawful. He went on to find, in finding in fact 12 (re-numbered from (11) as there are two findings in fact (9)), that the Crown evidence failed to show that the hunting on this occasion was lawful in the manner specified under the Protection of Wild Mammals (Scotland) Act 2002. The significance of this (which is not truly a finding in fact at all) is doubtful standing the charges on the complaint, but we mention it in deference to the submissions of counsel for the appellant, who placed some reliance on it.

[7] The hunt began on the morning of 13 March 2015 and after one fox had been successfully hunted and shot the hunt moved on to another area. At that stage the hunt was interrupted by the arrival of the appellants who entered a field on the estate “wearing dark jackets, combat style trousers, hats and snoods. The latter were pulled up over their faces, and their hats were pulled down to just above their eyes” (finding in fact 4]). Following the arrival of the appellants the incident described in finding in fact 5 involving the appellants and a member of the hunting party took place and the hunt was then aborted for lunch. By the time this incident occurred the complainers had already left the field for Snaigow House. The hunt party were followed by the appellants to Snaigow House where the lunch took place. In light of the continued presence of the appellants a decision was made to discontinue the hunt for the day.

[8] The evidence led by the Crown in support of charge (1) related to the activities of the appellants and the complainers after lunch. The complainers left Snaigow House in their vehicle towing a trailer with the 22 fox hounds.

Their evidence described being followed by the appellants over the next two hours or so on various country roads, including a private road, in Perthshire.

The evidence relating to charge (1) came from the complainers and the third

09/11/16 10:29 AM

2016 S.C.C.R.

Milne v Harrower (SAC)

395

appellant. Neither the first nor second appellant offered any evidence. The behaviour of the appellants can be summarised as following the complainers in their vehicle and on foot whilst dressed in the manner described with their faces covered by what may reasonably be described as balaclavas. The evidence of the third appellant regarding events on the day in question has been summarised by the sheriff at para.26 of the stated case in the following terms: “On 13 March 2015, they had gone to the Snaigow Estate because someone had told them that an illegal fox hunt was going to take place.

Their intentions were to find out if the fox hunt was indeed illegal and, if so, to investigate that, gather evidence and report it to the police . . . watched them drive into another field and, as they could not see what was going on, they decided to enter the field with a view to having a conversation with them. Both she and the second accused had cameras in order to document events. Shortly after they entered the field, the majority of the vehicles left.”

At para.28 the sheriff narrates this of the evidence of the third appellant: “At no stage did they intend to follow the houndsmen and the hounds to their home or to the kennels.” At paras 29 and 30 the sheriff narrates evidence under cross-examination when the third appellant spoke about witnessing a terrier savage a fox on another occasion; however, that earlier incident had occurred some two years previously in Fife and to her knowledge had not involved the same people. “She thought that the hunt might be illegal simply because the person who called them said it was.” Furthermore: “[S]he maintained that her face was covered in order to protect her from possible reprisals, although she accepted that the car registration remained visible. As a result of this activity, there had been no reprisals. She accepted that she and her co-accused had followed the hounds vehicle for some miles. She confirmed that she never saw the occupants of the hounds vehicle getting out nor did she see them meet anyone else.”

[9] It can therefore readily be understood that the appellants were protesters or hunt saboteurs and in the submissions before the sheriff it was posited that it was entirely possible that the hunt would have been illegal and the purpose of the appellants’ presence there had to have been to observe the lawfulness of the hunt.

[10] Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is in the following terms: “38 Threatening or abusive behaviour (1) A person (A) commits an offence if— (a) A behaves in a threatening or abusive manner, (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.”

[11] Counsel for the appellants acknowledged that the correct analysis of the statutory offence in terms of s.38 of the Criminal Justice and Licensing (Scotland) Act 2010 (the 2010 Act) may be found in Paterson v Harvie. The constituent parts of the offence are set out in s.38(l)(a), (b) and (c). These appeals are concerned with threatening, rather than abusive, behaviour. The sheriff erred in respect of his decision on the no case to answer submission and also in convicting the appellants by failing to set out in what way the appellants’ behaviour was threatening. For the purpose of question 1 the appellants had to show that the evidence was insufficient to convict of either a contravention of

5281.indd 395

A

B

C

D

E

F

G

09/11/16 10:29 AM

396 A

B

C

D

E

F

G

5281.indd 396

Milne v Harrower (SAC)

2016 S.C.C.R.

s.38(l) of the 2010 Act or the alternative charge of the common law offence of breach of the peace. In respect of the latter we were referred to Smith v Donnelly and M v Harvie. It was argued in respect of question 2 that the sheriff was not entitled to find the necessary mens rea of recklessness to convict the appellant.

Reference was made to Allan v Paterson, a well-known authority on s.2 of the Road Traffic Act (dangerous driving) to provide the meaning of “reckless” namely “a complete disregard for any potential danger”. Finally, in addressing the statutory defence afforded by s.38(2) of the 2010 Act we were referred to the decision of the UK Supreme Court in Hayes v Willoughby, which involves an analysis of the Protection from Harassment Act 1997 and the place of “reasonableness” where an alleged harasser’s conduct was said to be for the purpose of preventing or detecting crime (which is a specific defence in terms of s.1(3) of that Act). In these appeals the appellants’ conduct should be considered “reasonable” as their purpose on the day in question was preventing or detecting crime ie, investigating and monitoring the lawfulness of the hunt. The Protection of Wild Mammals (Scotland) Act 2002, s.1 makes it an offence for a person to deliberately hunt a wild mammal (including foxes) with a dog unless the activity falls within the exception provided by s.2. Accordingly, the sheriff, having accepted that the appellants did not intend to cause fear and alarm, did not apply his mind to the provisions of s.38(2) and erred in concluding that the appellants’ conduct was not reasonable in the circumstances.

[12] The advocate depute pointed to the detailed findings made by the sheriff in the stated case which amply support the appellants’ conviction for a contravention of s.38(l) of the 2010 Act. The facts and the sheriff’s reasoning would also support conviction of a breach of the peace. It is simply not reasonable for masked individuals to follow people in a car and on foot for two hours and then argue that this did not constitute threatening behaviour. Such behaviour cannot be categorised as reasonable and was reckless as to the consequences.

[13] It is settled law from the dicta of the Lord Justice General (Gill) in Paterson v Harvie that s.38(1) of the 2010 Act paras.(a) and (b) define the actus reus of the offence. “Whether the accused has behaved in a threatening or abusive manner and whether that behaviour would be likely to cause a reasonable person to suffer fear or alarm are straightforward questions of fact.”

As Lord Gill went on to observe para.(c) sets out the mens rea that is required.

[14] Section 38(2) provides a defence, in the following terms, “It is a defence for a person charged with an offence under sub-section (1) to show that the behaviour was, in the particular circumstances, reasonable.” The case of Urquhart v HM Advocate, a decision of the High Court of Justiciary Appeal Court, deals with the interaction between the mens rea required to establish a contravention of s.38(1), and the statutory defence afforded by s.38(2). It makes it clear that the defence may be available even where the necessary mens rea has been established, and that the essence of the defence is that the accused behaved reasonably in all the circumstances of the case, the assessment of reasonableness being an objective matter.

[15] In presenting his argument relative to the first question, counsel submitted that if the sheriff was not correct in repelling the s.160 submission in relation to the s.38(1) charge, we ought to consider the sufficiency of the evidence in relation to the alternative charge of breach of the peace. The sheriff in determining a submission of no case to answer in terms of s.160 of the 1995 Act requires to apply the test whether the evidence, if accepted, is sufficient in law to convict the accused of the charge. The sheriff will at that stage accept the evidence led by the prosecution and that any inferences to be drawn from that evidence will be favourable to the case for the prosecution. We are satisfied

09/11/16 10:29 AM

2016 S.C.C.R.

Milne v Harrower (SAC)

397

that the sheriff applied that test correctly in determining and repelling the no case to answer submission on the charge of contravention of s.38. The sheriff addresses the submission and the evidence at para.25, having narrated the evidence at paras.5–19. Although the sheriff did not expressly consider parts (a) and (b) of s. 38(1)—the actus reus of the offence—we are satisfied that the evidence led by the Crown was sufficient in law to establish both threatening behaviour, and behaviour which was likely to cause a reasonable person to suffer fear and alarm, as well as the necessary mens rea, which was capable of being inferred from the actings of the appellants. The sheriff was therefore correct to repel the no case to answer submission in relation to s.38(1). At that stage, of course, the statutory defence did not arise. We are of the opinion that there was no error in relation to the sheriff’s assessment of the evidence led by the Crown in support of charge (1) and that evidence pointed to conduct which was threatening and would be likely to cause a reasonable person fear or alarm and would be severe enough to cause alarm to ordinary people and threaten serious disturbance in the community. We accordingly answer the first question of law in the negative.

[16] The second and third questions address whether the sheriff was entitled to convict the appellants of a contravention of s.38(1) of the 2010 Act and whether he applied the correct statutory test having regard to the three parts or ingredients to the offence and the statutory defence set out in s.38(2). As we have stated paras.(a) and (b) of s.38(1) of the 2010 Act define the actus reus and they are essentially questions of fact (Paterson v Harvie). The findings (7 and 8) of the sheriff concerning the attire of the appellants, their efforts to disguising their facial features, and their activities in undertaking a masked pursuit of the complainers in a vehicle for a period of approximately two hours, amply provide evidence of threatening behaviour.The sheriff then correctly applied the objective test of whether the behaviour would be likely to cause a reasonable person to suffer fear or alarm. In this case there was evidence that the complainers were fearful and alarmed but in any event the sheriff correctly recognises this to be an objective test. The sheriff proceeded to address the mens rea and whether the requisite intention or recklessness was present. At para.40 of the stated case the sheriff states: “Whilst I am prepared to give the benefit of the doubt to the accused that they did not intend their behaviour to cause fear or alarm, it seems to me that they were entirely reckless as to whether their behaviour would be likely to have that effect.” In the course of submissions as to the meaning of “reckless” in this context, we were referred only to Allan v Paterson, which involved s.2 of the Road Traffic Act 1972 and the definition of “dangerous driving”. In that context reckless means a complete disregard for any potential dangers (on the road and with regard to public safety on the road). To act recklessly is to have an utter indifference or disregard of what the consequences of their actings or behaviour may be as far as the public is concerned. In our view the persistence of the appellants’ conduct and pursuit of the complainers over a significant period of time when no fox hunt was taking place means that their behaviour may be construed as reckless in the sense of being utterly indifferent to the consequences of their actings to a reasonable person.The sheriff was therefore entitled to conclude that the three elements of the offence had been established.

[17] Turning to the statutory defence (s.38(2))—was the behaviour of the appellants in the particular circumstances reasonable? The appellants’ stated intention from the evidence of the third appellant was to find out if the hunt was illegal and gather evidence. In that context the sheriff places some reliance on the appellants’ failure to engage with members of the hunt. They did not ask any questions of the members of the hunt to establish what was proposed by

5281.indd 397

A

B

C

D

E

F

G

09/11/16 10:29 AM

398 A

B

C

D

E

F

G

5281.indd 398

Milne v Harrower (SAC)

2016 S.C.C.R.

way of hunting foxes. The issue of the likely effect of the appellants’ conduct must be tested objectively and the assessment of reasonableness in the context of the statutory defence is primarily one for the court of first instance to determine having regard to the evidence led of all the facts and circumstances.

We were referred to Hayes v Willoughby where the UKSC considered the statutory defence set out in s.1(3) of the Protection from Harassment Act 1997 (similar to the statutory defence available on a charge of stalking contrary to s.39 of the 2010 Act). It is a defence for a person charged with an offence under that section to show that the course of conduct was, inter alia, engaged in for the purpose of preventing or detecting crime or in the particular circumstances was reasonable. We were referred to the dictum of Lord Sumption at para.15: “Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter.

He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it.”

We do not consider that Hayes v Willoughby assists the appellants. Firstly, both the Protection from Harassment Act and s.39 relate to a course of conduct and the specific defences which attach to those enactments. Secondly, the facts and circumstances of this case do not support the notion that the appellants’ behaviour was the product of rational thought, particularly when regard is had to the evidence of the third-named appellant. She indicates that the appellants proceeded firstly, on what another had told them about the fox hunt without satisfying herself as to its correctness and secondly, based on her experience of a hunt some years before in quite another part of Scotland. In any event, rationality is a subjective test, relevant only to the specific statutory defence under consideration in Hayes, namely, the purpose of preventing or detecting crime. Lord Sumption in the preceding para.14 distinguishes reasonableness from rationality: “Reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions. The question is whether a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime.”

Even allowing that a wish to prevent a criminal activity from taking place could, in certain circumstances amount to reasonable behaviour, if, as suggested, the behaviour of the appellants was a response to their belief that an illegal activity was about to take place, there were options available to them such as speaking to the complainers or contacting the police or indeed speaking with police officers, whom we were told were present for a short period at the Snaigow Estate, a matter accepted by the third appellant. In any event, as a matter of fact, there was no imminent illegal activity that required to be stopped and the evidence relied upon by the Crown and accepted by the sheriff is of a persistent pursuit for a lengthy period through country roads in Perthshire. The sheriff’s analysis of the evidence and his reasoning which underpins the crucial finding in fact 10 may be found at paras.36–40. The sheriff accepted the evidence of the complainers. Their evidence was not in any material sense contradicted by the third appellant’s evidence. The sheriff therefore was entitled to reject the suggestion that the appellants’ behaviour was reasonable, in the circumstances.

[18] We therefore answer the first questions of law in all appeals in the negative; the second in the affirmative; the third question in the stated case for the first and third appellants in the negative and refuse the appeals.

09/11/16 10:29 AM

A Appeal Against Sentence

27 July 2016

WILLIAM SCOTT STEVENSON

Appellant

against LAURA McPHERSON (Procurator Fiscal, Campbeltown)

Respondent

B

[2016] SAC (Crim) 24 Sentence—Road traffic—Drink driving—Whether competent to take account of provision for application of removal of disqualification— Road Traffic 1988 (c.52), s.6 Sentence—Road traffic—Drink driving—Breath level of 153 mg— Whether disqualification for six years excessive—Road Traffic Act 1988 (c.52), s.6

C

The appellant, who had no previous road traffic convictions, was convicted of driving with an alcohol level of 153mg per 100m of breath. He had been drinking throughout the day, and had continued driving in the afternoon, after having been refused further alcohol in view of his obvious intoxication. He was fined and disqualified for six years, the sheriff having referred to his need to address his serious drinking problems and his right to seek early removal of the disqualification. He appealed to the sheriff appeal court against the length of the disqualification period.

Held that the sheriff’s approach was flawed in that: (i) there was no information to suggest that the appellant had an alcohol abuse problem; and (ii) that it is wrong in imposing a period of disqualification to advert to the statutory provision which enables a disqualified driver to apply for removal of the disqualification (para.6); and appeal allowed, and period of disqualification reduced to three years.

D

Cases referred to in the opinion of the court:

E

Russell v Troup, 2003 S.C.C.R. 753 R v Lobley [1974] R.T.R. 550.

William Scott Stevenson was convicted of the charges referred to in the opinion of the court on 26 April 2016 at Oban Sheriff Court after trial before Sheriff Anderson QC and disqualified for driving for six months, and appealed to the sheriff appeal court against the period of disqualification on the grounds referred to in the opinion of the court.

F The appeal was heard on 27 July 2016 by Sheriff Principal Stephen QC (President) and Sheriff Braid.

For the appellant: Macintosh, instructed by John Pryde & Co, Solicitors, Edinburgh.

For the respondent: Carmichael AD. On 27 July 2016 Sheriff Principal Stephenson delivered the following opinion of the court.

G

399

5281.indd 399

09/11/16 10:29 AM

400 A

B

C

D

E

F

G

5281.indd 400

Stevenson v McPherson (SAC)

2016 S.C.C.R.

SHERIFF PRINCIPAL STEPHEN [1] The appellant was found guilty at the trial diet on 26 April 2016 at Oban Sheriff Court to a contravention of s. 5(1)(a) of the Road Traffic Act 1988, with a reading of 153 microgrammes of alcohol in 100 millilitres of breath. On the same date he was disqualified from holding or obtaining a driving licence for a period of six years and fined £1,000. Today’s appeal is taken against both the fine and the period of disqualification.

[2] The appellant also pled guilty to two other charges relating to events on the same date, 29 January 2016, namely, a contravention of s.172(2)(b) and (3) of the Road Traffic Act 1988 by failing to provide information as to the identity of the driver of the vehicle ML15 WEF when required to do so by a police constable; and a contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 by behaving in a threatening or abusive manner at his home in the presence of police officers by shouting and swearing. The appellant was fined £250 on each of these charges. Sentence is not appealed in respect of charges (2) and (3).

[3] The circumstances of the drink driving offence are narrated in the sheriff’s report. It appears that the appellant had been drinking throughout the day and had not attended work. At approximately 4 o’clock in the afternoon he drove from his home to the centre of Tarbert to purchase alcohol. He was refused alcohol in view of his obvious intoxicated state. When he left the shop he went straight to his vehicle whereupon the shop assistant phoned the police who attended at his home around 5pm. Charges (2) and (3) arise from the police attending at his house.

[4] In his submissions today counsel for the appellant argued that the period of disqualification was manifestly excessive. The appellant was a first offender in terms of road traffic offending. His two previous convictions were minor and a long time ago. The sheriff had discounted them. In a rural area the length of the disqualification would cause severe inconvenience and would prejudice his employment. We were referred to Russell v Troup where the circumstances were arguably more serious and a three-year disqualification was imposed. It was argued that the fine was also excessive. However, it was conceded that the fine had been imposed when the appellant was in employment whereas he is now unfit for work and his earnings are reduced to approximately £800 per month.

[5] The breathalyser test resulted in an extremely high reading of 153 microgrammes of alcohol. The sheriff properly considered that a substantial period of disqualification was required not only to mark the high level of culpability and alcohol in his breath but also for the purpose of public protection given that the appellant in a severely intoxicated state chose to drive in the centre of a small town just after the school day had ended. To that extent, we take no issue with the sheriff’s approach. However, the sheriff, in selecting a period of six years, also stated that she considered that the appellant required to address the serious problems she perceived he had with alcohol and that then it would be open to him to return to court and seek removal of the disqualification.

[6] The appellant is a 56-year-old man with no previous road traffic convictions. He has two minor previous convictions from some time ago which the sheriff specifically excluded from consideration when sentencing. The appellant had been driving throughout his adult life without apparent incident.

We consider that there is force in the argument that the period of disqualification is excessive. The sheriff was correct to consider a lengthy period of disqualification to reflect the factors referred to in para.5 above. However, it

09/11/16 10:29 AM

2016 S.C.C.R.

Stevenson v McPherson (SAC)

401

appears that the sheriff may have selected six years in order to encourage the appellant to address the serious problems she believed he had with alcohol. We consider that approach to be flawed in two respects. First, other than the consumption of alcohol on the day in question there is no further information to suggest that the appellant has an alcohol abuse problem. Second, it is wrong, in imposing a period of disqualification, to advert to the statutory provision which enables a disqualified driver to apply for removal of the disqualification: R v Lobley. The correct approach is to impose the period of disqualification appropriate for the offence, rather than to impose an extended period of disqualification on the basis that an offender may subsequently apply to the court to have it reduced. Looked at objectively, the circumstances of the present case and the matters with which the sheriff was correct to be concerned lead us to the conclusion that these areas of concern including public protection can properly be met by the imposition of a shorter period of disqualification. We therefore quash the period of disqualification imposed by the sheriff and will re-impose a period of three years.

[7] The appellant also appeals the level of the fine. He is currently off work due to anxiety and is in receipt of sick pay of approximately ÂŁ800 per month.

He still requires to maintain mortgage payments. His employability is affected by the disqualification. However, we do not propose to interfere with the sheriff’s assessment of the appropriate financial penalty. This was a serious offence which called for a high fine.

A

B

C

D

E

F

G

5281.indd 401

09/11/16 10:29 AM

A Appeal Against Conviction

3 August 2016

ANGUS McASKILL

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 64 Evidence—Corroboration—Mutual corroboration—Incidents of domestic and sexual violence in period of 20 years—Whether Moorov doctrine applicable

C

D

E

F

G

The appellant was charged on indictment with 17 charges relating to three complainers and convicted on nine of them which related to two of the complainers with whom he was living during separate periods.

Charge (1) was a charge of physical assaults on the first complainer between 1981 and 1992, all but one of which occurred in 1981, and charge (6) was a charge of threatening to burn down the complainer’s house and to kill her, as well as assaulting her by driving a car on to the pavement at her and her children in 1992.

Charges (2) and (4) were charges of rapes or indecent assaults on the first complainer between 1982 and 1995 which involved conduct which began when the complainer was asleep and continued when she woke up. Charge (5) was a charge of assault with intent to rape between 1990 and 1993 in which the appellant accused the complainer of having sexual intercourse with another person, and forced himself on top of her, but she fought him off.

Charges (9) and (10) were charges of rapes and indecent assaults on the second complainer in 1997 in similar circumstances to those in charges (2) and (4). Charge (11) was a charge of penetrating this complainer’s vagina with various household objects in 1997. Charge (13) was a charge of threatening to drive his car off the road over a bridge and kill this complainer’s son who was in the car with her.

There was also a charge of physically assaulting a third complainer in 2000 (charge (14)), of which the appellant was acquitted, as he was of the other charges involving this complainer, all of which were of physical assault.

The trial judge rejected submissions of no case to answer in respect of the charges of which the appellant was convicted. He directed the jury in relation to the question of mutual corroboration that they could approach the case by considering all the charges as part of a single course of conduct, or could separate them into three different courses, of rape (or assault with intent to rape), indecent assault, and physical assault. He also directed them that they could not use the charges relating to the third complainer as corroboration of the sexual charges relating to the other complainers.

The appellant appealed to the High Court against conviction, on the grounds, inter alia, that the submissions of no case to answer should have been upheld, as there was insufficient evidence to enable the doctrine of mutual corroboration to apply as between charges (1) and (14), given the time gap, and the similarities between charges (6) and (13) were only superficial. It was also submitted that after the appellant had been acquitted of charge (14), there was no corroboration on charge (1), and that the jury had not been fully and clearly directed on the general requirements of the doctrine.

Held (1) that at the stage of a no case to answer submission the Crown evidence must be taken at its highest, that the search was for evidence of an underlying similarity between the offences such as to enable the conclusion to 402

5281.indd 402

09/11/16 10:29 AM

2016 S.C.C.R.

McAskill v HM Advocate

403

be drawn that there was a course of conduct which was being persisted in by the appellant, and that it was a question of fact and degree whether the nature of the evidence was such that it would be legitimate to draw the inference that the incidents were indeed components in one course of criminal conduct (para.26); (2) that the charges could all be seen as a course of sustained abuse against a partner in a domestic setting, within a context of jealousy, to humiliate and control, and that, looking at all the charges, including charge (14), there was a sufficiency on each as a consequence of the application of mutual corroboration, and the trial judge was correct to repel the no case to answer submission (para.27); and (3) that both the approaches suggested by the trial judge to the jury were legitimate, and his directions could not be faulted (para.28); and appeal on those grounds refused.

A

B

Evidence—Evidence of crime not libelled—Unexpected answer given to question directed to other matters—Whether trial should be deserted In the course of the appellant’s trial on a number of offences of sexual and physical assaults, a witness was asked by the advocate depute a question designed to find out what else she could recall of events involving a charge of physical assault in which she was the complainer. In reply she gave evidence of a sexual offence against her which was not libelled, but which might provide corroboration for other charges libelled in respect of other complainers.The trial judge declined to desert the diet, but instructed the jury that there was no evidence from the witness which could corroborate the sexual assault charges involving other complainers. The appellant was convicted and appealed to the High Court.

Held that it was not possible to fault this exercise of the judge’s discretion (para.25); and appeal on this ground refused.

C

D Solemn procedure—Judge’s charge—Comments on evidence— Comment that evidence of defence witness of very limited significance— Whether appropriate The appellant was charged with a number of offences of sexual and physical assault on former partners. His current partner gave evidence that his behaviour towards her had not been violent, and in his charge to the jury the trial judge commented that the significance of her evidence was very limited in relation to the decisions they had to make about the appellant’s conduct towards different people in different relationships. The appellant was convicted and appealed to the High Court on the ground, inter alia, that in this comment the judge had trespassed into the province of the jury.

Held that a judge should take care not to trespass on the jury’s province, but that he is tasked with providing the jury with “such guidance and assistance”, in relation to the assessment of evidence and the weight to be attached to it, as he can properly afford, that with his judicial skill and experience he is entitled to make such reasonable comments on the evidence as he deems appropriate, provided that it is made clear to the jury that it is ultimately for them to assess the evidence and determine its weight, that it may be doubted whether the testimony was relevant at all, given that it related to a period beginning some years after the events libelled, but that it was led without objection, that it was open to the judge to give the jury some indication of its potential value which was limited, and that his comment was legitimate (para.29); and appeal on this ground refused.

E

F

Cases referred to in the opinion of the court: A S v HM Advocate [2014] HCJAC 135; 2015 S.C.C.R. 62 Crombie v HM Advocate [2014] HCJAC 118; 2015 S.C.C.R. 29

5281.indd 403

G

09/11/16 10:29 AM

404 A

B

McAskill v HM Advocate

2016 S.C.C.R.

C W v HM Advocate, [2016] HCJAC 44; 2016 S.C.C.R. 285; 2016 S.L.T. 709 Fraser v HM Advocate, [2013] HCJAC 117; 2013 S.C.C.R. 674; 2014 J.C. 115 HM Advocate v Fleming, [2005] HCJAC 27; 2005 S.C.C.R. 324; 2005 J.C. 291 K v HM Advocate, [2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 915 Mackintosh v HM Advocate, 1991 S.C.C.R. 776 Pringle v Service, [2010] HCJAC 127; 2011 SCCR 97; 2011 J.C. 190 Reid v HM Advocate, 1999 J.C. 320; 1999 S.L.T. 1257.

Angus McAskill was convicted of the offences described in the opinion of the court after trial on 11 December 2015 in the High Court at Glasgow before Lord Bonomy and a jury and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

C

The appeal was heard on 3 August 2016 by the Lord Justice General (Carloway), Lady Paton and Lord Malcolm.

For the appellant: Allan QC, Dow, instructed by Paterson Bell, Solicitors, Edinburgh for Tod & Mitchell, Solicitors, Glasgow.

For the respondent: Farqharson AD. The appeal was refused on 3 August 2016. The Lord Justice General subsequently delivered the following opinion of the court.

LORD JUSTICE GENERAL

D

E

F

G

5281.indd 404

Introduction

[1] On 11 December 2015, at the High Court in Glasgow, the appellant was convicted of nine out of 17 charges (charges (1), (2), (4), (5), (6), (9), (10), (11) and (13)). The first five related to his partner J C, whom he had met in 1979 when they were both in their late teens. The second group related to L McD, whom the appellant had married in 1996 when she was aged 17. The trial judge acquitted the appellant of two further charges on no case to answer submissions; one involving a baby-sitter (charge (8)) and the other the abduction of L McD and her son (charge (12)). The Crown withdrew one charge of assault and attempted rape of J C (charge (7)). The jury acquitted him of a further assault and rape of J C (charge (3)). The appellant was acquitted of four further charges ((14)–(17)) relating to another partner, K R, whom he had met in 2000 when she was 21. One charge of breach of the peace (charge (17)) was withdrawn by the Crown. Another of abduction in a car (charge (16)) was the subject of a successful no case to answer submission.

The jury acquitted the appellant on the remaining two of, respectively, assault and indecent assault (charges (14) and (15)).

[2] The trial judge imposed a sentence of three years in respect of the assault convictions (charges (1), (6) and (13)) and a consecutive sentence of five years in cumulo in respect of the sexual offences (charges (2), (4), (5), (9), (10) and (11)).

[3] The appeal raises a number of different matters. The first and second grounds relate to evidence which was given by the complainer K R about an offence not libelled; the third to seventh grounds all relate either to sufficiency of evidence in the context of mutual corroboration or the directions given in that regard; and the final ground is a contention that the trial judge misdirected the jury in respect of a defence witness.

09/11/16 10:29 AM

2016 S.C.C.R.

McAskill v HM Advocate

405 A

The evidence Charges (1), (2), (4), (5) and (6) (J C)

[4] Charge (1) libelled repeated physical assaults over the years 1981–1992 at various addresses, all involving the appellant’s partner J C. The evidence was much more restricted in terms of the dates of the assaults. All but one occurred in 1981. The exception was an incident immediately before the events libelled in charge (6) when, after an argument, the appellant threatened to burn down the complainer’s house. This was in 1992. After the complainer became pregnant in 1981, the appellant became resentful. Whilst walking in the public street towards the complainer’s home, the appellant suddenly attacked her, pulling her hair, pushing her to the ground and punching her back. On a later occasion in 1981, he attacked her in their home following upon a complaint about the quality of his breakfast. This involved him seizing the complainer’s hair and pushing her face fully submerged into a sink, repeatedly. The libel included the danger of her life. The complainer gave other examples of being abused in the street by the appellant, with him pushing and pulling her and calling her names. Thereafter, although the appellant continued to be obsessively jealous of the complainer, no more physical assaults took place until the incident preceding charge (6).

[5] Charges (2), (4) and (5) all related to sexual offences, ranging from indecent assault to rape. The libel in respect of the rapes (charge (2)) dated from 1982 to 1995 and involved, principally, the appellant having sexual intercourse with the complainer initially whilst she was asleep and continuing upon her waking. The libel of indecent assaults (charge (4)) was from 1989 to 1993 and was in the same general context of behaviour starting whilst the complainer was asleep. One charge (charge (5)) was an assault with intent to rape during 1990 to 1993. This incident occurred after the appellant had gone looking for the complainer, who had gone out with her sister and some girl friends. When she returned home with the appellant, he had accused her of having sexual intercourse with another person and then forced himself on top of her. She was able to fight him off.

[6] The final charge (charge (6)) occurred in 1992 when the complainer and the appellant had had an argument about the amount of time the complainer was spending at her parents’ home, whilst her father was dying.

She told the appellant to leave. The complainer had taken the threats to burn down her house (supra) seriously and had set off, on foot, to her parents’ home. En route, the appellant drove past, shouting abuse at her and threatening to kill her. He was laughing like a maniac. He turned the car and drove towards the complainer and the two youngest children, forcing her to take the buggy and the children into a close, whilst he drove onto the pavement, before suddenly turning and driving away.

[7] The appellant and the complainer separated finally in the mid-1990s.

Although over the years the complainer had told her sisters about what had been going on, it was only in 2014 that she took steps to report the abuse to the police.

B

C

D

E

F

Charges (9), (10), (11) and (13) (L McD)

[8] The appellant and his wife L McD were in a relationship for only about 18 months. The relationship started to go wrong fairly quickly as a result of the appellant’s jealousy. He objected to the complainer going out and at times locked her in the house. Charge (9) libelled various rapes occurring between May and December 1997. These involved the appellant having intercourse with the complainer whilst she was still asleep and continuing to do so after

5281.indd 405

G

09/11/16 10:29 AM

406 A

B

McAskill v HM Advocate

2016 S.C.C.R.

she had woken up and objected. Charge (10) involved indecent assaults in similar circumstances and charge (11) libelled the penetration of her vagina with various household objects. Charge (13) was an incident which occurred after the appellant had accused the complainer of having a relationship with her brother-in-law. On their way home in a car, he had threatened to drive off the road over a bridge and kill the complainer’s young son. His driving was erratic. The complainer was crying and trying to pacify her son, who was screaming and vomiting. Soon after this incident, the relationship came to an end.

Charges (14) to 17) (K R)

C

D

[9] As already narrated, the appellant was acquitted one way or another of charges involving K R. The appellant’s relationship with her, which began in about 2000, had also started reasonably well, but he had become jealous and possessive. According to the complainer, after a few months he began hitting her. One incident involved the appellant dragging her by the arm into his lorry.

In the course of exploring this incident, the advocate depute asked her: “Did he do anything else?” The complainer answered that he had had sex with her whilst she was asleep; a matter for which there was no libel. An objection was taken and an application made to desert the diet pro loco et tempore. The difficulty with the complainer’s evidence on these charges was her acknowledgement of a dependence on alcohol and her consequent lack of memory. She did speak to various occasions when she had woken up and found her underwear to be inside out or the wrong way round (charge (15)). She had not dressed in that way.

[10] During the course of the investigation, the appellant was interviewed.

Part of the recording was played to the jury. He denied any criminal conduct.

His then current partner, C H, with whom he had been in a relationship for some 12 years, was interviewed. A suggestion was made that the police had attempted to obtain evidence from her which she had not been willing to give.

When she gave evidence, she described her relationship with the appellant as good. There was neither physical nor sexual violence.

The trial judge’s approach

E

F

G

5281.indd 406

[11] The trial judge refused the motion to desert the diet on the basis that the matter could be dealt with by an appropriate direction. In due course he directed the jury that the only allegation, and the only evidence, of conduct of a sexual nature, in relation to K R was that concerning her underwear (charge (15)). He specifically directed them that, insofar as the sexual offences were concerned, if the jury did not believe the evidence of both L McD and J C, that would be the end of these charges, because there was nothing in K R’s evidence that could corroborate the allegations of rape, indecent assault or related matters involving L McD or J C. [12] A submission of no case to answer had been made to the effect that the violence libelled in charge (1), involving J C, could not corroborate, or be corroborated by, the violence libelled in respect of K R on charge (14), because of the time gap of some 20 years. The trial judge took the view that, at that stage, it could not be said that neither offence was capable of being corroborated.

In addition to the significant similarities between the events libelled in both charges, there was the evidence of other relevant acts of physical violence libelled in charges (6) and (13). Charge (6) could not provide corroboration for charge (1), since both were reliant upon the evidence of J C. However, against a background of jealous and possessive behaviour and displays of

09/11/16 10:29 AM

2016 S.C.C.R.

McAskill v HM Advocate

407

temper by the appellant, the conduct spoken to in charge (6) could be viewed as another example of the sort of conduct libelled in charge (1). The events of charge (6) occurred in late 1992, less than eight years before the first violence against K R in charge (14) (2000) and less than five years before the violent driving involving L McD in charge (13). There was violence involved in the charge involving penetrating L McD’s vagina with objects in 1997 (charge (11)), which could also be seen as the same course of criminal conduct as the events in charges (1) and (6).

[13] The trial judge was of the view that the incidents spoken to in relation to all the charges could be viewed as part of one extended course of criminal conduct persisted in by the appellant. Even taking charges (1) and (14) in isolation, they were capable of providing mutual corroboration in the overall context of the case. Whether the place and circumstances of the crimes committed were such as to prove a course of conduct, in spite of the time lapse between the two charges, was a matter for the jury. The judge thought that there was sufficient evidence by reason of mutual corroboration of the driving libelled in charges (6) and (13), set against the background of the appellant’s behaviour to both complainers.

[14] In due course, the trial judge directed the jury on the requirement for corroboration. He dealt in particular with the principle of mutual corroboration as follows: “Where . . . it can be said that individual charges against a particular accused are so linked in time, character and circumstances that you are satisfied that they are each part of a single course of criminal conduct systematically pursued by the accused, then the circumstances of one charge spoken to by the alleged victim may corroborate the evidence of the alleged victim on another charge or charges. “. . . it’s essential for the operation of the rule that there must be some underlying unity or similarity between the offences which make them part of the one course of criminal conduct. It doesn’t matter that they are not of exactly the same degree of gravity, or all have the same name. They can still be part of the one course of conduct. The difference in gravity and detail does however have an effect on how you apply corroboration. . . .”

[15] The trial judge made it clear that it was essential, when attempting to find corroboration in relation to two charges involving different women, that the jury find each complainer credible and reliable. The jury could only return guilty verdicts if they included at least two charges involving different women.

He continued: “While there are three factors in respect of which you have to be satisfied about the closeness of the relationship . . . that’s time, character and circumstances . . . it is not essential the relationship be equally strong in respect of each. If the relationship in respect of one is not very strong, but there’s a strong and close relationship in respect of the other two, then you may find the offences were so related to each other as to be part of a single course of criminal conduct systematically pursued by the accused. And different partners, or wives over a fairly long period of time, is an example of where that’s a possibility because of that peculiarity, as it were, that they [are] related in a particular way. And that would strengthen the circumstances . . . and might convince you that even though there was a long period of time covered by the allegations, they were truly all part of a single course of criminal conduct. . . .”

[16] The trial judge dealt with time, character and circumstances separately, mentioning in relation to time that, although there was no maximum period,

5281.indd 407

A

B

C

D

E

F

G

09/11/16 10:29 AM

408 A

B

C

D

E

McAskill v HM Advocate

2016 S.C.C.R.

a significant gap could indicate that the offences were not part of a single course of conduct. He continued: “[I]t is conceivable and, as a matter of law, possible, that all of these offences are part of the one course of criminal conduct systemically pursued . . . . that . . . is the way in which the Crown have presented the case to you; that this is one course of abusive conduct towards partners carried out with physical, as well as sexual violence.”

Having done that, he directed the jury that it was also possible to see more than one course of criminal conduct: for example, the rapes, the indecent assaults and the physical assaults. In any event, even if it was one course of conduct, there were only certain charges that could provide corroboration of another.

[17] On this basis, he specifically directed the jury that corroboration for charges (2), (3) and (5) (rape, and assault with intent to rape, of J C) could be found in the evidence on charge (9) (assault and rape of L McD) and vice versa.

Corroboration for charge (4) (indecent assaults on J C) could be found in the evidence on charges (10), (11) and (15) (indecent assaults on L McD and K R).

Corroboration for charges (10) and (11) could be found in charges (4) and (15), and for charge (15) in the evidence on charges (4), (10) and (11). The charges of indecent assault could be corroborated by the allegations of rape, although the reverse did not work. Corroboration for charges (1) and (6) (physical assaults on J C) could be found in the evidence on charges (13) and (14) (physical assaults on L McD and K R), although it might be easier to look at charge (1) along with (14) and (6) along with (13). One final point was that charge (11), involving the allegations about the insertion of objects, might also provide corroboration of, or might be corroborated by, the evidence on charges (1) and (14). There was more to that charge than indecent assault. It was also a violent act.

[18] The trial judge made it clear that, whilst he was saying these things as a matter of law, it was for the jury to determine whether, as a matter of fact, mutual corroboration applied. The rule had to be applied cautiously and the jury had to consider the position in relation to each charge carefully. In relation to charges (1) and (14), the judge reminded the jury of the defence speech that, because of the gap in time, these incidents could not amount to a single course of criminal conduct.

[19] In relation to the evidence of C H, the judge took the view that what she had said had been of a very general nature, almost in the form of a character reference. The circumstances of their relationship had not been explored in any detail. He reminded the jury that the defence had been relying upon her evidence, but told them that the significance of her evidence in that regard was “very limited in relation to decisions you’ve to make about contact in relation to other people in different relationships”.

F

Submissions Appellant

G

[20] The first and second grounds of appeal were that the trial judge had erred in refusing to desert the diet pro loco et tempore. The question which the advocate depute had put to K R had been “loose and ill-advised”. There was a real possibility that the jury would have had regard to this witness’s evidence when considering the charges which were libelled. Where the fairness of a trial may have been prejudiced, the diet ought to be deserted unless the error or unfairness could be cured by way of an appropriate direction (HM Advocate v Fleming at para.33). The judge had not provided any subsequent direction.

5281.indd 408

09/11/16 10:29 AM

2016 S.C.C.R.

McAskill v HM Advocate

409

[21] On the third ground, it was submitted that there was insufficient similarity between the incidents libelled in charges (1) and (14) to overcome the problems of the considerable time gap between them (Pringle v Service).

These were the only charges of physical, as distinct from sexual, abuse. There had been an intervening relationship with no physical violence. Where there were only two offences, caution had to be exercised (Mackintosh v HM Advocate). The fourth ground was that, if the judge had been correct in refusing the submission, once the jury had acquitted the appellant of charge (14), there was no corroboration in respect of charge (1). The jury could not convict of one offence and acquit of the other (Reid v HM Advocate). The fifth ground was that charges (6) and (13) could not have been used to corroborate each other mutually. The similarities were superficial. The doctrine could not be relied upon unless there was some nexus or underlying unity (K v HM Advocate at para.10). The more that these two incidents appeared different on the facts, the more dangerous it became to apply mutual corroboration (Mackintosh). Charge (6) involved driving a car at the complainer and her children. Charge (13) was one of driving the complainer and her child at an excessive speed. There was a gap of more than four years between them.

[22] The sixth ground was that the judge had misdirected the jury on mutual corroboration. His directions were complex, unclear and apt to confuse. He did not provide the jury with the standard example (corruption of goalkeepers) contained in the Jury Manual. The seventh ground was that the judge had misdirected the jury by failing to state that, for the doctrine to apply, the jury required to be satisfied beyond reasonable doubt that those charges, which were said to have corroborated each other, were sufficiently linked in character, time, place and circumstances that they formed part of a single course of criminal conduct involving an underlying unity.

[23] The final ground was that the judge had misdirected the jury when he had said that C H’s evidence was of limited value. It was capable of showing that the appellant had not carried out a persistent course of physically and sexually abusive conduct towards all partners. The judge had therefore trespassed into the province of the jury.

A

B

C

D

Crown

[24] The advocate depute was not called upon in relation to the first two grounds. On the third and fourth grounds, it was conceded that, if only charges (1) and (14) had been involved, the Crown may have been in difficulty, but that was not the manner in which the case had been presented. Rather, although the charges required to be separated into different types of offending, all of the conduct, whether violent or sexual, was designed to humiliate and control the complainers. The conduct required to be looked at as a whole. The jury had been entitled to acquit the appellant on charge (14), yet convict on charges (1), (6) and (11) given the violent nature of the conduct in the latter.

On ground five, charges (6) and (13) were not merely superficially similar in their context. Both had involved the appellant using his car as a weapon to instil fear in the complainers whilst their very young children had been present.

The judge’s directions had been accurate, including that concerning the value of C H’s testimony.

E

F

Decision First and second grounds

[25] Whether to desert a trial because of an unexpected answer to a question directed at other matters is primarily a question for the trial judge to answer

5281.indd 409

G

09/11/16 10:29 AM

410 A

B

McAskill v HM Advocate

2016 S.C.C.R.

in the context of the trial as a whole (Fraser v HM Advocate, LJC (Carloway) at para.58, followed in Crombie v HM Advocate, Lady Paton at para.17). The question asked by the advocate depute had been designed to find out what else K R could recall of the events libelled in charge (14) involving her being dragged into a lorry. The answer related to a matter not libelled, but which, if accepted by the jury, may in other circumstances have provided corroboration of other charges in which such conduct was libelled in relation to other complainers. The judge declined to desert the trial as he was satisfied that the matter could be dealt with by way of an appropriate direction to the jury. In due course, with considered subtlety, he did give a direction about there being no testimony from K R which could corroborate the similar allegations of sexual conduct committed against the other two complainers. He deliberately did not highlight the answer given by K R. It is not possible to fault this exercise of discretion. The manner in which the judge addressed the issue in his directions was one which he was entitled to take.

Third to fifth grounds

C

D

E

F

[26] At the stage of a no case to answer submission the Crown evidence must be taken at its highest. The significance of a substantial time gap between offences requires to be determined in light of all the circumstances. The more similar the conduct is, in terms of time, character and circumstances, the less important a substantial time gap may be. Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time (A S v HM Advocate, LJC (Carloway) at para.10). Of course, the longer the time gap, the more difficult corroboration will become. The search is for evidence indicative of an underlying similarity between the circumstances of the offences such as to enable the conclusion to be drawn that there was a course of conduct which was being persisted in by the appellant. It is a question of fact and degree whether the nature of the evidence is such that it would be legitimate to draw the inference that the incidents were indeed components in one course of criminal conduct (C W v HM Advocate, Lady Dorrian at para.31).

[27] The facts in charge (1) encapsulated violence towards J C in 1981 and threats of violence in 1992. In charge (6) there was further violence involving the use of a car. Taken along with what might also be regarded as sexual violence in relation to J C in charges (2), (4) and (5), the charges can all be viewed as a course of sustained abuse against a partner in a domestic setting designed, within a context of jealousy, to humiliate and control. The behaviour libelled in charge (11) against L McD, involving the insertion of objects, falls into a similar category and occurs in the same setting. The violence in charge (13), involving the use of a car to terrify his wife can be seen, along with the sexual abuse of this complainer in remarkably similar circumstances to that involving J C, as part of this course of conduct. Looking at all the charges, including those involving K R (charge (14)) of which the appellant was acquitted, there was a sufficiency on each as a consequence of the application of mutual corroboration. The trial judge was therefore correct to repel the no case to answer submissions.

Sixth and seventh grounds

G

5281.indd 410

[28] The trial judge’s directions on the application of mutual corroboration cannot be faulted, even if there is a perception of reticence in what might be seen as a slight retreat from his original, and correct, statement about each physical or sexual offence being capable of corroborating another where they

09/11/16 10:29 AM

2016 S.C.C.R.

McAskill v HM Advocate

411

are readily seen as very similar abusive conduct towards a partner or spouse in the domestic context. The judge commenced with an exemplary general description of how, if each individual charge can be seen as so linked in time, character and circumstances that they are each part of a single course of criminal conduct systematically pursued by the accused, then the circumstances of one charge spoken to by one victim may corroborate that spoken to by another victim in respect of a different charge. Having provided the overall option of a single course of criminal conduct, and explained to the jury that it was a matter for them to determine whether and how to apply mutual corroboration, the judge offered an alternative of separating the conduct into three different courses of rape (or assault with intent to rape), indecent assault and physical assault. Both approaches can be seen as legitimate. The jury were advised to exercise caution, especially in relation to the time gaps. None of this can legitimately be criticised. Introducing the common example of the bribed goalkeepers is unlikely to have helped the jury in the context of domestic abuse.

A

B

Eighth ground

[29] In relation to the final ground, it is true that the evidence is for the jury to analyse and assess. A judge should take care not to trespass upon the jury’s province. Nevertheless, a trial judge is tasked with providing the jury with “such guidance and assistance”, in relation to the assessment of evidence and the weight to be attached to it, as he can properly afford (Practice Note, 18 February 1977 Criminal Trials). With his judicial skill and experience, a trial judge is entitled to make such reasonable comments on the evidence as he deems appropriate, provided that it is made clear to the jury, as it was in this case, that it is ultimately for them to assess the evidence and determine its weight. It may be doubted whether the testimony of C H was relevant at all, given that it related to a period beginning some years after the events libelled.

However, it was led without objection. It was, nevertheless, open to the judge to give the jury some indication of its potential value, even if he was not bound to do so. That value was limited and the judge’s comment was legitimate where he had also made it clear that its weight remained for the jury to assess.

[30] The appeal is refused.

C

D

E COMMENTARY The single course of conduct in this case was taken as being domestic violence, however exhibited, which can be seen as an extension of the scope of the concepts of similar circumstances and behaviour which might well have surprised the judges in Moorov. The opinion of the court, and, it seems, the judge’s charge, make no reference to the importance of distinguishing between a course of behaviour and a mere propensity, for example, for one to have sex with a sleeping partner. But that may not be of much importance given that the presence or absence of a course of conduct is a question for the jury, which presumably means that the question in the appeal is whether the jury’s assessment was unreasonable, which is something which it is not easy to persuade an appeal court to accept. The statement that in determining a no case to answer submission the Crown case at its highest represents the standard approach, but cf, Lady Smith’s comment in R F v HM Advocate, [2016] HCJAC 52; 2016 S.C.C.R. 319, p.325 that there is no support in the authorities for the view that a submission can be upheld only in an extreme case.

See also R G v HM Advocate, [2016] HCJAC 60; 2016 S.C.C.R 360 and J L v HM Advocate, [2016] HCJAC 61; 2016 S.C.C.R. 365.

5281.indd 411

F

G

09/11/16 10:29 AM

A Appeal Against Decision at First Diet

9 August 2016

DONNIE DANIEL POTTS

Appellant

against FRASER GIBSON B

(Procurator Fiscal, Hamilton)

Respondent

[2016] SAC (Crim) 25 Oppression—Extension of time limit on indictment for alleged offence in April 2013 refused in 2015—Case reduced to summary five months later—Whether summary proceedings oppressive C

D

E

F

G

Compatibility issue—Delay—Extension of time limit on indictment for alleged offence in April 2013 refused in 2015—Case reduced to summary five months later—Whether trial in October 2016 would involve unreasonable delay—European Convention on Human Rights, art.6(1) Article 6(1) of ECHR provides a right to trial within a reasonable time.

The appellant was charged on petition in August 2013 with theft of £50,000 by housebreaking on 11 April 2013, and released on bail. After sundry procedure the High Court refused in August 2015 to grant a further extension of the statutory time limit. In January 2016 the appellant was served with a summary complaint for the offence and lodged a plea in bar of trial claiming that the actions of the Crown were oppressive and an abuse of process. After further continuations the pleas were refused after debate in June 2016, and the appellant appealed to the sheriff appeal court. In the appeal he also submitted that the prosecution was in breach of the reasonable time provision of art.6(1).

Held (1) that when considering a plea in bar of trial where oppression is alleged due to delay, the court must consider that delay and the cause of that delay as relevant factors when addressing the real test whether the risk of prejudice from the delay is so grave that the sheriff could not be expected to put that prejudice out of his mind and reach a fair verdict on the evidence, that in this appeal the main argument on prejudice focused on the undisputed fact that the appellant had had this charge hanging over him for three years, but that, nevertheless, it became clear that the evidence to be led in order to prove the charge would be largely circumstantial and be founded mainly on scientific and other documentary evidence, and that the appellant was unable to point to any material prejudice to the fairness of the trial, and that, accordingly, the lack of prejudice to the fairness of the trial and the gravity of the charge outweighed the other relevant factors such as the appellant’s blameless conduct as regards both the solemn and summary proceedings and the delay in having the charge against him determined (para.12); (2) that in the circumstances of this case, the plea of abuse of process was neither separate nor distinct from the plea of oppression; and appeal refused insofar as directed against the sheriff ‘s refusal of the plea in bar of trial (para.13); and (3) that, the court had concerns about the apparent delay between the decision of the appeal court in August last year and service of the complaint in January this year, but that since the full written decision of the appeal court was issued on 12 October 2015 and it was reasonable for the Crown to consider the full reasoning of the appeal court before reaching a view on what has been 412

5281.indd 412

09/11/16 10:29 AM

2016 S.C.C.R.

Potts v Gibson (SAC)

413

described as the highly unusual and exceptional step of bringing summary proceedings after an indictment has fallen, that, allowing for this being an exceptional case, a period of three months might be considered pedestrian in the context of the antecedent delay and the concept of “speeding up”, that the complaint was served within 24 hours of instructions being received to proceed in that way, that the procedure since the complaint called in court in February 2016 was unremarkable and a trial was now fixed for 19 October 2016, that the reasons for two discharges of the debate did not point to any carelessness on the part of the respondent, who had made full disclosure and was proceeding to trial in October, and that the appellant had not been detained in custody, and that the sheriff was correct to conclude that the period of unreasonable delay had apparently ended, and that in these circumstances and in the absence of a continuing violation the appeal in respect of the compatibility minute should be refused (para.16); and appeal refused.

Observed that the principal purpose of art.6(1) is not only to prevent delay but also to prevent an accused being left too long in a state of uncertainty about his fate, the “hanging over him” argument of which Strasbourg jurisprudence takes account, that there was of course, no guarantee that the trial will take place in October but nevertheless it was incumbent on the respondent to proceed to trial expeditiously, and that much attached to the importance of this matter proceeding to trial on the date fixed in order that the appellant may have the charge against him determined (para.16, p.421).

A

B

C

Cases referred to in the opinion of the court: Brown v HM Advocate, 2002 S.C.C.R. 684; 2002 S.L.T. 809 Dyer v Watson [2002] UKPC D1; 2002 S.C.C.R. 220; 2002 S.L.T. 229 HM Advocate v Leslie, 1985 S.C.C.R. 1; 1985 J.C. 1 HM Advocate v Reekie, 1993 S.C.C.R. 460 HM Advocate v Stewart 1980 J.C. 103; 1980 S.L.T. 245 McFadyen v Annan, 1992 S.C.C.R. 186; 1992 J.C. 53; 1992 S.L.T. 163 Potts v HM Advocate [2015] HCJAC 124 R v Loosley [2001] UKHL 53; [2001] 1W.L.R. 2060; [2001] 4 All E.R. 897 Spiers v Ruddy [2007] UKPC D2; 2008 S.C.C.R. 131; 2009 S.C. (P.C.) 1; 2008 S.L.T. 39 Stuurman v HM Advocate, 1980 J.C. 111; 1980 S.L.T. (Notes) 95 Tudhope v McCarthy, 1985 S.C.C.R. 77; 1985 J.C. 48; 1985 S.L.T. 392.

D

E Donnie Daniel Potts was charged on summary complaint in Hamilton Sheriff Court with theft by housebreaking and took a preliminary plea in bar of trial.

The plea was refused by Sheriff MacFadyen on 30 June 2016 and the accused appealed to the sheriff appeal court on the grounds referred to in the opinion of the court.

The appeal was heard on 9 August 2016 by Sheriffs Principals Stephen QC (President) and Lewis and Sheriff Murphy QC. For the appellant: Ogg, Solicitor advocate, instructed by Callahan McKeown & Co, Solicitors, Renfrew.

For the respondent: Borthwick AD.

F

On 9 August 2016 the appeal was refused. Sheriff Principal Stephen subsequently delivered the following opinion of the court.

SHERIFF PRINCIPAL STEPHEN [1] The appellant is charged by the respondent on summary complaint in the following terms:

5281.indd 413

G

09/11/16 10:29 AM

414 A

B

Potts v Gibson (SAC)

2016 S.C.C.R.

“(1) On 11 April 2013 you Donnie Daniel Potts did break into the house owned by R L at [an address in] Bellshill and steal £50,000 in cash or thereby.”

[2] He appeals the decision of the sheriff at Hamilton on 30 June 2016 to repel his plea in bar of trial that the respondent’s prosecution of him on this charge firstly, is oppressive and unfair and, secondly, amounts to an abuse of process.

The sheriff also refused the appellant’s minute in terms of s.288ZA(2) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) to the effect that the respondent’s continued prosecution of him on this charge breached his right to a fair trial within a reasonable time in terms of art.6(1) of the European Convention on Human Rights [ECHR]. He also appeals that decision.

Background

C

D

[3] The charge is that of housebreaking and theft of £50,000 from the house of a 74-year-old man (in the opinion of the appeal court the complainer is said to be 80). The evidence to be led in support of the charge is in the main: (i) scientific evidence of DNA found on a crowbar; (ii) telephone records which place the appellant in the area at the relevant time; and (iii) bank records which indicate that the appellant had deposited cash amounting to more than £15,000 at different bank branches. The transactions are noteworthy and would make the respondent’s case against the appellant more compelling as a proportion of the banknotes were by then out of circulation and the elderly complainer had been a hoarder of money. The respondent’s administration had been dilatory about obtaining a warrant for the bank records and their structure and system for dealing with case preparation and warrants was subsequently described as a “bizarre arrangement”.

Procedural history

E

F

G

5281.indd 414

[4] The appellant appeared on petition at Hamilton Sheriff Court on 1 August 2013. He was released on bail pending service of an indictment which duly happened on 29 March 2014 when a first diet was assigned for 2 May 2014 with trial on 19 May 2014. The first diet and trial diet were subsequently adjourned on joint motion until 8 August and 25 August 2014 respectively.

After two more adjournments further diets were assigned for 29 May and 15 June 2015 with the time bar extended to 21 June 2015. On 18 June 2015, prior to the expiry of the time bar, the respondent sought a further adjournment to allow steps to be taken to execute a warrant in respect of the bank records.

The sheriff granted the respondent’s motion and adjourned the trial to 21 September 2015 with a first diet on 4 September 2015. The sheriff also extended the time bar to 2 October 2015. That decision was appealed successfully to the High Court of Justiciary on 21 August 2015, Potts v HM Advocate. The appeal court was critical of the Crown in respect of their administrative system; conduct of the case and preparation for trial. The appeal court considered that the information provided to the sheriff by the respondents was incomplete and misleading. The appellant’s counsel had prepared a more detailed timeline of events which was accepted by the advocate depute. That timeline is now lodged in this appeal and no exception is taken to it. The appeal court were of the opinion that the Crown had failed to advance sufficient reason to justify the extension and allowed the appeal.

[5] Subsequently, in January 2016, the respondent served a summary complaint in identical terms to the charge on the indictment. At the first calling of the complaint on 23 February 2016 two minutes were lodged

09/11/16 10:29 AM

2016 S.C.C.R.

Potts v Gibson (SAC)

415

on behalf of the appellant. The case was continued to a diet of debate on 31 March which did not take place due to lack of court time. The second debate hearing could not proceed on 11 May as the appellant was not present.

These appeals are taken against the sheriff’s decision of 30 June 2016 to refuse the minutes.

A

Submissions

[6] The solicitor advocate for the appellant advanced arguments firstly, in support of the appellant’s contention that the sheriff erred in repelling his pleas in bar of trial that the respondent’s continued prosecution of him on summary complaint amounted to oppression and, or alternatively, an abuse of process.

The delay in bringing the charge to trial was of such concern and gravity that the delay alone was sufficient to allow the court to uphold the plea due to oppression without there being any necessity for the appellant to show prejudice of the sort that would deny him a fair trial. The question whether the appellant could receive a fair trial had in effect been subsumed by the other circumstances which pointed to the continued prosecution being oppressive rendering the question of a fair trial almost irrelevant. We were referred to HM Advocate v Reekie, a decision by the sheriff in Hamilton to uphold a plea in bar of trial on the ground of oppression due to repeated failings on the part of the Crown to trace and cite witnesses.The test which the court should apply is that established in Stuurman v HM Advocate with the result that the court could intervene where no prejudice is established by the appellant. Ms Ogg accepted that there was no prejudice to the appellant receiving a fair trial by virtue of lost witnesses or fading memories but fell just short of conceding that there was no real prejudice to a fair trial. The appellant had had the charge hanging over him for an unduly lengthy period and that was sufficient to find his continued prosecution oppressive. Further, under reference to Brown v HM Advocate, a case involving police entrapment, it was argued that the circumstances of this case amount to an abuse of process entitling the court to bring proceedings to an end irrespective of whether the appellant could receive a fair trial. The decision of the respondent to proceed by summary complaint, deliberately and effectively circumventing the decision of the appeal court of the High Court of Justiciary in the solemn proceedings, points to an abuse of process. Abuse of process falls into a separate category distinct from oppression. The dicta of Lords Philip and Clarke in Brown spoke of the court’s function to recognise and address an abuse of state power by invoking, if necessary, its inherent power to prevent any abuse of its process by discontinuing the proceedings.

Accordingly, the plea should be upheld and the complaint deserted.

[7] The sheriff also erred in refusing the appellant’s compatibility minute.

The actings of the respondent in prosecuting the minute are unlawful and in breach of the appellant’s art.6 right to have the charge against him determined within a reasonable time. Applying the test set out in Dyer v Watson the right to a hearing within a reasonable time had been breached by virtue of the delay which was significant and would cause this court and any court real concern.

There was no particular complexity to the charge; there had been nothing at all adverse in the conduct of the appellant and the court accordingly required to focus on the manner in which the case had been dealt with by the prosecuting authorities. The decision of the appeal court of the High Court of Justiciary is critical of the respondent’s systems and preparation and in light of the delay, there is no requirement on the appellant to show prejudice. There has been a breach of the reasonable time requirement and the court should discontinue the proceedings. The sheriff erred in relying on the decision in Spiers v Ruddy.

5281.indd 415

B

C

D

E

F

G

09/11/16 10:29 AM

416 A

B

C

D

E

F

G

5281.indd 416

Potts v Gibson (SAC)

2016 S.C.C.R.

The respondent had delayed bringing summary proceedings for a period of six months between August 2015 and February 2016 when the complaint first called in Hamilton Sheriff Court. There is therefore a continuing breach of the appellant’s right to a trial within a reasonable time. The sheriff erred in concluding that the appellant had benefited from the appeal court’s decision which brought to an end the solemn proceedings and would now face a lower penalty if convicted of the charge. The sheriff erred in para.22 of his note when he stated: “It seemed to me that the delay had now ended. It was no longer continuing. There was no need to dismiss the summary proceedings, which were competently brought.” The prejudice suffered by the appellant in having these proceedings hanging over him outweighed the seriousness of the charge. The delay caused by the prosecution made this a clear breach of the appellant’s art.6 rights which could not be remedied or cured by an acknowledgement that his rights had been violated nor by a reduction in any sentence he may receive if convicted. The only proper remedy is the discontinuation of proceedings.

[8] The advocate depute supported the sheriff’s reasoning. Both appeals should be refused. He acknowledged the Crown failings in their preparation of the solemn proceedings for trial. The decision to proceed by summary complaint was a highly unusual and exceptional decision arrived at after careful consideration of the specific circumstances of the case following the appeal court’s decision on the extension of the time bar.The advocate depute explained that the decision of the court was delivered by brief ex tempore on 21 August 2015 with fuller reasons given in the opinion of the court dated 12 October 2015 and issued to parties shortly thereafter. The court’s opinion was then referred by the respondent to Crown counsel who made the decision to proceed by summary complaint. These instructions were given on 20 January 2016 and the complaint served the following day. The complaint first called in court in Hamilton on 23 February 2016. A debate was scheduled in respect of the appellant’s compatibility minute and pleas in bar of trial. That debate required to be discharged due to lack of court time. A second debate was discharged due to the accused not being present as he was in custody. The debate proceeded on 23 June. The sheriff gave a decision the following week and issued his report.

The Crown are ready to proceed and have been fully prepared following the warrant for the bank records executed on 8 July 2015. A trial had now been fixed for 19 October 2016. All documentation has been disclosed to the appellant’s agent.

[9] The appellant had failed to identify any prejudice far less substantial prejudice which would prevent a fair trial taking place. The case against the appellant was circumstantial and the charge was a serious one. The appellant had accepted that there was no particular prejudice due to witnesses’ memory fading or witnesses disappearing. To succeed in a plea in bar of trial on the ground of oppression prejudice must be shown and the appropriate test was that set out by the Lord Justice Clerk in McFadyen v Annan. The bench in McFadyen v Annan considered Stuurman and adopted the reasoning of the Lord Justice General in that case. The appellant’s argument that the prejudice arises in having proceedings “hanging over” him is not relevant to the plea in bar of trial. The case of Brown v HM Advocate involved police entrapment and the opinions expressed were obiter. In continuing to prosecute on summary complaint the Crown have not attempted to circumvent the decision of the appeal court because firstly, it is competent to raise summary proceedings and secondly, it is appropriate, in the circumstances of this case, to take this unusual step due to the gravity of charge. The decision of the appeal court of

09/11/16 10:29 AM

2016 S.C.C.R.

Potts v Gibson (SAC)

417

the High Court of Justiciary is limited to the solemn proceedings and the protection offered by s.65 of the 1995 Act does not apply to summary proceedings.

[10] The advocate depute adopted the sheriff’s reasoning in refusing the compatibility minute. It is accepted that there has been a breach of the reasonable time guarantee contained in art.6. The sheriff has declined to bring proceedings to an end and in so doing exercised his discretion reasonably. The sheriff considered Spiers v Ruddy and concluded that the breach or delay was at an end. He was correct to do so. There has now been complete disclosure and a trial is fixed for October. In face of a breach of an accused’s art.6 right the remedy lies with the domestic court.There has been public acknowledgement of the breach. There is no continuing breach, the Crown having done all they could to minimise further delay. The advocate depute relied upon the opinion of Lord Bingham of Cornhill in Ruddy when he considered whether criminal proceedings required to be stayed on the grounds that there had been a violation of the reasonable time requirement in art.6 in circumstances where the accused cannot demonstrate any prejudice arising from the delay. The appellant fulfils neither category and accordingly the sheriff was correct not to dismiss the proceedings.

A

B

C

Decision First appeal

[11] The test to be applied where the plea in bar of trial alleges oppression is the same whether the oppression arises from delay or for another reason such as pre-trial publicity as arose in Stuurman v HM Advocate. That test, as set out in McFadyen v Annan is whether the delay or lapse of time has prejudiced the prospects of a fair trial. The Lord Justice Clerk sets out the test in the following passage (pp.193B–D): “However, the real question which the court has to consider in all cases where delay is alleged is whether the delay has prejudiced the prospects of a fair trial. This involves the court asking itself whether the risk of prejudice from the delay is so grave that no direction by the trial judge could be expected to remove it. In the case of summary procedure the question must be whether the risk of prejudice from the delay is so grave that the sheriff or justice could not be expected to put that prejudice out of his mind and reach a fair verdict. I would again stress that cases where such a plea in bar of trial will be upheld will be rare and exceptional cases. The test to be applied where oppression is alleged to be the result of delay is the same as that which falls to be applied in cases where oppression is alleged to be the result of pre-trial publicity or any other cause.”

The bench in McFadyen reviewed certain authorities where delay was advanced as the reason why the prosecution should be dismissed by the court—HM Advocate v Stewart; HM Advocate v Leslie; and Tudhope v McCarthy. The court overruled Tudhope and applied the test in Stuurman in particular the dicta of the Lord Justice General (Emslie) who articulated the test in the following terms at p.122: “The test which fell to be applied and which was applied in disposing of the plea in bar is not in doubt. As the authorities show, the High Court of Justiciary has power to intervene to prevent the Lord Advocate from proceeding upon a particular indictment but this power will be exercised only in special circumstances which are likely to be rare. The special circumstances must indeed be such as to satisfy the court that, having regard to the principles of substantial justice and of fair trial, to require an

5281.indd 417

D

E

F

G

09/11/16 10:29 AM

418 A

B

C

D

E

F

G

5281.indd 418

Potts v Gibson (SAC)

2016 S.C.C.R.

accused to face trial would be oppressive. Each case will depend on its own merits, and where the alleged oppression is said to arise from events alleged to be prejudicial to the prospects of fair trial, the question for the court is whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it.”

It was submitted on the appellant’s behalf that this passage indicated that there were categories of cases in which oppression might arise from events which did not cause prejudice to the prospects of a fair trial, and that the present matter was one such case. We do not accept that argument. The issue in the present case is delay and the test in such a case is to be found in McFadyen v Annan.

[12] In our opinion, when considering a plea in bar of trial where oppression is alleged due to delay, the court must consider that delay and the cause of that delay as relevant factors when addressing the real test whether the risk of prejudice from the delay is so grave that the sheriff could not be expected to put that prejudice out of his mind and reach a fair verdict on the evidence. In this appeal, the main argument on prejudice focused on the undisputed fact that the appellant has had this charge hanging over him for three years.

Nevertheless, it became clear that the evidence to be led in order to prove the charge against the appellant would be largely circumstantial and be founded mainly on scientific and other documentary evidence. The appellant was unable to point to any material prejudice to the trial and the fairness of the trial. This can be contrasted with HM Advocate v Reekie where there was clear prejudice to the defence resulting from the Crown failing to trace and cite witnesses who were also crucial witnesses for the defence. Accordingly, in our opinion, the lack of prejudice to the fairness of the trial and the gravity of the charge outweighs the other relevant factors such as the appellant’s blameless conduct as regards both the solemn and summary proceedings and the delay in having the charge against him determined. The test in McFadyen v Annan is not met.

[13] The second argument in support of the common law appeal raises the issue whether delay in proceedings associated with the respondent’s decision to bring this charge on summary proceedings after the proceedings on indictment had been brought to an end by the decision of the appeal court, amounts to an abuse of process. In Brown v HM Advocate the appellants raised on appeal the issue of police entrapment. The court refused the appeal as the issue was never properly before the jury and, in any event, the judge had given appropriate directions on the question of fairness. The passages to which we were referred are essentially obiter opinion as to entrapment constituting a misuse of state power and an abuse of the court process. The English decision in R v Loosley was considered in Brown and the opinions expressed are those with which we would readily agree. Any court has an inherent power to prevent an abuse of its process and procedures. However, Brown is of no assistance in this appeal which addresses oppression. A plea in bar of trial on the ground of oppression is the proper vehicle for the appellant to bring to the attention of the court his complaints in respect of the conduct of the respondents. As has been noted a plea in bar of trial based on oppression is capable of dealing with a wide range of factors. A plea in bar of trial is a plea which seeks to invoke the court’s inherent power to stop or prevent a case proceeding to trial where it be oppressive and unfair to the accused. The court in McFadyen v Annan considered the appropriate plea noting that the plea had been stated in a variety of ways including, as a plea in bar of trial; a plea of mora and a plea to the

09/11/16 10:29 AM

2016 S.C.C.R.

Potts v Gibson (SAC)

419

competency. The appropriate course is a plea in bar of trial. Accordingly, in the circumstances of this case, the plea of abuse of process is a plea which is neither separate nor distinct from the plea of oppression and we refuse the appeal insofar as directed against the sheriff’s refusal of the plea in bar of trial.

A

Second appeal

[14] The appellant’s minute in terms of s.288 ZA(2) of the 1995 Act raises a compatibility point that the appellant’s right to trial “within a reasonable time” has been violated and that the proceedings against him ought to be discontinued.

Clearly that is a reference to the appellant’s art.6 rights under the ECHR. Art.6(1) contains three distinct guarantees. It provides “that in determination of . . . any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal”.

That delay has occurred in this case due to the administrative failings of the respondent is beyond dispute. The advocate depute has acknowledged that there has been a breach of the reasonable time guarantee and has done so publicly in this court and also before the appeal court last year. The appeal court were rightly critical of the respondent’s conduct of the solemn proceedings.

Once a breach has occurred the question of remedy is one for the domestic courts. In this case the sheriff declined to bring these proceedings to an end and in so doing stated: “[22] It seemed to me that the delay had now ended. It was no longer continuing. There was no need to dismiss the summary proceedings, which were competently brought.

[23] When it comes to the consequence of the past violation, if any, the appellant will be able to argue, in the event of conviction, for some remedy such as lower sentence as the appropriate judicial response to the delay in the commencement of these proceedings. However, at this stage, in my view, there was no continuing violation of the Article 6 right and therefore the compatibility minute also fell to be refused.”

In reaching this decision the sheriff considered art.6 and the decision of the Privy Council in Spiers v Ruddy.

[15] We were referred to two important decisions of the Judicial Committee of the Privy Council on Devolution (Compatibility) Minutes on the grounds of unreasonable delay: Dyer v Watson and Spiers v Ruddy. In Dyer the court considered the factors to be taken into account in determining whether any delay is unreasonable. In Spiers the court considered in what circumstances and whether criminal proceedings may be stayed (or brought to an end) where there has been a violation of the reasonable time requirement in art.6(1) ECHR but in circumstances where the accused cannot demonstrate any prejudice arising from delay. In Dyer it was held that the court must consider whether the period of time gives real cause for concern and if it does the court must look at the facts and circumstances particularly the complexity of the case; conduct of accused; and the manner in which the case has been dealt with by the administrative or judicial authorities. Here, it is accepted that the failings of the respondent have led to a violation of the appellant’s art.6 right due to delay. The case is not particularly complex but is serious and the conduct of the appellant cannot be criticised. Spiers addresses the questions which were left over from the decision in Dyer, namely the appropriate remedy and in particular whether dismissal was the only appropriate remedy. Lord Bingham in Spiers adopted his conclusion in the Attorney General’s Reference (No 2 of 2001) in the following passage at para.8: “Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in an

5281.indd 419

B

C

D

E

F

G

09/11/16 10:29 AM

420 A

B

C

D

E

F

G

5281.indd 420

Potts v Gibson (SAC)

2016 S.C.C.R.

Article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant.” The question which the court addressed in Spiers accords with the circumstances of the present appeal. Lord Bingham, having considered the Strasbourg jurisprudence, concludes at para.16: “it gives rise to a breach which can be cured even where it cannot be prevented, by expedition, reduction of sentence or compensation provided always that the breach where it occurs is publicly acknowledged and addressed”. As we have noted the sheriff held that the delay had now ended. In such circumstances termination of proceedings is not inevitable as Lord Bingham recognised in Spiers at para.17: “Once it is accepted that a breach of the reasonable time requirement does not give rise to a continuing breach, it ineluctably follows that the Lord Advocate does not act incompatibly with a person’s Convention right by continuing to prosecute him after such a breach has occurred.”

In the same case Lord Hope of Craighead recognised (at para.21) that the court had a discretion to choose the remedy for the unlawful act which it considered to be just and appropriate. Lord Rodger of Earlsferry (at para.26) stated that expediting proceedings could prevent the continuation of any violation of the reasonable time requirement: where there was no continuing breach on the part of the prosecutor, s.57(2) of the Scotland Act 1998 did not apply. Accordingly, it was not inevitable that proceedings should be brought to an end and it was for the court to determine the appropriate remedy for the violation of the reasonable time requirement contained within art.6. As we have indicated the remedy is for the Scottish courts. Lord Rodger of Earlsferry develops the question of whether there is a continuing breach or violation and concludes that, “If the prosecutor speeds up he is no longer violating Article 6(1).” Expediting proceedings will avoid the continuation of any violation.

[16] Against that background we have analysed the actings of the respondent insofar as we have been informed by the advocate depute. We have concerns about the apparent delay between the decision of the appeal court in August last year and service of the complaint in January this year. We were informed that the full written decision of the appeal court was issued on 12 October 2015 and that subsequently the case was sent to Crown counsel for advice. We accept that it is proper for the Crown to consider the full reasoning of the appeal court before they reached a view on what has been described as the highly unusual and exceptional step of bringing summary proceedings after an indictment had fallen. Allowing for this being an exceptional case a period of three months might be considered pedestrian in the context of the antecedent delay and the concept of “speeding up”. We were however assured that the complaint was served within 24 hours of instructions being received to proceed by way of complaint. The procedure since the complaint called in court in February 2016 is unremarkable and a trial is now fixed for 19 October 2016.

We are mindful that the debate was discharged on two occasions before it eventually proceeded in June of this year. The reasons for the discharge do not point to any carelessness on the part of the respondent. Against that background we are told that the respondent has made full disclosure and is ready to proceed to trial in October. In these circumstances we consider that the sheriff was correct to conclude that the period of unreasonable delay had apparently ended. We also bear in mind that in criminal cases art.6 applies to the “determination” of a criminal charge and the obligation is to ensure that the proceedings are completed within a reasonable time. This case does not involve the appellant being detained in custody. He has been on bail since the

09/11/16 10:29 AM

2016 S.C.C.R.

Potts v Gibson (SAC)

421

outset. As was observed in Dyer the principal purpose of art.6(1) is not only to prevent delay but also to prevent an accused being left too long in a state of uncertainty about his fate.This is the “hanging over him” argument. Strasbourg jurisprudence takes account of that factor. Having regard to all factors it does not appear to us that there is an obvious continuing breach now that the trial has been fixed and the respondent has given assurances to the court that he is prepared for trial. That is, of course, no guarantee that the trial will take place but nevertheless it is incumbent on the respondent to proceed to trial expeditiously. We are satisfied that the appellant can have a fair trial and much attaches to the importance of this matter proceeding to trial on the date fixed in order that the appellant may have the charge against him determined. In these circumstances and in the absence of a continuing violation we propose to refuse the appeal in respect of the compatibility minute.

A

B

COMMENTARY This is another (and perhaps a somewhat extreme) example of an appeal court excusing the dilatoriness of the Crown by reference to what might be called ‘the interests of justice’, but the court seem to have given the Crown ‘a final warning’ on the matter.

Incidentally, I do not understand the use of ‘pedestrian’ at p.420E.

C

D

E

F

G

5281.indd 421

09/11/16 10:29 AM

A Appeal Against Conviction

11 August 2016

ANDREW McLEISH

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 74 Evidence—Accused as witness—Cross-examination as to character— Accused charged with assault making reference in evidence to quarrelsome nature of complainer and dishonesty of Crown witness— Whether allowance of cross-examination of accused on his record for dishonesty fair and proportionate—Criminal Procedure (Scotland) Act 1995 (c.46), s.266(4)(b)

C

D

E

F

Section 266(4)(b) of the Criminal Procedure (Scotland) Act 1995 provides that an accused who is called as a witness may, with the permission of the court, be questioned as to his character if the nature or conduct of the defence is such as to involve imputations on the character of the complainer or prosecution witnesses.

The appellant was charged with assaulting his neighbour who lived with this girlfriend in the flat opposite him, and lodged a plea of self-defence. When he gave evidence he was asked by his solicitor whether the complainer’s girlfriend, who had been a Crown witness, had originally lived at the address and in his reply he referred to her stealing money from the complainer. Later in his evidence, when asked whether he had ever seen the complainer “in that kind of manner before”, he suggested that the complainer had a quarrelsome nature. The prosecutor sought permission to cross-examine him on his record. The sheriff refused permission to question him on his record for violence as unduly prejudicial having regard to the nature of the charges against him, but allowed questioning on his record for dishonesty. He was convicted and appealed to the High Court.

Held (1) that the sheriff’s response in relation to the appellant’s record of violence was appropriate (para.6); but (2) that while the remark about the complainer’s girlfriend might be capable of reflecting on the character of the witness, it was a passing remark made in the context of an explanation as to the circumstances in which she came to be living in the block and no direct attack was mounted on her character, and that the answer was not one which was entirely unrelated to the question which was asked (para.7); and (3) that the fundamental considerations in a matter such as this were those of fairness and balance, and that the potential prejudice to the appellant was out of all proportion to any potential effect of the remark which he had made (para.8); and appeal allowed and conviction quashed.

Leggate v HM Advocate, 1988 S.C.C.R. 391; 1988 J.C. 127; 1988 S.L.T. 66 applied.

Case referred to in the opinion of the court: Leggate v HM Advocate, 1988 S.C.C.R. 391; 1988 J.C. 127; 1988 S.L.T. 66.

G

Andrew McLeish was convicted of assault after trial on 2 December 2015 in Edinburgh Sheriff Court before Sheriff Mackie and a jury, and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

422

5281.indd 422

09/11/16 10:29 AM

2016 S.C.C.R.

McLeish v HM Advocate

423

The appeal was heard and allowed on 11 August 2016 by the Lord Justice Clerk (Dorrian), Lady Paton and Lady Clark of Calton.

For the appellant: McCluskey, instructed by Adams Whyte, Solicitors, Livingston.

For the respondent: Niven-Smith AD.

A

The Lord Justice Clerk (Dorrian) subseqently delivered the following opinion of the court.

LORD JUSTICE CLERK [1] In this case the appellant, who was the neighbour of the complainer and his girlfriend, living in the flat directly opposite them, was charged, inter alia, with an assault on the complainer in the hallway between their respective properties.

The appellant had lodged a special defence of self-defence. When giving evidence the appellant was asked whether the complainer’s girlfriend had originally lived at the address, to which he replied: “Naw, they had a, a bit of a volatile relationship. She had been kicked out for stealing money from him and when we moved into the flat, all her stuff was kind of blocking all the, the exits ‘cause there was bags with her clothes and that kind of stuff.”

[2] Later in his evidence the appellant’s agent asked, regarding the complainer, “Had you seen him in that kind of manner before, or was that the only time you saw that?” which elicited a reply suggesting that the complainer had a certain quarrelsome nature, talked of fighting, and was a drunkard.

[3] The procurator fiscal depute made a motion in terms of s.266(4)(b) of the Criminal Procedure (Scotland) Act 1995, to be permitted to ask questions of the appellant tending to show that he had been convicted of offences other than that with which he was charged. The appellant had a number of convictions for violence, possession of weapons and dishonesty. In particular, he was convicted in 2004 of possession of a weapon, in 2005 of an offence of violence, and in 2004 and 2015 of offences of dishonesty.

[4] The application was opposed under reference to Leggate v HM Advocate, on the basis that this was not a case where the nature or conduct of the defence was such as to involve imputations on the character of the complainer or witnesses, notwithstanding the remarks in question. The test was one of fairness and the risk of prejudice was too great.

[5] The sheriff granted the application. It is not entirely clear whether she did so on the basis of the effect of both sets of remarks, or only in relation to those relating to the complainer’s girlfriend. There are passages in her note which suggest that she relied on both, for example, para.9, since she refers there to the remarks, including those regarding the complainer, as being deliberate and gratuitous, and para.8 where she states that the remarks went further than appeared to be warranted by the questions. So far as the remarks concerning the complainer are concerned, we do not agree with that assessment, since those remarks arose in answer to the question noted above, which appears wholly to carry the risk of such an answer as eventuated.

[6] Nevertheless, the sheriff appears to have considered that, in the context of a defence of self-defence, the remarks in relation to the complainer himself were not such as to justify cross-examination of the appellant as to his record, saying: “It appeared to me that having regard to the nature of the offences with which the appellant was charged it would be unduly prejudicial to him to

5281.indd 423

B

C

D

E

F

G

09/11/16 10:29 AM

424 A

B

C

D

E

McLeish v HM Advocate

2016 S.C.C.R.

allow cross-examination on previous convictions for offences of violence or the possession of weapons even if the purpose was only to go to his credibility.”

We consider that to be an appropriate response. In relation to the complainer’s girlfriend however, the position was different, the sheriff stating: “However, having impugned the credibility of the complainer’s partner by referring to an act of dishonesty towards the complainer, it did not appear to me to be unduly prejudicial to the appellant for the jury to be aware that the appellant had also committed acts of dishonesty. Accordingly, in exercising my discretion and attempting to achieve fairness between the appellant and the public interest, I permitted the respondent’s depute to cross-examine the appellant on his convictions but only those relating to offences of dishonesty.”

[7] It seems therefore that the sheriff ultimately based her decision solely on the remarks in relation to the complainer’s girlfriend. This is how the decision was understood by both the Crown and the defence. We are satisfied that in doing so she erred in the exercise of her discretion. Whilst the remark in question may be capable of reflecting on the character of the witness, it is a passing remark made in the context of an explanation as to the circumstances in which the complainer’s girlfriend came to be living in the block. No direct attack was mounted on the witness’s character, and the answer was not one which was entirely unrelated to the question which was asked. The advocate depute conceded that the sheriff had erred but sought to argue, with little conviction, that there had been no miscarriage of justice. However, he acknowledged that the prior convictions were of a significant nature, and it would be difficult to suggest that they would not have had an equally significant effect on the assessment of the jury. He also appeared to acknowledge that the decision of the procurator fiscal depute to make the motion in the first place had not perhaps accorded with the expectation of Lord Justice Clerk Ross in Leggate v HM Advocate (p.412) that: “[W]e confidently expect that prosecutors will exercise a wise discretion as to whether it is really necessary in the particular circumstances to invite the court to exercise its discretion in favour of the Crown and thus to allow cross-examination of the accused about his character.”

[8] It is quite clear from the case of Leggate that the fundamental considerations in a matter such as this are those of fairness and balance. In our view, the potential prejudice to the appellant was out of all proportion to any potential effect of the remark which he had made. The appeal will therefore be allowed.

F

G

5281.indd 424

09/11/16 10:29 AM

A Appeal Against Conviction

23 August 2016

JAMES WILSON

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 70 Evidence—Sufficiency—Two charges of extortion from same complainer in similar circumstances—One charge fully proved— Whether available to corroborate identity of accused in other charge The appellant and a co-accused were charged that (1) they sent an anonymous letter to the complainer between January and March 2013 threatening to kill him and his family unless they paid him £60,000. This was followed up by anonymous phone calls pretending that the letter had been sent by dangerous criminals from England and telling the complainer where and when to deposit the money. The appellant offered to courier the money and was given it.

Charge (2) libelled similar threats between April and May 2014.

The complainer gave evidence that the letter in charge (1) was sent to a new address which was known only to his family and workers and the appellant.

The complainer and the appellant had been friends for many years and the complainer contacted the appellant about the letter. The appellant claimed to know a man, D, who might be able to find out who had sent the letter, and the complainer received a phone call from D who told him to give the letter to the appellant to pass on to D so that it could be tested for DNA analysis. The complainer complied and was then told by D to give the money to the appellant to pass to him, and he did so. D also said that the letters had come from dangerous criminals in Liverpool.

The events relating to charge (2) began with a similar letter, and the complainer asked the appellant to pick it up from him at a Pizza Hut café, which the appellant did, using a blue car. Then the complainer received a letter saying, “How was your pizza? . . .Your pig friend in the blue car won’t save you . . . .” The complainer then confided in his son M, who knew about the original letter and the payment of the money, and the police were involved. The complainer told the appellant and D that he had been to the police and D texted the appellant to say, “Me and my boys are coming through to take [M] out for grassing up [the appellant].” Only the appellant knew that M had accompanied the complainer to the police station. There was also evidence of a number of phone calls between the appellant and the co-accused following the complainer’s visit to the police station. The appellant admitted to the police that he knew both the complainer and the co-accused, and the co-accused’s DNA was on the stamps of two of the letters in charge (2).

The co-accused pled guilty at the conclusion of the Crown case, and the appellant was convicted. He appealed to the High Court against conviction, on the ground that there was insufficient evidence to connect him to the offences.

The Crown had relied on Howden v HM Advocate (infra) at the trial, and the appellant accepted that there was sufficient evidence on charge (2), his submission being that there had been insufficient corroboration of the complainer’s identification of the appellant as a participant in charge (1).

Held (1) that the modem expression of sufficiency of evidence, and the manner in which the requirement for corroboration operates, is that the crucial facts (that is the commission of the crime and the identity of the perpetrator) must be proved by evidence from at least two separate sources,

C

D

E

F

G

425

5281.indd 425

09/11/16 10:29 AM

426 A

B

C

D

E

F

Wilson v HM Advocate

2016 S.C.C.R.

that this normally involves direct testimony from at least two witnesses about these facts, indirect testimony from two or more witnesses about facts from which the crucial facts can be inferred or a combination of direct and indirect evidence from at least two sources, that the principle of mutual corroboration is not an exception to this, but an example of it where, if there are charges involving a course of criminal conduct, the testimony of one witness concerning one charge may corroborate, and be corroborated by, the testimony of another witness speaking to another charge linked with it in time, character and circumstance, and that in the classic case, each witness will speak to the commission of the particular crime and the identification of the accused as the perpetrator (para.14); (2) that it follows, from the expression of the principle that mutual corroboration cannot operate if the only testimony about the commission of the crimes and their perpetrator comes from the same person (eg, the complainer), that no matter how similar the facts may be, the sources relied upon to corroborate each other would be the same, but that, equally, there is no need for the complainers on two or more charges to be different, provided that there are two sources of evidence to prove the crucial facts (para.15); (3) that on charge (2) there was at least one source of evidence, other than the complainer, pointing to the appellant (incidentally as actor, not just art and part), including the telephone evidence linking him to D and thus to the co-accused, whose involvement was demonstrated by his DNA on the stamps, that in such circumstances there was no particular need to rely on Howden, that there would be a sufficiency using the evidence (other than the testimony of the complainer) of the identity of the perpetrator on charge (2) in combination with that of the complainer on charge (1) provided that the jury was satisfied that the crime in charge (1) must have been carried out by those who committed that set out in charge (2) para.17); (4) that there was no doubt that the two crimes were very closely linked, and involved the same complainer and an almost identical modus operandi with participation by at least two persons, that that modus concerned the activities of the fictitious D and his equally fictitious ability to recover DNA from the letters and identify criminals from Liverpool as protagonists, that in these circumstances, it was not surprising that, having decided to convict the appellant on charge (2), the jury did the same on charge (1) (para.18); (5) that Howden operates where, with one charge, although there is sufficient proof that an offence took place, there is no source of evidence pointing to the accused as the perpetrator, and that deficiency can be overcome by proof, by corroborated evidence, that the accused perpetrated the other charge or charges, coupled with evidence that the charges, including that on which there is an insufficiency, all involved the same perpetrator, and that if the evidence shows that two crimes were committed by the same person, proof that the accused perpetrated one will suffice to prove that he perpetrated the other (para.19); and (6) that in this case, the ratio of Howden had little or no relevance, that its application could not have proved that the crime on charge (1) had been committed, but that that was, however, proved aliunde, and the true issue was whether the complainer’s evidence identifying the appellant as the link with D was corroborated by evidence other than that of the complainer, that although there was no other evidence specific to identification on charge (1), given the obvious improbability of a different person being involved in charge (1), that gap was filled by the circumstantial identification evidence on charge(2), that, while emphasis was placed on the time gap between the two offences, given the overall circumstances, this did not disentitle the jury from reaching the verdicts which they did, nor did it result in an insufficiency of evidence on charge (1) (para.20); and appeal refused.

Howden v HM Advocate, 1994 S.C.C.R. 19 considered.

G

5281.indd 426

09/11/16 10:29 AM

2016 S.C.C.R.

Wilson v HM Advocate

427

Cases referred to in the opinion of the court:

A

Gillan v HM Advocate, 2002 S.C.C.R. 502; 2002 S.L.T. 551 Gillespie v Macmillan, 1957 J.C. 31; 1957 S.L.T. 283 Howden v HM Advocate, 1994 S.C.C.R. 19 M R v HM Advocate [2013] HCJAC 8; 2013 S.C.C.R. 190; 2013 J.C. 212 Martin v HM Advocate [2016] HCJAC 42; 2016 S.C.C.R. 276 Moorov v HM Advocate 1930 J.C. 68; 1930 S.L.T. 596 Murphy v HM Advocate [2007] HCJAC 57; 2007 S.C.C.R. 532; 2007 S.L.T. 1079 Lindsay v HM Advocate, 1993 S.C.C.R. 868 Townsley v Lees, 1996 S.C.C.R. 620; 1996 S.L.T. 1182.

B

James Wilson was convicted of the charges described in the opinion of the court after trial on 17 November 2015 after trial in the High Court at Edinburgh before Lady Wolffe 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 23 August 2016 by the Lord Justice General (Carloway), Lady Paton and Lord Malcolm.

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

For the respondent: Prentice QC, AD.

C

On 23 August 2016 the appeal was refused. The Lord Justice General subsequently delivered the following opinion of the court D

LORD JUSTICE GENERAL Introduction

[1] On 17 November 2015, at the High Court in Edinburgh, the appellant was convicted of two charges of extortion and attempted extortion. The first libelled that, between January and March 2013, the appellant, along with a co-accused J C, sent an anonymous letter to W T threatening to kill members of his family unless he paid £60,000. Thereafter they made anonymous phone calls to him pretending that the letter had been sent by dangerous criminals from England. They told him where and when to deposit the money. The appellant offered to courier the money and was duly given it. The second charge was in not dissimilar terms and libelled that, between April and May 2014, they sent further letters to W T threatening him and his family with violence unless he paid £375,000. In a later call he was asked to give the letters to the appellant so that they could be examined for DNA. A further letter instructed W T where to deposit the money.

[2] The co-accused had admitted involvement in both offences at interview, having been advised that his DNA had been found on some of the letters. He said that it had been the appellant’s idea. He had written the letters. He had divided the £60,000 with the appellant. The co-accused pled guilty at the close of the Crown case. Both accused were sentenced to five years’ imprisonment.

[3] The appeal concerns the sufficiency of evidence on the first charge. At the trial, this question was analysed in terms, inter alia, of the ratio in Howden v HM Advocate.

E

F

G

5281.indd 427

09/11/16 10:29 AM

428 A

B

C

D

E

Wilson v HM Advocate

2016 S.C.C.R.

The complainer’s testimony

[4] The complainer had known the appellant for 15–20 years. The appellant had worked for him periodically. The complainer considered him to be a friend. In January 2013, a matter of weeks after the complainer had moved house, a letter arrived. Only the complainer’s family and workers, including the appellant, would have been aware of his new address. The letter, which was in the traditional cut-and-paste format of the blackmailer, made threats to the complainer in the terms libelled. The complainer contacted the appellant, in whom he was in the habit of confiding. The appellant claimed to know a solicitor or “barrister” in Glasgow called “Davie” who might be able to find out who had sent the letter. The complainer received a phone call from Davie who told him to put the letter in a plastic bag and give it to the appellant to pass on to him for DNA analysis. Davie called him later to say that the senders had been identified as being Liverpool villains. He advised the appellant to pay the money. This was to be done by giving the appellant £60,000 for onwards transmission through Davie. He did this, having withdrawn £21,000 from his bank account and obtained the rest by borrowing from relatives. He received a further call from Davie saying that it was “all finished”.

[5] On Tuesday, 22 April 2014 a second letter arrived, this time demanding £375,000. This letter was in stencilled format, in the terms of the libel, involving threats to the complainer’s family. The complainer phoned the appellant, who arranged for Davie to call. The same DNA plan was suggested.

The complainer asked the appellant to pick up the letter from him at Pizza Hut on the following day. The appellant did this, using a blue car. When the complainer arrived home, there was a hand-delivered letter stating that the authors had been watching him and asking if he had enjoyed his meal with his girlfriend on the previous Friday night. The complainer had had such a meal.

The complainer phoned the appellant. Davie then phoned the complainer to say that he would send two men to watch the house. Davie later said that a Liverpool mob had been identified from the DNA analysis. The next morning another letter arrived saying. “How was your pizza? . . . Your pig friend in the blue car won’t save you . . . .” The complainer confided in his son M T and the police were involved. On the following day (Saturday, 26 April) the complainer told the appellant and Davie that he had been to the police. On Sunday, 27 April, Davie texted him to say, “Me and my boys are coming through to take (M) out for grassing up (the appellant)”. Only the appellant knew that M T had accompanied him to the police station. Further demanding letters arrived and were handed to the police.

Other evidence

F

G

5281.indd 428

[6] The complainer’s son M T said that he had become aware of the first letter in 2013. He had seen the letter at the time and noted that it was threatening and demanding £60,000. It was agreed by joint minute that the complainer withdrew £21,000 from his bank at the time. M T had fallen out with his father because he had not gone to the police. He was not aware that any money had been paid. When the 2014 letters had arrived, he had again told the complainer to go to the police, which he did.

[7] The police recovered a number of the letters relative to the second charge, as they arrived at the complainer’s home. These were produced at the trial.

[8] There was evidence of telephone calls from Saturday, 26 April (when the complainer had contacted the police). This involved an exchange of some five calls between the appellant and the co-accused from 8.38–10.16 am. There were then three calls from the appellant to the complainer from 2.56–4.34 pm.

09/11/16 10:29 AM

2016 S.C.C.R.

Wilson v HM Advocate

429

At 5.25 [pm] the co-accused called the complainer. At 6.39 [pm] the appellant phoned the co-accused and, apparently during this call, there is a second short call from the appellant to the complainer followed at 6.48 [pm] by a ten-second call from the appellant to the co-accused. Between 8.21 and 8.25 pm there were three communications between the appellant and the co-accused. At 8.31 [pm] the appellant called the complainer and, immediately, afterwards phoned the co-accused. Immediately after that, the complainer called the appellant. Finally, at 8.40 pm the appellant called the co-accused.

[9] Forensic evidence demonstrated that the co-accused’s DNA was on the stamps of two of the envelopes used to send the letters in charge (2). The handwriting in four of the letters in April 2014 was “probably” that of the co-accused.

[10] At interview, the appellant admitted that he knew both the complainer and the co-accused.

A

B

Trial

[11] At the trial, there was a submission that there was insufficient evidence of identification on either charge. There was some debate about the Crown having to rely on the concept of art and part guilt, which had not been expressly libelled, coupled with the application of Howden v HM Advocate. The Crown accepted that charge (1) relied upon such an analysis. The judge spent some time resolving the issues as they had been presented to her. Having accepted that there was no need to libel art and part, the judge examined Howden and its successors. She noted that, ultimately, it had not been contended that there was insufficient evidence on charge (2). She rejected the submission that it was necessary to have “direct” evidence of identification before Howden could be applied and that the time interval between the two charges was too long.

C

D

Submissions

[12] The appellant accepted that there had been sufficient evidence on charge (2). He contended that there was insufficient evidence to allow the application of Howden because of insufficient similarities between the two charges. The question was whether these similarities pointed to the appellant as the perpetrator of both crimes (Gillan v HM Advocate at para.24; Martin v HM Advocate). As distinct from Howden; Gillan; and Townsley v Lees, the complainer in both charges was the same. There was no direct identification of the appellant as the perpetrator in charge (1). The “art and part” identification in charge (2) could only apply to charge (1) if the evidence showed that the latter charge involved more than one person. The time gap between the offences was too long. The similarities in the method were not so special as to justify the inference that the same person had perpetrated both crimes.

[13] The original Crown submission was that there was no rule preventing the application of Howden where the charges involved the same complainer.

There had to be corroborated evidence proving identification on one charge.

If that were established, there was no need for a separate identification on the second charge, if it was proved that both offences were committed by the same person. There was no requirement for a “direct” identification (Murphy v HM Advocate at paras.48 and 90; Lindsay v HM Advocate at p.873; and Gillespie v Macmillan at p.39). It was accepted that there was sufficient evidence of charge (2). The only question was whether there was evidence to prove that charge (1) was committed by the same person or persons. It was not helpful to focus on the time gap in isolation. The gap was just one of a number of factors to be considered in establishing a nexus.

5281.indd 429

E

F

G

09/11/16 10:29 AM

430 A

B

C

D

E

F

G

5281.indd 430

Wilson v HM Advocate

2016 S.C.C.R.

Decision

[14] The modern expression of sufficiency of evidence, and the manner in which the requirement for corroboration operates, is that the crucial facts (that is the commission of the crime and the identity of the perpetrator) must be proved by evidence from at least two separate sources. This normally involves direct testimony from at least two witnesses about these facts, indirect testimony from two or more witnesses about facts from which the crucial facts can be inferred or a combination of direct and indirect evidence from at least two sources. The principle of mutual corroboration is not an exception to this, but an example of it where, if there are charges involving a course of criminal conduct, as explained in M R v HM Advocate at para.20, the testimony of one witness concerning one charge may corroborate, and be corroborated by, the testimony of another witness speaking to another charge linked with it in time, character and circumstance. In the classic case, each witness will speak to the commission of the particular crime and the identification of the accused as the perpetrator (eg, Moorov v HM Advocate).

[15] It follows, from the expression of the principle, that mutual corroboration cannot operate if the only testimony about the commission of the crimes and their perpetrator comes from the same person (eg, the complainer). No matter how similar the facts may be, the sources relied upon to corroborate each other would be the same. However, equally, there is no need for the complainers on two or more charges to be different, provided that there are two sources of evidence to prove the crucial facts.

[16] In many cases, and this is one, there will be evidence from sources other than the complainer, to prove the commission of the crime. Here, on charge (1), the complainer’s son saw the threatening letter, which instructed the libel, and the complainer’s withdrawal of £21,000 at the material time was agreed. It is not disputed that there was sufficient proof of the commission of the crime on charge (2). Leaving aside the testimony of the complainer, there was at least one source of evidence, such as the production of the letters spoken to by other witnesses, to demonstrate the commission of the crime on charge (2). The principal issue, however, is whether there is corroboration of the complainer’s identification of the appellant as a participant in the crime alleged in charge (1).

[17] On charge (2) there was at least one source of evidence, other than the complainer, pointing to the appellant (incidentally as actor, not just art and part), including the telephone evidence linking him to “Davie” and thus the co-accused, whose involvement was demonstrated by his DNA on the stamps.

In such circumstances, there was no particular need to rely on Howden v HM Advocate. There would be a sufficiency using the evidence (other than the testimony of the complainer) of the identity of the perpetrator on charge (2) in combination with that of the complainer on charge (1) provided that the jury were satisfied that the crime in charge (1) must have been carried out by those who committed that set out in charge (2).

[18] There is no doubt that the two crimes were very closely linked. They involved the same complainer and an almost identical modus operandi with participation by a least two persons. That modus concerned the activities of the fictitious “Davie” and his equally fictitious ability to recover DNA from the letters and identify criminals from Liverpool as protagonists. In these circumstances, it is not surprising that, having decided to convict the appellant on charge (2), the jury did the same on charge (1).

[19] Howden v HM Advocate operates where, with one charge, although there is sufficient proof that an offence took place, there is no source of

09/11/16 10:29 AM

2016 S.C.C.R.

Wilson v HM Advocate

431

evidence pointing to the accused as the perpetrator. That deficiency can be overcome by proof, by corroborated evidence, that the accused perpetrated the other charge or charges, coupled with evidence that the charges, including that on which there is an insufficiency, all involved the same perpetrator (Gillan v HM Advocate, LJC (Gill) at para.24). If the evidence shows that two crimes were committed by the same person, proof that the accused perpetrated one will suffice to prove that he perpetrated the other (para.19).

[20] In this case, the ratio of Howden has little or no relevance. Its application could not have proved that the crime on charge (1) had been committed. That was, however, proved aliunde. The true issue was whether the complainer’s evidence identifying the appellant as the link with Davie was corroborated by evidence, other than that of the complainer. There was no other evidence specific to identification on charge (1), but, given the obvious improbability of a different person being involved in charge (1), that gap was filled by the circumstantial identification evidence on charge (2). While emphasis was placed on the time gap between the two offences, given the overall circumstances, the court is not persuaded that this disentitled the jury from reaching the verdicts which they did, nor that it resulted in an insufficiency of evidence on charge (1).

[21] The appeal is refused.

A

B

C

COMMENTARY It is, of course, correct to say that, if only because the complainer was the same in both charges, this was not a Howden case, but it does depend on the same general proposition as Howden. Both Howden and this case are examples of the application of the proposition that if two or more offences are so similar that there can be no reasonable doubt that the same person committed both of them, then if a person’s guilt of one charge is fully proved that in itself will corroborate evidence of his guilt of any other charge where the offence is proved to have occurred. Howden is merely one particular example of this general proposition, as set out in para.19 of the opinion. Howden is not authority for the decision in this case, but this case would have been authority for Howden.

What remains to be seen is whether the ratio of this case will be applied to cases where there is no identification at all in all but one of a series of offences, yet they are so similar that it is reasonable to accept that they were all committed by the same person, as might be the case of serial murders.

See also Young v HM Advocate [2013] HCJAC 145; 2014 S.C.C.R. 78; 2014 S.L.T. 21 and the Commentary thereon at 2014 S.C.C.R. 94–95.

D

E

F

G

5281.indd 431

09/11/16 10:29 AM

A

SUMMARY Miller v HM Advocate—[2016] HCJAC 68—3 August 2016

B

C

D

E

Solemn procedure—Judge’s charge—Rape—Failure to give specific direction on need to corroborate complainer’s evidence of penetration— Whether misdirection leading to miscarriage of justice The appellant was convicted of, inter alia, two charges of raping K M (charges (7) and (8)) committed while another person (L D and J L respectively) was present in the room. He appealed to the High Court against conviction on the ground that the trial judge failed to direct the jury that the complainer’s evidence of penetration must be corroborated.

In delivering the opinion of the court (the Lord Justice General (Carloway), Lady Paton and Lady Clark of Calton) refusing the appeal the Lord Justice General said: ...

[8] L D said that . . . (she) had heard K M say, “Dinnae. (L) is in the next bed”, to which the appellant had replied, “If I want it, I’m getting it” or “I’m going to take it”. She said that the appellant had then “started sex”, which she could tell was happening because of the noises which went on for a couple of minutes, followed by the complainer crying. . . .

[10] J L gave evidence . . . that she had woken up to hear (K M) saying, “No, my mum’s here.” The appellant had said, “Just do it, open your legs.”

The appellant had said, in response to K M’s “No”, “You f . . . ing will, it’s my marital rights.” She too spoke to hearing the sounds of a mattress and headboard banging against a window ledge more than a few times. . . .

[21] The trial judge’s directions, when read as a whole, were adequate. The appellant had said, in response to K M’s “no”, “You f . . . ing will, it’s my marital rights.” She too spoke to hearing the sounds of a mattress and headboard banging against a window ledge more than a few times.

[22] Corroboration had to come from the two persons who had been present in the bedroom at the time when the rapes are alleged to have occurred.

The jury must have accepted the testimony of both of these witnesses in order to convict of either charge (7) or (8). Having done so, the jury were entitled to find that there was indeed corroboration of penetration.

For the appellant: Allan QC, instructed by Wilson McLeod, Solicitors, Edinburgh.

For the respondent: Erroch AD.

F

G 432

5281.indd 432

09/11/16 10:29 AM

A

SUMMARY Smart v HM Advocate—[2016] HCJAC 73—16 August 2016 Sentence—Misuse of drugs—Being concerned in supply of heroin— 18-year-old offender—Whether custody excessive B Sentence—Young offender—Being concerned in supply of heroin— Whether custody excessive The appellant, a first offender who was aged 18 at the time of the offence, pled guilty to being concerned in the supply of heroin and received a custodial sentence of 27 months. He had held the drugs for a day for a friend, and appealed to the High Court against the sentence as excessive. In delivering the opinion of the court (the Lord Justice Clerk (Dorrian) and Lord Brodie) allowing the appeal, the Lord Justice Clerk said: ...

“The sentence is appealed on the basis that the imposition of a custodial sentence was excessive. The appellant had cooperated with the police from the outset, and had tendered a plea of guilty. He held the drugs for another individual for a short period of time, namely one day. The value of the drugs was £325 or £1,100 if subdivided. The appellant had no previous convictions, was remorseful and understood that his actions had been wrong. He had removed himself from a peer group which had been a bad influence on him, had, at the time of sentencing, returned to reside with his grandparents and had a goal of attending college. He was holding the drugs for an acquaintance to whom they were to be returned, without financial gain on the part of the appellant and without any onward supply on his part. The Criminal Justice Social Work Report assessed him as at a low risk of re-offending and expressed concerns that he would “struggle with custody”. The appellant suffered from depression, readily accepted that he had made a mistake and it was reasonable to consider that his actions were a consequence of naivety and poor judgment. . . .

“A striking feature of the sheriff’s report is that at no stage of the report does he refer to the appellant’s youth. He does not refer to his age at all. Under reference to the grounds of appeal he appears to have considered that as a first offender the appellant was entitled to the protection of s.204 of the Criminal Procedure (Scotland) Act 1995. However that section deals with first offenders who are not legally represented (s.204(1)) or those who are over the age of 21 (s.204(2)). The protection given to the appellant under s.207 is not given as a first offender merely, or as someone who has never before served a custodial sentence, it is also given because of his youth . . . . Furthermore the effect of the appellant’s youth, the bearing it might have on his offending, or his decision-making, or the opportunities available to him yet to make something of his life are not addressed by the sheriff at all in his report, and do not appear to have been a feature in his thinking in relation to the appropriate sentence to be passed on the appellant. Instead he refers to the “consistently expressed view” of this court that those involved in such an offence can expect to receive a significant custodial sentence in all but exceptional circumstances. The sheriff does not explain to which cases he was referring, but no doubt he had in mind cases such as Ali v HM Advocate [2010] HCJAC 110 where, in relation to a 39-year-old offender, such an observation was made. However such observations may be appropriate to the generality of the cases, it is always necessary to consider the individual context in which the youth of an offender would be a very important consideration. Even a very serious offence, which

C

D

E

F

G

433

5281.indd 433

09/11/16 10:29 AM

434 A

B

C

D

E

F

Smart v HM Advocate (Sy)

2016 S.C.C.R.

in an adult might require a custodial sentence, might not do so in relation to a young person (see for example HM Advocate v Smith[, [2013] HCJAC 137;] 2014 S.C.C.R. 39). Similar considerations arose in the case of Kane v HM Advocate, 2003 S.C.C.R. 749 where the sheriff had expressed views similar to those expressed by the current sheriff, albeit in a different context [para.7], namely that: “ ‘Your Lordship’s court has repeatedly made it clear that there is only one possible sentence for robbery at knifepoint and that is a lengthy custodial one.”

“However, as Lord Justice Clerk Gill noted (para.11): “ ‘The sheriff thought that considerations of retribution and deterrence were decisive. These are material considerations; but there is more to sentencing than sending messages to society, particularly in the case of a young offender. The court has to consider the personal circumstances of such an offender; his home background, the extent to which he may not be solely responsible for his behavioural problems; and the opportunities that a non-custodial sentence may give for rehabilitation before he becomes trapped in the cycle of crime.’

“This case raises several of these considerations. The appellant had an unsettled childhood after his parents split up when he was a year old. He had an itinerant lifestyle throughout his childhood, struggled to make friends, suffered bullying and displayed behavioural problems. His grandparents appeared to have brought the only stability into his life and it is clearly a positive factor that he has returned to live with them in this stable arrangement, and that they are giving him their support. This contrasts with the somewhat rootless lifestyle, lacking in routine or motivation, that he was living in Fife. The appellant’s decision to move away from Fife, the absence of any offending since doing so and the support of his grandparents are all described in the Criminal Justice Social Work Report as protective factors. The possibility that his offending was related to an unsatisfactory peer group, naivety and poor judgement are, as recognised in the report, real ones. Forthright recognition by the appellant that he requires to take steps himself to address his future, his actions in moving to Glasgow as a positive step in that respect and his anger at himself for becoming involved in this offence are all positive pointers for the future. To suggest in these circumstances that no method other than a custodial disposal was appropriate for the appellant is in our view quite simply wrong. Accordingly, we have allowed the appeal and substituted a community payback order for a period of three years with a supervision requirement under which the appellant must follow the recommendations of his supervising officer in particular in relation to offence focused work relating to his decision-making; making better use of his time and developing links in the community in Glasgow, including with employability services; and taking advantage of mental health services. In addition we have imposed a requirement that the appellant carry out 300 hours of unpaid work in the community over a period of 12 months.”

For the appellant: I Paterson, Solicitor advocate, instructed by Paterson Bell & Co, Solicitors, Edinburgh.

For the respondent: MacFarlane AD.

G

5281.indd 434

09/11/16 10:29 AM

A

SUMMARY How v Harvie (Procurator Fiscal, Ayr)—[2016] HCJAC 9—26 January 2016 Evidence—Identification of accused—Admission made in answer to Road Traffic Act requirement—Whether can be used as evidence of identity in charge of linked non-traffic offfence—Road Traffic Act 1988 (c.52), s.172 The appellant was charged with (1) dangerous driving and (2) threatening behaviour contrary to s.38 of the Criminal Justice and Licensing (Scotland) Act 2010. He had been “tailgating” a car, and at one point in the journey he got out of his lorry, approached the car and behaved aggressively toward its driver. When the appellant was required by the police in terms of s.172 of the Road Traffic Act 1988 to state who was driving his lorry at the time of the incident he admitted that he had been the driver. At his trial the Crown relied on that admission in order to identify him on both charges. He was convicted and appealed by stated case against his conviction of the contravention of s.38 on the ground that this use of his admission was incompetent.

In delivering the opinion of the court (Lady Paton, Lord Menzies and Lord Matthews) refusing the appeal, Lady Paton said: ...

[12] Against that background, it is our opinion that the appellant’s response to the s.172 requirement was available as evidence in respect of both charges (1) and (2) for several reasons. The response was obtained lawfully in terms of s.172. It then became evidence available to the Crown (admittedly requiring corroboration) for any offence related to the relevant vehicle at the time and place to which the s.172 inquiry was directed (cf, the approach adopted in McColl v Skeen, 1980 S.L.T. (Notes) 53). The observations of Lord Hope [in Stott v Brown, 2001 S.C.C.R. 63 at p.97 C–G], confirm the validity of that approach, and also the proportionality of using the s.172 response “in criminal proceedings” (and not just in the narrower context of “road traffic offences”).

The appropriateness of such a use of the s.172 response is illustrated if certain hypothetical circumstances are envisaged: if a driver collided with a pedestrian causing death, the driver’s s.172 response would be available as corroborative evidence in respect of a charge of causing death by dangerous driving in terms of s.1 of the Road Traffic Act 1988; but if the Crown, on further investigation, found that the driver had appeared deliberately to have driven at the pedestrian with murderous intent such that the case had to be re-indicted as “murder”, it would be illogical and unprincipled if the s.172 response could not be used as corroborative evidence identifying the driver in the alleged murder case.

Finally, we note that, in the circumstances of this particular case, there was a sequence of events involving road traffic matters and also the appellant’s alleged behaviour in breach of s.38 of the 2010 Act. That behaviour was very much part of the sequence of events involving the dangerous driving. As the sheriff notes, the behaviour was “inextricably linked” to the alleged road traffic offence, namely a contravention of s.2 of the 1988 Act. ...

B

C

D

E

F

For the appellant: C M Mitchell, instructed by The Public Defence Solicitors’ Office, Edinburgh.

For the respondent: Farquharson AD. G 435

5281.indd 435

09/11/16 10:29 AM

A

SUMMARY Luckhurst v Harrower (Procurator Fiscal, Forfar)—[2016] SAC (Crim) 29—21 September 2016

B

C

D

E

F

Appeal—Dangerous dogs—Destruction order—Failure by sheriff to take account of relevant facts—Whether destruction order excessive— Dangerous Dogs Act 1991 (c.65), ss.3(1), 4 The appellant was the owner of a dog whose destruction had been ordered following a plea of guilty by the person in charge of the dog at a time when it attacked and killed another dog. In delivering the opinion of the sheriff appeal court (Sheriff Principals Abercrombie and Arthurson) allowing the appeal Sheriff Arthurson said: ...

[2] The appeal before this court is advanced today on behalf of the true owner, Ms Luckhurst, of the charity Saving Saints Rescue UK, and is directed to the destruction order only. An appeal against destruction is one advanced completely under the specific provisions of s.4(2) of the 1991 Act and is not an appeal against sentence in terms of the Criminal Procedure (Scotland) Act 1995. We are accordingly of the view that the conventional sifting process should not have been applied in this case. The terms of s.4(2) of the 1991 Act quite clearly permit an appeal to this court at the instance of the true owner (the appellant today) against a s.4(1)(a) destruction order in respect of a dog owned by a person other than the offender (here, Mr Pudney): s.4(9) of the 1991 Act. ...

[5] The sheriff in this case has made the order on the basis therefore of the factors which are irrelevant (lack of opposition), partial (the past behaviour of the dog has been considered, but not its temperament) or approached on the basis of incorrect information (whether the person in charge at the time was a fit and proper person). He has in addition not taken into account the lack of injury to any person in the Crown narrative. He has further not considered or addressed the suitability or otherwise of a contingent destruction order or any alternative orders short of destruction which would allow public safety issues to be addressed. In these circumstances we have no difficulty in finding that the sheriff has erred in fact and law in the exercise of his discretion. In identifying these matters, we express our concern that the relevant material required under the statutory regime applicable was not put before the sheriff in specific terms by the Crown on 9 June 2016. We also appreciate that significant new material has been placed before this court which was simply not available to the sheriff.

[6] In terms of disposal, we allow the appeal and recall the s.4(1)(a) destruction order. We leave it to the good sense of the charity to enforce their own rules on good practice in such circumstances as these, bearing in mind the obvious horror and distress which must have been experienced by the owner of the dog which was attacked.

For the appellant: Mackenzie, instructed by Faculty Services Ltd. For the respondent: Hughes AD.

G 436

5281.indd 436

09/11/16 10:29 AM

The Scottish Criminal Case Reports are published by Thomson Reuters (Professional) UK Limited trading as W Green, 21 Alva Street, Edinburgh, EH2 4PS (Registered in England & Wales, Company No 1679046. Registered Office and address for service: 2nd floor, 1 Mark Square, Leonard Street, London, EC2A 4EG).

Typeset by LBJ Typesetting Ltd. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire.

No natural forests were destroyed to make this product: only farmed timber was used and replanted.

ISSN 0263-2381 Orders to: W. Green, PO Box 1000, Andover, SP10 9AF. Tel: 0345 600 9355. Email: TRLUKI.orders@thomsonreuters. com. Individual back issues of the Scottish Criminal Case Reports are available for the years 1986-2015.

The views expressed in the commentaries to the Scottish Criminal Case Reports are those of the contributors and not necessarily those of the Law Society of Scotland.

Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Crown Copyright legislation is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO. All rights reserved. No part of this publication may be reproduced or transmitted in any form, or by any means stored in any retrieval system of any nature, without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material, including permission to reproduce extracts in other published work should be made to the publishers. Full acknowledgment of the author, publisher and source must be given.

Thomson Reuters and the Thomson Reuters Logo are trademarks of Thomson Reuters. Š 2016 Law Society of Scotland

Oppression Extension of time limit on indictment for alleged offence in April 2013 refused in 2015—Case reduced to summary five months later—Whether summary proceedings oppressive Potts v Gibson (SAC) 412

Compatibility issue Delay—Extension of time limit on indictment for alleged offence in April 2013 refused in 2015—Case reduced to summary five months later—Whether trial in October 2016 would involve unreasonable delay Potts v Gibson (SAC) 412

Sentence Misuse of drugs—Being concerned in supply of heroin—18year-old offender—Whether custody excessive Smart v HM Advocate (Sy) 433

Evidence Accused as witness—Cross-examination as to character— Accused charged with assault making reference in evidence to quarrelsome nature of complainer and dishonesty of Crown witness—Whether allowance of cross-examination of accused on his record for dishonesty fair and proportionate McLeish v HM Advocate 422 Admissibility—Sexual offence—Character of complainer— Evidence of alleged false claims by complainer of pregnancy after incident—Whether admissible at common law— Whether admissible under statute Kerseboom v HM Advocate 386 Corroboration—Mutual corroboration—Incidents of domestic and sexual violence in period of 20 years—Whether Moorov doctrine applicable McAskill v HM Advocate 402 Evidence of crime not libelled—Unexpected answer given to question directed to other matters—Whether trial should be deserted McAskill v HM Advocate 402

Sufficiency—Two charges of extortion from same complainer in similar circumstances—One charge fully proved—Whether available to corroborate identity of accused in other charge Wilson v HM Advocate 425

Road traffic—Drink driving—Whether competent to take account of provision for application of removal of disqualification Stevenson v McPherson (SAC) 399 Solemn procedure Judge’s charge—Comment that evidence of defence witness of very limited significance—Whether appropriate McAskill v HM Advocate 402 Judge’s charge—Rape—Failure to give specific direction on need to corroborate complainer’s evidence of penetration— Whether misdirection leading to miscarriage of justice Miller v HM Advocate (Sy) 432 Statutory offence Threatening behaviour—Hunt protestors following hunt vehicle with faces covered—Whether behaviour reasonable Milne v Harrower (SAC) 392 Witness Expert witness—Drugs—Member of drug squad—Whether qualified as expert witness Jones v HM Advocate 381 Expert witness—Drugs—Police officer involved in investigation—Whether qualified as expert witness Jones v HM Advocate

381

2016 S.C.C.R. 381–436

Identification of accused—Admission made in answer to Road Traffic Act requirement—Whether can be used as evidence of identity in charge of linked non-traffic offfence How v Harvie (Sy) 435

Road traffic—Drink driving—Breath level of 153 mg—Whether disqualification for six years excessive Stevenson v McPherson (SAC) 399

October 2016 2016 S.C.C.R. 381−436

SCOTTISH CRIMINAL CASE REPORTS

Appeal Dangerous dogs—Destruction order—Failure by sheriff to take account of relevant facts—Whether destruction order excessive Luckhurst v Harrower (Sy) 436

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD How v Harvie (Sy) Jones v HM Advocate Kerseboom v HM Advocate Luckhurst v Harrower (Sy) McAskill v HM Advocate McLeish v HM Advocate Miller v HM Advocate (Sy)

*657939*

435 381 386 436 402 422 432

Milne v Harrower (SAC) Potts v Gibson (SAC) Smart v HM Advocate (Sy) Stevenson v McPherson (SAC) Wilson v HM Advocate

392 412 433 399 425