Scottish Criminal Case Reports, Issue 2, 2017 by Thomson Reuters

Appeal Bill of suspension—Fixed penalty—Whether appeal by bill of suspension against notice of registration of fine competent McMillan v Mundell (SAC) 96 Initiating warrant—Whether appeal to sheriff appeal court against grant of warrant by bill of suspension competent McMillan v Mundell (SAC) 96

Art and part Murder—Whether participation can be inferred from conduct before and after fatal incident Fee v HM Advocate 166 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 2015 would involve unreasonable delay Potts v Gibson 109 Evidence Corroboration—Mutual corroboration—Charges related to grooming of complainers and acquiring position of trust— Whether Moorov doctrine applicable DS v HM Advocate 129 Corroboration—Mutual corroboration—Incidents of domestic and sexual violence over period of 24 years—Whether Moorov doctrine applicable Reilly v HM Advocate 142

Extradition Extradition offence—Dual criminality—European arrest warrant offence described as appropriation by failing to return leased property on termination of lease—Whether offence under Scots law HM Advocate v Lisek 185 Sentence Consecutive sentences—Whether competent to impose consecutive sentences and then add extension period treating sentences as cumulo sentence DS v HM Advocate 129

*711743*

Extended sentence—Making or possessing indecent images of children—Whether extended sentence competent Wood v HM Advocate 100 Firearms—Minimum sentence—Exceptional circumstances— Possessions of stun guns disguised as torches—Offender unaware that they were firearms or of seriousness of offence—Whether exceptional circumstances justifying sentence below minimum Dinsmore v HM Advocate (Sy) 200 Lewd practices against two children with six-year interval— Whether consecutive sentences totalling 38 months excessive DS v HM Advocate 129 Making or possessing indecent images of children—Whether custodial sentence excessive Wood v HM Advocate 100 Murder and attempt to pervert course of justice—Whether 30-year punishment part excessive Leathem v HM Advocate 157 Solemn procedure Judge’s charge—Murder—Art and part—No reference in charge to possibility of convicting one accused of culpable homicide and one of murder—Whether misdirection Fee v HM Advocate 166 Judge’s charge—Impartiality—Judge illustrating meaning of deliberate killing by referring to an “assassin who kills in Paris street”—Whether misdirection leading to miscarriage of justice Abboud v HM Advocate 93 Summary procedure Oppression—Sheriff complimenting witness on her bravery— Whether justice seen to be done Chaudhry v Gibson (Sy) 202 Warrant Initiating warrant—Whether justice considering grant of initiating warrant acting as a court of summary jurisdiction McMillan v Mundell (SAC) 96

2017 S.C.C.R. 93–202

Identification of accused—Sufficiency—Corroboration— Accused identified at identification parade by eyewitness who gave evidence that accused not present at scene of crime—Whether complainer’s identification corroborated Sangster v HM Advocate 119

Discount for guilty plea—Whether 10 per cent insufficient Leathem v HM Advocate 157

SCOTTISH CRIMINAL CASE REPORTS

Sheriff appeal court—Initiating warrant—Whether appeal to sheriff appeal court against grant of warrant by bill of suspension competent McMillan v Mundell (SAC) 96

April 2017 2017 S.C.C.R. 93−202

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD Abboud v HM Advocate Chaudhry v Gibson (Sy) DS v HM Advocate Dinsmore v HM Advocate (Sy) Fee v HM Advocate HM Advocate v Lisek

93 202 129 200 166 185

JQ v Mundell Leathem v HM Advocate McMillan v Mundell (SAC) Potts v Gibson Reilly v HM Advocate Sangster v HM Advocate Wood v HM Advocate

116 157 96 109 142 119 100

The Scottish Criminal Case Report is 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: 5 Canada Square, Canary Wharf, London, E14 5AQ). 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 by email to: TRLUKI.orders@thomsonreuters.com. Individual back issues of the Scottish Criminal Case Reports are available for the years 1986-2016. 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 Queenâ&#x20AC;&#x2122;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. ÂŠ 2017 Law Society of Scotland

A Appeal Against Conviction

20 September 2016

MOHAMMED ABBOUD

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 124 Solemn procedure—Judge’s charge—Impartiality—Trial of man of Iraqi extraction accused of domestic murder—Judge illustrating meaning of deliberate killing by referring to an “assassin who kills in Paris street”—Whether misdirection leading to miscarriage of justice The appellant was a 57-year-old man of Iraqi extraction, who was charged with murder by stabbing his former domestic partner in a rural area. In his charge the trial judge gave the jury as an example of deliberate killing the hired assassin who goes with a gun, and referred to terrorists in a recent shooting incident in Paris. The appellant’s name was similar to that of the suspected terrorist leader. The appellant was convicted and appealed to the High Court on the ground that the use of that example showed a lack of impartiality on the judge’s part. Held that the appellant’s argument was fanciful (para.6); and appeal refused. Mohammad Abboud was convicted of murder after trial in the High Court before Lord Uist 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 20 September 2016 by the Lord Justice Clerk (Dorrian), Lord Menzies and Lady Clark of Calton. For the appellant: F Mackintosh, instructed by Faculty Services Ltd, for Neil Barnes Solicitor, Glasgow. For the respondent: Brown QC, AD. On 20 September 2016 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK [1] In this case the appellant complains that the use by the trial judge of the word “assassin” in giving an example of a deliberate intention to kill, coupled with reference to the terrorist attacks in Paris on 13 September 2015, showed a lack of impartiality on the part of the trial judge and led to an unfair trial. The trial judge explained that an example of a deliberate intention to kill was “the hired assassin who goes with a loaded shotgun and deliberately shoots at someone to kill them”. He added that the terrorists in Paris who had shot people in the streets and in restaurants clearly had a deliberate intention to kill. The grounds of appeal state that: (a) the word “assassin” originally referred to a member of an 11th century Islamic sect, known for murdering political and religious adversaries; and (b) that the suspected ringleader in the terrorist attacks was called Abdelhamid Abaaoud. The argument relies on the fact that the appellant is called Abboud, that he is a 57-year-old bearded man of Iraqi extraction, and that the trial took place only a few weeks after the terrorist attacks in Paris, the ringleader of which shared a similar name. The use of the word

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“assassin” and the similarity in name (which was not mentioned in the charge) provided a linking by way of example which was likely to remind the jury of the appellant’s racial background in a potentially negative way. It was not necessary for the trial judge to give any kind of example. Notwithstanding that there was a strong evidential case against the appellant, the examples given by the trial judge were suggestive of bias, and could have been understood in that way by the jury. [2] The passage complained of occurs where the trial judge is explaining to the jury the difference between murder arising from a wickedly deliberate intention to kill and murder arising from wicked recklessness. It is only one instance of the trial judge using an example to illustrate his meaning. At p.31 he gives an example of acts which were caused accidentally or carelessly, and thus could not constitute the crime of assault. There are others. There is nothing wrong with a trial judge using examples to illustrate his directions, and whether to do so, or the extent to do so, is a matter for the trial judge. [3] The situation is quite different from those cases, cited in argument, where the trial judge commented unfavourably on the failure of an accused to say anything about a special defence at judicial examination, or made a remark which directly appeared to be an adverse comment on the credibility of an accused. It may be closer to the case in which the complainers were referred to as “victims” but it is of course much more remote from the factual background. [4] The circumstances of the examples given by the trial judge were far removed from the actual circumstances of the case. This case was one of a domestic killing in rural Perthshire. It involved the murder by stabbing of the former domestic partner of the appellant. In our view it cannot be said that the words used by the trial judge were such as would be likely to create in the minds of reasonable individuals the suspicion that the trial judge might not be impartial. The word assassin no doubt had its origins in the alleged hashishtaking activities of an 11th century Middle Eastern sect, but its modern usage, and the resonance it would be likely to have for the jury, relates to a hired killer, which was clearly the context in which the trial judge was using it. The events in Paris were simply a recent, well-known example of circumstances showing a clear intention to kill, and thus a suitable example for illustrative purposes. [5] The trial judge gave the jury very clear directions against the danger of speculation, warned them that their verdict required to be based on the evidence only, and gave them an entirely balanced charge, in respect of which there is no other complaint made. The trial judge firmly advised the jury that the assessment of the evidence, and the drawing of inferences therefrom was entirely for them; that they were not allowed to speculate; that it was no part of his function to suggest that the jury should take any particular view of the evidence; and that it was accordingly their recollection, not his or anyone else’s, which must prevail. In addition, he added this: “You are required to approach your task calmly and objectively, and not be affected by any feelings of prejudice, sympathy or revulsion. You have to put out of your minds any revulsion you may have about the crime which is alleged to have been committed in charge (1), the crime of murder, and any feelings of sympathy you may have, whether that be for the deceased, the accused or any other person. . . .What you must do, ladies and gentlemen, is to act in obedience with your oath or affirmation to well and truly try the accused and give a true verdict according to the evidence.” [6] There is no other aspect of the charge which is complained of, and in our view the argument that the jury might have been influenced in the way suggested is fanciful. The appeal will therefore be refused.

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COMMENTARY

Is this an example of how easy it is to obtain leave to appeal? The earlier cases are presumably Wishart v HM Advocate [2013] HCJAC 168; 2014 S.C.C.R. 130; 2014 J.C. 190 and Hogan v HM Advocate [2012] HCJAC 12; 2012 S.C.C.R. 404; 2012 J.C. 307; 2012 S.L.T. 1055.

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A Bill of Suspension

13 December 2016

GRAHAM McMILLAN

Complainer

against LAURA MUNDELL B

(Procurator Fiscal, Paisley)

Respondent [2017] SAC (Crim) 2

Appeal—Sheriff appeal court—Initiating warrant—Whether appeal to sheriff appeal court against grant of warrant by bill of suspension competent—Courts Reform (Scotland) Act 2014 (asp.18), s.118— Criminal Procedure (Scotland) Act 1995 (c.46), s.139 C

Appeal—Initiating warrant—Whether appeal to sheriff appeal court against grant of warrant by bill of suspension competent—Courts Reform (Scotland) Act 2014 (asp.18), s.118—Criminal Procedure (Scotland) Act 1995 (c.46), s.139 Warrant-—Initiating warrant—Whether justice considering grant of initiating warrant acting as a court of summary jurisdiction—Courts Reform (Scotland) Act 2014 (asp.18), s.118—Criminal Procedure (Scotland) Act 1995 (c.46), s.139 Section 118 of the Courts (Reform) (Scotland Act 2014 transfers to the sheriff appeal court all the jurisdiction of the High Court so far as relating to appeals from courts of summary jurisdiction. The complainer appealed to the sheriff appeal court by way of bill of suspension against the grant by a sheriff of an initiating warrant under s.139 of the Criminal Procedure (Scotland) Act 1995. Held that where a sheriff considers an application for an initiating warrant he is exercising his administrative powers and is not sitting as a court of summary jurisdiction, and that accordingly the sheriff appeal court had no jurisdiction to consider the bill (para.9). McWilliam v Harvie [2016] HCJAC 29; 2016 S.L.T. 648 applied. Case referred to in the opinion of the court: Brown v Donaldson [2007] HCJAC 40; 2007 S.C.C.R. 344; 2008 J.C. 83 McWilliam v Harvie [2016] HCJAC 29; 2016 S.L.T. 648.

Graham McMillan brought a bill of suspension in the sheriff appeal court seeking to suspend an initiating warrant granted by a sheriff at Paisley on 15 September 2016. The competency of the appeal was considered on 13 December 2016 by Sheriffs Principal Stephen QC and Turnbull and Sheriff Arthurson QC. For the appellant: Ogg, Solicitor advocate, instructed by Paterson Bell, Solicitors, Edinburgh. For the respondent: Niven Smith, AD. 96

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Mcmillan v Mundell (SAC)

On 13 December 2016 the court held that it had no jurisdiction to deal with the matter. Sheriff Principal Stephen subsequently delivered the following opinion of the court. SHERIFF PRINCIPAL STEPHEN [1] On 15 September 2016 the sheriff at Paisley granted a warrant to apprehend the complainer. In this bill the complainer seeks suspension of that warrant which is commonly referred to as an initiating or expediency warrant. The terms of the warrant are printed on every complaint prepared by the procurator fiscal in summary proceedings in Scotland. [2] On 13 December 2016 we declined to hear parties on the bill after hearing submissions on the preliminary issue whether it was competent for this court to consider and dispose of the bill. We concluded that suspension of a warrant such as this granted by a sheriff exercising his administrative powers remains subject to the jurisdiction of the High Court of Justiciary. The character of the warrant is similar to that discussed in McWilliam v Harvie. [3] Accordingly, we did not consider the substantial merits of the bill. It is not necessary to discuss the background in any detail beyond observing that in July this year the complainer had been charged by the police with a contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 occurring at the family home some months earlier. He was released by the police on an undertaking to appear at Paisley Sheriff Court in August 2016. That undertaking was first of all continued by the respondent and then cancelled altogether as a decision on whether criminal proceedings were appropriate had not yet been taken. On 13 September 2016 the respondent sought an apprehension warrant on grounds of expediency in relation to an accompanying complaint libelling the same charge. That request was placed before the sheriff in chambers who granted the warrant now complained of. [4] The procedural context to this bill deserves comment. The bill bears to be addressed to the High Court of Justiciary but was lodged in this court. The solicitor advocate for the complainer argued that this court had jurisdiction. The appeal sheriff who considered the bill initially was addressed by the complainer on this preliminary jurisdiction point before granting warrant to serve on the respondent thus allowing the court to determine the preliminary issue. However, the respondent who, before us, argued that the bill fell outwith this court’s jurisdiction, failed to raise any preliminary issue of competence or jurisdiction in his answers. Today we were fully addressed by the parties and we are obliged to them for their submissions. We propose to give our reasons for refusing the bill as incompetent in this court. [5] The sheriff appeal court was established last year by virtue of the Courts Reform (Scotland) Act 2014 (the 2014 Act). This court is a creation of that enactment. S.118 of the 2014 Act makes provision for appeals to this court in summary criminal proceedings. Its terms are as follows: “(1) There are transferred to and vested in the Sheriff Appeal Court all the powers and jurisdiction of the High Court of Justiciary (whether under an enactment or otherwise) so far as relating to appeals from courts of summary criminal jurisdiction. (2) Sub-section (1) does not apply to the nobile officium of the High Court. (3) Schedule 3 (which modifies the Criminal Procedure (Scotland) Act 1995 in consequence of sub-section (1)) has effect.”

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2017 S.C.C.R.

[6] Para.20 of Sched.3 to the 2014 Act amends s.191 of the Criminal Procedure (Scotland) Act (the 1995 Act) which is now in the following terms: “(1) Notwithstanding section 184(2) of this Act, a party to a summary prosecution may, where an appeal under section 175 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the Sheriff Appeal Court, by bill of suspension against a conviction or, as the case may be, by advocation against an acquittal on the ground of an alleged miscarriage of justice in the proceedings.”

Read together these provisions point to this court having jurisdiction in appeals from courts of summary criminal jurisdiction including bills of suspension against conviction. [7] It was argued by the complainer that the warrant in question is an expediency warrant which commences the summary prosecution. It is granted in terms of s.139(l)(b) of the 1995 Act. It is therefore part of the summary proceedings before the court and the sheriff’s decision to grant the warrant may be appealed. Section 139(1)(b) is in the following terms: “On any complaint under this Part of this Act being laid before a judge of the court in which the complaint is brought, he shall have power on the motion of the prosecutor— ... (b) to grant warrant to apprehend the accused where this appears to the judge expedient.”

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[8] For the purpose of our determination of the preliminary issue it is not necessary to consider in detail the effect of the granting of the warrant by the sheriff. Summary proceedings do not commence until the procurator fiscal either cites the accused or executes any initiating warrant. The initiating warrant will mark the commencement of proceedings providing the procurator fiscal executes the warrant without delay. Section 140 of the 1995 Act provides that that enactment will be sufficient warrant for citation of an accused. At the risk of stating the obvious the proceedings do not commence until the procurator fiscal takes steps to cite the accused. [9] On a plain reading of s.139 when the prosecutor makes a motion in terms of s.139(l)(b) the complaint is placed before a judge of the court in which the complaint is brought. The judge who considers the prosecutor’s motion does so usually in chambers exercising his administrative powers. In Brown v Donaldson the appeal court considered whether a justice of the peace in granting a search warrant was acting as a court of law. Lord Gill, giving the opinion of the court at para.10, regarded the decision whether to grant a warrant as an administrative act. More recently, a similar issue was decided in McWilliam. The High Court of Justiciary considered the competence of a bill seeking to suspend a finger print warrant. In determining that such bills remain subject to the supervisory jurisdiction of the High Court of Justiciary the court stated (para.4): “A bill to suspend such a warrant does not constitute an appeal from the court of summary jurisdiction. Thus, it is clear that a bill to suspend a warrant of the kind granted in the present case does not come within the ambit of s.118 of the 2014 Act and is not included in the transfer of powers to the sheriff appeal court.” We consider that a bill seeking to suspend a warrant of the nature of an initiating warrant as granted by the sheriff in this case likewise does not fall within this court’s powers. It does not constitute an appeal from a court of

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Mcmillan v Mundell (SAC)

summary jurisdiction. The prosecutor’s motion is placed before “a judge of the court” not before the court of summary jurisdiction itself. When the sheriff considers whether to refuse or grant the prosecutor’s motion for a warrant he is essentially exercising his administrative powers and is not sitting as a court of summary jurisdiction. Accordingly, this court has no jurisdiction to consider the bill.

Note: See also JQ v Mundell, infra, p.116. B

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A Appeals Against Sentence

17 January 2017

KENNETH WOOD THOMAS TENNANT DARRYL McLEAN

Appellants

against B

HER MAJESTY’S ADVOCATE

Respondent

[2017] HCJAC 2 Sentence—Extended sentence—Making or possessing indecent images of children—Whether extended sentence competent—Criminal Procedure (Scotland) Act 1995 (c.46), s.210A C

Sentence—Making or possessing indecent images of children— Whether custodial sentence excessive Section 210A of the Criminal Procedure (Scotland) Act 1995 provides for the imposition of extended sentences on persons convicted on indictment of sexual offences where the period for which the offender would otherwise be subject to a licence which would not be adequate for the purpose of protecting the public from serious harm The English Definitive Sentencing Guideline now make specific reference to the possibility of a community disposal aimed at rehabilitation as an alternative to a short or moderate sentence. The starting-point in the guideline for the possession of Category A images is one year, with a range of six months to three years. All the appellants pled guilty to making or possessing indecent images of children found on their computers. The first appellant was found in possession of a large number of indecent images (most of which fell into C in terms of the English sentencing guidelines, being images of girls between the ages of three to 14 years, and some of which fell into Categories A and B of the guidelines. The appellant who was aged 65, and had no previous convictions said the images were from 20 years earlier. The relative social work report assessed him as at low risk of further sexual offending and the public protection issues as minimal, and described him as suitable for a community-based disposal. He received an extended sentence of three years and four months, with a custodial element of 16 months. The second appellant was found in possession of 101 images of girls between eight and 16, made over a period of six years, of which 46 were Category A with 26 of moving images, 13 in Category B and 42 in Category C. The appellant was aged 65, and was assessed as being at low risk of sexual recidivism but as requiring a robust risk management plan to be drawn up before his release from prison in order to uphold public protection. He received an extended sentence of three years and eight months, with a custodial element of eight months. The third appellant was found in possession of 540 moving images of which 342 were accessible, and 332 were in Category A, and of 180 still images, mostly of Category C. The images were of boys aged between three and 11 and of girls between the ages of three months and seven years. This appellant was aged 30 and in full-time employment and was assessed as at medium risk of sexual offending, and in need of post-release supervision if imprisoned. 100

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Wood v HM Advocate

101

All the appellants appealed to the High Court against the imposition of an extended sentence and against the imposition of a custodial sentence. In each case the court imposed an extended sentence because the usual period of licence would not be sufficient for the appellant to complete the work necessary under a project designed to reduce the risk of re-offending, and the appellants relied on the reference in the English Guideline to the possibility of a community based disposal aimed at rehabilitation as an alternative to a short or moderate sentence, in an attempt to distinguish HM Advocate v Graham, infra. Held (1) that the fact that a custodial term would not be sufficient to enable the offender to attend a project designed to reduce the risk of re-offending was not a legitimate use of an extended sentence, that it was not possible to classify the appellants as posing a risk of serious harm were they to be released during or at the end of the period of custody involved, that in order to reach a contrary conclusion, a somewhat convoluted course of reasoning would require to be adopted whereby such a connection could be established between accessing pornographic images and the risk to those who might appear in similar images in the future, and that the extended element of the sentences must be quashed (para.27); and (2) that in cases such as this the requirements of punishment, denunciation and general deterrence were paramount (para.33); and appeals, except insofar as relating to the extended elements of the sentence, refused. HM Advocate v Graham [2010] HCJAC 50; 2010 S.C.C.R. 641; 2011 J.C. 1; 2010 S.L.T. 715 applied.

Cases referred to in the opinion of the court: Archer v HM Advocate [2013] HCJAC 162; 2014 S.C.C.R. 206; 2014 S.L.T. 133 Barron v HM Advocate, 17 July 2007, Morrison: Sentencing Practice N17.0007 HM Advocate v Graham [2010] HCJAC 50; 2010 S.C.C.R. 641; 2011 J.C. 1; 2010 S.L.T. 715 R v Brynes [2016] EWCA Crim 1442, R v Colgate [2016] EWCA 1598 R v Crowther [2014] EWCA Crim 2238 R v Dixon, Court of Appeal, 29 July 2015, unreported R v Handley [2016] EWCA Crim 1634 R v Horn [2014] EWCA Crim 653 R v Jones [2014] EWCA Crim 1859; [2015] 1 Cr. App. R. (S.) 9 R v McDonald [2015] EWCA Crim 2119; [2016] 1 Cr. App. R. (S.) 48 R v Young [2015] EWCA Crim 2512 Robertson v HM Advocate, 2004 S.C.C.R. 180; 2004 J.C. 155; 2004 S.L.T. 888 Ryder v HM Advocate [2013] HCJAC 63 Scottish Power Generation v HM Advocate [2016] HCJAC 99; 2016 S.C.C.R. 569; 2016 S.L.T. 1296 Taylor v HM Advocate, 2002 G.W.D. 20-675. Kenneth Wood pled guilty before Sheriff Crozier on 14 April 2016 at Glasgow Sheriff Court to the offences described in the opinion of the court and was sentenced as there set out. Thomas Tennant pled guilty before Sheriff Cathcart on 14 July 2016 at Glasgow Sheriff Court to the offences described in the opinion of the court and was sentenced as there set out. Darryl McLean pled guilty before Sheriff Crozier at Glasgow Sheriff Court on 14 July 2016 to the offences described in the opinion of the court and was sentenced as there set out.

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Wood v HM Advocate

2017 S.C.C.R.

All three accused appealed to the High Court against sentence on the grounds referred to in the opinion of the court. The appeals were heard together on 17 January 2017 by the Lord Justice General (Carloway), Lord Bracadale and Lord Malcolm. For the first appellant: Mackintosh, Lunny, instructed by John Pryde & Co, Solicitors, Edinburgh, for Russels Gibson McCaffrey, Solicitors, Glasgow. For the second appellant: Mackintosh, instructed by John Pryde & Co, Solicitors, Edinburgh. For the third appellant: C M Mitchell, Findlater, instructed by Beltrami & Co, Solicitors, Glasgow. For the respondent: Erroch AD. The Lord Justice General subsequently delivered the following opinion of the court. LORD JUSTICE GENERAL

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Introduction

[1] These three appeals relate to charges involving the making and possession of indecent images of children. They have been heard together in order to consider whether the guidelines, which were issued in HM Advocate v Graham, require to be amended or updated in light of the Definitive Guideline on Sexual Offences, issued by the Sentencing Council for England and Wales in December 2013. Facts First appellant

[2] On 14 April 2016, at Glasgow Sheriff Court, the first appellant pled guilty, under the procedure authorised by s.76 of the Criminal Procedure (Scotland) Act 1995, to two charges. The first was of making indecent images of children at his home in Glasgow, between February 2013 and September 2015, contrary to s.52(1)(a) of the Civic Government (Scotland) Act 1982. The second was of possessing indecent images of children at his home on 4 September 2015. On 7 July 2016, the sheriff (Crozier) imposed an extended sentence of three years and four months, with a custodial element of 16 months, discounted for the early plea from 24 months. [3] The circumstances of the offences are straightforward. The police called at the appellantâ&#x20AC;&#x2122;s home on 4 September 2015, with a warrant to search for indecent images of children. Such images are classified in terms of the English Guideline (infra) into three categories. Category A involves penetrative sexual activity, sexual activity with an animal or sadism. Category B involves non-penetrative sexual activity. Category C involves other indecent images, not falling into the other two categories. On the appellantâ&#x20AC;&#x2122;s computer there were 158 still images, 38 falling into each of categories A and B and 82 into Category C. There were 31 moving images, 13 of which fell into Category A, eight into Category B and ten into Category C. On a number of discs there were 1,685 still images; 421 at Category A, 361 at Category B and 903 at Category C. There were also 205 moving images; 132 at Category A, 43 at Category B and 30 at Category C. All of these images depicted children of both sexes, although mainly girls, ranging from three to 14 years of age. The images had been downloaded from websites, including file-sharing applications. [4] The appellant was aged 65 and had retired from work in supermarket bakeries. He had no previous convictions. He lived with his partner, who had

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multiple health problems, including severe asthma. He acted as a carer for her. The appellant offered no explanation for his possession of the images, other than his own sexual gratification. The criminal justice social work report [CJSWR] noted that he had little or no victim empathy in that he seemed to consider that: the children depicted were enjoying the activity because they were smiling; they were actors rather than real; and the images were from 20 years ago and the activity was thus “not happening now”. He was assessed as at low risk of general offending in terms of the LS/CCM1 risk assessment tool and at low risk of further sexual offending, using the Risk Matrix 2000. The CJSWR specifically stated that, “Public protection issues appear to be minimal.” The appellant was deemed suitable for a community-based disposal. It reported that in the event of a custodial sentence he would be assessed for suitability for the Moving Forward Making Changes Programme (MFMC), which was run within the Scottish Prison Service and in the community. If he did not complete such a programme in custody, he could be referred to the Clyde Quay Project (part of CJSW) as part of extended sentence licence conditions. A community payback order [CPO] could also provide that he attend the project. [5] The sheriff had regard to HM Advocate v Graham, LJC (Gill) at para.28; Archer v HM Advocate; and Ryder v HM Advocate. He took note of the terms of the 2013 Definitive Guideline. He concluded that a non-custodial disposal would not reflect the gravity of the offences. It would not meet the requirements of punishment, denunciation and general deterrence. He noted the large number of prosecutions for this type of offence in the sheriffdom and the continuing “quite dreadful and appalling exploitation of children.” Although the CJSWR had assessed the appellant as being at low risk of sexual offending, the sheriff took the view that “standing the nature of the offending and the terms of the CJSWR” an extended sentence was necessary to protect the public from serious harm. The reporting requirements under the Sexual Offences Act 2003 were noted. However, the sheriff was of the view that the period of licence involved in a conventional sentence coupled with any work carried out in custody would be insufficient in which to carry out the work, notably that of the Clyde Quay Project, necessary to protect the public from serious harm. Significant input was needed to protect the public from serious harm. [6] The appellant had set out on a pre-planned course of conduct for his own sexual gratification. He had showed no concern for the children in the images. He had attempted to minimise, justify and excuse his offending behaviour. Any remorse related to the consequences to him, rather than compassion for his victims. In all the circumstances, the sheriff reached the conclusion that, notwithstanding the appellant’s previous good character, an extended sentence was appropriate and necessary.

Second appellant

[7] On 14 July 2016, at the Sheriff Court at Glasgow, the second appellant pled guilty, under the s.76 procedure, to one charge of making indecent images over a period of almost six years, contrary to s.52(1)(a) of the 1982 Act. On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of three years and eight months, with the custodial element being eight months, reduced from 11 for the early plea. [8] On 3 December 2015, the police had conducted a search of the appellant’s home for indecent images under a warrant. On two hard drives and a computer base unit, there were 101 images, 46 in Category A of which 26 were moving, 13 in Category B and 42 in Category C. These featured girls

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Wood v HM Advocate

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between the ages of 8 and 16. They had been downloaded from the internet, including file-sharing applications. [9] The appellant was aged 65. He had retired from a career in accounts management. He was married, but had separated from his wife after his arrest. He had been given a brochure concerning, and had since then attended, a ten-week “stop it now” course, that being the national programme for the prevention of child abuse. The CJSWR recorded that he was assessed as at medium risk of further offending in terms of the LS/CCM1 programme. He was at low risk of sexual recidivism under Risk Matrix 2000. The report explained that the appellant had attempted to justify and excuse his offending under reference to being de-sensitised to “mainstream pornography”. He had a tendency to blame his difficulties on his personal life, including his having to care for a father with dementia. Any empathy that he had for the children in the images, was superficial. Prior to the appellant’s release from prison, a robust risk management plan would be required “to uphold public protection” when managing the appellant in the community. [10] The sheriff had regard to HM Advocate v Graham and considered that a custodial sentence was the only appropriate one having regard to the category of image and the time over which the offence was committed. He noted the need for a robust management plan and concluded that steps required to be taken to protect the public upon his release from custody, namely an extended sentence. The extended period was fixed, having regard to the time required to complete the appropriate work with the Clyde Quay Project. Third appellant

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[11] On 14 July 2016, at Glasgow Sheriff Court, the appellant pled guilty at a first diet to making indecent photographs of children, during the period 8 October 2013 to 2 September 2015, contrary to s.52(1)(a) of the 1982 Act. On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of three years and nine months, with the custodial element being set at nine months and discounted from 12 months for the early plea. [12] On 2 September 2015, the police had attended the appellant’s home, in possession of a warrant to search for indecent images. They located two laptops. A total of 540 moving images were recovered, of which 342 were accessible. 332 of these were in Category A, 137 in Category B and 71 in Category C. There were also 188 still images of which eight were accessible, six at Category A, ten at Category B and 172 at Category C. These had been downloaded from websites. Considerable planning would have been required by way of searching for particular types of images. The images were of boys aged between three and 11 and girls from a few months old to seven years. [13] The appellant was aged 30 and in full-time employment as a haulage scheduler. He lived with a girlfriend, who had a ten-year-old daughter. He had convictions for theft and road traffic offending. The CJSWR stated that the appellant lacked insight into his offending and had attempted to justify it. Risk Matrix 2000 assessed him as at low risk of general offending but at medium risk of sexual offending. Work required to be done to raise the appellant’s awareness of the impact of his offending and to develop a “relapse prevention plan”. Under the heading “Serious harm/imminence” the report said “n/a”. If imprisoned, post-release supervision would be required. [14] The sheriff again considered that only a custodial sentence was appropriate and the extended period was to enable the appellant to attend the Clyde Quay Project for a period of three years.

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The definitive guidelines

[15] The original (2007) Definitive Guideline from the Sentencing Council of England and Wales referred to numerical levels of seriousness in relation to indecent images of children (pp.109 and 113). Level 4 involved images depicting penetrative sexual activity involving a child and level 5, sadism or penetration of or by an animal. Possession of a large quantity of material at level 4 or 5 for personal use carried with it a starting-point of 12 months’ custody and a range of 26 weeks to two years. There then followed a number of aggravating and mitigating factors which would be taken into account in selecting a sentence within the range. [16] The 2013 Guideline is different, in that it commences with the determination of an offence category as “Step One”, defined by the letters A, B and C, reflecting the nature of the indecent images. Possession of images involving penetrative sexual activity, or those involving an animal or sadism, fall into Category A, where the starting-point determined by “Step Two” for possession is set at the same level as the original guideline, that being one year’s custody and the range at 26 weeks to three years; the latter being one year longer than before. Step Two provides that, having determined the starting-point, further adjustment is required according to certain aggravating or mitigating features. At this point there is a statement, which repeats one which was present in the earlier consultation document, that: “Where there is sufficient prospect of rehabilitation, a community order with a sex treatment programme. . .can be a proper alternative to a short or moderate length custodial sentence.” [17] There follow the aggravating factors, which include a high volume of images, a lengthy period of possession, the existence of moving images, deliberate searching for images and a large number of different victims. Mitigating factors include a lack of previous convictions, remorse, previous good character and steps taken to address the offending. Thereafter, a number of further steps are required before a court arrives at a final sentence.

Submissions First appellant

[18] The first appellant lodged a note of appeal containing three grounds. Only two of these have been granted leave to appeal. The first is that the imposition of an extended sentence was excessive. The second is that, if that is correct, the sheriff had erred in holding that a non-custodial sentence was not appropriate. Leave was refused in relation to the length of the custodial sentence. [19] An extended sentence was only competent where the court could be satisfied that the period, during which the appellant would otherwise be subject to a licence, would be inadequate for the purposes of protecting the public from serious harm (1995 Act, s.210A). An extended sentence had a considerable penal effect, given the power to revoke the licence and recall the offender to prison (Robertson v HM Advocate, Lady Cosgrove at para.30). Although eight months may not be sufficient for the appellant to complete the work contemplated in the “MFMC programme organised by the Clyde Quay Project”, the CJSWR had stated that the appellant was at low risk of sexual offending. The statutory test had not been met. An extended sentence could not be used to ensure that a low-risk offender underwent a sex offender programme. [20] In HM Advocate v Graham, the Lord Justice Clerk (Gill) had stated that the definitive guideline, which had been published in 2007, should be

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106 A

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used in all cases, as long as it remained the pre-eminent classification of the relevant offences in the UK. Graham had been a guideline judgment in terms of ss.197 and 118(7) of the 1995 Act. It had been stated recently in Scottish Power Generation v HM Advocate that the appropriate guidelines to look at were the current ones. If these were applied in this case, although step one would have classified the appellant as having committed a Category A possession offence, with a starting-point of one year and a range of six months to three years, the starting-point selected by the sheriff had been two years’ imprisonment. [21] There was now a clear provision in the 2013 Guideline to allow for the imposition of a community order, with a sex offender treatment programme requirement, as an alternative to a short or moderate length custodial sentence, where there was sufficient prospect of rehabilitation. The appellant’s sentence fell within this definition. However, the possibility of a non-custodial disposal had not been discussed in HM Advocate v Graham. Thus a CPO, with a supervision requirement under s.227A of the 1995 Act, would have been appropriate. At present, the appellant’s earliest release date was March 2017. Second appellant

[22] The first ground of appeal for the second appellant was that the sheriff had erred in imposing an extended sentence. The arguments followed a similar course to that of the first appellant. The appellant had been assessed in the CJSWR as being at low risk of sexual recidivism. There was therefore no material upon which it could be held in terms of s.210A that the period for which he would otherwise be subject to a licence, but for the extended sentence, would not be adequate for the purposes of protecting the public from serious harm. [23] The second ground was that the imposition of a custodial sentence was excessive. Again, the argument followed the lines developed by the first appellant, relative to the 2013 definitive guideline. A CPO would have been appropriate. This appellant was on interim liberation. Third appellant

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[24] The note of appeal stated simply that the sheriff had failed to have regard to a number of material factors in determining whether to impose a custodial sentence, notably, the minor record of the appellant, his plea of guilty and remorse. An alternative to custody had been available. This ground was refused at first sift, but granted following the lodging of an opinion of counsel before the second sift. In both written and oral argument the ground was expanded upon. It was said that the guidelines in Graham v HM Advocate were being applied in a rigid and mechanistic fashion (cf paras 21–22). The sheriff had simply applied Graham (para.27(e)) in this way. In the appellant’s case, the number of images had been relatively small. He had a minor non-analogous record. He was entitled to the protection of s.204(2) of the 1995 Act. The CJSWR had been in positive terms. He was suitable for a CPO involving a condition that he attend the Clyde Quay Project. [25] The sheriff had made no attempt to fit the appellant’s circumstances, notably the risk which he posed, into s.210A of the 1995 Act. He had just thought that an extended sentence would be a good idea to enable him to complete the project’s sex offender programme. The sheriff had, in effect, imposed two separate sentences. He had considered the appellant suitable for a CPO.

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[26] The new definitive guideline had stated that, if there was a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement was an alternative to a short or moderate length custodial sentence. This was such a sentence. The appellant’s circumstances were similar to those of the appellant in Ryder v HM Advocate. He was due for release on 30 December 2016.

Decision

[27] The reasoning behind the decisions to impose extended sentences in each case is understandable in that the sheriffs considered that, whereas a period in custody was the only appropriate sentence in terms of the guidelines in HM Advocate v Graham, a custodial term would not be sufficient to enable the offender to attend the Clyde Quay Project which was designed to reduce the risk of re-offending. However, that is not a legitimate use of an extended sentence. S.210 of the Criminal Procedure (Scotland) Act 1995 makes it clear that such a sentence is only to be imposed where the court is satisfied that the period for which the offender would otherwise be subject to a licence would “not be adequate for the purpose of protecting the public from serious harm”. Although the sheriffs have attempted to justify the sentences in terms of the section, it is simply not possible to classify these appellants as posing a risk of “serious harm” to the public were they to be released during the course of, or at the end of, the period of custody imposed. In order to reach a contrary conclusion, a somewhat convoluted course of reasoning would require to be adopted, whereby a connection would be established between accessing the pornographic images and the risk to those who might appear in similar images in the future. Such a connection does exist in general terms, but to classify it as involving a risk of “serious harm” to the public in the sense intended in the legislation is an error (see e.g. Taylor v HM Advocate; Barron v HM Advocate; see for England and Wales, R v Dixon). It follows that, in each appeal, the extended element of the sentences must be quashed. [28] The issue then becomes one of whether the imposition of a custodial sentence in each case was excessive. The starting-point is the opinion of the Lord Justice Clerk (Gill), with which the other members of the court agreed, in HM Advocate v Graham. This makes it clear (at para.29) that regard should be had to the Definitive Guideline produced by the Sentencing Council of England and Wales “so long as it remains the pre-eminent classification of these offences in the United Kingdom”. The guideline, which is now that dated 2013 (see Scottish Power Generation v HM Advocate), should be used as a framework, but one which should not be applied too rigidly (paras 21–22). Sentencing remains a matter of judgment and discretion in the particular circumstances of the case. [29] The difference founded upon between the guideline current at the time of Graham and that applicable now is the specific reference to the possibility, and it is no more than that, of a community disposal aimed at rehabilitation as an alternative to a short or moderate sentence. This is consistent with the long-standing position in Scotland, of which the court in Graham would have been aware, that a custodial sentence should not be imposed upon a person who has not previously been in custody, unless no other method of dealing with him is appropriate (1995 Act, s.204(2)). Returning to the use of an extended sentence, what is not currently an option is a custodial term combined with a community disposal. [30] It is important to recognise that, notwithstanding the existence of an alternative, the definitive guideline has, as a starting-point for the possession

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of Category A images, a custodial period of one year and a range of six months to three years. In the normal case, therefore, having regard to the definitive guideline, but not employing it in a mechanistic way, the starting-point in each of the cases presently under consideration would be a significant custodial disposal. This is the sentence which ought to be imposed for the possession of a significant amount of Category A images, which is the position of each of the appellants. In order to justify a community-based disposal, there would require to be some particular circumstance, such as a relatively fleeting possession, or particularly compelling personal circumstances, such as extreme old age. [31] This appears to be the approach in England (see e.g. the custodial sentences in R v Handley; R v Crowther; and R v Horn; cf the non-custodial disposals in R v Brynes; R v Colgate; R v McDonald; R v Young; and R v Jones). It is also consistent with past practice in Scotland (e.g. Taylor v HM Advocate; and Barron v HM Advocate, both involving the High Court acknowledging time already spent in custody as relevant). [32] Ryder v HM Advocate may be seen as an exception (cf Archer v HM Advocate), but the appeal there turned on an acknowledged error by the sheriff and a statement that, but for that error, a non-custodial disposal would have been imposed at first instance. The court considered (at para.12) that the “most important consideration is that the appellant should receive professional treatment for his entrenched habit of viewing large amounts of internet pornography”. In the present appeals, whilst recognising that rehabilitation may be an important factor in certain cases, the element of deterrence is a significant factor. [33] As the Lord Justice Clerk (Gill) said in HM Advocate v Graham (at para.28): “Viewing, downloading and distributing indecent images of children is part of the process of child sexual abuse. Each photograph represents the serious abuse of the child depicted. Those who access this material through the internet bear responsibility for the abuse by creating a demand for the material. . . Such offences can properly be said to contribute to the pain, discomfort and fear suffered by children who are physically abused, and to the psychological harm that the children concerned would suffer from knowing that others would get perverted pleasure from looking at the material. . . .” Although there was no distribution in the current appeals, the general statement remains relevant. In cases such as this, as the Lord Justice Clerk continued (at para.53), “the requirements of punishment, denunciation and general deterrence are paramount”. The court would expect the custodial sentences to act as a sufficient discouragement to the particular appellants from accessing such images in the future. [34] The appeals are therefore, except insofar as relating to the extended elements of the sentences, refused. [35] The court would add first that, although it was not an issue for consideration in the appeal, the custodial sentence in relation to the third appellant would appear to be lenient, if not unduly so, for such a large amount of category A moving images. Secondly, the utility of using a deterrent custodial sentence combined with a period of extended supervision thereafter would, in cases such as those under consideration, seem clear, even if the current statutory tests for doing so are not met. This is a matter which the Scottish Government and/or the Scottish Sentencing Council may wish to consider in due course.

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A Appeal from Sheriff Appeal Court

18 January 2017

DONNIE DANIEL POTTS

Appellant

against FRASER GIBSON (Procurator Fiscal, Hamilton)

Respondent

[2017] HCJAC 8 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—Criminal Procedure (Scotland) Act 1995 (c.46), s.65(1)A— Criminal Proceedings and Investigations Act 1996 (c.25), s.73

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 2015 would involve unreasonable delay—European Convention on Human Rights, art.6(1) Section 65(1A) of the Criminal Procedure (Scotland) Act 1995, as amended by s.73 of the Criminal Proceedings and Investigations Act 1996, provides that where the time periods for bringing indictments is exceeded the accused shall be forever free from further proceedings on indictment, but says nothing of further summary proceedings. Art.6 of ECHR provides a right to trial without unreasonable delay. 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 a further extension of the statutory time limit of 12 months. In January 2016 the appellant was served with a summary complaint for the offence and took 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 in June 2016 and the appellant appealed to the sheriff appeal court, adding a compatibility issue under art.6 of ECHR. That appeal was refused (2016 S.C.C.R. 412), on the ground that, as the sheriff had held, any delay would not result in an unfair trial, and that there was no such plea as abuse of process available separate from oppression. Held (1)(i) that the decision on a plea of oppression involves a balancing exercise which is primarily one for the judgment of the court at first instance whose judgment will be accorded not inconsiderable weight (para.18); and (ii) that it was not possible to fault the sheriff’s conclusion, that, whatever the faults of the Crown, the offence here was a serious one, that there appeared to be evidence implicating the appellant, and that there was no real contention that the delay which had occurred had prejudiced a fair trial, and that prosecuting the appellant in these circumstances could not be regarded as oppression (para.19); and (2)(i)) that the determination of whether the reasonable time requirement in art.6 of the European Convention has been breached involves a consideration of the whole timescale from at least the appearance on petition to the present day, that if the time which has elapsed gives cause for concern, the court will have to look at the reason for it, that in this case, the summary proceedings were instituted

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in January 2016, within three years of the appellant’s appearance on petition, and that in such circumstances, where it is not argued that the period since then can be criticised, it is highly doubtful whether the timescale does cause concern in Convention, as distinct from domestic law, terms, and that this was so, even if, before the SAC, a breach was conceded by the Crown (para.20); and (ii) that if there is a breach of art.6, it has been made clear that the remedy of sustaining a plea in bar of trial is only appropriate where the delay is such that a fair trial can no longer take place or there is some other compelling reason such as bad faith, unlawfulness or executive manipulation, that it was not possible to fit the case into any of these categories, that, having failed to prosecute the appellant on indictment, the Crown had elected, as they were entitled to do, to proceed by way of summary complaint, and that there was no unfairness in this where the appellant has already had the benefit, under domestic law, of not being subjected to the risk of a significant custodial sentence, which he would otherwise undoubtedly have faced, if convicted (para.20). Cases referred to in the opinion of the court:

Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68; [2004] 2 A.C. 72; [2004] 2 W.L.R. 1; [2004] 1 All E.R. 1049 Benton v Cardle, 1988 S.L.T. 310 Brown v HM Advocate, 2002 S.C.C.R. 684; 2002 S.L.T. 809 Fleming v HM Advocate [2007] HCJ 1 Gardner v Lees, 1996 S.C.C.R. 168 Grugen v Jessop, 1988 S.C.C.R. 182 HM Advocate v M [2012] HCJAC 161; 2013 S.C.C.R. 67; 2013 S.L.T. 126 HM Advocate v Withey, 13 May 2016, unreported Jones v HM Advocate [2009] HCJAC 86; 2010 S.C.C.R. 523; 2010 J.C. 255 McConnachie v Scott, 1988 S.C.C.R. 176; 1988 S.L.T. 480 McFadyen v Annan, 1992 S.C.C.R. 186; 1992 J.C. 53; 1992 S.L.T. 163 McLarnon v McLeod, 2004 S.C.C.R. 397 Mowbray v Crowe, 1993 S.C.C.R. 93; 1993 J.C. 212; 1994 S.L.T. 445 Potts v Gibson [2016] SAC (Crim) 25; 2016 S.C.C.R. 412 Potts v HM Advocate [2015] HCJAC 124; 2016 S.C.C.R. 109; 2016 S.L.T. 121 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 JC 111; 1980 S.L.T. (Notes) 95 Swift v HM Advocate, 1984 S.C.C.R. 216; 1984 J.C. 83; 1985 S.L.T. 26. Donnie Daniel Potts appealed to the High Court against a decision of the sheriff appeal court. The appeal was heard on 18 January 2017 by the Lord Justice General (Carloway), Lord Malcolm and Lord Turnbull. For the appellant: Ogg, Solicitor advocate, instructed by Callahan McKeown & Co Solicitors, Renfrew. For the respondent: Edwards, QC, AD. On 18 January 2017 the Lord Justice General delivered the following opinion of the court. LORD JUSTICE GENERAL Introduction

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[1] The appellant is charged on a summary complaint with the theft of some £50,000 in cash by housebreaking at Bellshill on 11 April 2013. The owner of

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the cash was a 74-year-old man, who had been hoarding it for some time. The issue is whether the respondent has acted oppressively, by way of an abuse of process or in violation of the appellant’s art.6 rights in prosecuting him on a summary complaint after the High Court had allowed an appeal against the decision of the sheriff to extend the 12-month time bar in solemn proceedings involving the same charge.

The solemn proceedings

[2] The appellant appeared on petition charged with the housebreaking at Hamilton Sheriff Court on 1 August 2013. He was granted bail. On 29 March 2014, he was indicted to first and trial diets on 2 and 19 May 2014. There then followed three postponements or adjournments of the diets. These were all on the application of the appellant, but it was subsequently determined that they had, in practical terms, been caused by late disclosure by the Crown of DNA findings and telephone analysis. A fourth adjournment had been caused by pressure of business. In due course, the new diets came to be 29 May and 15 June 2015. The 12-month time bar, which would have originally expired in August 2014, had been extended to 21 June 2015. [3] On 18 June 2015, the respondent sought another adjournment of the trial diet to enable the respondent to recover certain bank records which, it was said, would prove that, within four weeks of the theft, some £15,000 cash had been deposited by the appellant at different branches of his bank. A large number of the notes were out of circulation, thus indicative of them having been part of a hoard. As recorded originally by the sheriff, the procurator fiscal depute accepted that there had been a serious omission in the preparation of the case.The evidence against the appellant had been relatively straightforward. It consisted of DNA on a crowbar found at the locus and a telephone analysis indicative of the appellant’s presence in the vicinity.The depute had nevertheless been concerned about sufficiency. The DNA was not exclusively that of the appellant. The depute had maintained that an error had been made by a junior, non-legally qualified, member of staff, who had wrongly assumed that the bank material could not have been obtained because it was situated in England. The sheriff considered that reasonable cause had been shown to allow an extension of time on the basis of this error. He therefore extended the time to 2 October 2015 and appointed first and trial diets for 4 and 21 September 2015. [4] On 21 August 2015, the High Court reversed the sheriff’s decision (2015). Following the first-stage test in Swift v HM Advocate, the court (at para.11) considered that the errors of the Crown had been of such gravity that insufficient reason had been advanced to justify an extension. On further enquiry, in relation to the reason for the failure to obtain the bank records, it had been ascertained (at para.9) that there had effectively been a “complete and sustained breakdown in the procurator fiscal’s administration” regarding the obtaining of a warrant for the bank records. This breakdown could have been detected and avoided. Furthermore, the respondent had previously repeatedly told the court that the Crown were ready for trial. [5] Prior to 1996, the decision of the High Court would have brought all criminal proceedings to an end. The governing part of the Criminal Procedure (Scotland) Act 1995 was that, in terms of s.65, a failure to bring an accused to trial within 12 months resulted in him being “discharged forthwith and thereafter. . .forever free from all question or process for that offence”. This had been the position since the introduction of the 12-month time bar in 1980. The accused would have tholed his assize. However, s.73 of the Criminal

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Procedure and Investigations Act 1996 deleted the quoted words and provided instead that the effect of the failure would simply be that the accused would “not at any time be proceeded against on indictment as respects the offence” (see now s.65(1A)(b)). The summary proceedings

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[6] The opinion of the High Court was issued in October 2015. The papers were sent for Crown counsel’s view on what ought to happen next. It took some three months before a decision was taken to proceed summarily. A complaint was served in January 2016. This was followed by a plea in bar of trial based on contentions of both oppression and “abuse of process” on the part of the Crown and a breach of the reasonable time requirement in art.6 of the European Convention. On 30 June 2016, the sheriff repelled the plea. [7] The sheriff reasoned that the mere passage of time did not equate to oppression. The appellant required to demonstrate that any delay had prejudiced the prospects of a fair trial; that is that the sheriff could not be expected to reach a fair verdict in the circumstances. There had been no prejudice here where the issues involved simply the appropriate inferences to be drawn from undisputed facts. In relation to abuse of process, which the sheriff considered separately, he held that it was not incompetent to bring summary proceedings following upon the discontinuation of a solemn case. This could not involve an abuse of process. It was a step too far to argue that, as a result of the High Court decision, the appellant should thereby avoid prosecution altogether. He had had the benefit of that decision, but the interests of justice required the investigation and prosecution of what the sheriff classified as a serious alleged crime. Following Spiers v Ruddy, the sheriff noted that any breach of the reasonable time requirement could be compensated by the imposition of a lesser sentence. At the time of his decision, he held that there was no continuing violation of the requirement. [8] The sheriff appeal court [SAC] [Potts v Gibson] first considered the question of oppression. The primary focus of the SAC was on the passage of time. It is delay that is recorded as the nature of the submission on this ground. Applying the test in McFadyen v Annan (LJC (Ross) at p.193), the SAC asked itself whether any delay had prejudiced the prospects of a fair trial. The question was whether the sheriff could put any prejudice out of his or her mind and reach a fair verdict. Following Stuurman v HM Advocate (LJG (Emslie) at p.122), it was recognised that the power to prevent the Lord Advocate from proceeding was one which would only be exercised in special circumstances, likely to be rare. The SAC specifically rejected an argument that there were instances where oppression could arise in circumstances where a fair trial had not been prejudiced. Although the period which had elapsed amounted to about three years, the evidence was scientific and documentary. The test in McFadyen v Annan had not been met. [9] It had been argued that an abuse of process had arisen because the decision to prosecute amounted to a deliberate attempt to circumvent the High Court decision. However, the SAC held that “abuse of process” was not a separate and distinct plea, different from oppression. Oppression was the proper vehicle within which to bring a complaint based on the conduct of the respondent. For the reasons given in relation to oppression, this contention also failed. [10] In relation to art.6, the Crown had conceded that the reasonable time requirement had been breached. However, the remedy for such a breach was one for the domestic courts and could involve the lowering of any sentence

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which the sheriff might otherwise have imposed. Following Spiers v Ruddy (Lord Bingham at para.8), a stay on the ground of a violation would only be appropriate where a fair hearing was no longer possible, or there was some other compelling reason making it unfair to try the accused. Once it was accepted that there was no continuing breach of the requirement, there could be no incompatibility. The SAC therefore refused the appeal.

Submissions

[11] The appellant’s plea of oppression had been based not only on delay but [also] on the conduct of the Crown throughout the proceedings. MacFadyen v Annan, following Stuurman v HM Advocate, had indicated that there were situations where substantial justice precluded proceedings, even if any trial to follow would be fair. Although it was originally to be argued, under reference to Grugen v Jessop; Brown v HM Advocate; and Jones v HM Advocate, that “abuse of process” was a distinct plea, it was recognised that in HM Advocate v Withey, the court had made it clear (at para.39) that it was not. However, the same argument could be made under the heading of oppression. Examples of the use of the court’s power could be found in Mowbray v Crowe; Benton v Cardle; McConnachie v Scott; Brown v HM Advocate; Fleming v HM Advocate; and Jones v HM Advocate. [12] The alteration in the legislation had been to allow the Crown to discontinue solemn proceedings and to proceed summarily outwith the 12-month period. It was to cure the problem identified in Gardner v Lees, but it had not been designed to permit summary proceedings where solemn proceedings had been discontinued by the court. [13] The SAC had erred in determining that, as the summary complaint had been served after Crown counsel’s instructions had been obtained, that amounted to an expedition of proceedings and avoided a continuation of the art.6 violation. The appellant had been entitled to have the charge against him determined within a reasonable time. The period ran from his first appearance on petition. The summary proceedings could not be considered in isolation. The initiation and continuation of the summary proceedings amounted to a continuing breach. Even if the breach had ended, having regard to the delay and the previous history of the case, there was a compelling reason why it was unfair to try the appellant. [14] The SAC had also erred in determining that the effective remedy for the art.6 breach was a reduction in sentence. The delays occasioned by the respondent, the significant fault on his part, including late disclosure, and the failure to determine whether there had been sufficient evidence, were compelling reasons why it would be unfair to try the appellant on summary complaint. The effective remedy was to sustain the minute and halt the proceedings. [15] The advocate depute maintained that the High Court had simply decided that, applying the test in Swift relative to the conduct of the Crown, cause had not been shown to grant an extension of time in which to bring a solemn case to trial. The court had not decided that to do so would be oppressive. The 1996 amendment to the 1995 Act had enabled the Crown to bring summary proceedings when the time bar for solemn cases had applied. That is what the Crown had elected to do. There was no unfairness in that or any attempt to circumvent the court’s decision.

Decision

[16] In Withey v HM Advocate, it was made clear (LJG (Carloway) at paras 39–40) that there was no conceptual distinction between cases in which it was

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Potts v Gibson

2017 S.C.C.R.

said that a fair trial could not take place and those where holding a trial would be an “affront to justice”. Both fell into the common law category of oppression. Where it was established that to have a trial would be such an affront or would undermine public confidence in the justice system and bring it into disrepute, such a trial would not be regarded as fair in terms of the common law. Whether oppression can be established depends upon the particular facts and circumstances, including the Crown’s conduct, the seriousness of the charge and the public interest in ensuring that crime is prosecuted. It may arise in circumstances other than delay (Mowbray v Crowe, (LJC (Ross) at p.735C), citing Burnett, Criminal Law, pp.309–310 and approving Renton and Brown, Criminal Procedure (5th edn), para.16-35, see now 6th edn., para.9-21). [17] One of the difficulties which arose at both first instance and SAC levels was the attempt to divide oppression and “abuse of process” into two distinct pleas. This division was accepted by the sheriff, who focused on delay as forming the basis for the former and the alleged circumvention as the ground for the latter. Before the SAC, the appellant’s submission in relation to oppression was recorded as being based upon delay and that relating to abuse of process focused on the circumvention. The manner in which the SAC dealt with the argument involved rejecting the oppression point because any delay would not result in an unfair trial and then dismissing the abuse of process contention because, the SAC correctly held, there was no such plea available, separate from oppression. This reasoning may have been prompted by the manner in which the case was presented at both first instance and SAC levels. The SAC noted (at para.13), again correctly, that the plea of oppression is capable of encompassing a “wide range of factors”, but there is no clear statement by the SAC that these factors, notably the alleged circumvention and the other conduct of the Crown during the solemn proceedings, had been part of the equation in rejecting the oppression plea, unless the reference to “other relevant factors” was intended to include such matters. [18] However, that is not to say that the SAC erred in refusing the appeal. It is important to observe that the decision on a plea of oppression involves a balancing exercise which is primarily one for the judgment of the court at first instance. Its judgment will be accorded not inconsiderable weight. Here, the sheriff, when dealing with the flawed abuse of process plea, correctly distinguished the High Court decision based on the first stage test in Swift v HM Advocate, which focused on the gravity of the Crown’s mistakes, and the court’s analysis of all the factors bearing upon the plea of oppression. He rightly observed that all that the High Court had decided was that the solemn proceedings should be brought to an end, and not that the appellant should avoid a prosecution altogether. He concluded that the interests of justice required the prosecution of this crime. [19] It is not possible to fault the sheriff’s conclusion. Whatever the faults of the Crown, the offence here was a serious one. There appears to be evidence implicating the appellant. There is no real contention that the delay which has occurred has prejudiced a fair trial in the manner set out in Stuurman v HM Advocate (LJG (Emslie) at p.122) and McFadyen v Annan (LJC (Ross) at p.193). Prosecuting the appellant in these circumstances cannot be regarded as oppression. [20] The determination of whether the reasonable time requirement in art.6 of the European Convention has been breached does involve a consideration of the whole timescale from at least the appearance on petition to the present day. If the time which has elapsed gives cause for concern, the court will have to look at the reason for it. In this case, the summary proceedings

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were instituted in January 2016, within three years of the appellant’s appearance on petition. In such circumstances, where it is not argued that the period since then can be criticised, it is highly doubtful whether the timescale does cause concern in Convention, as distinct from domestic law, terms (see e.g. McLarnon v McLeod (Lord Hamilton at para.6)). This is so, even if, before the SAC, a breach was conceded by the Crown. [21] If there is a breach of art.6, it has been made clear that the remedy of sustaining a plea in bar of trial is only appropriate where the delay is such that a fair trial can no longer take place or there is some other compelling reason such as “bad faith, unlawfulness (or) executive manipulation” (HM Advocate v M, Lady Paton at para.7 citing Attorney General’s Reference (No. 2 of 2001), Lord Bingham at para.29; Spiers v Ruddy, Lord Bingham at para.8). It is not possible to fit the case into any of these categories. Having failed to prosecute the appellant on indictment, the Crown have elected, as they are entitled to do, to proceed by way of summary complaint. There is no unfairness in this where the appellant has already had the benefit, under domestic law, of not being subjected to the risk of a significant custodial sentence, which he would otherwise undoubtedly have faced, if convicted. [22] The appeal is refused.

COMMENTARY 1. Section 73 of the 1996 Act did not change anything, but merely restored the status quo, since the High Court had decided as long ago as 1985 that the 12-month rule in what was originally s.101 of the Criminal Procedure (Scotland) Act 1975 applied only to solemn proceedings: MacDougall v Russsell, 1985 S.C. C. R 441. Section 73 was presumably enacted when it was realized that the specific limitation of Pt.1 of the 1975 Act (which included the 12-month rule) to solemn proceedings, and which was relied on in MacDougall, did not appear in the 1995 Act, because of the form in which that Act was constructed, although s.65 was in a part of the Act headed ‘Solemn Procedure’. 2. It seems, at first sight, odd to suggest that the fairness of a trial can be affected by the fact that the accused has become liable to a lesser maximum sentence than he could otherwise have received, given that what he is entitled to is a trial without unreasonable delay. It seems that the accused, in such a case should, so to speak, be grateful for small mercies. 3. The right against unreasonable delay, which is said to be independent of the right to a fair trial, has been virtually removed in decisions ultimately adopted in a Scottish case (Spiers v Ruddy) that unreasonable delay, like other breaches of the specific rights in the article, is available only where it can be said that it resulted, or would necessarily result, in an unfair trial. It may also be said to be supported by the acceptance that where there has been unreasonable delay the accused is entitled to a lesser sentence than he would otherwise have received (Mills v HM Advocate, 2002 S.S.C.R. 860). And it is also consistent with the modern tendency of the law to avoid allowing the theoretically presumed innocent but in practice probably guilty to escape their just deserts on a technicality, assuming that unreasonable delay is only a technicality.

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A Bill of Suspension

1 February 2017

Complainer against

LAURA MUNDELL B

(Procurator Fiscal, Paisley)

Respondent [2017] HCJAC 9

Appeal—Bill of suspension—Fixed penalty—Whether appeal by bill of suspension against notice of registration of fine competent—Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), s.131 C

Section 131 of the Antisocial Behaviour etc. (Scotland) Act 2004 provides that where a person fails within a certain period either to pay the sum in a fixed penalty notice or to indicate that he wishes to be tried he is liable to pay one and a half times the sum in the notice, which is to be treated as if it were a fine imposed by a JP. The complainer failed to respond to a fixed penalty notice for £40 and was served with a notice of registration of fine from the JP court stating that a fine of £60 had been registered against him because of his failure. He sought to appeal against the notice by bill of suspension on the ground that the statutory provision was incompatible with ECHR. Held that the act of registering the sum due as if it were a fine was not something capable of being suspended by the High Court since it involves no judicial act of a criminal court, and accordingly neither a bill of suspension nor a petition to the nobile officium was a competent mode of proceeding (para.7) and bill refused. Observed that the classification of the procedure as criminal in terms of ECHR would not alter the appropriate domestic procedure which was by a petition for judicial review and reduction of the notice (para.7). Cases referred to in the opinion of the court:

Bruce v Linton (1861) 24 D. 184 Engel v Netherlands (No. 1) [1976] ECHR 3; (1976) 1 E.H.R.R. 647 MacLeod v Levitt, 1969 J.C. 16; 1969 S.L.T. 286 Ozturk v Germany [1984] ECHR 1; (1984) 6 E.H.R.R. 409 R (McCann) v Manchester Crown Court [2002] UKHL 39; [2003] 1 A.C. 787; [2002] 3 W.L.R. 1313; [2002] 4 All E.R. 593 S v Miller, 2001 S.C. 977; 2001 S.L.T. 531, Stevenson v Scott (1854) 1 Irv. 603. J Q brought a bill of suspension seeking to suspend a notice of registration of a fine. The competency of the bill was considered on 20 January 2017 by the Lord Justice General (Carloway), Lord Malcolm and Lord Turnbull. For the appellant: Ogg, Solicitor advocate instructed by Tod & Mitchell, Solicitors, Paisley. For the respondent: Edwards, QC, AD. On 1 February 2017 the Lord Justice General delivered the following opinion of the court. 116

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JQ v Mundell

117

LORD JUSTICE GENERAL [1] Section 129 of the Antisocial Behaviour etc. (Scotland) Act 2004 provides that a constable who has reason to believe that a person has committed “a fixed penalty offence” may give that person a fixed penalty notice offering an opportunity, by paying the penalty, to avoid conviction for the offence. Offences include breach of the peace, being drunk and incapable in public, persisting in playing music on being required to stop, malicious mischief and vandalism. [2] In terms of s.130, the notice must specify the offence, the penalty and the clerk of the JP court to which it may be paid. The notice must state that the alleged offender has the right to be tried for the offence and how that right is to be exercised. [3] S.131 states that, if the alleged offender asks to be tried, proceedings may be brought against him. Such a request “shall” be made by that person giving notice in the manner specified in the fixed penalty notice within 28 days. Otherwise, proceedings cannot be taken against the person. If, within the 28 days, the penalty is not paid and no notice from him asking to be tried is made, then the person is liable to pay one and a half times the sum. The sum for which the person is “liable” is to be “treated as if it were a fine imposed by the justice of the peace court” (s.131(6)). There is provision (s.133) for a “constable” to revoke a notice if satisfied that the person did not commit the offence. There is no express power in the 2004 Act, as there is in the equivalent provisions in England (Criminal Justice and Police Act, s.10(5)) for the court to “set aside” such a “fine”, although s.213(1) of the Criminal Procedure (Scotland) Act 1995 allows a court to remit a fine which it has imposed in whole or in part. [4] On 12 August 2016 the appellant, who is aged 16, was issued with a fixed penalty notice for a breach of the peace committed at an address in Johnstone. He avers that he had intended “to reject this notice and request a court hearing in order to establish his innocence”. He gave the notice to his father, who had agreed to “deal with the matter”. His father then forgot about it. The statutory consequences then followed. On 17 September 2016, the appellant received a “Notice of registration of fine. . . .” from the clerk at Paisley JP Court stating that a “fine” of £60 had been registered against him in the court because he had failed to pay the fixed penalty (of £40). The notice required him to pay the “fine” by 15 October 2016, which failing the fines enforcement officer might obtain an enforcement order against him. Although this process does not involve any criminal conviction, the notice and “fine” are recorded. They will not appear in any list of previous convictions, but may appear in circumstances involving “enhanced disclosure”. [5] It is contended that the statutory provisions are incompatible with art.6 of the European Convention because they “reverse the onus of proof after the 28-day period whereby the (appellant) is presumed guilty of the offence”. The absence of a provision for challenge is also incompatible. The “failure to provide an appeal procedure” deprives the relevant person of an effective remedy and is incompatible with art.13. On this basis the appellant, having no other remedy, seeks suspension of the registration of the fine. There is also a plea of oppression regarding the operation of the system. [6] The Crown contend that the proceedings complained of are not criminal but administrative. They play no part in them. A bill of suspension is therefore an incompetent mode of review (MacLeod v Levitt). [7] The High Court’s powers at common law are those of “reviewing, in the widest sense of the word, the proceedings of all the inferior courts in Scotland

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118 A

JQ v Mundell

2017 S.C.C.R.

in criminal matters” (Moncrieff, Review in Criminal Cases, p.162). Suspension is appropriate to review “an illegal or irregular warrant, conviction or judgment of an inferior court” (p.170). In modern practice, criminal proceedings are those instituted by the public prosecutor by indictment or complaint. They involve “not the constitution and enforcement of a mere debt, but conviction as for an offence and sentence in modum poenae” involving the party being brought before the court, with the determination “being in the form of conviction, and not of decree” (Stevenson v Scott, Lord Ivory at p.610, followed in Bruce v Linton). On this basis, a bill of suspension is not a competent mode of proceeding; nor is a petition to the nobile officium of the High Court. The act of registering the sum due as if it were a fine is not something capable of being suspended by the High Court since it involves no judicial act of a criminal court. Suspending registration would simply leave the whole matter in limbo, since the fixed penalty notice would remain in existence. The challenge which the appellant seeks to make is to the compatibility of the relevant provisions of the 2004 Act with arts.6 and 13 of the European Convention. If that is his aim, he may do so in the Court of Session by way of a petition for judicial review calling the Scottish Ministers, and possibly Police Scotland, as parties and seeking reduction of the fixed penalty notice accordingly. [8] In these circumstances it is neither necessary nor appropriate for the court to address the substantive issues raised in the bill. None of this is to say that, for the purposes of art.6 of the European Convention, the procedure would not be classified as criminal. Applying the criteria in Engel v Netherlands (No.1) (at para.81), it may be that the nature of the offence, as described in the 2004 Act, may prompt such a classification notwithstanding the domestic one and the limited nature of the penalty. Ozturk v Germany may be seen as an example of this (cf S v Miller, LP (Rodger) at para.20; R. (McCann) v Manchester Crown Court). However, classification of the proceedings in this way does not alter the appropriate domestic procedure for review. Note: See also McMillan v Mundell, supra p.96.

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A Appeal Against Conviction

7 February 2017

STEPHEN SANGSTER SENIOR STEPHEN SANGSTER JUNIOR

Appellants

against HER MAJESTY’S ADVOCATE

Respondent

[2017] HCJAC 4 Evidence—Identification of accused—Sufficiency—Corroboration— Accused identified at identification parade by eyewitness who gave evidence that accused not present at scene of crime—Whether complainer’s identification corroborated The appellants were charged with murder. The complainer, who knew them, gave emphatic positive evidence identifying them. The Crown relied for corroboration on a witness, W, who had been present at the incident and had identified the appellants at VIPER identification parades a few months later, but gave evidence that they had not been present at, or involved in, the assault. She said further that she had named the second appellant to the police because she had been told to do so by the complainer. She had also identified the first appellant at a VIPER parade, saying that she might not be sure but she thought it was him. In her evidence she claimed that he had not been present or involved in the assault. She accepted that she had identified both appellants at the parades. The appellants were convicted and appealed on the ground that there was insufficient evidence to corroborate the complainer’s identification. They sought to distinguish Muldoon v Herron, infra, on the grounds that the witnesses there had not said that they had lied to the police and had made their identifications shortly after the incident. The second appellant also appealed on the ground that the jury’s verdict was unreasonable, given the unsatisfactory nature of W’s evidence. Held (1) that the evidence of W and the evidence of the police officer to whom she made the identifications at the identification parades provided a source of evidence pointing to the involvement of each of the appellants in the assault, and that it would be open to the jury to reject her evidence that each of the appellants was not involved in the attack (para.30); and (2) that when looked at in isolation the evidence of W was in many respects unsatisfactory, but that it must be examined in the light of the other evidence in the case, including the evidence of the complainer and the police officer who conducted the identification parades, that when that exercise was carried out it was open to the jury to rely on her evidence and that of the police officer speaking to her identification at the parades to corroborate the identification of the appellants by the complainer, and that it could not be said that no reasonable jury could have returned a verdict of guilty relying on that evidence (para.32); and appeal refused. Observed that the court in Jamieson v HM Advocate (No.2), infra, was limiting the scope for adoption of a statement by requiring that the witness confirm that the statement to the police was true, but was not concerned with a question of identification made at an earlier stage (para.28). Muldoon v Herron, 1970 J.C. 30; 1970 S.L.T. 228 applied.

G 119

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120 A

Sangster v HM Advocate

2017 S.C.C.R.

Cases referred to in the opinion of the court: HM Advocate v Geddes [2015] HCJAC 10; 2015 S.C.C.R. 139; 2015 J.C. 229 Jamieson v HM Advocate (No.2), 1994 S.C.C.R. 610; 1994 J.C. 251; 1995 S.L.T. 666 McDonald v HM Advocate [2010] HCJAC 45; 2010 S.C.C.R. 619 Muldoon v Herron, 1970 J.C. 30; 1970 S.L.T. 228 Ralston v HM Advocate, 1987 S.C.C.R. 467.

Stephen Sangster Sr and Stephen Sangster Jr were convicted on 11 March 2016 of attempted murder after trial in the High Court at Edinburgh before Lord Glennie 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 7 February 2017 by Lord Bracadale, Lord Malcolm and Lord Turnbull. For the first appellant: Connelly, instructed by Paterson Bell, Solicitors, Edinburgh, for Aamer Anwar & Co, Solicitors. Glasgow. For the second appellant: Macintosh, instructed by John Pryde & Co, Solicitors, Edinburgh, for Fraser & Co, Solicitors, Livingston. For the respondent: Goddard AD. On 7 February 2017 the appeal was refused. Lord Bracadale subsequently delivered the following opinion of the court. LORD BRACADLE

Introduction

[1] On 11 March 2016 at the High Court at Edinburgh the appellants, who are father and son, were convicted of a charge of attempted murder in the following terms: â&#x20AC;&#x153;(3) [O]n 31 August 2014 at 27 Owen Stone Street, Bathgate, West Lothian you Stephen Sangster Snr and Stephen Sangster Jnr did assault Fraser Winton. . .and did utter threats of violence, threaten to kill him, repeatedly strike him on the body with a spade, knives, an axe, a mallet, a bat or similar instruments, stab him on the buttocks with a knife or similar instrument and repeatedly strike him on the head and body with said spade, hammer, axe, mallet and bat or similar instruments, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and did attempt to murder him.â&#x20AC;? As libelled, the indictment included a number of other charges and another two co-accused. In the course of the trial the advocate depute accepted various pleas from the co-accused, withdrew certain charges, and accepted pleas of not guilty from the appellants to all charges except charge (3). [2] On 26 April 2016 in respect of each of the appellants the trial judge imposed extended sentences of 13 years comprising a custodial term of ten years and an extension period of three years. No appeal is taken against sentence. Circumstances

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[3] The circumstances which emerged in the evidence were as follows. At the time of the commission of the offence Stephen Sangster Snr was aged 51 years and Stephen Sangster Jnr was aged 22 years. The offence was committed at the home of Leigh Sykes, a friend of the complainer. The complainer and his girlfriend, Laura Williamson, were sleeping there when three or four men

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burst into the flat and engaged in a concerted assault on the complainer. The trial judge described it as a vicious and unprovoked attack which involved the use of a spade, a sledge hammer and a Stanley knife. The complainer sustained very serious injuries. [4] The trial judge reports that there was some evidence indicating a background involvement in illicit drugs which the complainer had stored for the appellants and in respect of which he may have given some information to the police. There was also evidence, which the trial judge described as “far from conclusive”, about an incident on the previous night at the home of the appellants when a row broke out and a female connected with the Sangster family was abused and pushed, an incident which led to a brief fight at the time and may have led on to the attack the next day. The Crown, correctly in the view of the trial judge, did not seek to use this evidence to bolster the case on identification. [5] The evidence that the crime was committed came from the complainer and Laura Williamson, together with the medical evidence and the evidence of police officers who attended at the scene. Laura Williamson’s evidence as to the commission of the offence was given by adopting parts of a statement given to the police by her some hours after the attack. There was no challenge as to the sufficiency of the evidence that the crime was committed.

The grounds of appeal

[6] The first issue raised in this appeal is whether there was sufficient evidence to prove that each of the appellants was a participant in the assault. The contention in a ground of appeal advanced by each of the appellants is that the trial judge wrongly repelled a submission of no case to answer. [7] Stephen Sangster Jnr has a second ground of appeal contending that, if there was a technical sufficiency, no reasonable jury, properly directed, could have convicted the appellant relying, as they had to, on the identification evidence of Laura Williamson. Her evidence was of such a standard that no reasonable jury could have considered it sufficiently reliable to convict the appellant.

Sufficiency of evidence

[8] The primary source of evidence implicating each of the appellants was the evidence of the complainer. He knew each of the appellants and positively identified both. The question is whether corroboration of the identification of each of the appellants by the complainer could be found in the other evidence including the evidence of Laura Williamson. The trial judge describes her as a prevaricating witness, a description amply borne out in the transcript of her evidence which was available to us. In court she identified Stephen Sangster Jnr whom she knew through the complainer. In her statement she had named him as one of the assailants and described what he had done with a weapon. In evidence she explained that Stephen Sangster Jnr had not been present in the flat and had not been involved in the assault; she had named him as a participant because she had been told to by the complainer. She did not adopt those parts of her statement identifying Stephen Sangster Jnr as a participant. In relation to Stephen Sangster Snr she did not identify him in court. In her statement she said, “one of the guys was either Stephen’s dad or Clair Dolland’s dad as they said something like ‘hitting my daughter’ or ‘hitting my stepdaughter’, that’s what made me think that”. It is, however, doubtful whether she adopted this particular passage of her statement. [9] On 2 December 2014 Laura Williamson attended the VIPER identification parade of Stephen Sangster Jnr. In her evidence she was taken

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122 A

Sangster v HM Advocate

2017 S.C.C.R.

through questions put to her and answers given by her at the parade. She was asked the following question: “The person(s) referred to in your statement to the police, who on (date) 31/08/2014 in (locus) 27 Owen Stone Street, Bathgate, West Lothian (describe incident) assaulted Fraser Winton and attempted to murder him by kicking, punching and striking him with objects may or may not appear on the images shown. Do you understand?” Laura Williamson is recorded on the form as having said “OK” in response. She was then asked: “If the person(s) you saw on (date) 31/08/2014 and you later referred to in your statement to the police appeared in the images shown please tell me his/her/their number(s)/picture(s)/symbol(s).” She identified Stephen Sangster Jnr whose image was number 5. In her evidence she agreed that she had made the identification but went on to claim that Stephen Sangster Jnr had not been present or involved in the assault. [10] On 10 December 2014 Laura Williamson attended the VIPER identification parade of Stephen Sangster Snr. She is recorded, in response to the same questions, as identifying number 4, which was the image of Stephen Sangster Snr. She is recorded in the report of the parade as adding, “but I might not be sure. I think it’s him”. Again, in her evidence she agreed that she had made the identification but went on to claim that Stephen Sangster Snr had not been present or involved in the assault. [11] Following the approach in Muldoon v Herron the trial judge repelled the submission of no case to answer in each case. He concluded that at the VIPER identification parades Laura Williamson had identified both Stephen Sangster Snr and Stephen Sangster Jnr as having been involved in the attack upon the complainer on 31 August 2014. That evidence, if accepted, was sufficient to corroborate the identification evidence given by the complainer, Fraser Winton. Submissions Stephen Sangster Jnr

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[12] Mr Mackintosh, who appeared on behalf of Stephen Sangster Jnr, submitted that at no point had Laura Williamson adopted any part of her police statements in relation to the identification of the perpetrators. The trial judge had erred in holding that the VIPER parade stood alone as a piece of evidence which the jury could accept or reject independently of the witness. The statement which Laura Williamson gave to police identifying the appellant at the identification parade fell to be considered in the same way as her other previous statements in which she had acknowledged that she had identified the appellant but stated that she had lied when doing so (Jamieson v HM Advocate (No.2) at p.618C–F). Whilst evidence as to whom a witness picked out at an identification parade might be admissible evidence it was not evidence of the truth of the matter, and could not be so unless the witness accepted it as being so in evidence. [13] The present case could be distinguished from Muldoon. In Muldoon neither witness had said that he or she had lied to the police. Mr MacDonald said that he had told the truth to the police and Mrs Miller’s position was that the police had misinterpreted what she had said to them. The position of Laura Williamson was that she had lied to the police. In addition, the identifications in Muldoon had been made at the scene of the crime very soon

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after its commission. In contrast, the identification parades in the present case had been held months later. What was said at the identification parades was not given on oath. The questions asked at the parade were directed to what Laura Williamson had said in her earlier statement to the police. The questions were inextricably linked to the earlier statement. [14] In support of the second ground of appeal it was submitted that no reasonable jury, properly directed, could have returned a verdict of guilty because, in order to return such a verdict, they would have required to have found corroboration in the evidence of the witness Laura Williamson. While it was accepted that the test under s.106(3)(b) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) was a high one, it had been met in the present case. The evidence of the witness Laura Williamson was entirely unsatisfactory. By her own testimony she was incredible and unreliable. Nothing in the way in which she gave her evidence would have led the jury to the view that she was doing her best to tell the truth. The view of the trial judge was that the witness had failed to comply with her oath. No reasonable jury, having heard the evidence of the witness, could have considered her capable of being credible or reliable either in her evidence or at any earlier stage in the investigations.

Stephen Sangster Snr

[15] Ms Connelly, who appeared on behalf of Stephen Sangster Snr, adopted the submissions of Mr Mackintosh in relation to the first ground of appeal. There was an insufficiency of corroborated evidence to identify the appellant as one of the assailants. Laura Williamson had not adopted the relevant parts of her police statement relating to the identification of the appellant as an assailant. The questions asked at the VIPER identification parade related to the earlier statement. As the witness had not, in the course of her evidence at trial, adopted any part of her statement which related to her identification of the appellant, any reference to the identification parade based on her purported identification from her statement should not have been led before the jury. [16] If the evidence was competently placed before the jury, an issue arose as to the evidential import of the identification parade. The witness had not been asked by the advocate depute, in terms, whether she accepted that she had identified the appellant as the assailant. The questioning had been directed at presence. The appellant’s mere presence at the locus was insufficient to provide corroboration of the complainer’s evidence. No attempt had been made to elicit from Laura Williamson a dock identification of the appellant as one of the assailants. She had not pointed out the appellant as an assailant to the police at or around the time of the offence.

Crown

[17] The starting-point was the evidence of the complainer who had known the appellants for years and had made an emphatic positive identification of both. In these circumstances not much was required by way of corroboration (Ralston v HM Advocate at p.472). The evidence of the identification parades was sufficient to corroborate the evidence of the complainer. It was clear that the questions asked at the parades were directed at the identification of the assailants. The trial judge had been correct in characterising the arguments in relation to the terms of the questions asked at the identification parade as being “over literal”. While the position of Laura Williamson was in some respects different from the position of the witnesses in Muldoon, the principle in Muldoon did apply.

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124 A

Sangster v HM Advocate

2017 S.C.C.R.

[18] In respect of Stephen Sangster Jnr the advocate depute advanced a secondary argument that there was sufficient identification in parts of the statement of Laura Williamson which could be said to have been adopted by her to identify the appellant as one of the assailants without reference to the identification parade. [19] With regard to the ground of appeal for Stephen Sangster Jnr under s.106(3)(b) of the 1995 Act, the advocate depute submitted that the identification evidence, depending only in part upon the evidence of Laura Williamson, could not be categorised as so grossly riddled with deficiencies, contradictions and inconsistencies that no reasonable jury, properly directed, could have accepted it as credible and reliable. Discussion and decision

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[20] It was common ground that where one starts with an emphatic positive identification by one witness very little else is required to corroborate the identification of the accused person as the perpetrator (Ralston v HM Advocate, LJG (Emslie) giving the opinion of the court at p.472). It was accepted that the identification by the complainer could properly be described as an emphatic positive identification. Laura Williamson in her evidence accepted that she had picked the appellants out at the parades but denied that they were involved in the attack. The question is whether the principle enunciated in Muldoon v Herron can be applied in the circumstances of this case so as to make available as corroboration of the identification by the complainer the evidence of identification by Laura Williamson at the identification parades. [21] In Muldoon the three appellants were convicted of forming part of a disorderly crowd. The commission of the offence by a number of youths was clearly established. The question was whether there was sufficient evidence to entitle the sheriff-substitute to hold that the appellants were three of those youths. Two eyewitnesses of the incident, Mr MacDonald and Mrs Miller, gave evidence. Both of them, very soon after the incident, had identified to the police seven youths as having participated in the disturbance. According to the evidence of two police officers the youths thus identified included the three appellants. At the trial Mr MacDonald and Mrs Miller did not identify any of the appellants. Mr MacDonald said that he “could not” identify anyone in court, although he admitted that he had identified seven participants in the disturbance to the police on their arrival. Mrs Miller’s position was that although she admitted that she had identified seven participants to the police when they arrived, the appellants had not taken part in the disorderly crowd and were not among the seven identified by her. Mrs Miller gave every sign of being afraid to implicate anybody. [22] It was held by a Full Bench (Lord Wheatley dissenting) that, since the witnesses had deponed that they had pointed out several of those implicated and the sheriff-substitute had accepted the police evidence that the accused were among those pointed out, disbelieving the contrary evidence of Mrs Miller on this matter, the evidence of identification was from two sources and therefore sufficient. [23] Lord Cameron at p.46 stated: “The real question is whether a witness may give evidence of identifying the accused when giving a statement to the police, and whether the police can be asked what the nature of that identification was and to whom it related.” After explaining that the matter was not covered by rules of evidence governing something said or done as part of the res gestae or something said de recenti,

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he went on to say that the evidence of the police officers could not be rejected on the simple ground that its admission would offend against the rule prohibiting the admission of hearsay: “Such identification is truly an act of the mind and so it is a fact, but one the existence of which can only be communicated to another by recognised means of human communication, and the communication itself is also a fact.” [24] Lord Cameron went on to state that the law of Scotland had long recognised that for various reasons the memory of a witness may become dimmed or the appearance of a person may change between commission of an offence and the trial of an accused. The law had made provision which was sanctioned by “long and standing” practice, that the witness may give evidence of an identification made to a responsible magistrate or officer of police in the course of the immediate investigation of crime, even when, for reasons of defective memory or other circumstance the witness is unable to make a visual recognition identification in court. Lord Cameron summed it up in this way at p.49: “If it is settled practice in our law that it is and has long been competent to take from a witness evidence of identification of an accused person made by him at an earlier stage of the investigation than his or her appearance in the witness-box, then in my opinion it cannot make such evidence incompetent that the witness is unable to make a visual identification in court due to loss of memory or from other cause. I cannot see that it makes any difference in principle to the admissibility of the evidence that the witness denies (and a denial can be due to honest mistake) that the accused in the dock is a person identified as concerned in the crime.” In our opinion identification at an identification parade would fall precisely within the settled practice identified by Lord Cameron. Identification parades have for many years been part of the process of investigation by the police and evidence of their conduct is regularly led in criminal trials.While not conducted on oath, they are carried out according to strict rules and on a formal basis. They are conducted by a police officer who has no direct involvement in the investigation itself. A complete record of the parade is compiled and retained. [25] As explained by Lord Cameron in the passage in Muldoon quoted above, the communication of the identification to the officer conducting the parade is a fact of which that officer may give evidence. That is a separate fact from the making of the identification in the mind of the witness. We are satisfied that the principles in Muldoon applied to the evidence of the identification parades in this case. Laura Williamson’s evidence was that she had picked out both appellants at the respective identification parades. The police officer who conducted the parades gave evidence that she had done so in response to the set questions. We are not persuaded that the denials of Laura Williamson that the appellants were involved in the attack mean that the evidence of the identification made at the parades loses its status as admissible evidence in the case which, if accepted, can be used by the jury to support the principal source of evidence incriminating the appellants. Further support for this approach may be found in the opinion of Lord Milligan in Muldoon at p.51: “It was submitted by counsel for the appellants that in the case of Mrs Miller the police evidence had no evidential value whatever. I cannot agree with that extreme view. It appears to me that the fact that a person, in full knowledge of what he is doing, identifies certain persons as having been

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involved in an offence which has very recently taken place cannot be completely ignored and that it has evidential value. It does not lose its evidential value merely because the ‘identifier’ gives completely contrary evidence in the witness-box.” [26] In our opinion the fact that the parade is held some time after the commission of the offence is not a bar to the application of Muldoon. There is no reason why the principle should be restricted in this way. Alison in dealing with this type of identification evidence made reference to an identification made in precognition before the magistrate, Alison’s Criminal Law, vol. ii, p.628: “On this account, the material point for the prosecutor to establish is, that the prisoner was recognised as the man by the witnesses, when examined in precognition soon after the injury; and their testimony on that head may be received and considered, even although they can say nothing as to the prisoner at the bar, provided the prosecutor prove that that was the man shown them before the magistrate.” [27] We reject the submission that the questions asked at the identification parades referred back only to the earlier statements of the witness. When the sequence of questions asked at the identification parades is taken into account in context it is clear that the questions were designed not only to make reference to the statement but to make specific reference to the perpetrators of the assault. [28] We are not persuaded that the passage in Jamieson on which Mr Mackintosh relied undermines the application of the principle in Muldoon to the circumstances of this case. We do not consider that the court in Jamieson intended to limit the application of Muldoon in the manner for which Mr Mackintosh contended. The court in Jamieson was limiting the scope for adoption of a statement by requiring that the witness confirms that the statement to the police was true. The court in Jamieson was not concerned with a question of identification made at an earlier stage. [29] Nor do we consider that the danger of the slippery slope touched on by Mr Mackintosh in the course of submissions is real. In Muldoon Lord Cameron dealt with that argument at p.48: “I have also noted the warning which counsel for the appellants gave against embarking on a slippery slope at the end of which, it was said, proof of identity in a criminal trial would be susceptible of establishment solely by evidence of police officers reporting what a witness (or even an uncalled third party) had said to them on this matter-without the witness ever being asked a question on the point when in the witness-box or even being presented as a witness at all. I see no risk of embarkation on such a slope. In the first place, the admissibility of this evidence depends on there being a witness who is called on to testify on the matter of identification. Secondly, the general rule against the admission of secondary evidence, when the best evidence is available, would operate to prevent such a course being successfully pursued.” Just as the slippery slope failed to materialise in the wake of Muldoon, we are confident that there will be no real risk of embarking on such a slope as a result of the application of the principle in Muldoon to the circumstances of the present case. [30] We are satisfied, therefore, that the evidence of Laura Williamson and the evidence of the police officer to whom she made the identifications at the identification parades provided a source of evidence pointing to the involvement

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of each of the appellants in the assault. It would be open to the jury to reject her evidence that each of the appellants was not involved in the attack. The available evidence corroborated the clear and unequivocal evidence of the complainer identifying each of the appellants as being among his assailants. [31] In view of the conclusion that we have reached in relation to the evidence of the identifications by Laura Williamson at the identification parades it is not necessary to form a concluded view on the secondary submission advanced by the advocate depute that parts of Laura Williamson’s statements to the police could be interpreted as adoption of her statement referring to Stephen Sangster Jnr as an assailant without recourse to the evidence of the identification parade. We would only comment that we would have had considerable difficulty in so interpreting the passages of the transcript of the evidence of Laura Williamson on which the advocate depute relied. [32] The second ground of appeal advanced by Stephen Sangster Jnr contended that the verdict was one which no reasonable jury, properly directed, could have returned. The approach of the court to this type of appeal is well settled: HM Advocate v Geddes, LJC (Carloway) at para.4: “. . .It is an objective exercise in which, for an appellant to succeed, the court must be able to hold ‘that no reasonable jury could have returned a guilty verdict on the evidence before them’ (King v HM Advocate [1999 S.C.C.R. 330; 1999 J.C. 226; 1999 S.L.T. 604], Lord Justice-General (Rodger), delivering the opinion of the court, p.228). The court has to ‘assess the reasonableness of the verdict with the benefit of its collective knowledge and experience’ (E(AJ) v HM Advocate [2002 S.C.C.R. 341; 2002 J.C. 215; 2002 S.L.T. 715], Lord Justice-Clerk (Gill), para.30, followed in Gage v HM Advocate [2012 S.C.C.R. 254; 2012 J.C. 319], Lord Justice-General (Hamilton), delivering the opinion of the Full Bench, para.29). It is only in the ‘most exceptional of circumstances that an appeal on this ground will succeed’ (Harris v HM Advocate [2012 S.C.C.R. 234], Lord Bonomy, delivering the opinion of the court, para.67). [5] One reason for the test being set at so high a level is that there will often be, as there was in the present case, an acceptance that there was a legal sufficiency of evidence against the accused. The argument will accordingly often boil down to one which seeks to persuade the court that the jury could not reasonably have accepted the testimony of a particular witness or witnesses, or part of it, as credible and reliable. Since that is traditionally primarily the province of the jury to assess (ibid), it will only be in rare cases that the court will be persuaded that no reasonable jury, properly directed, could have accepted the testimony in question. . . .” Where this type of ground of appeal is founded in an attack on the credibility and reliability of a particular witness guidance may be found in McDonald v HM Advocate where the criticism was directed at the credibility and reliability of a witness P: Lord Carloway at para.27: “The question for the court is whether, looking at the totality of the evidence, it is satisfied that a miscarriage of justice has occurred because no reasonable jury could have held the case proved beyond reasonable doubt. In answering that question, the evidence of P should not be looked at in isolation but should be taken along with, and in the context of, the other testimony at the trial (see generally E (AJ) v HM Advocate, LJC (Gill) at paras.28, 30 and 37; King v HM Advocate, LJG Rodger at pp.334–335).” When looked at in isolation the evidence of Laura Williamson was in many respects unsatisfactory. But it must be examined in the light of the other evidence in the case, including the evidence of the complainer and the police

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officer who conducted the identification parades. When that exercise is carried out we are satisfied that it was open to the jury to rely on the evidence of Laura Williamson and the police officer speaking to her identification at the parades to corroborate the identification of the appellants by the complainer. It cannot be said that no reasonable jury could have returned a verdict of guilty relying on that evidence. [33] In the result the appeals fall to be refused.

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A Appeal Against Conviction and Sentence DS

8 February 2017 Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2017] HCJAC 12 Evidence—Corroboration—Mutual corroboration—Charge of offences against boy aged 12 or 13 between 2000 and 2003 involving masturbation and charge of one offence against 12-year-old girl in 2010 by pulling down shorts and touching vagina—Both charges related to grooming of complainers and acquiring position of trust— Whether Moorov doctrine applicable

C Sentence—Consecutive sentences—Whether competent to impose consecutive sentences and then add extension period treating sentences as cumulo sentence—Criminal Procedure (Scotland) Act 1995 (c.46), s.210A Sentencing—Extended sentences—Observations on use of extended sentences—Criminal Procedure (Scotland) Act 1995 (c.46), s.210A Sentence—Lewd practices against two children with six-year interval— Whether consecutive sentences totalling 38 months excessive Section 210A of the Criminal Procedure (Scotland) Act 1995 provides for the imposition of extended sentences on persons convicted on indictment of sexual offences where the period for which the offender would otherwise be subject to a licence would not be adequate for the purpose of protecting the public from serious harm. The appellant was convicted of an offence of repeated lewd conduct against the first complainer between 2000 and 2003 when the complainer was aged between ten and 13 (charge (1)), and one offence of lewd conduct in 2010 against a 12-year-old girl. On occasions he slept in the first complainer’s bedroom where there was a spare bed. He had become a regular visitor to the complainer’s family and had taken a particular interest in the complainer. Charge (1) alleged that the appellant had repeatedly lay in or on the same bed as the complainer, put his hand down the latter’s shorts, fondled his genitals and masturbated him, caused him to watch as he masturbated himself, induced the complainer to masturbate him and then masturbated himself or got the complainer to masturbate him. Charge (2) alleged that the appellant had gone into the complainer’s bed, put his hands down her shorts and touched her vagina. The appellant was sentenced to consecutive sentences of 26 and 12 months on the respective charges and, in terms of the minute “an extended sentence comprising a period of 38 months and an extended period of 18 months”. The maximum sentence available to the sheriff on charge (1) was one of three years, and on charge (2) was one of five years. The appellant appealed against conviction on the ground that, given the gap in time between the two charges, the similarities between them were not

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sufficiently compelling to allow of the application of the Moorov doctrine. He also appealed against the sentence as excessive. Held (1) that there were strongly compelling similarities in the circumstances of what was spoken to by the respective complainers, given the context provided by the whole evidence in the case, that the two complainers were of a similar age, despite being of different sexes, that the appellant gained access to both complainers through nurturing the friendship and trust of their respective parents, that this was achieved through regular visits, the provision of gifts to the complainer in charge (1) and to the complainer in charge (2) and her siblings, that the conduct was perpetrated when the children were entrusted to the appellant’s care and the appellant behaved as he did when he was in a position of trust, that the behaviour occurred at night-time when the children were in night attire and in a bedroom, that while there was a disparity in terms of the conduct, the conduct in charge (2) began in the same way as the conduct in charge (1) until it was interrupted by the complainer removing herself from the situation, that, in other words, the appellant’s conduct was the same in each case, insofar as he was able so to behave and that, moreover, the conduct of the appellant prior to any of the assaults spoken to by the complainers fell readily into the recognisable pattern of behaviour often described as “grooming”, that that pointed strongly to the appellant’s conduct being not only planned but also systematic, in other words being a course of criminal conduct in which the particular assaults were but incidents, and, further, while the minimum time-gap of six years and nine months was undoubtedly a long period of time, in evaluating the significance of that, regard had to be had to the nature of the appellant’s conduct as disclosed by the evidence, that what can be described as “grooming” is, or may be, a lengthy process, that the appellant succeeded in gaining the trust of the complainers’ respective families to what seems a remarkable extent, which, it might be thought, must have taken some time, and that the points of similarity and the notion of grooming provided the basis for the conclusion that there was sufficient to demonstrate the requisite underlying unity of intent and therefore to allow the application of mutual corroboration (para.17); and appeal insofar as it related to conviction refused; and (2)(i) that the offences were contact offences against children in relation to whom the appellant was in a position of trust, that charge (1) was particularly serious, relating as it did to significantly abusive conduct on a number of occasions, and that, while, in order to convict, the jury had to be satisfied that what was alleged in the respective charges formed parts of one course of conduct, that did not have the result that the sheriff was obliged to impose a cumulo sentence or to order that separate sentences imposed in respect of each charge be served concurrently (para.20); (ii)(a) that there was nothing in the sheriff’s report to suggest that she had regard to the criterion of risk of serious harm required before an extended sentence was passed (para.22), and that as requisite criteria for such a sentence had not been met, the sheriff could not impose an extended sentence (para.23); and (b) that an extended sentence is “a sentence of imprisonment”, comprising a custodial term and an extension period, and is not a sentence which is added on to a custodial sentence, nor is it an additional period of time during which the accused will be subject to licence tagged on to the end of the custodial sentence imposed, that the terms of the section may allow an extended sentence to be imposed as a cumulo sentence in respect of a number of charges, but that the section does not envisage the imposition of a number of separate determinate sentences of imprisonment which are then added together to make up the custodial term of an extended sentence, to which an extension period is then attached (para.23); and that what had been minuted, was not an extended sentence, properly understood (para.24); and sentence quashed and consecutive sentences of 26 months on charge (1) and 12 months on charge (2) substituted.

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Cases referred to in the opinion of the court:

Crawford v HM Advocate [2015] HCJAC 700; 2015 S.C.C.R. 345; 2015 S.L.T. 700 F v HM Advocate [2016] HCJAC 52; 2016 S.C.C.R. 319; 2016 S.L.T. 746 H v HM Advocate [2015] HCJAC 42; 2015 S.C.C.R. 242; 2015 S.L.T. 380 K v HM Advocate [2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 915 L v HM Advocate [2016] HCJC 61; 2016 S.C.C.R. 365 M v HM Advocate [2015] HCJAC 74 Moorov v HM Advocate, 1930 J.C. 68; 1930 S.L.T. 596 Oâ&#x20AC;&#x2122;Hare v HM Advocate, 2002 S.L.T. 925 (Note) R (G) v HM Advocate [2016] HCJAC 94; 2017 S.L.T. 177 R (M) v HM Advocate [2013] HCJAC 8; 2013 S.C.C.R. 190; 2013 J.C. 212 Reynolds v HM Advocate, 1995 S.C.C.R. 504; 1995 J.C. 142; 1996 S.L.T. 49 Robertson v HM Advocate, 2004 S.C.C.R. 180; 2004 J.C. 155; 2004 S.L.T. 888 S v HM Advocate [2014] HCJAC 135; 2015 S.C.C.R. 62 Tudhope v Hazelton, 1985 S.L.T. 209 Wood v HM Advocate [2017] HCJAC 2; 2017 S.C.C.R. 100; 2017 S.L.T. 190. D S was convicted of the charges set out in the opinion of the court after trial before Sheriff Taif and a jury in Paisley Sheriff Court on 27 April 2016, and sentenced in the terms set out in that opinion. He appealed to the High Court against conviction and sentence on the grounds referred to in the opinion of the court.

The appeal was heard on 8 February 2017 by Lord Brodie, Lady Clark of Calton and Lord Turnbull. For the appellant: Keenan, Solicitor advocate instructed by Capital Defence Lawyers Solicitors, Edinburgh. For the respondent: Edwards QC, AD. On 8 February 2017 the appeal was refused. Lord Brodie subsequently delivered the following opinion of the court.

LORD BRODIE Introduction

[1] On 27 April 2016, at Perth Sheriff Court, the appellant went to trial on an indictment containing two charges of lewd, indecent and libidinous practices and behaviour towards two complainers. The charges were in the following terms: â&#x20AC;&#x153;(1) [B]etween 1 January 2000 and 1 November 2003, both dates inclusive, at (an address in Perth) and (an address in Dunfermline). . .you (D S) did use lewd, indecent and libidinous practices and behaviour towards (G B). . .then aged between ten and 13 years. . .and did repeatedly put your hand down his shorts, fondle his genitals, masturbate him until he ejaculated, remove your underwear, cause said (G B) to watch as you masturbated yourself to ejaculation, kiss him on the face and neck and induce him to masturbate you; (2) on 4 August 2010 or 5 August 2010 at (an address in Leven) you did use lewd, indecent and libidinous practices and behaviour towards (K W). . .then aged 12 years. . .a girl then over the age of 12 years and under the age of 16 years, and did put your hands down her shorts and touch her

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on her vagina: contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, s.6.” [2] At the close of the Crown case a submission was made by the defence in terms of s.97 of the Criminal Procedure (Scotland) Act 1995 that the appellant had no case to answer, in that the Crown had failed to corroborate the accounts given by the respective complainers. In response, the prosecutor pointed to the similarities of the conduct which was the subject of charge (1) to that which was the subject of charge (2), and explained that the Crown relied on the doctrine of mutual corroboration associated with the decision in Moorov v HM Advocate. The sheriff repelled the s.97 submission. The appellant led no evidence. The jury thereafter convicted him of both charges by a majority. [3] Having adjourned the diet to obtain a criminal justice social work report [CJSWR] and a Tay Project report, on 15 June 2016 the sheriff imposed on the appellant what she intended to be an extended sentence as provided for by s.210A of the 1995 Act, with a custodial term of 38 months and an extension period of 18 months. In her report to this court the sheriff describes the process adopted by her in imposing sentence in the following terms: “I sentenced the appellant to 26 months’ imprisonment on charge (1) and to 12 months’ imprisonment on charge (2) to run consecutively to the period of imprisonment on charge (1). I imposed an extended sentence within the meaning of s.210A Criminal Procedure (Scotland) Act 1995 comprising the custodial period of 38 months and an extended period of 18 months.” The sentence is recorded in the minutes of proceedings as follows: “The court having considered the report now lodged and heard from Mr McLaughlin for the accused in mitigation of sentence and being satisfied that no other method of disposal was suitable because of the nature of the offence, sentenced the accused to 26 months’ imprisonment from this date on charge (1) and sentenced the accused to 12 months’ imprisonment on charge (2) to run consecutively to the period of imprisonment imposed in respect of charge (1), total imprisonment 38 months from today’s date.

(A paragraph then records a finding of guilt and a sentence in respect of a contempt of court.) “The court imposed upon the said accused an extended sentence of imprisonment within the meaning of s.210A of the Criminal Procedure (Scotland) Act 1995 comprising the custodial period of 38 MONTHS and an extended period of 18 months to commence from 15 June 2016.”

[4] The appellant appeals against conviction and sentence. In relation to conviction the appellant submits that the sheriff was wrong to repel the s.97 submission; the conduct to which the respective charges related being insufficiently connected in terms of time, character and circumstance to allow the doctrine of mutual corroboration to apply. As to sentence, it is submitted that the length of the custodial term was excessive having regard to the nature of the conduct, the appellant’s age and his limited record. No point is taken by the appellant in relation to whether the sheriff was entitled to impose an extended sentence or how she went about doing so. Evidence at trial Charge 1

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[5] The appellant was introduced to the family of the first complainer in charge (1), G B, in or around 2000 through a family friend. They were all

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members of, or acquainted through, a church community. The complainer’s family welcomed the appellant into their home and the appellant became a regular visitor. He took a particular interest in the complainer, paying less attention to the complainer’s older brother, who was the more outgoing of the two children. The appellant bought a number of gifts for the complainer, including a hi-fi system and PlayStation games. On occasions the appellant slept over at the complainer’s family home, sleeping in the complainer’s bedroom where there was a spare bed. [6] The alleged conduct which was the subject of charge (1) took place in 2002–03 when the complainer was 12 or 13 years old. There were two chapters of evidence: the first related to what was said to have occurred within the complainer’s family home in Perth, and the second related to what was said to have occurred in the appellant’s home in Dunfermline. During the first chapter, the complainer spoke to being in bed, to the appellant being beside him, his right arm behind his head and to the appellant speaking to him about matters of a sexual nature. With his left hand the appellant stroked the complainer’s penis, masturbated him and took his boxers off to ejaculate. The appellant then masturbated himself to ejaculation. Both washed themselves and went to sleep. The complainer thought that this had happened on two or three occasions. [7] At the appellant’s home in Dunfermline, the complainer had a bath and was being dried when the appellant invited him to go into the bedroom to lie on the bed. The appellant told the complainer that it was normal to “wank” and he masturbated the complainer to ejaculation. He then put the complainer’s hand on his penis for him to be masturbated to ejaculation. He kissed the complainer on the neck and cheek while he masturbated. Again, this conduct took place on two or three occasions. When the sheriff discusses the evidence at pp.4 and 5 of her report, the kissing takes place in the second chapter of evidence. When the sheriff discusses the evidence at pp.10 and 11, the kissing takes place in the first chapter of evidence.

Charge 2

[8] The appellant met the older sister of the second complainer in charge (2) in 2010 in homeless accommodation. The complainer’s sister then brought the appellant to her mother’s home where the complainer lived with her mother and other siblings. The appellant became a regular visitor, welcomed by the complainer’s mother who assisted him with paperwork. The appellant brought gifts for the complainer’s siblings, and on one occasion bought the complainer a toiletries set. [9] On the day prior to the offence, the complainer and her mother had argued. It was agreed that the appellant would take the complainer on an outing to Edinburgh the following day. That evening the appellant and the complainer travelled by bus to the appellant’s home. Once at the appellant’s home, the appellant and the complainer watched a film together. The complainer changed for bed and went to bed in the appellant’s bedroom. The appellant said that he would sleep on the sofa in the sitting room. Just as the complainer was falling asleep, the appellant came into the bedroom, topless. Without speaking he entered the bed and put his hands down the front of the complainer’s shorts and touched her vagina. The complainer jumped out of bed, left the bedroom and locked herself in the bathroom for the rest of the night. The following morning neither the appellant nor the complainer referred to what had taken place.They travelled to Edinburgh and the appellant offered to buy various presents for the complainer, which she rejected. The

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complainer telephoned her mother to ask to come home early but her mother was unable to collect her. After the incident the complainer avoided the appellant on the occasions he visited the family home. Submissions: conviction appeal Appellant

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[10] A case and argument had been lodged. It was supplemented by oral submissions by the solicitor advocate appearing on behalf of the appellant. The solicitor advocate submitted that the sheriff had erred in repelling the submission of no case to answer. The alleged offences were insufficiently connected in terms of time, character and circumstances to allow the doctrine of mutual corroboration to apply as between the evidence of the first complainer in relation to charge (1) and the second complainer in relation to charge (2). In advancing that submission, four particular factors were highlighted: (i) the period of time between the two charges was substantial, being at its shortest a period of six years and nine months and at its longest a period of ten years and seven months; (ii) there were only two offences committed against complainers of different sexes; (iii) the nature and the gravity of the conduct in the respective charges was different (the conduct libelled in charge (1) occurred over a significant period of time and on a number of different occasions, involving masturbation of the complainer and masturbation of the appellant whereas the conduct libelled in charge (2) occurred on one occasion and involved one brief incident of touching on the complainer’s vagina); and (iv) there was an absence of any special or extraordinary feature linking the offences. [11] In elaborating his submission, the solicitor advocate for the appellant accepted that while a lengthy time gap does not preclude the application of the Moorov doctrine, and there are examples in the authorities of it being applied in respect of longer periods than that in the present appeal, if there is a long gap the factors other than time (character and circumstance) must have extra, in the sense of particularly compelling, force: Tudhope v Hazelton at p.212. In K v HM Advocate and in S v HM Advocate the periods were admittedly longer than the present case (13 and 18 years respectively) but these cases each had particularly compelling features which drew the relevant incidents of conduct together (the remark “I’ve missed you” in K and the generational gap in S). Where the time interval is long, similarities in the relevant conduct spoken to by different witnesses require to be compelling if they are to point to the necessary underlying unity of intent or purpose such as to provide mutual corroboration: H v HM Advocate at para.30, albeit that there is no exceptional feature test in long interval cases: L v HM Advocate. The key question was whether the events alleged were so connected in time, place and circumstances as to show that they were examples of a course of conduct. While it is correct to say that there is no maximum interval of time fixed by law beyond which the Moorov doctrine can apply, the longer the gap, the more difficult it will be to accept that evidence of two separate events may be regarded as corroborative of each other. Where there are a limited number of charges separated by long periods of time, great care must be taken before applying Moorov, even where there are similarities in the behaviour alleged. Otherwise, there is a real risk that evidence that, in truth, points only to a general disposition to commit a particular type of offence will, wrongly, be allowed to be used as corroboration: F v HM Advocate. A long lapse of time is, accordingly, “very relevant”: H v HM Advocate at [para.28]. It was accepted that for charges to be withdrawn from the jury on the basis of no case to answer a high test had to be met. The

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sheriff had to be satisfied that on no possible view of the evidence was there the necessary connection between the different incidents spoken to by the complainers to provide a sufficiency of evidence: Reynolds v HM Advocate. However, given the long lapse of time between the relevant incidents and the absence of other particularly compelling circumstances, this was a case where the s.97 submission should have been upheld. The sheriff had been wrong not to do so. The appellant’s conviction on the charges consequently constituted a miscarriage of justice and the appeal should be allowed.

Respondent

[12] It had not been suggested that the sheriff made an error in her understanding of the law as it relates to mutual corroboration; rather the criticism was focused on her application of the law and in particular her failure to conclude that given the long time gap between the conduct spoken to by the first complainer and that spoken to by the second complainer, in the absence of any special or extraordinary feature there was simply not enough by way of similarity to allow mutual corroboration to have effect. In the Crown’s submission this was not so; as was apparent from her report, the sheriff had given detailed consideration to the appropriate cases, had applied the law correctly and had come to the correct conclusion. This was a case about grooming. The giving of gifts and the way the appellant had inserted himself into the families of the complainers provided important features of similarity pointing to an underlying unity of purpose. If the time gap was substantial, as here, one needed to consider whether there were nevertheless compelling similarities but there was no extraordinary feature test: L v HM Advocate at para.31 (where there is a restatement of the basic principles). That charge (1) related to a number of instances of offending whereas charge (2) related only to one, was no barrier to finding the necessary similarity. Regard had to be had to the circumstance that it was the behaviour of the second complainer that stopped the occurrence of further offending. H v HM Advocate, on which the appellant had relied in submissions, could be distinguished on its facts.

Submissions: sentence appeal Appellant

[13] No issue was taken on behalf of the appellant as to the sheriff’s decision to impose an extended sentence but when the court indicated concern over the competency of the sentence, given the material before the sheriff and the way she appeared to have gone about imposing sentence, the solicitor advocate accepted that the court’s concern was well founded. He was unable to point to anything that suggested that the statutory criterion for the imposition of an extended sentence had been met; certainly there was nothing in the CJSWR. Although the sheriff may have intended to impose one sentence, that is not quite how the court minute read, nor indeed the sheriff’s report. [14] What was argued by the solicitor advocate was that while a custodial sentence was accepted as inevitable, a custodial term of 38 months was excessive having regard to the nature of the conduct alleged in each charge, the appellant’s age and his limited (albeit analogous) record. The appellant did have two analogous previous convictions, but they were of some age and were dealt with by way of a fine and a short custodial sentence respectively. The case and argument made reference to the personal circumstances of the appellant as having mitigating effect, but the solicitor advocate expressly disclaimed reliance on these in support of the contention that the sentence imposed by the sheriff had been excessive.

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2017 S.C.C.R.

Respondent

[15] The advocate depute was invited to comment on the competency of the sentence imposed by the sheriff. She was unable to support it; whatever precisely the sheriff intended, what she did had the look of imposing three sentences. Decision Conviction appeal

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[16] The law as to when credible and reliable evidence from one source of the occurrence of one event, can provide corroboration of credible and reliable evidence from another source of the occurrence of another event (and vice versa) is very familiar. We refer to what was said by the Lord Justice-Clerk (Carloway) in giving the opinion of the court in R (M) v HM Advocate at para.20, stripped of its accompanying citation of authority: “What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused. Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury under proper direction of the trial judge.” Unremarkably, as it might be thought, in that the court is looking for similarities as among a number of factors, where one of the relevant factors is weak or absent, if the court is nevertheless to conclude that, overall, there are sufficient similarities, then the other factors will have to be the stronger (or have extra force or be more compelling): Tudhope v Hazelton at p.212. That was the essence of the submission on behalf of the appellant: here there was a significant time gap as between the relevant incidents, that meant that if the sheriff was to be satisfied that nevertheless the incidents constituted one course of conduct, the similarities in place and circumstances had to be very strong or particularly compelling, whereas in the present case they were not. [17] The other side of the coin of the point made in Tudhope v Hazelton is what was said by the Lord Justice-Clerk (Carloway) in S v HM Advocate at para.10: “The more similar the conduct is in terms of character, the less important time gap may be.” Bearing in mind that when considering a submission of no case to answer the Crown case must be taken at its highest, we would see that consideration to be apposite in the present case. Contrary to what was submitted on behalf of the appellant, we find there to be strongly compelling similarities in the circumstances of what was spoken to by the respective complainers, given the context provided by the whole evidence in the case. The two complainers were of a similar age, despite being of different sexes. The appellant gained access to both complainers through nurturing the friendship and trust of their respective parents. This was achieved through regular visits, the provision of gifts to the complainer in charge (1) and to the complainer in charge (2) and her siblings. The conduct was perpetrated when the children were entrusted to the appellant’s care and the appellant behaved as he did when he was in a position of trust. The behaviour occurred at nighttime when the children were in night attire and in a bedroom. While there was a disparity in terms of the conduct, the conduct in charge (2) began in the same way as the conduct in charge (1) until it was interrupted by the complainer removing herself from the situation. In other words, the appellant’s conduct was the same in each case, insofar as he was able so to behave. What might be thought to have introduced a difference in outcome was the conduct

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of the second complainer. Moreover, as the solicitor advocate for the appellant accepted, the conduct of the appellant prior to any of the assaults spoken to by the complainers fell readily into the recognisable pattern of behaviour often described as “grooming”. In our opinion, that points strongly to the appellant’s conduct being not only planned but also systematic, in other words being a course of criminal conduct in which the particular assaults are but incidents. We would further observe that while the minimum time gap of six years and nine months is undoubtedly a long period of time, in evaluating the significance of that, regard has to be had to the nature of the appellant’s conduct as disclosed by the evidence. What can be described as “grooming” is, or may be, a lengthy process. The appellant succeeded in gaining the trust of the complainers’ respective families to what seems a remarkable extent. That, it might be thought, must have taken some time. The points of similarity and the notion of grooming provide the basis for our conclusion that there was sufficient to demonstrate the requisite underlying unity of intent and therefore to allow the application of mutual corroboration. The sheriff was fully entitled to decide on the submission of no case to answer as she did and therefore the appeal insofar as it relates to conviction must be refused.

Sentence appeal

[18] The only ground of appeal in relation to sentence and therefore the only matter in respect of which leave has been granted is that a 38-month custodial term (made up of consecutive sentences of 26 and 12 months respectively) was excessive. The appellant’s case and argument suggested that the personal circumstances of the appellant would be founded on as providing mitigation but that was expressly disavowed in the course of submissions. The only argument that was presented on behalf of the appellant was that the nature of his offending and the extent of his record of previous convictions did not justify the length of sentence imposed. We shall address that contention but, although the point is not taken by the appellant, as this court must be satisfied of the competency of any sentence coming before it, we shall also consider how the sheriff went about deciding upon and then delivering what she described in her report as “an extended sentence within the meaning of s.210A Criminal Procedure (Scotland) Act 1995”. [19] In her report the sheriff explains that in determining sentence she had had regard to the circumstances of the offences, the appellant’s previous convictions (two in number: one in 1986 for indecent assault which led to a fine of £60; and one in 1995 for lewd and libidinous practices which led to six months’ imprisonment) and his personal circumstances. She had been assisted by the terms of the CJSWR. The CJSWR noted that the appellant’s position was that the charges had been fabricated and he accepted no responsibility for them. The author, on the other hand, expressed the view that the appellant’s befriending of the complainers’ families would suggest a deliberate attempt to gain trust and create opportunities to have access to children. Given the appellant’s continuing denial, he was assessed as being unsuitable for the Moving Forward Making Changes group work programme. Should a period of imprisonment be imposed, the CJSWR suggested that a period of postrelease supervision would be required to address the appellant’s needs and to allow for an exploration of the appellant taking responsibility. On the basis of this material the sheriff concluded that there was no alternative to a custodial sentence. She considered that given that the CJSWR had identified a need for intervention, the vehicle of an extended sentence would allow for supervision and the opportunity for the appellant to address his offending behaviour

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further once in a community setting. She was aware that her sentencing powers did not entitle her to impose a sentence of imprisonment for a term exceeding three years in respect of charge (1) (the period of the libel in that charge was prior to the commencement of s.13(1) of the Crime and Punishment (Scotland) Act 1997 which amended s.3(3) of the Criminal Procedure (Scotland) Act 1995 and increased the term of imprisonment that the sheriff could impose from three to five years). [20] It was accepted on behalf of the appellant that the sheriff had been right to conclude that there was no alternative to imposing a custodial sentence or sentences. We agree. It was nevertheless argued that to impose sentences of 26 months and 12 months to be served consecutively was excessive. We disagree. These were contact offences against children in relation to whom the appellant was in a position of trust. Charge (1) was particularly serious, relating as it did to significantly abusive conduct on a number of occasions. While in order to convict, the jury had to be satisfied that what was alleged in the respective charges formed parts of one course of conduct, that did not have the result that the sheriff was obliged to impose a cumulo sentence or to order that separate sentences imposed in respect of each charge be served concurrently: M v HM Advocate. Indeed, without expressing any opinion on the matter, we can see why the sheriff might choose not to impose a cumulo sentence in respect of the two charges where one charge related to a period in respect of which her powers were restricted to imposing a custodial term of three years, while the other related to a period in respect of which she could impose a term of up to five years. Accordingly, thus far we would not criticise the sheriff’s decision-making. However, as it would appear to us, she got into difficulty when she came to consider an extended sentence. [21] We remind ourselves of the relevant statutory provisions. S.210A of the Criminal Procedure (Scotland) Act provides, inter alia, as follows: “Extended sentences for sex and violent offenders. (1) Where a person is convicted on indictment of a sexual or violent offence, the court may, if it— (a) intends, in relation to— (i) a sexual offence, to pass a determinate sentence of imprisonment; . . . and (b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender, pass an extended sentence on the offender. (2) An extended sentence is a sentence of imprisonment which is the aggregate of— (a) the term of imprisonment (“the custodial term”) which the court would have passed on the offender otherwise than by virtue of this section; and (b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is, subject to the provisions of this section, of such length as the court considers necessary for the purpose mentioned in subsection (1)(b) above. ... (4) A court shall, before passing an extended sentence, consider a report by a relevant officer of a local authority about the offender and his circumstances and, if the court thinks it necessary, hear that officer. . . . .”

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Thus, before a sex offender can competently be sentenced to an extended sentence, three criteria must be met: first, the offender must be convicted on indictment of a sexual offence, as that is defined in s.210A(10); second, the court must intend to pass a determinate sentence; and third, the court must consider that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender. As was recently emphasised by the Lord Justice General giving the opinion of the court in Wood v HM Advocate at para.27, “serious harm” means just that. An extended sentence has a considerable penal effect, given the power to revoke the licence and recall the offender to prison (cf Robertson v HM Advocate at para.30). Its purpose is to allow the court to make provision for public protection where that is necessary while not imposing a custodial sentence, which from other perspectives, might be disproportionate. Accordingly, before it can impose an extended sentence, the court must have formed the view that when the offender comes to be released from the determinate sentence which it is minded to pass, he will still present a risk of serious harm to the public and in forming that view the court must have first considered a report by a relevant officer of a local authority about the offender and his circumstances, as is provided for by s.210A(4). We do not suggest that the court will be bound by any opinion expressed by the relevant officer but the Act requires his report to be considered and any rational decision on risk of serious harm must take into account what appears in the report. [22] There is nothing in the sheriff’s report in the present case to suggest that she had regard to the criterion of risk of serious harm. Turning to the CJSWR, the following passages would appear to be pertinent:

“Likelihood “Due to Mr [S’s] denial of the offences, it is difficult to assess his attitudes towards his actions or indeed his readiness to address his behaviour and decision-making. Therefore I am not able to fully assess any potential risk of recidivism at this stage, but these offences, alongside historically analogous behaviour would suggest that he has the potential to reoffend in a similar manner. “Serious harm/imminence “These offences are relatively historical and whilst his behaviour would demonstrate the potential to cause harm, it would appear that the risk of imminence is reduced. “Suitability for community disposal/public protection issues. “Mr (S) is assessed as suitable for a community-based disposal ... “Post-release supervision “Should the court decide that a community-based disposal is not a viable option in this case, a period of post-release supervision would be sought in order to allow for the necessary supervision to be undertaken. ... “Mr (S) has demonstrated through his offending behaviour a sexual interest in male and female children. As a consequence and during the period of supervision Mr (S’s) access to and contact with children requires to be closely monitored and managed in order to reduce the risk of further offending and serious risk of harm.”

Again, while we note what is said about the need for monitoring and management in order to reduce a serious risk of harm, there is nothing here

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about risk of serious harm. A community-based disposal is put forward as a possibility but if that is not considered viable then the focus is on the need for risk management through post-release supervision. As we have already indicated when summarising her report, that certainly would appear to be the way in which the CJSWR was interpreted by the sheriff. As she put it: “While the available reports identified a need for intervention, the vehicle of an extended sentence allowed for supervision and the opportunity for the appellant to address his offending behaviour once in a community setting.” As appears from the terms of s.210A, that is not the purpose of or a justification for the imposition of an extended sentence. Neither would it be competent to impose a supervised release order in terms of s.209 of the 1995 Act in the event of conviction for a sexual offence, but the release on licence of shortterm prisoners convicted of a sexual offence is governed by s.1AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993. [23] As we do not see the requisite criteria to have been met, the sheriff could not competently impose an extended sentence. However, the way the sheriff went about imposing what she intended as an extended sentence also calls for comment. An extended sentence is “a sentence of imprisonment”, comprising a custodial term and an extension period. It is not a sentence which is added on to a custodial sentence, nor is it an additional period of time during which the accused will be subject to licence tagged on to the end of the custodial sentence imposed: O’Hare v HM Advocate. The custodial term is “the term of imprisonment which the court would have passed on the offender otherwise than by virtue of (s.210A)”, that being “a determinate sentence of imprisonment” “in relation to . . . a sexual offence”. Now, the terms of the section may allow an extended sentence to be imposed as a cumulo sentence in respect of a number of charges, but the section does not envisage the imposition of a number of separate determinate sentences of imprisonment which are then added together to make up the custodial term of an extended sentence, to which an extension period is then attached (cf Crawford v HM Advocate and R(G) v HM Advocate). [24] We do not consider that the sheriff had proper regard to these considerations when she purported to impose an extended sentence. As is apparent both from the minute of proceedings and her report, the sheriff began by imposing a sentence of 26 months’ imprisonment in respect of charge (1). She then imposed a sentence of 12 months’ imprisonment in respect of charge (2). She ordered the sentence in respect charge (1) to be served from the date of imposition of the sentence (15 June 2016). She ordered the sentence in respect charge (2) to be served consecutively to the sentence in respect of charge (1). Then, having made a finding of contempt of court and imposing a sentence in respect of that (matters with which we are not concerned) she imposed “upon the said accused an extended sentence of imprisonment within the meaning of s.210A Criminal Procedure (Scotland) Act 1995 comprising the custodial period of 38 months and an extended period of 18 months to commence from 15 June 2016”. It is difficult to avoid the conclusion that this was a third sentence being imposed by the sheriff (or a fourth if the sentence for contempt is included), albeit that the custodial term (referred to in the minute as “the custodial period”) has been arrived at by adding together the respective terms already imposed in respect of charges (1) and (2). Whether or not this is what the sheriff intended, what has been minuted is not an extended sentence, properly understood. [25] We shall quash the sentences imposed by the sheriff. We nevertheless propose to respect her decisions as to the periods of custody appropriate to the

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respective charges. Accordingly, in place of what we have quashed we shall sentence the appellant to 26 months’ imprisonment from 15 June 2016 in respect of charge (1), and to 12 months’ imprisonment in respect of charge (2). We shall order the sentence in respect of charge (2) to be served consecutively to the period of imprisonment imposed in respect of charge (1).

COMMENTARY Once upon a time it would have been unlikely that Moorov would have been applied between the two charges in question even if there had not been a long time gap; but temporare mutantur. . . On the other hand the reference to grooming suggests that the time taken to groom a child may be considered as part of the offence itself for the purpose of assessing whether the accused was engaging in a single course of conduct, although the ‘groomimg time’ in the present case was not specified.

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A Appeal Against Conviction

8 February 2017

ANDREW REILLY

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2017] HCJAC 5 Evidence—Corroboration—Mutual corroboration—Incidents of domestic and sexual violence over period of 24 years—Whether Moorov doctrine applicable

The appellant was convicted on indictment of, inter alia, six offences of common assault against his then partner, R G, between 1986 and 1990 (charge (1)), one charge of such an offence against his then partner, P B, in 2005 (charge (3)), and nine charges of such offences against his then partner, D H, between September and December 2014 (charge (8)).The offences ranged from threats of stabbing to driving a car at the complainer. He was also convicted of raping R G between 1998 and 1990 (charge (2)), P B in 2010 (charge (5)), and D H in 2014 (charges (6) and (11)), and of sexually assaulting D H in December 2014 by biting her genitals (charge (9)). He appealed to the High Court against conviction (except in the case of the offences libelled in charges (8)(e) and (i)) which were independently corroborated) on the ground that the offences were separated by too long a gap in time to allow of the application of the rule in Moorov on which the Crown relied. Held (1) that what the court is looking for in cases like this are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused, and that this immediately brings into focus the question of whether the circumstances of the present case, with a lengthy lapse of time between the charges, can nevertheless be said to display the “conventional similarities” such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (para.18); (2)(i) that it might be possible to see the single incident of sexual violence perpetrated during the four years of the relationship with R G as falling into a category of domestic abuse, although whether this would be seen as part of the same campaign or not was a less straightforward proposition (para.32); (ii) that the regular physical assaults which D H spoke to were eloquent of what might be called domestic abuse, that in her case there were also repeated and varied acts of sexual violence, all interspersed amongst the other violent behaviour to which she was subjected so as more easily to permit a conclusion that all of the appellant’s conduct towards her was of a generally demeaning, coercive and abusive sort (para.33); but (iii) that two such distinct instances of violent conduct as spoken to by P B, separated by nearly five years, did not match the description of a campaign of terror such as would characterise domestic abuse (para.34); and (iv) that accordingly the appellant’s conduct should not be seen as a single campaign of domestic abuse, and that it had not been wrong separate the physical and sexual behaviour described in evidence into different chapters at the trial (para.35); and 142

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(3)(i) that what was missing in the present case was evidence of continuity, such as is necessary to distinguish between isolated acts and a course of conduct which is persisted in, and that there was insufficient evidence available to provide corroboration of the evidence led in support of charge (2) (para.39); (ii) that there was nothing by way of an extraordinary or special feature disclosed in the evidence led in support of charges (1) and (3) such as would be eloquent of continuity sufficient to bridge the time lapse of around 15 years between them, and that therefore there was insufficient evidence available to provide corroboration of the evidence led in support of charge (1) (para.41); and (iii) that the evidence led in support of charges (3) and (8) disclosed that they were separated by nine years, that charge (3) concerned a single incident which appeared to bear no meaningful similarity in terms of its circumstances with the various acts of violence specified in charge (8), and that the doctrine could not be applied as between these charges in order to provide the necessary corroboration (para 42); and appeal sustained and convictions quashed on charges (1)â&#x20AC;&#x201C;(3) and charge (8), other than parts (e) and (i), and quoad ultra refused. Observed that in appropriate circumstances, the proper approach may well be to see an accumulation of violent and sexual behaviour directed against different partners as reflecting an underlying course of conduct of domestic abuse (para.17); but that the question of the extent to which evidence of physical assaults can support evidence of sexual assaults for the purposes of the doctrine of mutual corroboration remains uncertain (para.35).

Cases referred to in the opinion of the court: B v HM Advocate [2008] HCJAC 73; 2009 S.C.C.R. 106; 2009 J.C. 88; 2009 S.L.T. 151 Cannell v HM Advocate [2009] HCJAC 6; 2009 S.C.C.R. 207 Dodds v HM Advocate, 2002 S.C.C.R. 838; 2003 J.C. 8; 2002 S.L.T. 1058 F v HM Advocate [2016] HCJAC 52; 2016 S.C.C.R. 319; 2016 S.L.T. 746 H v HM Advocate [2015] HCJAC 42; 2015 S.C.C.R. 242; 2015 S.L.T. 380 HM Advocate v Cox, 1962 J.C. 27 K v HM Advocate [2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 915 McAskill v HM Advocate [2016] HCJAC 64; 2016 S.C.C.R. 402 McHardy v HM Advocate, 1982 S.C.C.R. 582; 1983 S.L.T. 375 Moorov v HM Advocate, 1930 J.C. 68; 1930 S.L.T. 596 MR v HM Advocate [2013] HCJAC 8; 2013 S.C.C.R. 190; 2013 J.C. 212 Ogg v HM Advocate, 1938 J.C. 152; 1938 S.L.T. 513 Russell v HM Advocate, 1990 S.C.C.R. 18; 1990 J.C. 177; 1990 S.L.T. 753 S v HM Advocate [2014] HCJAC 135; 2015 S.C.C.R. 62 Stewart v HM Advocate [2007] HCJAC 32; 2007 S.C.C.R. 303; 2007 J.C. 198 Tudhope v Hazleton, 1984 S.L.T. 455; 1985 S.L.T. 209 Turner v Scott, 1995 S.C.C.R. 516; 1995 J.C. 150; 1996 S.L.T. 200 Andrew Reilly was convicted on 18 January 2016 of the offences set out in the opinion of the court after trial in the High Court Aberdeen before Lord Bannatyne and appealed to the High Court against conviction on the grounds referred to in the opinion of the court. The appeal was heard on 24 November 2016 by Lady Paton, Lord Malcolm and Lord Turnbull. For the appellant: Findlater, instructed by Faculty Services Ltd, Edinburgh for Muir Myles Laverty, Solicitors, Dundee. For the respondent: Niven-Smith AD.

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2017 S.C.C.R.

On 8 February 2017 Lord Turnbull delivered the following opinion of the court. LORD TURNBULL Introduction

[1] This appeal concerns the extent to which the doctrine of mutual corroboration can properly be applied in circumstances where there is a long lapse of time between the relevant charges. On 18 January 2016, at the High Court in Aberdeen, the appellant was convicted after trial of 11 charges involving offences of disorderly conduct, physical abuse and sexual abuse. In addition he was convicted of one offence contrary to the Animal Health and Welfare (Scotland) Act 2006, charge number (7) on the indictment. [2] Two of the charges of which the appellant was convicted concerned behaviour directed towards dogs that were family pets (charges (4) and (7)). The remaining charges all concerned behaviour directed towards women who were in relationships with the appellant at the time the offences were committed. [3] The appellant was granted leave to appeal against conviction in respect of charges (1), (2), (3), (5), (6), (8), (9) and (11). Those charges were in the following terms: â&#x20AC;&#x153;(1) on various occasions between 7 February 1986 and 15 July 1990, both dates inclusive, at (addresses), all Dundee, you. . .did assault R G. . .your then partner, and did repeatedly shout, swear and utter threats of violence towards her, punch, kick and scratch her on the head and body, seize her by the hair and pull her hair, seize hold of her body and drag her body around and, in particular:

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(a) between 7 February 1986 and 1 April 1989 at (an address), Dundee you did present a firearm or imitation firearm and threaten to shoot her; (b) between 7 February 1986 and 1 April 1989 at (an address), Dundee you did seize her by the hair, throw her to the ground, repeatedly punch and kick her on the head and body, seize her by her leg, pull her into a bedroom, throw her onto a bed, shout offensive remarks at her and utter threats of violence towards her, all to her injury; (c) between 7 February 1986 and 1 April 1989 at (an address), Dundee you did strike her on the body with a knife, utter threats of violence towards her, all to her injury and permanent disfigurement; (d) between 7 February 1986 and 1 April 1989 at (an address), Dundee you did force entry to the locked bathroom in said premises, seize her by the hair, repeatedly strike her head against a bath, repeatedly push her head into water and hold her head under water, utter threats to drown her, seize her on the body and shake her violently, all to her injury and danger of life; (e) between 1 April 1989 and 15 July 1990 at (an address), Dundee you did whilst acting with another, seize and pull her by the hair and repeatedly punch and kick her on the head and body; and (f) between 1 April 1989 and 15 July 1990 at (an address), Dundee you did throw a plate of hot food at her head and utter offensive remarks at her, to her injury; (2) between 1 April 1989 and 15 July 1990, both dates inclusive, at (an address), Dundee, you. . .did assault R G. . .your then partner, and did forcibly remove her clothing, seize her legs and pull her towards you, force her legs apart, lie on top of her, seize hold of her by her arms and restrain her by holding her arms above her head, kiss her, penetrate her vagina with

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your penis, touch her vagina, penetrate her mouth with your penis, touch her breasts, cause her to vomit and did rape her to her injury; (3) between 1 April 2005 and 1 September 2005, both dates inclusive, at (an address), Dundee, you. . .did assault P B. . .your then partner, and did repeatedly punch her on the arm, all to her injury; (5) between 1 January 2010 and 8 April 2010, both dates inclusive, at (an address), Dundee, you. . .did assault P B. . .your then partner, and seize her by the body, pull her into a bedroom, throw her onto a bed, lie on top of her, pull her jeans and underwear down to her knees, and force her legs apart, penetrate her vagina with your penis and did rape her; (6) on an occasion between 1 December 2014 and 26 December 2014, both dates inclusive, at (an address), Dundee, you. . .did assault D H. . .your then partner, seize her head, penetrate her mouth with your penis, cause her to almost vomit and you did thus rape her: contrary to sectionÂ 1 of the Sexual Offences (Scotland) Act 2009; (8) on various occasions between 1 September 2014 and 27 December 2014, both dates inclusive, at (addresses), both Dundee, you. . .did assault D H. . .your then partner, and did pull and drag her by the hair, punch and kick her on the head and body and, in particular: (a) between 1 September 2014 and 26 December 2014 at (an address), Dundee you did seize her by her hair, pull her to the ground, pull her, repeatedly kick and punch her on the head and body; (b) between 1 September 2014 and 26 December 2014 at (an address), Dundee you did strike her on the body with a baseball bat, repeatedly kick and punch her on the body; (c) between 1 September 2014 and 26 December 2014 at (an address), Dundee you did lock her in said premises and detain her against her will and did assault her, seize her by her neck and pin her against a wall, seize her on the body and attempt to push her down a flight of stairs, shout at her and push her on the body; (d) on 29 October 2014 at (an address), Dundee you did repeatedly strike her to the head and body with a wooden cabinet to her injury and permanent disfigurement; (e) between 1 November 2014 and 26 December 2014 at (an address), Dundee you did seize her on the body, throw her onto a bed, sit on top of her, place your fingers into her mouth and pull her jaw and lips and repeatedly stamp on her body, all to her injury; (f) between 1 November 2014 and 26 December 2014 at (an address), Dundee you did strike her on her eye with a key or similar implement to her injury and permanent disfigurement; (g) between 1 November 2014 and 26 December 2014 at (an address), Dundee you did present a knife at her throat and her hand in a threat to strike same; (h) between 1 November 2014 and 26 December 2014 at (an address), Dundee you did brandish a knife at her and threaten to stab her; and (i) on 27 December 2014 at (an address), Dundee you did punch her on the head and drive a Ford Focus motor car, registration mark. . ., at her, in an attempt to strike her causing her to take evasive action to avoid being struck by said motor car; (9) between 1 September 2014 and 26 December 2014, both dates inclusive, at (an address), Dundee, you. . .did sexually assault D H. . .your then partner, in that you did bite her on her genitals to her injury: contrary to sectionÂ 3 of the Sexual Offences (Scotland) Act 2009; and (11) between 1 December 2014 and 26 December 2014, both dates inclusive, at (an address), Dundee, you. . .did assault D H. . .your then partner, lie on top of her, sit on her, pull her pyjama bottoms down, force

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her legs apart, force your legs between her legs, penetrate her vagina with your penis and you did thus rape her: contrary to sectionÂ 1 of the Sexual Offences (Scotland) Act 2009.â&#x20AC;? It was accepted that parts (e) and (i) of charge (8) were each independently established and they were excluded from the appeal. Background

[4] The Crown approached the case on the basis that it was necessary to find corroboration for each of the charges mentioned by application of the doctrine of mutual corroboration. In presenting the case to the jury the Crown divided the charges into two separate categories or chapters: chapter one, the sexual offences, namely: charge (2) a single incident concerning the complainer R G, charge (5) a single incident concerning the complainer P B, and charges (6), (9) and (11) all of which concerned the complainer D H; chapter two, the physical assaults, namely: charge (1) repeated conduct concerning the complainer R G, charge (3) a single incident concerning the complainer P B and charge (8) repeated conduct concerning the complainer D H. [5] The Crown did not suggest to the jury that the doctrine of mutual corroboration could be applied across the two chapters and the trial judge gave directions in line with the approach taken by the Crown. [6] Accordingly, on the allegations made in respect of the sexual offences, the lapse in time between charge (2) and charge (5) was about 20 years, the lapse in time between charge (2) and charges (6), (9) and (11) was about 24 years and the lapse in time between charge (5) and charges (6), (9) and (11) was about four and a half years. [7] In relation to the physical assaults, the lapse in time between charge (1) and charge (3) was about 15 years, the lapse of time between charge (1) and charge (8) was about 24 years and the lapse of time between charge (3) and charge (8) was about nine years. [8] The trial judge directed the jury that there was sufficient evidence to permit them to convict on each of the crimes within each chapter on the application of the doctrine of mutual corroboration, if they were satisfied that it should be applied. At the trial defence counsel did not make any submission of no case to answer.

E Submissions Appellant

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[9] On behalf of the appellant, Mr Findlater, who had not appeared for him at trial, submitted that the Crown had been correct to approach the case in the compartmentalised way in which it did. He submitted that the nature of the charges within each chapter was different, one from the other, to the extent that the doctrine of mutual corroboration would not permit corroboration of any of the sexual charges to be found in the evidence as to the commission of the physical assaults, and vice versa. Taking this approach, he submitted that the principal issue in the appeal concerned the passage of time between the respective charges within each chapter. In order to set the background for the requirements of the doctrine of mutual corroboration he drew attention to what had been said in the case of Moorov v HM Advocate, in particular by the Lord Justice General at p.73 and by Lord Sands at p.89, and to what was said in the case of MR v HM Advocate by the Lord Justice-Clerk at pp.198â&#x20AC;&#x201C;199. [10] Turning to the particular importance of the passage of time, Mr Findlater submitted that the doctrine of mutual corroboration was not available in

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circumstances where a long lapse of time was present unless the evidence also disclosed similarities of an unusual, striking or exceptional nature such as would be capable of demonstrating that each offence was indeed part of a course of criminal conduct persistently pursued by the accused person, despite the lengthy lapse of time. He drew attention to what had been said in the cases of Tudhope v Hazleton; Dodds v HM Advocate; K v HM Advocate; and S v HM Advocate. [11] In identifying what the evidence demonstrated about the appellant’s conduct in the present case Mr Findlater drew our attention to the content of the trial judge’s report and to the directions he had given to the jury concerning the evidence which the Crown relied on. The similarities which the trial judge identified in respect of the physical assaults were: that the accused was in a relationship with each complainer at the relevant time, that the assaults were unprovoked, that they each happened out of the blue, that they reflected an abusive and controlling relationship and that the appellant’s initial behaviour towards each complainer in the early stages of the relationship had been fine but had later turned to verbal and physical abuse. The similarities which the trial judge had identified in respect of the sexual assaults were: that each complainer was in a relationship with the accused at the time, each event started at his whim and was out of the blue, he had been rebuffed on each occasion and this was followed by each complainer being restrained and by her clothes being pulled down, that their legs had then been parted, that in two cases there was oral penetration and that in the aftermath of each event there had been a glibness in the accused’s response. [12] It was submitted that this evidence disclosed no features which could be characterised as having the necessary exceptional or unusual quality such as would permit the application of the doctrine over such lengthy periods of time as featured in the present case. Insofar as the sexual offences were concerned it was submitted that what was described in evidence was little more than the mechanical components of most sexual assaults. [13] Separately, it was submitted that whilst there was less of a time lapse between the sexual offences which featured in charges (5), (6), (9) and (11), the conduct which was described in those charges did not display the necessary similarities as to permit the doctrine to be applied. Charge (5) related to one instance of vaginal rape perpetrated during the course of a relationship which lasted in the region of five years, although the appellant did not live with that complainer. On the other hand, the remaining charges related to different conduct perpetrated during a period of around four months in the context of a relationship in which the complainer and the appellant lived together. [14] The final argument advanced on behalf of the appellant concerned a submission that the trial judge had misdirected the jury by omission. It was submitted that if, contrary to the other submissions, the doctrine of mutual corroboration was available on the basis of the evidence led, then looking to the time gap between any of the events spoken to by the complainer R G, as compared with any of the events spoken to by the complainer D H, it became obvious that the evidence of the middle complainer P B was necessary in order to provide evidence of a course of criminal conduct systematically pursued by the appellant. The consequence was that the trial judge ought to have directed the jury that they could not convict on any of the charges within either chapter unless they accepted the evidence of the complainer P B and were also prepared to convict on the charges to which she spoke. In other words, the submission was that the evidence of this complainer was essential to the case and that in the absence of such a direction the jurors were left with the impression that the Crown’s case was stronger than it was.

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[15] Despite the manner in which the Crown presented the case at trial, the advocate depute submitted before us that all of the behaviour complained of arose in the context of domestic relationships which the appellant had entered into with different women. He submitted that this conduct therefore ought to be viewed as a campaign of domestic abuse. Viewed in this way, it was submitted that it was artificial to separate out sexual misconduct by the appellant from physical assaults by him. What the court had to take cognizance of was the many different forms of abusive conduct which can be displayed as part of the campaign of terror which characterises domestic abuse. In this context the advocate depute referred us to what had been said by the court in H v HM Advocate at p.252 and in the subsequent case of McAskill v HM Advocate. [16] In any event though, the advocate depute submitted that the trial judge had been correct in the directions which he had given. No maximum time limit could be laid down beyond which the doctrine could not be applied—Dodds v HM Advocate. In order to vouch the suitability of the approach taken by the trial judge the advocate depute drew attention to the conduct as specified in charges (2) and (6), which he described as the polar extremes of the charges concerning sexual offences. Each was a charge of sexual assault which included the violent penetration of the complainer’s mouth by the accused’s penis, with the result that each complainer was caused to vomit or to almost vomit. Despite the separation in time of some 24 years between these two events, the advocate depute’s submission was that the appellant’s behaviour in each case could be said to display conduct which was “more than usual”. It therefore fell to be described as striking or extraordinary and made the significant time gap less important. Overall these, along with the other features listed by the trial judge, were said to be sufficient to permit the application of the doctrine of mutual corroboration as between charges (2) and (6). It followed that the presence of charges (3) and (5) concerning the intervening complainer P B assisted further in the submission that the doctrine was available in all of the circumstances of this case. Discussion

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[17] In giving the opinion of the court in the recent Full Bench decision of R v HM Advocate the then Lord Justice-Clerk approved of the observations made by the Lord Justice-General in the case of B v HM Advocate concerning the importance, in understanding the application of the doctrine of mutual corroboration, of appreciating that the law has moved on since 1930 when the doctrine was enshrined in the case of Moorov. The Lord Justice-Clerk observed [para.17] that the law had moved on: “. . in an attempt to keep pace with modern societal understanding of sexual and other conduct and, in particular, what are perceived to be characteristic links between the perpetration of different types of sexual and physical abuse especially, but not exclusively (our emphasis), of children and young persons”. It was perhaps with these observations in mind that, in giving the opinion of the court in the subsequent case of McAskill v HM Advocate, the (by then) Lord Justice-General held that charges of sexual offences ranging from indecent assault to rape could be seen as charges containing sexual violence, with the result that they could properly be taken along with other charges of repeated physical violence, and threats of violence, to be viewed in totality as

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reflecting a course of sustained abuse against a partner in a domestic setting designed within a context of jealousy to humiliate and control. It may well be therefore that the advocate depute was correct in submitting that, in appropriate circumstances, the proper approach is to see an accumulation of violent and sexual behaviour directed against different partners as reflecting an underlying course of conduct of domestic abuse. We will come to consider whether that approach can properly be taken in the present case later. [18] However, having drawn attention to the fact that the law has moved on since the case of Moorov was decided, the court in R v HM Advocate explained, in para.20, that the correct approach was as follows: “What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel (see S v HM Advocate, Lord MacLean, delivering the opinion of the court, para.10) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (Ogg v HM Advocate, Lord Justice-Clerk (Aitchison), p.158; K v HM Advocate, Lord Justice-Clerk (Gill) para.10).”

This immediately brings into focus the question of whether the circumstances of the present case, with a lengthy lapse of time between the charges, can nevertheless be said to display the “conventional similarities” such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused.

The importance of the interrelation of time

[19] In the case of Moorov itself the judges were careful to identify that similarity in character as between the offences charged was not of itself sufficient. There required to be what the Lord Justice-Clerk described as “some sort of nexus which binds the crimes together”. In looking to see whether this nexus, or underlying unity, was disclosed in the evidence the interrelation of time was seen as having an important part to play. As it was put by Lord Sands at p.89: “This is an important and, in some aspects, a vital consideration. This results from the quality of the acts as evidence of a ‘course of conduct’. A ‘course’ involves some continuity. Acts isolated by a long period of time do not make a course of conduct.” The importance of continuity was therefore recognised, although it was also observed that the question must always be one of circumstances. Nevertheless, in coming to their conclusions the majority of the judges in Moorov held that the period of four years which had elapsed between the first and the remainder of the assault charges was too long a period and that the evidence was insufficient to permit that first charge to be corroborated by application of the doctrine. On many occasions over the years which followed this decision the court was asked to revisit the question of the impact of a lapse of time. So in the case of Ogg v HM Advocate an interval of 14 months was held to be too long to permit the application of the doctrine, in HM Advocate v Cox a period of three years was held to be too long to permit its application, in McHardy v HM Advocate a period of four and a half years was held to be too long and in Russell v HM Advocate a period of three and a half years was held to be too long to enable the doctrine to apply. In Russell the court once again observed that no hard and fast rule could be laid down so far as time was concerned but found it significant that no case could be identified in which the doctrine had been applied in circumstances where there was an interval of three years or

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more between two similar offences. Even as late as 1995, in the case of Turner v Scott, the court decided that a period of approaching three years was just within the borderline of the principle when there were two charges with very similar circumstances. [20] By the time of the decision of the court in Dodds v HM Advocate the notion that there might be some upper time limit beyond which the doctrine could not apply had finally run its course. In that case it was firmly stated that it was impossible for the court to lay down any maximum period of time in relation to the application of the doctrine. In arriving at this decision each member of the court drew on what had earlier been said by Lord Justice-Clerk Wheatley in Tudhope v Hazelton. At p.844 the Lord Justice-Clerk (Gill) put it in this way: “The extent of the period of time within which a Moorov similarity can be applied is not and cannot be fixed by rule of law. If the circumstances of the commission of two crimes are of particularly unusual similarity, it may be that corroboration can be found to exist even if the charges are separated by a long period of time.” At p.845, Lord Kirkwood observed that the time factor can be of considerable importance in determining whether there has been shown to have been a course of criminal conduct and said: “What can be said is that the more unusual and striking are the similarities between the offences founded on by the Crown, then the greater the latitude in relation to time that may be permitted. However, the over-riding consideration will be whether the evidence as a whole establishes that the offences constituted a course of criminal conduct on the part of the accused.” At p.857, in giving his opinion, Lord Osborne said this: “The element of time is one of those circumstances which require to be considered in its application. Whether any particular period of time is or is not too great for the application of the doctrine must depend on the particular circumstances of the case involved and the force of the other elements in the criterion.” [21] Following this final rejection of the notion of an upper time limit the court has in very recent years considered very long lapses of time in a number of other cases and has assessed the impact of that circumstance by an examination of the force of the other elements in the criterion. In K v HM Advocate the court was dealing with a lapse of time between two charges which was in the order of 13 years and ten months which, at the time, was described as a far greater interval than any that the court had previously considered in a Moorov appeal. In giving his opinion at paras.14 and 15, with which the other judges agreed, the Lord Justice-Clerk (Gill) said: “. . . where the interval is a long one, it is necessary to consider whether there are any special features in the evidence that nonetheless make the similarities compelling (Dodds v HM Advocate; Stewart v HM Advocate). . . . [15] The question then is whether there is, as the trial judge has put it, some extraordinary feature in the evidence that could be said to change the whole complexion of the Crown case and entitle the jury to conclude that the evidence considered as a whole disclosed a course of conduct, notwithstanding the lengthy interval to which I have referred.” In S v HM Advocate the court considered the application of the doctrine between charges which were separated by a minimum period of 18 years. In

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giving the opinion of the court, at para.10, the Lord Justice-Clerk (Carloway) said this: “The particular relevance of a significant time gap between offences can only be determined in light of all the circumstances. The more similar the conduct is in terms of character, the less important a significant time gap may be (Moorov v HM Advocate, Lord Sands at p.88; Stewart v HM Advocate LJC (Gill) at paras.23 and 24). Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time (K v HM Advocate (LJC (Gill) at para.14)). [22] In each of these two cases special features were identified which made the similarities sufficiently compelling to permit the application of the doctrine, despite the lengthy lapses of time. In K there was evidence of things said by the appellant to the second complainer which were strongly indicative of him thinking that he was carrying on from where he left off with the first complainer. In S the appellant had engaged in a course of conduct with his own two children and subsequently, when they were adults, with his granddaughter involving what the court described as a generational interval. [23] Different results have occurred in other cases though. In H v HM Advocate the court considered the application of the doctrine as between a single charge of rape involving one complainer and a further charge involving two instances of rape with a second complainer, with each of the charges being separated by a period of eight years. Each complainer had been in a relationship with the appellant at the time. In giving the opinion of the court at para.28 Lord Brodie said this: “Long lapse of time does not preclude the finding of sufficient similarity between two incidents to infer a course of conduct: Dodds v HM Advocate at pp.845 and 857, but it is very relevant. Where the interval is a long one it is necessary to consider whether there are any extraordinary features in the evidence that none the less make the similarities compelling: K v HM Advocate at para.4.” In F v HM Advocate the court considered the application of the doctrine concerning charges which the Crown submitted were eloquent of an underlying intent to obtain sexual gratification from vulnerable young female family members irrespective of their wishes. The relevant time gap between the charges which the court was concerned with on appeal was around ten or 11 years. In giving the opinion of the court, at para.22 Lady Smith said this: “. . . it is clear from the opinions in K and H that where there is a long lapse of time, the features required are those which can properly be described as ‘special’ or ‘extraordinary’ so as to render any similarities ‘compelling’. It is not enough that a general description or characterisation applicable to all the charges may be arrived at. Something more is required— something special or extraordinary that casts the similarities in such a light as to demonstrate that they can properly be regarded as evidence of the requisite underlying unity of intent.” [24] In neither of these two cases did the court consider that there were any special or extraordinary features, or compelling points of similarity. In each case the court concluded that the jury had not been entitled to infer the necessary underlying unity of intent or purpose which is the pre-requisite to the application of the doctrine of mutual corroboration. In F one of the features which weighed with the court was that there had been two other

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children born into the appellant’s household and no allegation that either of them had been sexually abused by the appellant, and thus the time gap could not be explained by intervening lack of opportunity. The circumstances of the present case

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[25] Returning to the circumstances of the present case it may be useful to summarise what the evidence disclosed. [26] The appellant was in a relationship with the complainer R G between around early 1986 and the middle of 1990. During that period he physically assaulted her repeatedly and in a variety of different ways. On one occasion, on a date between April 1989 and July 1990, he raped her during the course of which he also penetrated her mouth with his penis causing her to vomit. [27] By April 2005 he had commenced a relationship with P B, which subsisted for around five years. On one occasion, in the first few months of that relationship, he assaulted her by repeatedly punching her on the arm. On a second occasion, in the region of five years later, he raped her. [28] By September 2014 he had come to be in a relationship with D H. On various occasions over the next three months he assaulted her in a variety of different ways. On two occasions in December of that year he raped her, one of these comprising oral penetration causing the complainer to almost vomit. On a separate occasion he committed a sexual assault by biting her on her genitals. [29] At the commencement of the appellant’s relationship with R G he was aged 18. The evidence at trial did not disclose whether or not this was his first relationship and nor did it disclose whether he entered into any other domestic relationships, or had any other partners, in the 15 years which elapsed between the end of this relationship and the start of his relationship with P B, by which time he was aged 37. Nor did the evidence disclose whether he had any further relationships or partners in the four years between the end of his relationship with P B and the commencement of his relationship with D H, when he was aged about 47 years old. [30] The various charges of which the appellant was convicted therefore concerned behaviour on his part from when he was aged 18 years old until aged 47. Domestic abuse as the appellant’s course of conduct

[31] What is meant by domestic abuse is a question which is likely to produce different answers according to who is asked to respond. In the Scottish Government’s Consultation Paper on “A criminal offence of domestic abuse”, published in December 2015, the following observations were made: “3.2 The exact point at which behaviour that might be considered “controlling” should result in a breach of the criminal law, or what amounts to “coercive” behaviour, are issues on which there will understandably be a range of views. While some behaviour is of a kind that any reasonable person would consider it abusive, such as assault or threats of violence, the point at which, for example, belittling comments, threats made in the heat of an argument or an unequal approach to financial decision-making can be said to amount to psychological abuse or coercive and controlling behaviour is one on which there will be a range of opinion, and which may depend on, for example, the wider context in which the behaviour occurs. 3.3 Providing for an offence of this nature in a way that has the necessary degree of legal certainty—i.e. that is sufficiently precise that the courts will be able to give effective meaning to it and clear enough to enable people to know what behaviour is unlawful—is challenging.”

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In his paper published in October 2016 titled: “The creation of a specific offence of domestic abuse –proposed associated reforms to criminal procedure” the Cabinet Secretary for Justice explained: “That is why we are going to legislate in this Parliamentary year to create a new domestic abuse offence. This offence, which was consulted upon between December 2015 and April 2016, will criminalise the complex coercive and controlling behaviour that for many victims is their experience of domestic abuse.”

[32] The legal definition of domestic abuse in the context of the criminal law will therefore be provided in due course. Nevertheless, we can begin to examine the advocate depute’s submission that the appellant’s conduct throughout should be seen as manifestations of a campaign of domestic abuse by looking to the evidence of the first complainer R G. We can see easily enough that the various physical assaults perpetrated against her are eloquent of conduct which most people would describe as domestic abuse. We also agree that it might be possible to see the single incident of sexual violence perpetrated during the four years of that relationship as falling into a category of domestic abuse, although whether this would be seen as part of the same campaign or not is a less straightforward proposition. [33] Turning to the evidence given by the complainer D H, we also agree that the regular physical assaults which she spoke to were eloquent of what might be called domestic abuse. In her case there were also repeated and varied acts of sexual violence, all interspersed amongst the other violent behaviour to which she was subjected so as more easily to permit a conclusion that all of the appellant’s conduct towards her was of a generally demeaning, coercive and abusive sort. [34] The Crown’s submission becomes weak though when we move on to consider the charges concerning the evidence given by the complainer P B. In her evidence she described a single act of physical violence perpetrated at some point between April and September 2005 in which the appellant repeatedly punched her on the arm (charge (3)). In addition to this she described a single act of rape perpetrated between January and April 2010 (charge (5)). We do not think that two such distinct instances of violent conduct, separated by nearly five years, match the advocate depute’s description of a campaign of terror such as would characterise domestic abuse. [35] We do not therefore consider that the advocate depute was well founded in his submission that all of the appellant’s conduct should be seen as a single campaign of domestic abuse, as he defined it. Nor do we agree with his implicit argument that both the trial advocate depute and the trial judge had been wrong to separate the behaviour described in evidence into different chapters. Even apart from the difficulty in fitting the evidence of the complainer P B into the submission advanced, the question of the extent to which evidence of physical assaults can support evidence of sexual assaults for the purposes of the doctrine of mutual corroboration remains uncertain. The traditional view has been that the similarities necessary must relate to the alleged criminal conduct, not just to the motivation or mental element. As was said at para.35 in H: “The legal perspective has been to view rape as a significant and very serious offence, having a different quality from assaults, even serious assaults, which lack an obvious sexual element.”

[36] In any event, even if the advocate depute’s submission was well founded, and it was feasible to apply the doctrine of mutual corroboration across all of

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the evidence of the appellant’s conduct towards all of his partners, there would remain a time lapse of almost 15 years between the last episode of any form of violent conduct against R G and the first episode of any form of violence against P B. The effect of the time lapse in the present case

[37] For the reasons which we have given we are satisfied that the trial judge was correct to approach the application of the doctrine of mutual corroboration by separating the evidence in relation to the physical assaults and the sexual assaults into two separate categories or chapters. The sexual offences

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[38] The period of time separating charge (2) and charge (5) was about 20 years. By any description or test this is a very long period. The period between charge (2) and charges (6), (9) and (11) is even longer. As we have noted, at one point in his submissions the advocate depute sought to suggest that charges (2) and (6) each displayed conduct which was “more than usual”, and would therefore provide the sort of compelling similarity which would permit such a long time gap to be bridged. The difficulty which he immediately acknowledged though was the suggestion that two such acts, separated by 24 years, could constitute evidence of conduct which was “persistently” pursued. [39] In our opinion this is a difficulty which pervades much of the Crown’s submission. Looking first to the question of whether charge (2) could be corroborated by the evidence led in support of charges (5), (6), (9) and (11), we require to consider all the circumstances. In our view, the similarities in the conduct relied upon by the Crown were in reality no more than the conventional sort of similarities which the court would be looking for in considering whether the doctrine of mutual corroboration could be applied. No extraordinary or special features are disclosed. The advocate depute was unable to contend that the appellant had no other partners in the intervening period. The Crown could not therefore argue absence of opportunity and the time lapse remained unexplained. As was said in MR the court is looking for the conventional similarities such as demonstrate (our emphasis) that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused. What is missing in the present case, in our view, is evidence of continuity, such as is necessary to distinguish between isolated acts and a course of conduct which is persisted in. For these reasons we accept the submission advanced on behalf of the appellant to the extent that we agree that there was insufficient evidence available to provide corroboration of the evidence led in support of charge (2). [40] The remaining sexual offences were those spoken to by the complainers P B and D H (charges (5), (6), (9) and (11)).We reject Mr Findlater’s submission that there was insufficient by way of similarity to permit the evidence led in support of these charges to provide mutual corroboration. In our view the similarities identified by the trial judge were sufficient for this purpose. These charges were separated by a period of around four and a half years. It is correct to note that in the case of Stewart v HM Advocate the court treated a time lapse of four years as a long period requiring the presence of some special feature making the similarities which were present compelling. There is though no fixed period of time lapse beyond which it will be necessary to identify the existence of special features in the evidence. Each case will always turn on its own facts and circumstances. Our own experience of cases involving the application of the doctrine in more recent years leads us to think that time lapses of this order

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feature with greater regularity than they did in the past. In the case of Cannell v HM Advocate at para.31 the court made the following observation: “It is the function of the jury, properly directed, to assess the evidence and to decide whether or not various incidents involving the appellant were so linked in time, character and circumstances as to demonstrate a course of criminal conduct and a unity of purpose such that it would be appropriate to apply the Moorov doctrine and find mutual corroboration established: Sinclair v HM Advocate. The appeal court is reluctant to interfere in such matters, but may do so where, for example there has been a misdirection; or where, following upon a discriminating verdict of the jury, convicting of some charges but not others, certain time lapses emerge between the various incidents which are so excessive in the circumstances that the law would not permit the application of the Moorov doctrine: cf Lord Justice Clerk Gill in Dodds v HM Advocate at para.7.” Bearing in mind the whole circumstances of the evidence led in support of charges (5), (6), (9) and (11) we cannot say that the law would not permit the application of the Moorov doctrine. We cannot therefore say that the jury were not entitled to find the charges established in the manner which they did and in light of the directions given by the trial judge.

The physical assaults

[41] For the same reasons as we have identified in para.39 above we are satisfied that there is nothing by way of an extraordinary or special feature disclosed in the evidence led in support of charges (1) and (3) such as would be eloquent of continuity and therefore sufficient to bridge the time lapse of around 15 years between them. We therefore conclude that there was insufficient evidence available to provide corroboration of the evidence led in support of charge (1). [42] The evidence led in support of charges (3) and (8) disclosed that they were separated by nine years. Charge (3) concerned a single incident which appears to bear no meaningful similarity in terms of its circumstances with the various acts of violence specified in charge (8). For these reasons we also consider that the doctrine could not be applied as between these charges in order to provide the necessary corroboration.

The misdirection point

[43] We do not consider that there is any merit in the appellant’s submission concerning misdirection. In any event our decision concerning the charges in relation to the complainer R G makes the point redundant. Disposal

[44] For the reasons which we have given we shall sustain the appeal to the extent of quashing the appellant’s conviction on charges (1), (2), (3) and (8) with the exception of parts (e) and (i). The appeal in relation to charges (5), (6), (9) and (11) is refused. We shall hear submissions from counsel for the appellant at the advising hearing on what, if any, impact this decision has on sentence.

COMMENTARY One cannot say that the instant case represents a significant example of the application of the brakes to the advance of the Moorov doctrine. It even accepts

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the proposition that Moorov can be applied across a succession of physical assaults and rape, albeit, perhaps, if one may say so with respect, without a great deal of enthusiasm. But it does stress the necessity of taking account of the need to show a persistent course of conduct, even going so far as to use the word â&#x20AC;&#x2DC;campaignâ&#x20AC;&#x2122;, and is supported by two recent first instance cases (HM Advocate v ER, 2016 S.C.C.R. 490; HM Advocate v AP, 2015 S.C.C.R 403, both sustaining submissions of no case to answer), and it may represent the beginnings of a trend to place more emphasis on the distinction between isolated instances and a course of conduct.

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A Appeal Against Sentence

17 February 2017

JOHN LEATHEM

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2017] HCJAC 10 Sentence—Murder and attempt to pervert course of justice—Whether 30-year punishment part excessive Sentence—Discount for guilty plea—Whether 10 per cent insufficient— Criminal Procedure (Scotland) Act 1995 (c.46), s.196 The appellant pled guilty to murdering a 15-year-old girl by repeatedly stabbing her (charge (1)) and attempting to pervert the course of justice by, inter alia, removing her body in a bin bag which he put in the back of his car and depositing it in a lane on the following day (charge (2)). There was no known motive for the attack, which was not premeditated. The deceased had sustained 146 wounds, about 85 of which involved defensive wounds. The sentencing judge described the crime as a brutal, savage and frenzied attack. She fixed the punishment part of the life sentence at 27 years, reduced from 30 years to take account of the plea. She imposed a concurrent sentence of six years on the charge of attempting to pervert the course of justice, and indicated that she had enhanced the punishment part of the sentence by three years because of the attempt to pervert the course of justice. It was said in mitigation that the appellant was a family man with a moderately successful business who had no previous convictions and had expressed genuine remorse. About two months after his first appearance the appellant had written to the procurator fiscal indicating his intention to plead guilty but his solicitors then received a psychiatric report suggesting that a report from a psychologist might be appropriate and the plea was withdrawn pending the receipt of that report. The advocate depute stated that he had not been aware of the limited purpose for which the plea had been withdrawn and had instructed a full case preparation, The appellant appealed to the High Court against the length of the punishment as excessive and inconsistent with current sentencing practice, and also against the level of discount as too low. Held (1)(i) that a punishment period of 30 years was properly restricted to cases manifesting extreme elements, and that the appellant had committed a most appalling murder (para.22), but (ii) that when all the circumstances were taken into account it could be said that the length of the punishment part was inconsistent with current practice and was excessive, as was the sentence on charge (2) and the consequent enhancement of the punishment part (para.23); and (iii) that an appropriate starting-point for the punishment part ought to have been 25 years, and the appropriate sentence on charge (2) ought to have been one of three years, with a consequential enhancement of the punishment part by one year (para.24); and (2) that in light of the history of the case preparation the utilitarian value of the plea merited no more than a discount of three years (para.24); and appeal allowed and punishment part reduced to 23 years.

157

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Cases referred to in the opinion of the court: Andonov v HM Advocate [2013] HCJAC 27; 2013 S.C.C.R. 245 Chalmers v HM Advocate [2014] HCJAC 24; 2014 S.C.C.R. 291; 2014 J.C. 220; 2014 S.L.T. 688 Haugen v HM Advocate [2015] HCJAC 121; 2016 S.L.T. 80 HM Advocate v Al Megrahi, 24 November 2003, unreported HM Advocate v Boyle [2009] HCJAC 89; 2010 S.C.C.R. 103; 2010 J.C. 66; 2010 S.L.T. 29 HM Advocate v Pacteau, 8 September 2015, unreported HM Advocate v Snowdon and Jennings, 25 July 2013, unreported Jakovlev v HM Advocate [2011] HCJAC 90; 2011 S.C.C.R. 608; 2012 J.C. 120; 2012 S.L.T. 87 Lauchlan and O’Neill v HM Advocate [2014] HCJAC 62; 2015 J.C. 75; 2014 S.L.T. 813 Smith v HM Advocate [2010] HCJAC 118; 2011 S.C.C.R. 134; 2011 S.L.T. 212 Tanveer Ahmed v HM Advocate [2016] HCJAC 125 Wade & Coates v HM Advocate [2014] HCJAC 88 Walker v HM Advocate, 2002 S.C.C.R. 1036; 2003 S.L.T. 130 John Leathem pled guilty on 5 September 2016 in the High Court at Glasgow before Lady Rae to the charges set out in the opinion of the court and was sentenced to life imprisonment with a punishment part of 27 years. He appealed to the High Court against sentence on the grounds referred to in the opinion of the court. The appeal was heard on 23 December 2016 by the Lord Justice Clerk (Dorrian), Lord Bracadale and Lord Turnbull. For the appellant: Duguid QC, Prais, instructed by Paterson Bell, Solicitors, Edinburgh. For the respondent: McSDporran, QC, AD.

On 17 February 2017 Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK Introduction

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[1] The appellant is John Leathem. He is 32 years old. On 5 September 2016 he pled guilty in the High Court at Glasgow to charges of murdering a 15-year-old child called Paige Doherty and attempting to defeat the ends of justice. On the charge of murder he was sentenced to life imprisonment with a punishment part of 27 years backdated to 26 March 2016, which was reduced from 30 years to reflect the plea of guilty. He was sentenced to a concurrent period of six years’ imprisonment on the charge of attempting to pervert the course of justice. Leave to appeal was granted to challenge the length of the punishment part selected, the sentence imposed on the attempt to pervert the course of justice charge and the level of sentence discount afforded. [2] The charges which the appellant pled guilty to were in the following terms: “(1) on 19 March 2016 at the premises known as Delicious Deli, 22 Fleming Avenue, Clydebank you John Leathem did assault Paige Doherty,

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born 17 April 2000, formerly residing at 24 Davidson Street, Clydebank and did repeatedly strike her on the head and body with a knife and you did murder her; (2) between 19 March and 23 March 2016, both dates inclusive, at the premises known as Delicious Deli, 22 Fleming Avenue, 22 Brown Road, the access lane on Great Western Road near to World of Golf, 2700 Great Western Road, all Clydebank and elsewhere to the prosecutor unknown, you John Leathem, having committed the crime libelled in charge (001) hereof and being conscious of your guilt in respect thereof did: (a) at said Delicious Deli, wash the floors and other surfaces in an attempt to remove blood and other scientific evidence; (b) wrap Paige Doherty’s body in bin liners; (c) remove Paige Doherty’s body from said Delicious Deli to the boot of motorcar registered number JY08 HNY and thereafter on 19, 20 and 21 March 2016, conceal her body at a location to the prosecutor unknown; (d) transport her body and said motor car to the access lane on Great Western Road, Clydebank near to World of Golf and dispose of it there; (e) clean the interior of said motor car in an attempt to remove blood and other scientific evidence;

“and all this you did with intent to conceal and destroy evidence implicating you in the murder of said Paige Doherty and with intent to evade detection, arrest and prosecution in respect thereof and this you did with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice.” D

The circumstances of the offences

[3] In her report to this court the trial judge explains that at around 08.21 hours on Saturday, 19 March 2016 the victim attended at the delicatessen owned by the appellant on Fleming Avenue, Clydebank whilst on her way to work. She had been known to visit the delicatessen on a number of occasions previously, as had her mother. No other customers were in the premises at the time and by 08.31 hours the external shutters on the entrance door to the appellant’s shop were seen to be closed, with the implication that the murder had been committed by that time. The evidence ingathered during the course of the police enquiry demonstrated that the appellant had left the delicatessen at around 09.27 hours and returned within a few minutes to park his car immediately outside the premises. Although the premises were open for business again and receiving customers by 09.36 hours, the child’s body remained there until 10.05 hours when she was removed by the appellant after he had wrapped her in a black bin bag and placed her into the boot of his car. [4] At various other points during the course of the morning the appellant left the delicatessen to obtain wipes and bleach in order to attempt to remove blood staining and other scientific evidence from the floors and other surfaces in the delicatessen and from the boot of his car. Later in the day he drove home and deposited the victim’s body in the garden shed at the home he shared with his wife and young child. The following day the three of them went on a family outing to Balmaha, leaving the victim’s body in the shed. Around 06.00 in the morning of Monday, 21 March the appellant drove to a lane on Great Western Road, Clydebank and deposited the body in some undergrowth where she was discovered by a pedestrian around noon that day.

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[5] A post-mortem investigation revealed the full extent of the attack which the victim had been subjected to. The injury which had caused death was a ragged gaping wound to the left side of her neck measuring 9.5 cms Ă&#x2014; 6.5 cms and was at least 4.5 cms deep. It had been caused by repeated stabbing and incision in that area. Extensive damage to the soft tissue of the neck had resulted, along with the cutting of the internal carotid artery. A further 61 individual penetrating, or stabbing wounds, were identified, 43 being to the head and neck. In addition a further 85 incised wounds were located to the forearms, the back of the hands and the palms. A number of these wounds were defensive in nature. [6] Despite extensive enquiries by the Crown it had not been possible to identify a motive for the murder or any prior connection between the appellant and the victim which might point towards any form of explanation for his conduct. Whilst senior counsel for the appellant gave the sentencing judge an account of what the appellant said had led to the killing he accepted before the sentencing judge, and before us, that this account, which was not accepted by the Crown, could not provide any mitigation for the prolonged and savage manner of his conduct. It is not therefore necessary to repeat it here. Sentence

[7] The sentencing judge noted that the victim was under five feet in height and weighed just over six stones. She observed that the victim was a small defenceless child who was brutally killed by a mature man more than twice her age who then went to very significant efforts to cover up his crime and hide the body. In these circumstances the sentencing judge decided to select a punishment part of 30 years, which included an enhancement of a period of three years to reflect the elements of retribution and deterrence within the sentence imposed in respect of charge (2). The plea was tendered at the first preliminary hearing held in the case. There had been an earlier hearing scheduled but this had been discharged administratively to permit some further investigations to be carried out by the defence. The judge noted that the utilitarian value of an early guilty plea will diminish through the passage of time as the Crown will require to continue to prepare their case in order to meet the strict custody time limits. In these circumstances she considered that a discount of three years was as much as could be allowed, bringing the overall punishment part down to 27 years. Submissions Appellant

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[8] On behalf of the appellant, Mr Duguid QC submitted that the startingpoint for the duration of the punishment part was excessive and inconsistent comparatively with contemporary sentencing practice. He submitted that the selection of a concurrent sentence of six years, which had led the sentencing judge to enhance the period of the punishment part by three years, was also excessive and that the period of discount permitted was insufficient to reflect the proper utilitarian value of the plea. [9] Mr Duguid accepted that there were relevant and important aggravating features present in the appellantâ&#x20AC;&#x2122;s conduct. These comprised the vicious and sustained nature of the attack, the fact that the victim was a child and the appellantâ&#x20AC;&#x2122;s conduct in the period between the murder and the date of his arrest. However, he submitted there were also relevant mitigating features to be taken account of. The appellant was a first offender. He was married with a young daughter and ran a moderately successful business within the local

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community where he lived. His actions were out of character, the murder was committed spontaneously and he had expressed genuine remorse. [10] In support of his submission that the punishment part selected was inconsistent with current sentencing practice Mr Duguid referred to the cases of: • Smith v HM Advocate, in which a punishment part of 32 years, reduced from 35, was imposed after a plea of guilty to murdering a mother and her ten-year-old daughter which involved sexual and sadistic attacks on both of them and the repeated rape of the young girl after which their bodies were disposed of on open ground and in a river; • HM Advocate v Snowdon and Jennings, in which the sentencing statement issued by the judge made it clear that the punishment parts imposed of 33 years and 29 years were selected having taken account of the murder by fire raising of a father and his two children along with a number of other charges including other charges of setting fire to property, assault and drugs offences; • Wade and Coates v HM Advocate, in which punishment parts of 30 and 33 years were imposed after trial concerning a premeditated crime of abduction and murder in which the victim had been subjected to horrific torture over a period of around two weeks. Determined efforts to defeat the ends of justice were also displayed, including the decapitation of the victim and disposing of her remains such that her body has never been found; • Chalmers v HM Advocate, in which a punishment part of 23 years was imposed after conviction for murder along with a concurrent sentence of six years in respect of a conviction for attempting to defeat the course of justice by dismembering and concealing the body in a case where the appellant had a previous conviction (albeit elderly) for murder; • HM Advocate v Pacteau, in which the sentencing statement issued by the judge made it clear that the punishment part of 23 years was imposed in respect of a young woman who was brutally murdered by the accused who then went to significant lengths over a number of days in attempting to destroy her body; • Tanveer Ahmed v HM Advocate, in which a punishment part of 27 years reduced from a starting-point of 30 years was imposed in a case which the sentencing judge described as barbaric, premeditated and wholly unjustified with an appalling display of merciless violence. In the light of very serious concerns at extremist views based on beliefs of any particular faith the sentencing judge considered that an exemplary sentence was required and that this was one of those rare cases where a clear message had to be sent that such conduct based on religious intolerance would be dealt with severely. [11] Mr Duguid submitted that an analysis of these cases demonstrated that they all contained aggravating features of a more numerous and significant nature than were present in the appellant’s case. That analysis led to the conclusion that a punishment part in the order of 30 years is properly restricted to cases which are significantly more serious than the present in relation to cause of death and which contain elements such as dismemberment after death. [12] Our attention was also drawn to Sched.21 to the Criminal Justice Act 2003, which gives guidance to judges in England and Wales in selecting the appropriate length of the minimum term to be selected when imposing a

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mandatory life sentence. Whilst not placing any emphasis on this guidance, Mr Duguid submitted that these statutory provisions demonstrated that a starting-point minimum period of 30 years’ imprisonment would be reserved for cases which contained elements of seriousness that were absent from the present, even if the victim was a child. This he submitted lent support to his overall submission that the sentence imposed in the present case was inconsistent with current sentencing practice. [13] Separately, Mr Duguid drew attention to what had been said by the Lord Justice General (Hamilton) in giving the opinion of the court in the case of HM Advocate v Boyle.Mr Duguid noted that one of the considerations addressed by the court in that case was the suggestion in the earlier cases of Walker v HM Advocate and HM Advocate v Al Megrahi, that 30 years was the virtual maximum length for any punishment part. That suggestion was disapproved of by the court in para.13 of the decision in Boyle. However, in the very next sentence of that paragraph the Lord Justice General said this: “On the other hand we endorse the exemplification given in the penultimate sentence of para 8 of Walker of the types of murder which might attract a punishment part in the region of 20 years.” [14] As Mr Duguid pointed out, the types of murder cases which the court in Walker had identified as potentially being of such gravity to warrant a punishment part in the region of 20 years included cases in which the victim was a child. He therefore argued that he could rely on the decision in Boyle to vouch his submission that the appropriate starting-point for selecting a punishment part in a case involving the murder of a child remained at about 20 years. The judge in the present case had selected a significantly higher figure without adequate justification. [15] In submitting that the sentence imposed on charge (2) was excessive Mr Duguid again relied on the case of Chalmers v HM Advocate. He pointed out that in that case the conviction for attempting to defeat the ends of justice included an attempt to dismember the victim’s body, concealing the body within her own home and then placing it in a refuse bin and covering the body with foliage. All of this conduct had resulted in the body not being discovered for a period of some 16 months, by which time it was impossible to ascertain the cause of death. In that case the sentencing judge had imposed a concurrent sentence of six years’ imprisonment and had increased the punishment part imposed in relation to the associated murder charge by a period of three years. This was exactly the same as had been done by the sentencing judge in the present case but in circumstances where the attempt to defeat the ends of justice charge bore no meaningful comparison. It could therefore be said that the sentence imposed on this charge was excessive. [16] In addressing the level of discount permitted Mr Duguid drew our attention to the procedural history of the case. He explained that on 8 June 2016, a little over two months after his first appearance on petition, the appellant submitted a letter to the procurator fiscal offering to plead guilty using the accelerated procedure provided for by s.76 of the Criminal Procedure (Scotland) Act 1995. On that same date a psychiatric report instructed by the defence became available in which it was suggested that a report from a psychologist might be appropriate. Those acting for the appellant considered that it was their professional duty to complete this enquiry before tendering a plea of guilty on behalf of the appellant. The result was a passage of time before the plea came to be tendered but the appellant had all along accepted responsibility for killing the victim. In these circumstances Mr Duguid

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accepted that the maximum period of discount permitted in such cases could not be asked for but he submitted that the period permitted by the sentencing judge did not adequately reflect the utilitarian value of the plea.

Consideration of further cases

[17] At the suggestion of the court Mr Duguid give consideration to the following further cases: • Jakovlev v HM Advocate, in which punishment parts of 19 years were imposed on two accused who were convicted of murdering a vulnerable individual in his own home by inflicting 43 injuries on him by repeatedly kicking him on the head and body, stamping on his head and body and striking him with a metal pole; • Andonov v HM Advocate, in which a punishment part of 29 years imposed after conviction for a contract killing by shooting and an associated attempted murder was reduced to a period of 27 years; • Lauchlan and O’Neill v HM Advocate, in which punishment parts of 26 years and 30 years respectively were imposed after conviction on charges of sexual misconduct involving young boys, murder and attempting to defeat the ends of justice by disposing of the body at sea. In deciding that the periods selected were not excessive the court noted that “there are several circumstances in this case that take it well outside the norm, if there be a norm in murder cases”. The circumstances which weighed with the court were that the appellants were previously convicted of significant predatory sexual assaults on the vulnerable young son of the murder victim for which they received substantial periods of incarceration, both upon conviction and upon breaching the terms of supervision. They were then convicted on indictment of a range of further predatory sexual assaults on vulnerable boys, including planning to involve a child aged only six, the premeditated murder of a woman in a vulnerable state and the disposal of her body at sea, from which there was no recovery; • Haugen v HM Advocate, a case in which the deceased was stabbed 27 times with a kitchen knife in what was described as a frenzied attack of a most brutal nature and a punishment part of 19 years reduced from 22 was imposed. On appeal it was noted that the appellant had no significant record, the murder was not premeditated, it did not involve taking a weapon into the public arena and the appellant made no attempt to conceal his crime. The appeal was allowed with a punishment part of 16 years reduced from 19 being imposed.

Crown

[18] In light of the submissions made concerning sentencing discount the court invited the advocate depute to explain what impact the withdrawal of the s.76 offer to plead guilty had on the Crown’s case preparation. The advocate depute informed us that he had not been made aware of the limited purpose of the further enquiry initiated by the defence and on learning that the offer to plead guilty had been withdrawn he instructed the procurator fiscal to engage in full case preparation. Given the amount of time which had passed by this stage the procurator fiscal had to undertake all the necessary work in a short timescale.

Discussion

[19] Mr Duguid’s submission that the court in Boyle had endorsed the exemplification given in para.8 of Walker of the types of murder which might

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attract a punishment in the region of 20 years was very similar to the submission made by counsel for the appellant in the case of Jakovlev. That submission was addressed by Lord Hardie in giving the decision of the court at para.10 in this fashion: “We would make two observations about this matter. The first, taking child murders as an example, is that having increased both the lower and upper limits of the approved range, it seems highly improbable that the court in Boyle then designedly set out to downgrade the relative seriousness of such murders without offering any justification for doing so. Much more likely, in our opinion, is that the court’s intention was simply to endorse the view in Walker that such murders should attract a punishment part somewhere in the middle of the range deemed appropriate from time to time. On that approach the equivalent level today would be in the region of 25 years, being the midpoint between 14, the minimum period suggested as appropriate in Cameron, [[2011 HCJAC 29] and 35 being the period approved by the court in Smith [[2010] HCJAC 118; 2011 S.C.C.R. 134].” [20] Lord Hardie’s observations on the limitations of using Walker as authority in the modern era were referred to with apparent approval by the then Lord Justice Clerk (Carloway) in giving the opinion of the court in Lauchlan and O’Neill at para.54. We are not therefore persuaded that Mr Duguid is correct in submitting that there is a recognised and approved sentencing practice which would result in a punishment part of around 20 years in relation to the murder of a child. [21] That having been said, an analysis of the cases which we have referred to above does tend to lend support to the submission that in current sentencing practice a punishment part in the order of 30 years is properly restricted to cases which manifest extreme elements. In Smith there were two victims, one of whom was a child; there was evidence of extreme depravity; and attempts were made to dispose of the bodies. Snowdon and Jennings was a case of premeditated murder with multiple victims, including children. Wade and Coates involved premeditation, abduction, torture and successful efforts to avoid the body of the victim being recovered. Tanveer Ahmed was a case of premeditated murder of a most barbaric nature driven by an extreme religious motive. [22] As the presiding judge made clear in her sentencing statement, the appellant in the present case engaged in a brutal, savage and frenzied attack on a young defenceless child before attempting to cover up his actions. In the course of that attack he appears to have struck her in the region of 146 times. Each case must be determined upon its own facts and those just identified demonstrate that the appellant committed a most appalling murder. Even in such cases though, all of the relevant circumstances require to be given proper weight before the appropriate sentence can be identified. The appellant was a family man of previous good character who had not offended before and who had expressed remorse. The murder was not premeditated. The extent of his efforts to defeat the ends of justice can be measured against certain of the conduct which took place in some of the other cases referred to above. [23] When these circumstances are all taken account of we think it can be said that the length of the punishment part selected in this case was inconsistent with current sentencing practice and was excessive. We also consider that by comparison with the circumstances of the case of Chalmers Mr Duguid was correct in submitting that the sentence imposed on the appellant in respect of charge (2), and the resultant enhancement of the punishment part by a period of three years, was excessive.

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[24] In our opinion the appropriate starting-point for the punishment part selected in respect of charge (1) ought to have been a period of 25 years. The appropriate sentence on charge (2) ought to have been one of three yearsâ&#x20AC;&#x2122; imprisonment to run concurrently with the life sentence imposed. In these circumstances it would have been appropriate to enhance the punishment part by a further period of one year to a total of 26 years. Thereafter the question of reflecting the utilitarian value of the plea by way of sentencing discount arises. In light of the history of case preparation as given to us by the advocate depute we consider that the utilitarian value of the plea merits no more than a discount of three years. This would result in an overall punishment part of 23 years.

Decision

[25] For the reasons which we have set out above we shall quash the punishment part imposed in this case and substitute therefor a period of 23 years.

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A Appeal Against Conviction

9 March 2017

RAACHEL TRELFA or FEE

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2017] HCJAC 13 Art and part—Murder—Whether participation can be inferred from conduct before and after fatal incident Art and part—Murder—Whether circumstances excluded possibility of convicting one accused of culpable homicide and other of murder

Solemn procedure—Judge’s charge—Murder—Art and part—No reference in charge to possibility of convicting one accused of culpable homicide and one of murder—Whether misdirection The appellant and a co-accused, her husband, were charged with assaulting and wilfully neglecting her three children and murdering one of them, L, between January 2012 and 22 March 2014. One of the charges (charge (6)) was of assaulting L (dob 12.8.11) and inflicting blunt force trauma on him during that period and one (charge (7)) was of assaulting L between 15 and 22 March 2014 and inflicting blunt force trauma whereby he died on 22 March 2014 and murdering him. Both accused were also charged with attempting to defeat the ends of justice between 22 March 2014 and 30 April 2014 by delaying contacting the emergency services and falsely representing to the police that L’s death was caused by one of his siblings, J, who was aged seven. The Crown accepted that there was no evidence as to which of the accused had actually assaulted or murdered L, and did not argue that criminal liability attached to the appellant as a consequence of her failure as a parent to obtain medical assistance or to intervene. The Crown case, as summarised in the opinion of the court at para.21, was that as the appellant must have been aware of the injuries which L had sustained over a lengthy period of time, had failed to get medical help for him, had deliberately avoided contact with health workers and had been party to ensuring that his injuries were not seen when he was out in public, that the appellant could be seen to have actively participated in the course of conduct by allowing it to continue, that the appellant was party to a common plan to assault L, and that from around 15 March onwards, when she was aware of fractures to his arm and thigh, she was participant in a plan which included the risk of fatal injury and which culminated in the fatal assault. The court went on to say that the Crown claimed that the appellant’s conduct in not obtaining medical aid or contacting the authorities could be interpreted as a means of protecting herself and the co-accused from detection and of allowing the course of assaults to continue, thus showing connivance in the course of conduct against the child. The Crown also submitted that, given the nature of the assault on or around 16 March which resulted in the fractures to the child’s leg and arm it was foreseeable that L’s life would be endangered thereafter. The Crown led evidence of a complete fracture of L’s right femur and an incomplete fracture of his left humerus inflicted between three and five days of his death, as well as further fractures on the same sites, thought to 166

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have occurred within six hours of his death, and a fatal heart injury caused by a direct blow and that L’s older injuries would have been painful and obvious. They also led evidence that between 17 and 22 March 2017 the appellant had accessed websites for information about injuries and about how to deal with a broken leg. The appellant gave evidence blaming J for L’s death, but accepted that she was guilty of neglect towards L in that she had failed to obtain medical assistance for him after he sustained injury to his femur about 17 March 2014. She accepted also that she had obtained information on the internet that one could die from a broken bone and that treatment was urgently required. The appellant appealed against conviction on the grounds (1) that the combined effect of certain passages in the judge’s directions to the jury was that the appellant could be convicted if she was aware of and had acquiesced in the assaults on L, and (2) that the judge had misdirected the jury by omitting to make reference to the possibility of convicting one of the accused of murder and one of culpable homicide. Held (1) that it was clear from numerous passages in the charge that the trial judge had made it perfectly plain, in relation to both charges, that it was necessary for the jury to be satisfied that both accused had entered into a common plan of the sort which he described, that each accused would only be responsible for the consequences of conduct within the scope of the common plan entered into, that active steps to facilitate the plan were necessary and that mere knowledge of conduct by the other was insufficient to bring home criminal responsibility, and that there was no merit in this ground of appeal (para.46); and (2)(i) that the violent attacks on such a vulnerable and weakened child in the period between 15 March 2014 and 22 March 2014 could bear no other characterisation than wickedly reckless, that therefore on the basis of the case as presented by the Crown, if the jury came to be satisfied, that the appellant and the co-accused acting in concert were responsible for the injuries which caused L’s death, the only verdict available was that they were both guilty of murder (para.55); and (ii) that it was not the actual attack involved in the fatal blow itself which was the principal feature available to prove a murderous attack, but that it was that L was such a young child, already injured, immobile, dependent and highly vulnerable, that those features would have been apparent not only to the actor in this case but to anyone who could be said to have associated herself with the common purpose of a course of assaults on him (para.56), and that there was therefore no basis upon which it could be said that the appellant did anything less than actively associate herself with a common criminal purpose which included the taking of human life, or carried the obvious risk that human life would be taken, in the carrying out of which murder was committed (para.57); and (iii) that even if the jury did proceed upon the hypothesis suggested on the appellant’s behalf that L’s injuries had all been inflicted by her co-accused, they would have been bound to conclude that she was guilty of murder art and part, that in the circumstances of this case the evidence led by the Crown clearly established that the appellant had associated herself with a purpose which carried with it the obvious risk that life would be taken, and that the directions argued for by the appellant were correctly omitted (para.57); and appeal refused.

Cases referred to in the opinion of the court: Beck v HM Advocate [2013] HCJAC 51; 2013 J.C. 232 Bone v HM Advocate [2005] HCJAC 126; 2005 S.C.C.R. 829; 2006 S.L.T. 164 McKinnon v HM Advocate, 2003 S.C.C.R. 224; 2003 J.C. 29; 2003 S.L.T. 281 Walker v HM Advocate [2013] HCJAC 83; 2013 S.C.C.R. 483 2014 J.C. 154 Woodside v HM Advocate [2009] HCJAC 61.

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Rachel Trelfa or Fee was convicted on 31 May 2016 of the charges set out in the opinion of the court after trial in the High Court at Livingston before Lord Burns and a jury, and appealed to the High Court against conviction on charges (6) and (7) on the grounds referred to in the opinion of the court. The appeal was heard on 3 February 2017 by the Lord Justice Clerk (Dorrian), Lord Bracadale and Lord Turnbull. For the appellant: McConnachie QC, Anderson, instructed by Paterson Bell, Solicitors, Edinburgh, for Ferguson Walker, Solicitors, Glenrothes. For the respondent: Prentice, QC, AD. On 9 March 2017 Lord Turnbull delivered the following opinion of the court. LORD TURNBULL Introduction

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[1] The appellant Rachel Trelfa or Fee is aged 31. Along with her co-accused Nyomi Fee she was convicted after trial in the High Court at Livingston on 31 May 2016 of a number of charges concerning conduct directed at her three children, J J, M J and Liam Fee. The charges of which they were both convicted were as follows: â&#x20AC;&#x153;(1)[B] etween 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or has charge or care of a child or such a young person namely J J, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy, did wilfully ill treat, neglect, and expose said child in a manner likely to cause him unnecessary suffering or injury to health in respect that on various occasions between said dates at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee did: (a) force him to sit on a chair whilst naked or wearing underwear and write the same sentence repeatedly on paper or in a notebook; (b) compel him to sit and stand naked or wearing underwear on a step and a chair, known by him as the â&#x20AC;&#x2DC;naughty stepâ&#x20AC;&#x2122;, and on occasions bind him to said chair; (d) put him to bed to sleep at bedtime and thereafter refuse to allow him to leave his bed or his bedroom to urinate and thereby cause him to urinate in his bed and strike him on the body with your hand if he left his bedroom after bedtime to urinate; (e) compel him to stand naked under a cold shower for prolonged periods of time as a punishment for urinating in his bed; (f) push him and tell him to stand still if his body shook while standing naked under a cold shower; (g) after forcing him to stand naked under a cold shower make him stand on a towel and refuse to let him dry himself; (h) construct a cage using a metal fire guard and pieces of wood, lock him in said cage, force him to sit or lie down in said cage naked or in his underwear for prolonged periods of time during the day and night and to sleep there, bind his arms and legs to said cage with cable ties, string, the cord from a dressing gown or similar articles to his injury; (i) make him sleep in a cot and bind his arms and legs to said cot with belts from a coat, cord from a dressing gown or similar articles; (j) put a chair in said cot and bind his feet to the chair using bandages and bind his arms to the cot with the belt of a coat and leave him to lie and sleep there for prolonged periods of time to his injury;

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(m) having soiled his underwear force him to eat his own excrement with his hands; (o) put soap in his mouth; (r) call him names; (t) deprive him of food as a punishment; (u) knowing or having reasonable cause to believe that he had sustained an injury to his feet in January 2014, the exact date and cause of said injury being to the prosecutor unknown, and was in need of medical aid, did fail to provide and seek appropriate, timely and adequate medical aid for him ; (w) compel him to strike his brother M J on the penis with a shoe and a tube of E45 cream, compel him to strike said M J on the body with a toy and compel him to slap said M J on the head and body if MJ moved whilst on the ‘naughty step’: contrary to the Children and Young Persons (Scotland) Act 1937, s.12(1) as amended; (2) on various occasions between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee did assault J J, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy and did repeatedly strike his naked buttocks with your hands, punch him on the body and cut his penis with a pair of scissors to his injury; (3) between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or has charge or care of a child or such a young person namely M J, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy, did wilfully ill treat, neglect, and expose said child in a manner likely to cause him unnecessary suffering or injury to health in respect that on various occasions between said dates at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee did: (a) put him to bed to sleep at bedtime and thereafter refuse to allow him to leave his bed or his bedroom to urinate and thereby cause him to urinate in his bed and strike him on the body with your hand if he left his bedroom after bedtime to urinate; (b) compel him to stand naked under a cold shower for prolonged periods of time as a punishment for urinating in his bed; (c) shower him with cold water, dry him and shower him again with cold water and do this repeatedly for prolonged periods of time; (d) tell him to stand still if his body shook while standing naked under a cold shower; (e) after standing naked under a cold shower make him stand on a towel and refuse to allow him to dry himself; (f) compel him to sit and stand naked or in his underwear for prolonged periods of time on a step known by him as the ‘naughty step’; (i) put soap in his mouth; (l) compel him to eat his own vomit; (n) call him names; (o) tie him naked with the cord of a dressing gown or similar article to a chair in your bedroom where you kept rats, snakes and a boa constrictor, tell him that the boa constrictor ate naughty boys and force him to sleep there on his own whilst tied to said chair in the dark overnight; (p) compel him to stand naked or wearing his underwear against or facing a wall for prolong periods of time without moving and induce said J J to slap him if he did move;

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(r) deprive him of food as a punishment; (s) tie him to a chair and force him to sleep in that position; and (t) compel him to strike the penis of his brother said J J with a shoe, compel him to repeatedly strike said J J on the body with a toy and strike said M J if he did not do so: contrary to the Children and Young Persons (Scotland) Act 1937, s.12(1) as amended; (4) on various occasions between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee did assault M J, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy, and did repeatedly strike his naked buttocks with your hands and punch him on the body; (5) between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife, The Victoria Hospital, Hayfield Road, Kirkcaldy, The Royal Hospital for Sick Children, Edinburgh and elsewhere you Nyomi Fee and Rachel Trelfa or Fee being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or has charge or care of a child or such a young person namely Liam Johnson (referred to as Liam Fee in the post-mortem report lodged as a production by the prosecutor), born 12 August 2011, now deceased, did wilfully ill treat, neglect, and expose said child in a manner likely to cause him unnecessary suffering or injury to health in respect that on various occasions between said dates at 21 Donald Crescent, Thornton, Fife, The Victoria Hospital, Hayfield Road, Kirkcaldy, The Royal Hospital for Sick Children, Edinburgh and elsewhere you Nyomi Fee and Rachel Trelfa or Fee did: (a) leave him in his pushchair and bed for prolonged periods of time, place a blanket over said pushchair and over his face and head, leave him in a darkened room and thereby fail to provide him with adequate exercise, physical and mental stimulation; (b) fail to provide him with adequate food; and (d) knowing or having reasonable cause to believe that said Liam Johnson was injured, unwell and in need of medical aid having inflicted blunt force trauma to his head and body by means to the prosecutor unknown did between 15 March 2014 and 22 March 2014 both dates inclusive, fail to provide and seek appropriate, timely and adequate medical aid for him: contrary to the Children and Young Persons (Scotland) Act 1937, s.12(1) as amended; (6) on various occasions between 12 January 2012 and 14 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee did assault Liam Johnson (referred to as Liam Fee in the post-mortem report lodged as a production by the prosecutor), born 12 August 2011, now deceased, then residing there, and did inflict blunt force trauma to his head and body by means to the prosecutor unknown to his injury; (7) on various occasions between 15 March 2014 and 22 March 2014, both dates inclusive at 21 Donald Crescent, Thornton, Fife you Nyomi Fee and Rachel Trelfa or Fee did assault Liam Johnson (referred to as Liam Fee in the post-mortem report lodged as a production by the prosecutor), born 12 August 2011, residing there and did repeatedly inflict blunt force trauma to his head and body by means to the prosecutor unknown whereby he was so severely injured that he died there on 22 March 2014 and you did murder him; and (8) between 22 March 2014 and 30 April 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife, Kirkcaldy Police Station, St Brycedale

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Avenue, Kirkcaldy, Fife and elsewhere you Nyomi Fee and Rachel Trelfa or Fee having committed the crime libelled in charge (7) hereof and being conscious of your guilt in respect thereof did, having discovered the body of said Liam Johnson, delay contacting the emergency services, dismantle the cage referred to in charge (1) and hide it under the mattress in the bedroom, put cable ties referred to in charge (1) in the shed, falsely represent during a ‘999’ call and to ambulance personnel and police officers who attended there in response to said ‘999’ call and thereafter to police officers investigating the said death of Liam Johnson and to your friends and family members that said J J referred to in charges (1), (2) and (3) hereof, aged seven years, was responsible for the said death of Liam Johnson, and all this you did with intent to defeat the ends of justice and to avoid detection, arrest and prosecution in respect of the crime libelled in charge (7) and to falsely incriminate said J J and you did thus attempt to defeat the ends of justice.” [2] The appellant was previously married to the father of the three children mentioned in the charges. The children J J and M J are twins, who were born on 26 February 2007. The child Liam (who came to be known as Liam Fee) was born on 12 August 2011. The appellant and her co-accused moved to live at 21 Donald Crescent, Thornton, Fife in January 2012 and were married in June of that year. [3] The appellant was granted leave to appeal her conviction on charges (6) and (7), the charges of assaulting and murdering Liam Fee, on what were grounds (3) and (4) in her note of appeal. Each ground sought to argue material misdirection by the trial judge. The evidence led at trial

[4] The evidence as to the way in which the children in the appellant’s household had been treated emerged after the death of Liam Fee on 22 March 2014. Injuries to Liam Fee

[5] At post-mortem examination on 24 March 2014, 36 external injuries, marks or scars were identified. Further injuries were identified on internal examination. Certain of the internal injuries were older and others were more recent. Areas of haemorrhage in the abdomen were observed which had been caused by blunt force trauma inflicted a considerable time prior to death. Old haemorrhage to the adrenal gland was observed indicating trauma applied to that area. Faecal material was found embedded within the small intestinal mesentery associated with a fibrous reaction to the adjacent tissue. That indicated that there had been perforation of the intestinal tract at least a few days prior to death and possibly much longer. A complete fracture of the right femur was observed, as was an incomplete fracture of the left humerus. Each had been inflicted between three and five days prior to death. Injuries to the nails on the fingers of both hands and abrasions on the back of the head and to the mid-back were observed and it was noted that the right great toe nail was missing. [6] More recent injuries were also discovered. Further fractures on the same sites of the older femur and humerus fractures were identified. These were thought to have occurred within six hours of death. Fresh haemorrhage throughout the abdomen was observed indicating recent blunt force trauma. Injury to the penis in the form of purple and red bruising and bruising to the scrotum was observed.There were multiple bruises and petechial haemorrhages

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to the face. Lastly, there was the fatal injury to the heart. A rupture of the pericardium was identified into which blood had been forced, causing pressure in the main veins to the heart and a rupture of the atrium. This injury was the consequence of blunt force trauma in the nature of a direct blow to the abdomen or chest area which led to rapid death by what is termed tamponade. [7] The evidence of post-mortem findings demonstrated that the child had sustained a number of blunt force trauma injuries both immediately before his death and in the days or weeks prior to his death. The evidence established that the older injuries to the abdomen and the fractures to the femur and to the humerus would have been painful and obvious to anyone in Liam’s presence. He would have been distressed and crying. It would have been painful to move his right leg and he could not weight bear on this leg without pain. It would have been painful to raise his arm up. The evidence of the two children

[8] J J and M J were interviewed separately at joint investigative interviews on a number of occasions between 24 March 2014 and 5 May 2015. The record of these interviews comprised their evidence in chief. Each gave an account of being ill-treated and assaulted by both the appellant and her co-accused, although they said that it was the co-accused in the main who conducted that abuse. The nature of the abuse which the children described is reflected in the terms of charges (1), (2), (3) and (4) of which both the appellant and her co-accused were convicted. [9] In an interview conducted on 8 May 2014, J J described hearing banging noises on occasions when the co-accused went into Liam’s room and hearing Liam crying. He stated that this occurred when Liam had a sore “winkie”, when he had a sore head and when Liam had a sore leg. At one point he said this happened every day. In the course of being interviewed on that same day he said that he thought he knew how Liam had died. He went on to give an account of hearing the co-accused going to check on Liam and then hearing a sound like jumping, after which Liam stopped crying. He also described concealment of various items taking place after he had been told that Liam was dead. He described the co-accused blaming him. In one of his interviews M J said that on the day of Liam’s death he and J J heard screams from the co-accused and shortly thereafter she said to J J “look what you have done” and that he M J better remember everything. [10] In his early interviews J J said that he had been responsible for some of the injuries to Liam. He said that he had tried to lift Liam out of his cot and had dropped him causing injuries to his head and that he had stamped on his leg. He later denied that he had inflicted any injury upon Liam. The evidence of others who had contact with Liam

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[11] Evidence from acquaintances of the appellant showed that on a number of occasions when she and the co-accused were with Liam in a buggy he was covered with a blanket. Both the appellant and the co-accused had on different occasions explained that he was autistic, in apparent attempts to dissuade contact. On an occasion in September 2013 he was seen to have a blanket over his head and to look deathly still, causing such concern to an acquaintance who observed him that she phoned the social work department. [12] A childminder who had cared for Liam between July 2012 and February 2013 spoke to seeing injuries on one occasion and to being concerned on another occasion that the appellant had not taken him to the doctor after

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she said that he had a problem with his neck. The social work department was alerted by the childminder after each occasion. [13] Between March 2013 and June 2013 a number of injuries were observed at a nursery to which he was sent. He was seen to have bruising on his buttocks, injuries to his cheeks, to the top of his left leg and bruising to his left arm. He suffered a dramatic loss of weight during the period he attended. [14] A young woman who sometimes looked after Liam saw bruises which she thought were unusual and said that every week there were different bruises. A family care worker visited the appellant’s house in July 2013 on a number of occasions but was given different explanations for not being able to see Liam. The co-accused’s telephone was found to contain text messages which indicated an intention to avoid permitting a health visitor entry on 27 June 2013. A friend of the appellant’s described an occasion when the appellant refused to answer a telephone saying that it was a health visitor and that she did not want to take Liam to the health centre because he had scratched himself and had a few marks on his face. [15] In addition to the evidence of Liam’s condition as observed by others, further evidence demonstrated that between 17 March 2014 and 22 March 2014 the appellant had accessed websites seeking to find information about whether someone could die of a broken hip and about bone fracture and swelling and bruising to the knee or thigh. She had also searched websites for advice as to how to deal with a broken leg and whether you could die of a broken bone. In her own evidence the appellant accepted that the information she had received included advice that one could die from a broken bone and that treatment was urgently required. No medical attention was sought in relation to any of Liam’s injuries.

22 March 2014

[16] In the early afternoon of 22 March 2014 the family was seen in the Co-op store in Thornton. Liam was in his buggy and covered up. [17] The appellant went to a farm at around 3.00 pm to look after her horse leaving the co-accused to look after the children. On her own account she returned at around 6.20 pm. No other adults were present in the house that evening. At about 7.10 or 7.15 pm a next-door neighbour heard shouts. At around 7.20 or 7.30 pm he heard wailing or sobbing “as if someone had died”. An ambulance was not called until 7.57 pm and the ambulance attendants who arrived spoke to some tightening of Liam’s jaw and some post-mortem staining on his back suggesting that blood had not been circulating for about an hour. [18] At interview on 22 March 2014 the appellant told the police that she returned to the house about 6.20 pm but did not see Liam until the co-accused discovered him dead at about 7 pm. On 26 March 2014 she said that Liam was still in the living room on her return at about 6.20 pm and that at around 7.30 or 8 pm the co-accused went to check on him and she heard a scream from Liam’s room. When she went to investigate Liam was lifeless. [19] The appellant and the co-accused both gave evidence. In her testimony the appellant denied ill-treating J J or M J and denied assaulting or causing any injury to Liam. She denied being aware of the nature of the injury to his femur, only that it was serious. She denied being aware of the arm injury. She blamed J J for inflicting injury on Liam. She did though accept that she was guilty of neglect towards Liam, in that she failed to obtain medical help for him after he had sustained injury to his femur around 17 March 2014.

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The Crown’s case

[20] The Crown’s case was that Liam Fee had been systematically physically assaulted over the course of two years and two months, as reflected in charge (6), and that this course of conduct continued over a further seven-day period culminating in his death, as reflected in charge (7). The case was presented on the basis that it was not known whether it was the appellant or the co-accused who inflicted the injuries, including the final injury at the time of death. The Crown’s case depended on establishing that the appellant and her co-accused had acted together in a course of conduct which was to be seen against the background of physical and emotional abuse inflicted over a lengthy period of time against the children in their care. [21] The Crown contended that if J J was excluded as being responsible the jury could legitimately infer that it must have been one or both of the appellant and the co-accused who inflicted his injuries. Since she must have been aware of the injuries which he had sustained over a lengthy period of time, had failed to get medical help for him, had deliberately avoided contact with health workers and had been party to ensuring that his injuries were not seen when he was out in public, the appellant could be seen to have actively participated in the course of conduct by allowing it to continue. The Crown’s position was that the appellant was party to a common plan to assault Liam and that from around 15 March onwards, when she was aware of the fractures to his arm and thigh, that she was participant in a plan which included the risk of fatal injury and which culminated in the fatal assault. The appellant’s conduct in not obtaining medical aid or contacting the authorities could be interpreted as a means of protecting herself and the co-accused from detection and of allowing the course of assaults to continue, thus showing connivance in the course of conduct against the child. Given the nature of the assault on or around 16 March which resulted in the fractures to the child’s leg and arm the Crown’s position was that it was foreseeable that Liam’s life would be endangered thereafter. The grounds of appeal Ground 3

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[22] This ground related to the directions on concert which were given in respect of each of charges (6) and (7). The trial judge gave detailed directions on the law of concert, how it applied to the evidence led in the trial and what the Crown would require to establish in order to enable a verdict of guilty to be returned against each or either accused. He dealt with charges (6) and (7) separately in this exercise. These directions ran from pp.51 to 77 of the transcript of his charge. [23] It was accepted on the appellant’s behalf that, in general, the directions given in relation to concert were accurate and appropriate. However, it was emphasised that this was not a case in which the Crown argued that criminal liability attached to the appellant as a consequence of her failure as a parent to obtain medical assistance or to intervene, such as had been the case in Bone v HM Advocate. The charges of assault and murder were based upon active participation by the appellant. Accordingly, it would not have been sufficient for the appellant simply to have knowledge of assaults being committed by her co-accused and, it was submitted, it was essential that the jury were given clear directions to enable them to understand what was necessary by way of evidence to enable them to reach the conclusion that the appellant had been acting in concert with her co-accused. It was essential that the jury were not left with the impression that knowledge of assaults by the co-accused would suffice to constitute acting in concert.

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[24] Under reference to three passages of what the trial judge had said in his charge it was submitted that he had equated awareness or knowledge on the part of the appellant of what was taking place with participation by her. The passages were: First, at p.54, lines 1–7 where the trial judge said: “So you will have to be satisfied that during this period a plan emerged between the accused whereby a course of assaults were inflicted on Liam by one or the other of them, of which both were aware, and which was a foreseeable consequence of that plan.”

Second, at p.55, lines 10–14 where he said: “(If excluding J J). If so, if you are satisfied, did the other accused, though not actually inflicting the injuries know, or must she have known, about those assaults perpetrated by the other.” Third, at p.95, line 23–p.96, line 6 where he said: “On charge (7), if you took the view that Ms Trelfa (the appellant) did not know that Miss Fee was assaulting Liam, if you are so satisfied, but took part in trying to conceal the injuries because she thought they had been caused by (. . .J J. . .), for instance, then you could acquit her of that charge, but still convict Miss Fee, that would be open to you.” [25] The combined effect of these passages was said to be that the jury were left with the impression that they should convict the appellant if they concluded that the child’s injuries had been caused by the co-accused and that the appellant knew that he was being assaulted by her and concealed his injuries. In the circumstances of the evidence led this was said to have constituted a material misdirection. These submissions were all contained in the appellant’s written case and answer which senior counsel adopted but did not expand upon.

Ground 4

[26] This ground related only to the directions which the trial judge gave in relation to charge (7). The challenge was to the directions which the trial judge gave in relation to the availability of a verdict of culpable homicide. He directed the jury that they could find both accused guilty of murder, find both accused guilty of culpable homicide, or could acquit both. He also explained that they would be entitled to convict the co-accused of murder and acquit the appellant on charge (7) (although not vice versa). However, it was submitted that he had erred in failing to direct the jury that it was open to them to convict the co-accused of murder and to convict the appellant only of culpable homicide. [27] In advancing this ground senior counsel for the appellant began by identifying the Crown’s approach to the jury. He observed that the Crown presented the case on the premise that it could not be said which of the two accused was responsible for the actual infliction of the individual injuries to Liam but that they had acted in concert together. He submitted though that this was not the only way in which the evidence could be viewed. There was another route through the evidence which the jury legitimately might have taken and it flowed from the evidence given by J J to the effect that the co-accused had been responsible for certain of the injuries, including the fatal injury. Although the appellant had not blamed the co-accused, J J’s evidence would have entitled the jury to conclude that she had been responsible. This

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explained the direction that the jury could convict the co-accused and acquit the appellant but not vice versa. [28] Senior counsel therefore submitted that there was an evidential basis upon which the jury properly could have concluded that the co-accused was the actor in the crime of murder. On this basis they would then have required to consider the question of whether the appellant was acting in concert, and, if so, the extent of the criminal purpose to which she was a party. The trial judge had recognised that there was room for a verdict of culpable homicide, since he directed that the jury could convict both accused of this crime. Accordingly, if the jury were minded to convict the co-accused of murder, on the basis of the evidence given by J J, and to conclude that the appellant was acting in concert with her, then it remained necessary for them to consider whether the appellant was part of a criminal purpose that carried with it objectively the real risk of taking life, or whether she had been party to some less serious purpose. The trial judge ought to have directed the jury to this effect. In support of this submission senior counsel argued that the situation was analogous to a killing with the use of a knife where that had not been contemplated by a particular accused and relied on what had been said in the case of McKinnon v HM Advocate at para.32. He recognised though that if, contrary to the trial judgeâ&#x20AC;&#x2122;s direction, in fact a verdict of culpable homicide was not open on the facts of the case then his appeal under this ground would fail. The Crown submissions Ground 3

[29] On behalf of the Crown the advocate depute relied upon his written submissions in response to this ground in which it was contended that the evidence relied upon made it plain that the appellant had participated in an ongoing course of conduct against Liam Fee. It was submitted that the evidence relied upon was not indicative of mere awareness or knowledge of an ongoing course of abusive conduct but was sufficient to demonstrate active participation. The Crown submitted that in the directions which he had given the trial judge made it plain that active participation in a course of conduct was necessary in relation to both charge (6) and (7). He had also identified in relation to each charge the various adminicles of evidence from which active participation on the part of the appellant could be inferred. It was therefore submitted that there was no merit in the suggestion that the jury were left with an impression that they were required to convict the appellant if they formed the view that she knew it was her co-accused who was assaulting Liam Fee. Ground 4

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[30] The advocate depute recognised that the case of McKinnon supported the submission that a direction of the sort contended for by the appellant ought properly to be given in appropriate circumstances. He contended under reference to what had been said by the Lord Justice General in the case of Woodside v HM Advocate that such a direction ought only to be given in circumstances where an evidential basis existed to support it. In the present case that was not the position. [31] The advocate depute submitted that the Crown had established a clear case of concert for murder and, as the trial judge himself had observed in his report, there was no scope for concluding that the co-accused acted with the wicked recklessness necessary for murder but that the appellant did not. The

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circumstances of the present case were that the child had been subjected to a lengthy period of abuse over the two years and two months period encompassed by charge (6). During the course of that period he had received a significant number of serious injuries, including injuries to his abdomen and head, of which the appellant must have been aware. The finding of faecal material with no associated rupture of the colon had led the pathologist to conclude that the child must have been subjected to a blow of some force causing a rupture of the colon which had subsequently healed. The evidence had been that this would have been a very painful injury and that the child’s pain would have been obvious. [32] Charge (7) had been framed to include the fractures to the right femur and the left humerus. The fact that the appellant had been aware of these injuries was vouched by the evidence of her internet searches. She herself recognised that there was a risk the child might die if she did not get treatment for him and yet she chose not to. The evidence relied on by the Crown therefore demonstrated that the child’s death had occurred as a result of a series of assaults and maltreatment over a period of five–seven days when he was in a weakened and vulnerable state as a consequence of the preceding period of assaults and ill-treatment and when it was obvious that the continuation of such conduct could lead to his death. Both accused also continued in the joint enterprise after Liam’s death by the delay in seeking medical assistance and the concealment of items used in relation to the charges concerning the two other children. [33] In light of this history the advocate depute submitted that the circumstances of the present case were quite distinct from a situation in which death occurs during a single specific incident in which there are a number of participants. In the circumstances of the present case, as outlined, he submitted that there was no evidential basis to suggest that the outcome was one which could not be foreseen by the appellant and therefore no basis for a conclusion that the two accused could be acting in concert but that the appellant did not have the mens rea necessary for murder. The advocate depute submitted in conclusion that the only error which the trial judge could be said to have made was in giving the direction that the two accused could both be convicted of murder or of culpable homicide. On the evidence led there was no room for the latter verdict in this case.

Discussion Ground 3

[34] In considering any submission that the trial judge has misdirected the jury the charge requires to be read as a whole and in the context of the trial to which it relates (see Walker v HM Advocate at para.24 and Beck v HM Advocate at para.40). The passages of the charge selected for criticism by counsel for the appellant are but a few sentences from many pages of the transcript in which it can be seen that the trial judge made a determined effort to provide the jury with practical assistance in understanding how the requirements of the doctrine of concert could be met in the unusual circumstances of the case before them and therefore to help them understand the import of the competing submissions which were made. [35] He commenced his directions on concert at p.51 of the transcript of his charge. Having explained that if two people engage together to commit crime each participant can be responsible not only for what he or she does but what the other does while committing the crime he said this: (pp.52, lines 19–25)

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“But it must be proved that the consequences of the plan were foreseeable to each member as likely to happen and each must be seen and proved to have done something to assist in achieving the purpose of the plan: the enterprise.” [36] From the outset then it can be seen that the trial judge made it plain that there must be participation rather than just awareness of what another was doing. [37] The first direction complained of was at a passage of the charge where the judge was moving from an explanation of the general concept of concert to an explanation of its application in relation to charge (6). It is artificial to divorce the passage selected from what follows immediately afterwards. In the very next sentences which followed the passage complained of the trial judge gave these directions: (pp.54, lines 8–21) “Now, I don’t think the Crown says which of the accused perpetrated these assaults as a matter of corroborated evidence and the only way you could find them guilty is by finding that they were acting in concert, and to answer that question, you must look at the evidence against each accused separately and decide what has been proved against her by way of actings during the period concerned and ask whether that evidence shows that each was a party to a continuing plan to inflict assaults on Liam in the form of blunt force trauma to his head and body.” [38] At the stage of the second direction complained of the trial judge began to look at the possibility that the jury would exclude J J as being responsible and conclude that the injuries were inflicted by one of the accused only. Again, the passage complained of is only part of what was said. Having directed the jury that they would require to be satisfied that the other accused knew about the injuries being perpetrated, he immediately directed them to then consider whether they were satisfied that each took part in concealing the blunt force trauma injuries for the purpose of avoiding responsibility and whether each made a conscious decision not to obtain medical assistance for the purpose of avoiding detection of the accused who was actually responsible. Having identified for the jury the various factors of which they would require to be satisfied in order to reach the overall conclusion that each had participated in a common criminal purpose of the kind asserted he then gave the following directions: (p.56, line 11–p.57, line 13) “Now, if all these matters are established to your satisfaction, they would be capable of supporting a case for participation in a course of violent conduct on Liam by one accused even though the other didn’t in fact inflict the blows. That is because, in the knowledge that the child under her care and protection was being assaulted by the other over this period, she took active steps, participated in that way, to conceal the resultant injury from the authorities or others and made a decision not to obtain medical aid, and by being involved in that way the course of conduct of assaults against Liam was able to continue and they are a party, both, to that course of conduct which each knew was going on at the hands of the other and is jointly responsible although it cannot be shown who assaulted him on each occasion. But if you are not satisfied that there was this plan to which both accused tacitly, or silently, agreed to assault Liam and cover it up, then you will acquit both accused since the Crown depends on your being satisfied that there was such a plan and each has participated in it in the manner that I have described.” [39] He then went on to repeat that it was necessary to view the evidence against each accused separately and to decide whether she was a party to the

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plan and emphasised the difference between reasonable inference and speculation in this regard. Having done so he then explained what sort of evidence would be insufficient to establish concert and repeated what conclusions would require to be drawn in order to establish that the accused were acting in concert: (p.58, line 7–p.59, line 4) “I should emphasise too, ladies and gentlemen, that it is not enough to show that somebody was present at the time of any assault. Mere presence is never enough to bring home joint responsibility. Knowledge is not enough, either, as Mr McConnachie said. Nor is non-intervention, even in respect of a mother and a child. It is essential that, before an accused can be found criminally responsible for an assault on the basis of concert, where the actual perpetrator cannot be properly identified, not only that the evidence shows there was a common plan, or understanding between them, in this case to inflict blunt force trauma, but that each accused took some active steps to facilitate the plan or understand it and it’s the act of covering up here, and concealing injuries and failing to obtain medical help that provides and the only possible way that such an element could be satisfied in this case.”

[40] The third direction complained of relates to charge (7) and occurs at a very late stage in the trial judge’s charge when he is reminding the jury of the various different approaches which they might take in determining their verdict. What he said was accurate. The suggestion that it might have misled the jury, either on its own or in combination with the other passages identified, has to be judged in light of the directions which were given as to concert in relation to this charge. These directions commence at p.62 when he began to focus on charge (7). At lines 3–12 he said this: “Now, so far as charge (7), as I say, it stretches for a number of days and, as I say, represents, according to the Crown, a continuation of the course of conduct in charge (6). But, as in that charge, mere presence in the house at the time of an assault carried out by another is not enough for this, nor is non-intervention in that assault enough. There must again be participation in this plan.”

[41] He then went on immediately to explain that whilst the Crown again relied on the principle of concert what was libelled in charge (7) was a different common plan which included within its scope infliction of injury which made it foreseeable as likely to happen that the death of Liam would occur if it continued. He explained that in inviting the conclusion that death was an obvious risk by 22 March the Crown relied principally on the assault on or about 16 March which caused a complete fracture of the right thigh. He then gave the following direction: (p.63, lines 7–22) “You will have to be satisfied in respect of each accused again that this was the nature of any joint plan or understanding. The nature and the scope of any common plan and what is, was or was not, a foreseeable consequence of that is a matter to be determined from the whole facts and circumstances you find proved. It is not limited to what the accused themselves knew. You must determine the nature and scope of a plan on an objective basis and it is essential that you are satisfied that there was a joint plan which included, within its scope, further assaults which foreseeably carried the obvious risk of death.” [42] At p.66 he explained the evidence upon which the Crown relied and said: (lines 3–17) “They say that the injury, they know that the injury might be lifethreatening because of the internet searches that you know about, and

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despite that knowledge they continued to conceal the injuries from detection and deliberately refrained from getting medical aid, thus allowing the more serious, this course of conduct, assault to continue unchecked. It is that that constitutes, again the essential actings of each accused, in participation: participating in this joint plan, the active concealment of the injuries and the deliberate decision not to obtain medical aid.” [43] Having then pointed out that the evidence might be capable of different interpretations and of yielding different inferences and going on to give certain examples of the points made by defence counsel the trial judge said: (p.67, line 22–p.68, line 2) “And you have to examine the evidence against each accused separately to see whether it convinces you that this plan was one that was formed and shared by both accused and was continuing as at 22 March.” [44] Having then rehearsed the evidence of the events of 22 March he gave the following direction: (p.70, lines 18–24) “But the Crown case depends on drawing inferences from the evidence and being satisfied that each accused was a party to this continuing course of violent conduct and that one of them inflicted the assault on Liam on the evening of 22nd March.” [45] Having taken the jury through the various passages mentioned, the trial judge drew the matter together in relation to charge (7) at p.74, line 19–p.75, line 13 when he said: “Well, ladies and gentlemen, there are a number of questions you’ll have to answer in relation to this charge. Firstly, was Liam assaulted by one or other of the accused on 16th of March to the knowledge of the other by which the thigh or the arm was fractured and the Crown need to exclude J from responsibility of that. “If you are satisfied about that, did each accused know of the serious nature of the injuries thereby inflicted? If so, did the accused form a plan, or reach an unspoken understanding, to conceal those injuries, the 16th of March, from detection in order to avoid the perpetrator being discovered in the knowledge that further potentially fatal assaults were likely to occur.” [46] In our opinion, these extracts from his charge demonstrate that the trial judge gave comprehensive, accurate and helpful directions in relation to the doctrine of concert and its application to the evidence in the present case. Given the unusual and complex circumstances this was not an easy exercise and, in our opinion, the trial judge performed his task admirably. From all of the references we have identified it is clear that he made it perfectly plain, in relation to both charges, that it was necessary for the jury to be satisfied that both accused had entered into a common plan of the sort which he described. He made it plain that each accused would only be responsible for the consequences of conduct within the scope of the common plan entered into. He made it plain that active steps to facilitate the plan were necessary and that mere knowledge of conduct by the other was insufficient to bring home criminal responsibility. We therefore consider that there is no merit in this ground of appeal. Ground 4

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[47] The foundation for the submission made on behalf of the appellant in support of this ground of appeal was the direction by the trial judge that a verdict of guilty to culpable homicide was available on the facts of the case.

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Reliance was placed on what had been said by the Lord Justice-General (Cullen) in giving the opinion of the court in McKinnon v HM Advocate at para.32: “Thus, an accused is guilty of murder art and part where, first, by his conduct, for example his words or actions, he actively associates himself with a common criminal purpose which is or includes the taking of human life or carries the obvious risk that human life will be taken, and, secondly, in the carrying out of that purpose murder is committed by someone else. It is for the Crown to prove in relation to each individual accused, inter alia, that there was a purpose of that character and scope and that the particular accused associated himself with that purpose. Where he is not proved to have associated himself with that purpose or is proved to have participated in some less serious common criminal purpose in the course of which the victim dies, the accused may be guilty art and part of culpable homicide, whether or not any other person is proved guilty of murder.” [48] It is necessary to begin an assessment of the appellant’s submission by understanding why the trial judge gave the directions which he did. The relevant directions start at pp.59–61 of the charge where the trial judge defines the crime of murder and explains the concept of wicked recklessness. Having completed this exercise he moved on to give the definition of the crime of culpable homicide, which he said might be open to the jury. Over the ensuing pages of the transcript the trial judge explained to the jury the basis upon which the Crown sought a conviction against both the appellant and the co-accused on this charge and explained the need to be satisfied that both participated in a common plan and that the scope of that plan included the obvious risk of death. He then identified the evidence upon which the Crown relied in establishing that common plan against each. This exercise was drawn together at p.76, line 11 and on to p.77, line 4 with the following directions: “It will be apparent that you would have to be prepared to accept each of these steps I have outlined so far in order to entitle you to return a guilty verdict on this charge. But if you are so satisfied about all these matters, you then have to look at the nature of the assault on 22nd of March causing Liam’s death and ask, was it a murderous assault. Was it done with the sufficient degree of wicked recklessness as to show that the perpetrator didn’t care whether he lived or died. If you think that it was a murderous assault and you were satisfied about all the steps I have outlined so far, then you would convict both accused of murder. If you are not satisfied that it was a murderous assault then you would find them both guilty of culpable homicide, and I’ll tell you how to do that.” [49] The remaining references to culpable homicide appear at pp.93 and 94–95. At p.93 the trial judge directed as follows: “On charge (7), there are different verdicts open to you in respect of each accused: they could be found guilty of murder, or of culpable homicide, or acquitted.”

[50] At pp.94–95 he gave the following direction: “In relation to charge (7), the murder charge, if you were convicting of this charge but thought there was not a murderous assault, as I defined it yesterday, but thought that it was culpable homicide, then all you would do would be to delete the word ‘murder’ in the last line, and substitute for that word, the word ‘kill’, and that would just tell us that you were not satisfied that it was a murderous attack and it represented culpable homicide.”

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[51] From these passages it is clear that the trial judge had in mind that if it was established that the accused were responsible for the death of Liam whilst acting in concert, then the only question would be whether they should both be convicted of murder or both of culpable homicide. The passages at pp.93, 94 and 95 were all designed to give effect to what he had said at pp.76 and 77. [52] This assessment is reflected in what the trial judge himself said in his report under reference to this ground of appeal. He explained that he gave the jury the option of convicting the co-accused alone on this charge on the basis of J J’s evidence but that there was no live issue that the appellant could be found guilty of culpable homicide and the co-accused of murder. He explained that he gave the directions found at pp.76–77 in light of what the court said in McKinnon at para.28. That paragraph reads as follows: “When the actor, by which we mean the person by whom the crime was personally committed, is identified, his guilt plainly depends on what is established to have been his own criminal intent, normally to be inferred from all the relevant circumstances. Whether another person is guilty, and, if so, of what crime, depends on whether he or she acted in pursuance of a common criminal purpose along with the actor and, if so, whether it was within the scope of that purpose, as inferred from all the relevant circumstances. Where, on the other hand, the actor cannot be identified, the position is different to the extent that the question is what crime has been committed, and, for the purpose of answering that question, what inference can be drawn as to the criminal intent associated with the act. The guilt of the individual accused depends on whether, in regard to him or her, there was a common criminal purpose and, if so, what was its scope, and not on his or her individual criminal intent.” [53] Since the Crown presented the present case upon the basis that they could not identify which of the two were responsible for the various assaults the directions which the trial judge gave were clearly modelled on what was said in the last two sentences of para.28 in McKinnon. The detailed and careful manner in which he explained how the jury should approach the case as presented by the Crown has not been, and could not be, criticised. In our opinion, the only question in relation to this aspect of the trial judge’s charge is whether he was over generous to the appellant and her co-accused in leaving open the option of a verdict of culpable homicide. [54] The evidence in the present case demonstrated that Liam Fee was subjected to a sustained course of violent conduct over a period of years prior to 15 March 2014, resulting in many injuries which would have been painful and obvious. The appellant’s conduct in, amongst other things, failing to obtain medical assistance, actively concealing his condition and actively avoiding contact with health authorities satisfied the jury that she was party, along with the co-accused, to a continuing plan to inflict assaults on Liam in the form of blunt force trauma to his head and body. That is the conclusion to be drawn from her conviction on charge (6). As a consequence of the neglect and ill treatment to which he was subjected he was found to have lost weight in the last year of his life and by March 2014, aged two years and seven months, he was in a vulnerable condition. It is in this context that the ongoing assaults to which he was subjected require to be viewed. [55] Around 16 March 2014 he sustained an attack or attacks of sufficient severity to fracture his femur and his humerus. Both the appellant and her co-accused were aware of the extent of these injuries and their life-threatening nature, as was vouched by the evidence of the various internet searches which were carried out in the period between 17 and 22 March 2014. It was whilst

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in this condition that he sustained further fractures to the same sites on the humerus and femur within six hours of his death and further blunt force trauma of such severity as led to the rupture in his heart and rapid death. Looked at in the light of this history, the violent attacks on such a vulnerable and weakened child in the period between 15 March 2014 and 22 March 2014 can, in our opinion, bear no other characterisation than wickedly reckless. It is therefore our opinion that, on the basis of the case as presented by the Crown, if the jury came to be satisfied, in the ways explained to them by the trial judge in the passages discussed between pp.59–76 of the transcript of his charge, that the appellant and the co-accused acting in concert were responsible for the injuries which caused Liam’s death, then the only verdict available was that they were both guilty of murder. [56] On the hypothesis presented by the appellant, the jury might have concluded that the co-accused was the person who actually inflicted the injuries on the child and ought then to have been given the option of assessing whether the appellant had associated herself with the co-accused’s murderous conduct, or only with some lessor common purpose. Importantly though, and as the trial judge points out in his report, it was not the actual attack involved in the fatal blow itself which was the principal feature available to prove a murderous attack. It was that Liam was such a young child, already injured, immobile, dependent and highly vulnerable. As he says, those features would have been apparent not only to the actor in this case but to anyone who could be said to have associated herself with the common purpose of a course of assaults on this child. [57] There is therefore no basis upon which it could be said that the appellant did anything less than actively associate herself with a common criminal purpose which included the taking of human life, or carried the obvious risk that human life would be taken, in the carrying out of which murder was committed. In these circumstances her guilt is as defined in the first sentence of para.32 of McKinnon. In other words, even if the jury did proceed upon the hypothesis suggested on the appellant’s behalf they would have been bound to conclude that she was guilty of murder art and part. In the circumstances of this case the evidence led by the Crown clearly established that the appellant had associated herself with a purpose which carried with it the obvious risk that life would be taken. We therefore agree with the trial judge and the advocate depute that the directions argued for by the appellant were correctly omitted.

Decision

[58] For the reasons which we have given the appeal against conviction is refused.

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COMMENTARY

This was, indeed, an unusual case, but it does not involve any change in the law of art and part in murder. In order to obtain a murder conviction the Crown had to prove (1) that both accused participated in a joint plan to assault L over a period, and particularly in the period shortly before his death, and that the only reasonable inference from the appellant’s behaviour was that she had been an active participant in such a course of conduct, rather than being just aware of it, and acquiescing in it. They also had to prove (2) that at the time of the murder itself L’s state of health was such that to continue to carry

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out the plan was clearly wickedly reckless in relation to the possibility of his death, and therefore murderous. The Crown expressly did not proceed on the basis that because of the appellantâ&#x20AC;&#x2122;s duty of care to L she could be convicted because of omission to do anything to protect him.

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A 17 March 2017 HER MAJESTY’S ADVOCATE (on behalf of the Regional Court in Radom, Republic of Poland)

Appellant

against MIROSLAW ALEKSANDER LISEK

Respondent

[2017] HCJAC 15 Extradition—Extradition offence—Dual criminality—European arrest warrant offence described as appropriation by failing to return leased property on termination of lease—Whether offence under Scots law— Extradition Act 2003 (c.41), s.65(3)(b) Section 65(3)(b) of the Extradition Act 2003 provides that conduct constitutes an extradition offence if it would constitute an offence under the law of the relevant part of the UK. The respondent appeared before the sheriff on a European arrest warrant (EAW) in terms of which his extradition was sought on the ground that he had been sentenced by a Regional Court in Radom, Poland for offences of stealing property in that he had failed to return property which had been leased to him after the termination of the lease. The sheriff refused to grant an extradition order, holding that the description of the offence in the warrant did not impel description of an offence known to Scots law, as there were was a variety of possible circumstances, examples of which the sheriff described, in which a failure to return leased property did not involve mens rea. The appellant appealed to the High Court. Held (1) that what s.65(3)(b) requires is consideration of the conduct described in the EAW, not consideration of entirely imaginary conduct which has nothing to do with the facts as presented to the executing court (para.18), and that there was no question but that the conduct described in the EAW would constitute the crime of theft under Scots law (para.17); (2)(i) that what the sheriff had to decide was whether the conduct set out in the EAW would constitute an offence under the law of Scotland if it occurred in Scotland and that it did, that the conduct described in the EAW would form a relevant charge of theft as a matter of Scots law, that some of the elements of a particular offence will be established by direct evidence and, almost inevitably, some must be established by inference from the direct evidence, that where in a purely domestic context an element in an offence has to be inferred the question of whether it can be inferred is usually expressed in terms of whether the averred or evidenced direct facts are sufficient to justify any inference necessary to establish the charge, and that there was no reason why any different approach should be adopted in the context of extradition when determining whether particular conduct, as described in an EAW, amounts to an extradition offence (para.28); and. (ii) that if dual criminality could only be determined where any inference which it was necessary to draw had to be an inevitable inference then in the present case that test was met, that when considering what is the appropriate inference to draw from given direct facts one must look to the given facts and to no others, and that in the present case, the conduct described in the EAW both constituted the actus reus of theft and, as a matter of inevitable inference, demonstrated the mens rea of theft (para.28); and appeal allowed and case remitted to the sheriff to proceed as accords.

185

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Gruszka v Regional Court in Opole and Circuit Court in Swidnica, Poland [2015] EWCA 2564 (Admin) distinguished. Cases referred to in the opinion of the court:

Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] Q.B. 677; [1980] 2 W.L.R. 218; [1979] 3 All E.R. 522 Brodziak v Circuit Court in Warsaw, Poland [2013] EWHC 3394 (Admin) Black v Carmichael, 1992 S.C.C.R. 709; 1992 S.L.T. 897 Gruszka v Regional Court in Opole and Circuit Court in Swidnica, Poland [2015] EWCA 2564 (Admin). Harazin v Lord Advocate [2010] HCJAC 65; Office of the King’s Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 A.C. 1; [2005] 3 W.L.R. 1079; [2006] 1 All E.R. 64 The Lord Advocate sought the extradition to Poland of Miroslaw Aleksander Lisek, but his application was refused by Sheriff Ross in Edinburgh Sheriff Court on 1 December 2016 and the Lord Advocate appealed to the High Court on the grounds referred to in the opinion of the court. The appeal was heard on 10 February 2017 by Lord Brodie, Lady Clark of Calton and Lord Turnbull. For the appellant: Dickson AD. For the respondent: G Brown, Solicitor advocate for GR Brown, Solicitors, Glasgow. On 17 March 2017 Lord Brodie delivered the following opinion of the court. LORD BRODIE Introduction

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[1] The respondent, Miroslaw Aleksander Lisek, appeared before the sheriff at Edinburgh on 18 August 2016, having been arrested on a European arrest warrant issued by a judge of the Regional Court in Radom, Poland, and dated 27 January 2016 (the EAW). As such, the EAW was a Pt 1 warrant issued by a Category 1 territory in terms of the Extradition Act 2003 and so certified in terms of s.2(7) of the Act by an officer of the National Crime Agency on 27 June 2016. The respondent accepted that he was the person named in the EAW. [2] The EAW narrated that the respondent, having appeared in person at the trial resulting in the decision, had under a judgment of the District Court in Radom dated 2 June 2008 been sentenced to a custodial sentence of two years for the fact that: “(1) On 26 December 2006 in Radom the above stole property entrusted to him, namely sewing machines, ie stitch-bonding machines and punching machines, as a result of leasing agreement No 0002365/2006 concluded with GETIN Leasing SA in Wroclaw, worth in total PLN 65,100 to the detriment of the above entity in the way that he did not return the abovementioned machines being the subject of leasing although the agreement had been terminated by GETIN Leasing SA and he was called on to release the property being the subject of the leasing agreement, ie an offence under art.284 § 2 of the Penal Code. (2) On 7 May 2007 in Radom, the above stole property entrusted to him, namely ESTRICH BOY DC 260/45 screed pump serial number

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WO9D4AAAAVB6B10199, as a result of leasing agreement No 37/0313/06 concluded with Pekao LEASING Spolka z o.o. in Warsaw, worth in total PLN 129,320 to the detriment of the above entity in the way he did not return the above-mentioned machines being the subject of leasing although the agreement had been terminated by Pekao LEASING Spolka z o.o. and he was called on to release that property being the subject of the leasing agreement, ie, an offence under art.284 § 2 of the Penal Code.” The nature and legal classification of the offences and applicable statutory provision/code is stated to be art.284.2 of the penal code—stealing a thing entrusted. In the Form A–Supplementary Information attached to the EAW, against description of the circumstances of the offence, the narrative of fact quoted above is repeated. The legal classification is stated as art.284 of the Polish Penal Code, and the legal description of the offence is stated as “appropriation”. [3] On 18 August 2016 the sheriff gave the respondent the information specified in s.8(3) of the Act as to consent to extradition. The respondent confirmed that he did not consent to extradition to Poland. The sheriff fixed 1 September 2016 as a full extradition hearing and remanded the respondent in custody. [4] The full hearing assigned for 1 September 2016 was discharged on defence motion, as were three subsequently fixed hearings. A hearing was then fixed for 1 December 2016. At the preliminary hearing on 3 November 2016, Mr Brown, Solicitor Advocate, intimated to the court that the argument at the full hearing would be in respect of s.10(2) of the Act, and specifically that the offences specified in the EAW were not extradition offences. [5] At the full hearing on 1 December 2016, having heard parties, the sheriff held that the offences specified in the EAW were not extradition offences and accordingly, in terms of s.10(3) of the Act, ordered the respondent’s discharge. [6] In terms of the note of appeal lodged on 7 December 2016 the appellant, the Lord Advocate acting on behalf of the Polish judicial authority, seeks leave to appeal and appeals in terms of s.28(4) of the Act on the ground that the sheriff erred in fact and law in finding that the conduct described in the EAW describing the offences of which the respondent was convicted in Poland did not constitute an extradition offence.

The sheriff’s decision

[7] The sheriff has provided a note dated 30 December 2016 at the end of which he poses the question for this court as: “In the circumstances, did I err in concluding that the two offences described in the European arrest warrant did not amount to extradition offences under ss.10 and 65 of the Act?” In his note he records that no evidence was led at the hearing and that the only ground on which extradition was challenged was under s.10 of the Act. He summarises the submission on behalf of the respondent as being that the charges were not offences known to Scots law and did not show the necessary mens rea for a criminal offence. He makes reference to the decision of King J in Gruszka v Regional Court in Opole and Circuit Court in Swidnica, Poland. The sheriff does not record the submission for the appellant. [8] In stating his reasoning the sheriff explains that given that the respondent had been sentenced for an offence but that no certificate had been issued by the appropriate Polish authority that the conduct constituting the offence fell within the European Framework list, for the offences to be extradition offences,

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in addition to meeting the criteria in s.65(1) they had to meet the criteria set out in s.65(3) and, in particular, the criterion set out in s.65(3)(b) of the Act: that the conduct constituting the Polish offences constituted an offence under Scots law. What had been submitted on behalf of the respondent was that they did not; while the word “stolen” was used, the narrative in the EAW did not describe events which showed the necessary mens rea for theft. It was not enough that the description is capable of describing a criminal offence known to Scots law; the description must “impel such a description”: Gruszka. The sheriff took the view that the requirements of s.65 were not met. The offences were said to arise from commercial contracts. The criminality was said to have arisen as a result of failure to return the goods following demand. Although it was speculative, it was not difficult to see that there were a variety of possible explanations for failure to return goods, most of which did not require criminal intent: loss or destruction of the goods without fault of the hirer, in a fire or in transit for example; a liquidator preventing removal of goods pending clarification of title; theft by a third party; contractual breach disentitling the owner to demand redelivery; the hirer having a right of retention; or the assignation, transfer or extinction of the obligation to redeliver. The sheriff considered that if it was important to bear in mind that the relevant Polish authority had not certified the offences as falling within the European Framework list. It had been open to the Polish judge to certify these as offences of theft, or other category, which would have served to remove any discretion from the Scottish courts as to whether these were extradition offences: s.65(5) of the Act. Submissions to this court Appellant

[9] Mr Dickson, on behalf of the Polish judicial authority moved for leave to appeal and submitted that the appeal should be allowed. The sheriff had failed to consider the conduct narrated in the EAW as constituting the offences in contravention of art.284.2 of the penal code and then properly to undertake an assessment as to whether it would constitute an offence under the law of Scotland. Had he done so he should have concluded that what was narrated would constitute the crime of theft, the necessary mens rea being readily inferred from the narrative of fact: Black v Carmichael at p.901K; Harazin v Lord Advocate; Gordon, Criminal Law (3rd edn), paras 14.05, 14.10, 14.11. The test was whether the description of the conduct which had led to conviction in Poland would have constituted a relevant charge of a criminal offence known to the law of Scotland. As the sheriff had recognised, there was no other issue over the validity of the EAW and the extradition request. The possibilities canvassed by the sheriff might provide a defence to a charge of theft, but only once they were raised by the accused. It had been inappropriate to second-guess the decision of the Polish judge. The sheriff’s drawing an adverse inference from the absence of a tick against any of the listed Framework offences was unwarranted. Apart from anything else, theft was not an offence that was included on the list. Respondent

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[10] On behalf of the respondent Mr Brown submitted that the question at the end of the sheriff’s note should be answered in the negative and the appeal refused. In terms of s.65(3)(b) of the Act the question was whether the conduct narrated in the EAW constituted a crime under the law of Scotland. To answer that question in the affirmative the narrative had to impel that conclusion:

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Assange v Swedish Prosecution Authority at paras 57 and 76, Gruszka at para.20. There was no reference to dishonesty in the narrative of conduct. The sheriff had adopted the correct approach by considering the variety of possible explanations that there might be for failing to return goods following upon a demand by the owner to do so.

Decision

[11] Pt.1 of the 2003 Act was enacted by the UK in implementation of its obligation under art.34 of Council Framework Decision of 13 June 2002 (2002/584/JHA). The Framework Decision makes provision for the European arrest warrant, of which the EAW in the present appeal is an example. In the Act a European arrest warrant is described as a “Part 1 warrant”. The territory of a Member State of the European Union is described as a “category 1 territory”. [12] In terms of the 2003 Act a Pt 1 warrant may contain a statement that the person in respect of whom the warrant is issued is accused of an offence specified in the warrant (see s.2(2)(a), (3) and (4)) (an “accusation warrant”) or it may contain a statement that the person in respect of whom the warrant is issued is unlawfully at large after conviction of an offence specified in the warrant (see s.2(2)(b), (5) and (6)) (a “conviction warrant”). In either case when the person is brought before the appropriate judge for the extradition hearing, the judge must decide whether the offence specified in the Pt.1 warrant is “an extradition offence” (s.10(2). In the case of an arrest on a conviction warrant, interpretation of “extradition offence” is governed by s.65 of the Act. [13] Insofar as relevant, s.65 provides as follows: “Extradition offences: person sentenced for offence (1) This section sets out whether a person’s conduct constitutes an ‘extradition offence’ for the purposes of this Part in a case where the person— (a) has been convicted in a category 1 territory of an offence constituted by the conduct, and (b) has been sentenced for the offence. (2) The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsection (3), (4) or (5) are satisfied. (3) The conditions in this subsection are that— (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed in the category 1 territory in respect of the conduct. ... (5) The conditions in this subsection are that— (a) the conduct occurs in the category 1 territory; (b) no part of the conduct occurs in the United Kingdom; (c) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European Framework list; (d) the certificate shows that a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.”

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[14] Section 65 reflects the terms of art.2 of the Framework Decision in that it provides for extradition in respect of two categories of offences: first (art.2.2 of the Framework Decision), Framework list offences (cf Office of the King’s Prosecutor, Brussels v Cando Armas at para.50), to which subs.(5) of s.65 relates; and, second (art.2.4 of the Framework Decision), offences other than Framework list offences, in respect of which surrender under the warrant may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, to which subs.(3) of s.65 relates. It has long been a principle of extradition that the person should only be extradited where the conduct is not only an offence under the law of the state requesting extradition, but also under the law of the state from which the person’s extradition is sought; this is the principle of dual criminality: Assange at para.55. Thus, art.2.4 of the Framework Decision allowed Member States to preserve the principle of dual criminality when implementing the decision in respect of offences that were not Framework offences. On the face of it, art.2.2 is a departure from the principle but the departure may be more apparent than actual. As Lord Bingham observed in Office of the King’s Prosecutor, Brussels at para.5, underlying the Framework list is an unstated assumption that offences of the character of those listed will feature in the criminal codes of all Member States; the assumption is that double criminality need not be established in relation to these offences because it can, in effect, be taken for granted. [15] The Framework Decision includes, in an annex, a pro forma European arrest warrant. At section E of the pro forma warrant there is set out the Framework list offences with an invitation to tick the box beside a particular offence “if applicable”. The EAW in the present case follows that format. However, none of the offences listed is ticked. As a result there is no certificate that the conduct of which the respondent was convicted falls within the European Framework list, as provided for by s.65(5)(c) of the Act. Accordingly, this is a case where dual criminality must be demonstrated in terms of s.65(3) and therefore “the particulars of the conviction” which must be contained in a Pt.1 conviction warrant in terms of s.2(6) of the Act, require. . .[inclusion of] a description of conduct which would constitute an offence under the law of the relevant part of the UK (here Scotland): s.65(3)(b). [16] The sheriff provides four partly overlapping reasons for accepting the submission on behalf of the respondent that the conduct for which the respondent had been convicted in Poland would not constitute an offence under the law of Scotland. In the order that they occur in the sheriff’s note these are: (1) The offences of which the respondent had been convicted in Poland were not offences known to the law of Scotland. While the word “stole” is used, the narrative in the EAW did not show the necessary mens rea for theft. (2) It is not enough that the description of the relevant conduct in the warrant is capable of describing a criminal offence known to Scots law. The description must impel such a description: Gruszka. (3) There are a variety of possible explanations for failure to return goods which have been the subject of a contract of hire which are capable of displacing mens rea: the goods may have been destroyed or lost without fault, for example by accidental fire or loss in transit; redelivery may be thwarted by the act of a third party; there may be a contractual defence to a demand for return arising from wrongful termination, a plea of retention or set-off, or a dispute over the transfer or assignation of obligations.

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(4) The Polish judicial authority (a judge in the regional court) did not consider that the offences should be certified as falling within the European Framework list. It had been “open to the judge to certify these as offences of theft, or other category”. The judge did not do so. It was a necessary inference that the Polish judicial authority had a good reason for so deciding. It would follow that a Scottish court should be slow to take a contrary view, and to assume (based on nothing more than a short translated narrative) that this was an error or oversight, and that in fact these are offences which would fall within that framework (for example “aggravated theft”). We shall consider these reasons separately, although the first three rather run one into the other. [17] It is accepted that the s.65(1) criteria are met, as are the s.65(3)(a) and (c) criteria, but, and we have designated this as his reason (1), the sheriff considered that the conduct of which the respondent was convicted did not constitute an offence under the law of Scotland, hence the s.65(3)(b) criterion was not met. In order to assess that we begin by reminding ourselves of the conduct which constituted the respondent’s contravention of art.284.2 of the Polish Penal Code. The charges related to two separate incidents each involving different property but the conduct was essentially the same in each case. We therefore take charge (1) as an example in that what applies to it must also apply to charge (2). Charge (1) is in these terms: “(1) On 26 December 2006 in Radom the (respondent) stole property entrusted to him, namely sewing machines, i.e. stitch-bonding machines and punching machines, as a result of leasing agreement no. 0002365/2006 concluded with GETIN Leasing SA in Wroclaw, worth in total PLN 65,100 to the detriment of the above entity in the way that he did not return the above-mentioned machines being the subject of leasing although the agreement had been terminated by GETIN Leasing SA and he was called on to release the property being the subject of the leasing agreement, ie an offence under art.284 § 2 of the Penal Code.” Mr Dickson submitted that, leaving aside the reference to the Polish Penal Code, that narrative would constitute a relevant charge of theft under the law of Scotland. We agree. In Scots law the essential characteristic of the crime of theft is the appropriation (in the sense of treating as one’s own) of an item of tangible moveable property which belongs to someone else without that person’s consent: Gordon, Criminal Law (3rd edn), paras.14.01, 14.10. The conduct amounting to appropriation may take a number of forms. Wheelclamping a vehicle is one example. That is what was in issue in Black v Carmichael, the charge simply stating that the accused attached the device to the wheel of the motor car, thus depriving the person having control of it of the use of the car and that they did steal the same. However, what was said there by Lord Justice-General Hope in his opinion in Black (at 790C and 790E–791C), with which the other members of the court concurred, has more general application: “The Lord Advocate submitted that there was no need to spell out in the charge what was the intention of the act. It was sufficient to state what the act was. The felonious intention could be left to inference. In the normal charge of theft, which describes the act of taking away or appropriation, the facts averred will invite the inference. So also in this case the intention necessary for mens rea could be inferred simply from the fact of depriving the motorist of the use of the car. ...

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“It seems to me that the act of depriving the motorist of the use of his motor car by detaining it against his will can accurately be described as stealing something from him, and that on this basis the facts libelled are sufficient to constitute a charge of theft. The accused are said to have deliberately placed a wheel clamp on a wheel of the vehicle which they found in the car park, in order to detain it there and keep it under their control against the will of the motorist. There is no suggestion that it was intended by the motorist that they should have control over the car for any purpose, or that by parking the vehicle in the car park he intended that anyone else should have control over it. And the physical element of appropriation is clearly present, in my opinion, since the purpose and effect of the wheel clamp was to immobilise the vehicle and use of it as a motor car. “I should add that I am not persuaded that this approach involves an extension of the crime of theft beyond limits which have already been recognised. While the act cannot be described as theft by taking away, I consider that it can properly be described as theft by appropriation of the car in the car park. ... “Thus the deliberate nature of the act of appropriation in knowledge of its consequences is sufficient in this case to justify the inference of mens rea. I think that the necessary elements are all present in the libel and that the sheriff was wrong to hold that the alternative charges of theft were irrelevant.” Thus, appropriation, which may or may not involve an act of taking away, is what is important, both as constituting the actus reus of theft and, without anything more, as justifying the inference of the necessary mens rea (a point explained in Gordon at para.14.01). The accused in Carmichael never had any rights in respect of the motor car which they had wheel-clamped, but a person can equally be guilty of theft if he appropriates an article which he was originally entitled to possess, for example by virtue of a loan or a contract of hire-purchase: Gordon at para.14.01. That was the position in Harazin v Lord Advocate, an application for extradition to Poland on a conviction warrant where the offence in question was a contravention of the same provision of the penal code as is applicable here: art.284.2. Giving the opinion of the court in Harazin, Lord Bonomy said this [para.22]: “The sheriff interpreted the statements of the circumstances of each of the offences with the assistance of the provisions of the Polish Penal Code which were specified as having been contravened, and with the additional benefit of a second translation of the EAW which the Crown obtained when the interpreter at court stated that the English translation of the EAW which accompanied the Polish warrant was a poor translation. The sheriff found that there were no material differences from the point of view of the essentials of the charges. However, he identified one advantage of the new translation as being the translation into English of the names of the various organisations which were mentioned. His approach can be illustrated by reference to the way in which he dealt with the circumstances of charge (1): “ ‘In relation to charge (1) the original warrant described it thus: ‘On 28 November 2001 in Kielce, he stole the car make ‘Ford Escort’ Reg. No. KJV-2602 worth £18,000 PLN acting at the loss of Cezary Radomski.’ In the new translation, it was said that ‘He appropriated a Ford Escort car. . .valued at £18,000 Zlotys, entrusted to him by Cezary Radomski.’ The offence is said to be contrary to art.284.2 of the Criminal (original warrant) or Penal (new translation) Code. I was provided with

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an English translation of ‘The Penal Code’. According to art.284.2, ‘Whoever appropriates a moveable property entrusted to him shall be subject to the penalty or deprivation of liberty for a term of between three months to five years.’ The appellant’s explanation was that he was buying this car on hire purchase, and that it had been left behind in a garage on the farm when he had been put off the property; he had not been allowed to recover it. It may well be that the appellant was buying this car on hire purchase, but it is quite clear that art.284.2 describes an offence of dishonesty, and that the Polish court have found that the appellant dishonestly appropriated the vehicle. In my view, the appellant’s conduct was criminal by the law of Scotland.’ “The sheriff proceeded to deal with each of the other cases of theft and fraud in a similar way. Having reviewed the sheriff’s analysis of the circumstances, we are satisfied that he correctly determined in each case that the conviction was in respect of an extradition offence.” There is therefore no question but that the conduct described in the EAW in the present case would constitute the crime of theft under Scots law. The narrative of retention of the lessor’s machinery after the termination of the lease despite a call for its return constitutes the deliberate appropriation which amounts to the actus reus of theft. The nature of that conduct is also “sufficient. . .to justify the inference”, to use the language of Lord Hope in Carmichael, of the mens rea of theft, that being the intention to deprive the owner of his property (Gordon at para.14.23 rejects the utility of the imprecise concept of “dishonesty” in determining the mens rea of theft). [18] It is convenient now to consider the sheriff’s reason (3) for concluding that the conduct narrated in the EAW did not constitute an offence under the law of Scotland. In paras.16 and 17 of his note the sheriff sets out “a variety of possible explanations for failure to return goods (which) do not require criminal intent”. The sheriff’s examples are of situations where a hirer has been deprived of possession or control of the article in question (which comes to the same thing) by force majeure or where he has contractual claims allowing him to retain possession, “all capable of displacing mens rea for the purpose of criminal law”. We suppose the sheriff to be right about his various imagined examples but all of them are just that, imagined, or as he puts it, “speculative”. There is no reason whatsoever to suppose that, to take one of the sheriff’s examples, the machinery referred to in the EAW had been destroyed by an accidental fire. It would be different if any of the sheriff’s imagined examples appeared on the face of the EAW; if, for example, the description of the offence of which the appellant had been convicted disclosed that a conviction had followed despite the machinery having been accidentally destroyed by fire or that the appellant had otherwise been convicted on a basis which included him being prevented from returning the machinery by force majeure. However, that is not the case; what we have in the EAW is a description of conduct which would constitute a relevant charge of theft under the law of Scotland. Just because one can imagine good defences to that charge on certain factual hypotheses, none of which can be said to apply, does not make the charge irrelevant. To put it another way, what s.65(3)(b) requires is consideration of the conduct described in the warrant, not consideration of entirely imaginary conduct which has nothing to do with the facts of the case as presented to the executing court. [19] We return to reason (2), which was effectively the whole focus of Mr Brown’s submission to us. Mr Brown drew our attention to para.20 of the judgment in Gruszka where King J said this:

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“[Counsel for the appellant] has reminded this court of the important principles established in Assange that the inference of mens rea of any conduct has to be impelled by the description of the conduct. The description of the conduct must be sufficient to impel the necessary inference of dishonesty. It is said this cannot be so in this particular instance. Reliance is put also on Brodziak to like effect.” Brodziak v Circuit Court in Warsaw, Poland, a decision of the divisional court, is indeed to like effect. At para.15 of the judgment in that case there is this: “Whilst inferences can be drawn as to mens rea, the facts must be such as to impel that inference (see the judgment of the Divisional Court in Assange v Swedish Prosecutor at para.57); and it is submitted that there is nothing within the particulars in the warrant which impels the inference that the appellant possessed the necessary mens rea in this case.” The sheriff explains in his note that Gruszka was the authority relied on before him. However, neither he in his note nor Mr Brown in his submission to us, offered any analysis of Gruszka or of Assange, to which King J refers. We shall therefore attempt to supply the omission. [20] We confess to having been initially puzzled by the use of the word “impel”. Its original provenance and meaning are to be found in para.57 of the judgment in Assange where the then President of the Queen’s Bench Division, Sir John Thomas (now the Lord Chief Justice of England and Wales), is recording the submission by Mr Ben Emmerson QC, Mr Assange’s counsel: “It was accepted by Mr Assange that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement.” Thus, Mr Emmerson was drawing a distinction between, on the one hand, a description of conduct which justified a particular inference being drawn (in Assange the presence of the mens rea for sexual assault) but which would also permit a different inference, and, on the other hand, a description of conduct which was such as to permit only that particular inference reasonably to be drawn and no other. His submission was that, where something had to be inferred in order to include all the elements of an English offence with a view to ensuring dual criminality, only the latter sort of description would do; not the first. That was Mr Assange’s position, but with all respect to King J, having read the judgment of the divisional court, we are doubtful whether it can properly be said that what had been submitted by Mr Emmerson was established as a principle by virtue of the court’s decision. [21] What was under consideration in Assange was an accusation warrant which alleged that Mr Assange had committed four offences in Sweden. Offence 4 (rape) was a Framework list offence. Offences 1 (unlawful coercion) and 2 and 3 (sexual molestation) were not. It was conceded on behalf of Mr Assange that the conduct described in the warrant in respect of offence 1 and 3 would constitute an offence in England and Wales, but his position was that a fair and accurate description of the prosecution case would not meet that

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test. As far as offence 2 was concerned, this did not meet the dual criminality test either on the basis of the description in the warrant or of a fair and accurate description of the offence. As offence 4 was a Framework list offence, the s.65(3)(b) test for dual criminality did not apply, but Mr Assange’s position was that the conduct had not been fairly and accurately described. If it had been it would not have amounted to rape according to the law of England and Wales. This contention: that the descriptions were not fair and accurate, raised the question as to whether the alleged conduct could and should be tested by looking at extraneous material (from the Swedish prosecution file) to determine the nature of the case against Mr Assange. The President, giving the judgment of the divisional court, focused that question as follows, at para.69: “It is always possible, as (The Criminal Court at the National High Court, 1st Division (a Spanish Judicial Authority) v Murua [2010] EWHC 2609 (Admin)) demonstrates, that there may be circumstances in which extraneous material should be admitted without undermining the principles underlying the Framework Decision. Such circumstances will be exceptional and therefore are likely to be very rare, given those underlying principles. In our view, those circumstances will not arise where the EAW is clear on its face and the evidence sought to be adduced does not show that the case actually being advanced by the prosecutor is different to the case set out in the EAW. Such circumstances will normally only occur where there has been a fundamental error or fundamental unfairness or bad faith on the part of the court or prosecutor in the issuing state. It is necessary to consider whether the request for Mr Assange’s surrender is such a case.” At para.71 the court states its conclusion that in this case it was not apposite to take into account the material in the prosecution file for reasons it then elaborated. Nevertheless, as the material in the file had been put before the court, it went on to express a view on that material. Having done so the court concluded in relation to charges (1)–(3) that dual criminality was made out, that charge (4) had been fairly and accurately described and that what was described amounted to rape according to the law of England and Wales. The distinction suggested by Mr Emmerson between a description of facts which enable an inference to be drawn and a description of facts which impelled an inference to be drawn, played no part in the resolution of what was in issue in the case. It is true that at para.76 of the judgment the President does use the word “impel” when reiterating the court’s conclusion, previously stated at para.71(v) in the context of giving reasons why material in the prosecution file should not be taken into account, that the facts set out in the warrant were “sufficient to lead to the inevitable inference of lack of consent” and, in the same sub-para.71(v)) that if Mr Assange had done as was alleged “it would also be the inevitable inference, to the extent relevant, that he knew that she was not consenting”. However, we would be slow to read that as an endorsement of the proposition that where something has to be inferred in order that a description of conduct can be taken to include every element in an offence for the purposes of s.65(3)(b) of the Act that the inference must be an inevitable inference as opposed to merely an available inference. The judgment contains absolutely no discussion of why the apparently more demanding “impel” should be preferred over the apparently less demanding “enable”. It is true that the President does couch his reasoning in terms of inevitable inference but we would understand him as simply taking on the argument on Mr Emmerson’s terms, in other words expressing the view that in the circumstances of the particular case the Swedish prosecutor was relying on alleged facts

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which would impel the inference of lack of consent. We do not recognise what appears in either para.71 or para.76 in Assange as a statement of principle. [22] Gruszka was concerned with two conviction warrants and one accusation warrant. The point taken in relation to each of the conviction warrants was that it did not disclose conduct which could amount to a recognised offence in England and that therefore the conviction warrant was not in respect of an extradition offence. King J first considered the warrant he designated EAW 2 in which the circumstances of the relevant offences were set out as follows [para.7]: “From 4 April 2000 to 8 September 2000 in Bielany, Wroclawskie and in Zabkowice Slaskie, acting with aforethought intent, fraudulently did he obtain money at the amount of PLN 4894.28 as well as fraudulently did he attempt to obtain the amount of PLN 500 in the following way: while being aware that he did not have sufficient financial means in his bank account he made out six cheques which he later presented and cashed causing a debit balance of PLN 4894.28 on his account which was to the detriment of Bank Zachodno SA Bank Branch in Ziebice.” There then follow details of the presentation of each of the cheques at a branch of a bank and finally a reference to the applicable provisions of the Polish Penal Code. King J accepted a submission that what was set out in EAW 2 did not constitute a crime under the law of England. He noted under reference to Barclays Bank v WJ Simms Son & Cooke (Southern) Ltd, that if the customer draws a cheque when there are insufficient funds in his account and without making prior arrangements with the bank, the position is that the drawing of the cheque is a request for overdraft facilities. The bank has no obligation to grant such facilities or to honour the cheque. It is free to choose. If the bank chooses to pay, then it has a claim against the customer, but the customer has not committed an offence. At para.21 of his judgment King J said this: “In my judgment, although the word ‘fraudulently’ is used, the warrant, as (counsel) submitted, does not expand or explain why it was considered the conduct to have been fraudulent or indeed dishonest beyond the mere fact of the transactions set out. The phrase ‘acting with an aforethought intent’ adds nothing to the analysis. I am persuaded that notwithstanding the submissions of the respondent, one cannot make out to the criminal standard that the conduct alleged includes making a false representation with intent to deceive a cashier. . . . I am unable to say that the description of the conduct impels the necessary inference of dishonesty which is required both for an offence under the Fraud Act and indeed for an offence of theft. For all these reasons, I agree with (counsel) that the EAW 2 does not disclose an extradition offence.” [23] The description of the offence in EAW 1 was as follows: “On 6 May, 2003 in Nysa. . .for private financial gain, as a joint owner of the enterprise PHU ‘Marcin,’ with its registered office in Niedwiednik, purchased 8000 litres of fuel oil the value of which amounted to PLN 10 800, according to VAT invoice no. DF 01133/03, with a deferred payment term, not intending or being able to pay this amount due, thus he caused PHU TANK spoika sp.z o.o (a limited liability company), with its registered office in Nysa, to disadvantageously dispose of the property in the aforementioned amount.” King J said this about EAW 1 at paras.23 and 24 of his judgment “The description is of a transaction of obtaining fuel oil in the course of business under terms in deferred payments. The key phrase is ‘not intending

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or being able to pay this amount due.’ (Counsel) for the respondent says this is clearly an offence of theft as well as an offence of fraud by false representation, because it alleges that the person has obtained fuel under a deferred payment scheme not intending to pay. I would agree if that is the way in which the conduct is alleged against the appellant. But it is not, in my judgment. It is in the alternative. And the alternative to not intending to pay is not being able to pay. (Counsel for the respondent) has valiantly sought to invite me to say the ‘or’ should really be an ‘and’, and thus gives rise to clear dishonesty: no intention to pay and not being in a position to pay amounts when due. But I cannot read it in this way. In the alternative, the conduct is simply not being able to pay when the amounts become due. “. . . The conduct as alleged is not clearly conduct which would amount to a criminal offence in this country because it includes conduct which does not include an intention not to pay. It includes conduct whereby when amounts became due the appellant was unable to pay. One cannot impel, by the wording here, dishonesty to the standard required as in Assange. The position is not saved, in my judgement, by the expression ‘for private financial gain.’ For all these reasons, I agree with (counsel for the appellant) and I conclude that the offence is not an extradition offence in EAW 1.” [24] We respectfully take no issue with King J’s reasoning and consider that a Scottish court would have come to the same conclusion as he did in relation to the two conviction warrants if it had to decide whether what was described there constituted offences under the law of Scotland. However, we do not consider that King J’s reasoning supports the sheriff’s conclusion in the present case. It had been argued before King J that the conduct described in EAW2 constituted the crime of fraud under English law but when he considered the description, although the words “fraudulently” and “acting with aforethought intent” were included in the narrative there was no reference to a fraudulent misrepresentation with intent to deceive (and therefore no reference to a practical result). In other words, the conduct described did not amount to fraud under the law of England because an essential element, which a prosecutor would have to prove in order to secure an English conviction, was missing. Applying language perhaps more familiar to a Scottish lawyer and the test proposed by Mr Dickson before this court, the description of the conduct in EAW 2 in Gruszka did not amount to a relevant charge of fraud, or indeed theft. Similarly, when he came to consider EAW 1 King J noted that the relevant description in the warrant included what he construed as alternatives “purchased. . .not intending or being able to pay”. King J accepted that as far as the first alternative (purchased. . .not intending. . .to pay) was concerned that would sufficiently describe the offence of theft as well as fraud by false misrepresentation. However, as the conduct was described in the alternative he had to look to the weaker alternative (just as would a Scottish lawyer when determining the relevancy of averments), which was the second alternative. That alternative (purchased. . .not. . .being able to pay) included conduct whereby when the amounts became due, the appellant, without having initially had an intention not to pay, nevertheless found himself unable to pay. That was not an offence under English law. [25] Thus in Gruszka when it came to the decisions, inferences, whether inevitable or otherwise, simply did not enter the picture. In EAW 2 the description of the relevant conduct was not enough to amount to fraud. In EAW 1 it was, but only on the first alternative version of the two versions of fact which King J considered were set out in the warrant. King J’s decision does not support an “impel test”. Neither, we would add, was his decision

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reached by the route adopted by the sheriff in the present case: there was no speculation as to what were the other circumstances of the cases which led to the convictions. There was no consideration of what defences might be available in England if certain imagined facts were applicable. [26] We turn to the sheriff’s reason (4).There is a curiosity about “aggravated theft” to which we shall return, but we disagree with the sheriff that there is anything material that can be taken from the fact that the Polish judicial authority did not certify the offences of which the respondent had been convicted as Framework list offences. The most that can be taken from the absence of certification is that in the opinion of the judge in the regional court the relevant offences under art.284.2 of the Polish Penal Code are not offences which fell within one or other of the offence descriptions on the Framework list. From the perspective of the UK as the executing Member State that means that the Framework list with its presumption of dual criminality falls out of consideration and the question comes to be whether the conduct of which the respondent has been convicted is conduct to which the principle of dual criminality actually applies, as given statutory expression by s.65(3). The question for the sheriff as the judge of the executing state is whether the conduct which led to a conviction in Poland would constitute an offence in Scotland. That is a different question to the question as to whether the Polish offences are Framework list offences. [27] We have said that there is a curiosity about “aggravated theft”. When we refer to the EAW we are of course referring to the certified true English translation. At section E 1 of the EAW “aggravated theft” is included in what, when compared with the consolidated version of the official English text of the Framework Decision with which the advocate depute provided the court, otherwise appears to be a comprehensive list of Framework offences. We say “otherwise” because “aggravated theft” is not included in the English text of the Framework Decision (indeed neither is “theft”).There is thus a discrepancy which we cannot explain. We do not see it as something which matters. This is not a Framework list case where the need for a finding of dual criminality is excluded by virtue of s.65(5) of the Act; it a case where dual criminality remains in issue, to be judged by reference to s.65(1) and (3). [28] We are not therefore persuaded by any of the reasons which led the sheriff to conclude that the offences of which the respondent had been convicted were not extradition offences. What he had to decide was whether the conduct set out in the EAW would constitute an offence under the law of Scotland if it occurred in Scotland. It was submitted on behalf of the Polish judicial authority that it did, the offence being theft. We agree with that submission. As we have already explained, under reference to Carmichael v Black; Harazin; and Gordon, the conduct described in the EAW would form a relevant charge of theft as a matter of Scots law. As appears from the passage quoted from the opinion of the Lord Justice-General in Carmichael v Black, some of the elements of a particular offence will be established by direct evidence and, almost inevitably, some must be established by inference from the direct evidence. Where in a purely domestic context an element in an offence has to be inferred the question of whether it can be inferred is usually expressed in terms of whether the averred or evidenced direct facts are sufficient to justify any inference necessary to establish the charge (cf Carmichael v Black at p.902F). We see no reason why any different approach should be adopted in the context of extradition when determining whether particular conduct, as described in a Pt.1 warrant, amounts to an extradition offence. However, were we to be wrong about that and dual criminality can

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only be determined where any inference which it was necessary to draw has to be an inevitable inference then in the present case we would conclude that that test is met. When considering what is the appropriate inference to draw from given direct facts one must look to the given facts and to no others. In the present case, as Mr Dickson submitted, the conduct described in the EAW both constituted that actus reus of theft and, as a matter of inevitable inference, demonstrated the mens rea of theft. [29] We accordingly answer the question posed by the sheriff at the end of his note in the affirmative. He did err. He should have held the offences in the EAW to be extradition offences. We shall therefore grant leave to appeal, allow the appeal and remit to the sheriff to proceed as accords.

COMMENTARY Put shortly, an EAW will describe conduct constituting an offence in Sots law, if its description of the conduct would constitute a relevant charge. It does not need to set out facts which might form a defence to the charge.

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SUMMARY Dinsmore v HM Advocate—[2017] HCJAC 11—24 February 2017

Sentence—Firearms—Minimum sentence—Exceptional circumstances— Possessions of stun guns disguised as torches—Offender unaware that they were firearms or of seriousness of offence—Whether exceptional circumstances justifying sentence below minimum—Firearms Act 1968 (c.27), ss.1(1)(a), 5(1A), 51A(5). The appellant pled guilty to possessing, inter alia, five stun guns, disguised as torches, contrary to s.5(1A) (charge (2)) and s.1(1)(a. of the Firearms Act 1968, respectively as well as five offensive weapons, steel batons. In terms of s. 51A of the Act the offence in charge (2) is subject to a minimum sentence of five years’ imprisonment, unless there are exceptional circumstances relating to the offence or the offender. The appellant was sentenced to the minimum period on charge (2) and concurrent sentences on the other charges, and appealed to the High Court on the ground that he did not think that the offences were serious, and thought he would get “a slap on the wrist” if caught. He had bought the guns while he was on holiday with the intention of keeping one and giving the others to friends, In giving the opinion of the court (Lady Clark of Calton and Lord Turnbull) refusing the appeal Lady Clark of Calton said: ... Decision and reasons

[14] In relying on the favourable mitigating circumstances, counsel seemed to suggest at one part of the oral submission that it would be difficult to find a better example of exceptional circumstances. We do not accept that. This case plainly does not have the features identified in para.15 of [R v] Zakir Rehman [and Gary Wood [2006] 1 Cr. App. R. (S.) 77] which, in our opinion, give good examples such as an offender who is unfit to serve a five-year sentence or an offender who is of very advanced years. Another good example is the psychological condition of the accused in [R v] Booker [[2015] 2 Cr. App. R. (S.) 51] who suffered from various disorders, including autistic spectrum difficulties, for which he was in receipt of medication and his immaturity which would cause him to find a prison environment particularly difficult. The court is not limited of course to such examples and we accept that the court should have regard to all the circumstances both relating to the offence and to the circumstances of the offender. Other cases are of limited assistance as each case is very fact dependent. [15] In enacting s.51A of the Firearms Act and in classifying disguised stun guns as firearms, Parliament plainly intended to protect the public against the obvious dangers arising from unlawful possession of disguised stun guns. Parliament did this by providing a mandatory sentencing regime which (in the absence of exceptional circumstances) gives greater emphasis to considerations of retribution and deterrence (both general and individual) than the personal circumstances of the individual offender. In order to identify exceptional circumstances for the purposes of the legislation, we consider it is important both to have regard to the policy and intention of Parliament and the need to avoid a sentence which is arbitrary and disproportionate in respect of a 200

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Dinsmore v HM Advocate (Sy)

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particular individual. We consider that if in a particular case, taking account of all the relevant circumstances, it appears that the case falls outside the range of cases which Parliament can be taken to have had in mind as the norm, an imposition of the statutory minimum may be said to be arbitrary and disproportionate. In such a case the court may have little difficulty in concluding that the exceptional circumstances provision applies. [16] In our opinion, the circumstances of the offence in this case are very serious and plainly fell within the type of offending behaviour which Parliament intended to prevent. The appellant brought into an airport in Scotland multiple disguised stun guns along with multiple batons, which were obviously offensive weapons. He deliberately purchased these weapons with a view to importing them by plane into Scotland. All the weapons were to the knowledge of the appellant in working order and had with them the means of causing harm. We accept that the appellant may not have realised that the stun guns were categorised as firearms and that there was potentially a minimum sentence of five yearsâ&#x20AC;&#x2122; imprisonment for possession, but we consider that he knew that they were illegal and dangerous. He took no steps to check their status. His intentions were to give most of the stun guns away to others and put them out of his control. [17] We consider that the type of offending to which the appellant pled guilty was deliberate offending with the potential to cause serious public harm of the type which Parliament intended to prevent by this sentencing regime. Had the appellant not prayed in aid substantial mitigating features, a sentence in excess of the minimum sentence might well have been justified in all the circumstances of this case. [18] We consider that the sentencing judge gave very careful consideration to the question whether there were exceptional circumstances in the context of the statutory provisions of the 1968 Act. We are not persuaded that he was clearly wrong and indeed we consider that he was correct in his conclusion and his reasoning. We consider that he gave weight to the mitigating features by imposing a minimum sentence and by making the sentences imposed for other serious offences concurrent. [19] For these reasons the appeal is refused. For the appellant: Mackenzie, instructed by George More & Co, LLP. For the respondent: Hughes AD.

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SUMMARY Chaudhry v Gibson (Procurator Fiscal, Hamilton)—[2017] SAC (Crim) 5—28 February 2017

Summary procedure—Oppression—Sheriff complimenting witness on her bravery—Whether justice seen to be done The appellant was convicted of three charges of lewd practices and appealed by bill of suspension on the ground that the presiding sheriff had complimented the complainer after she had given evidence by telling her that she had been very brave in giving her evidence, thus creating a suspicion of lack of impartiality. In giving the opinion of the court (Sheriff Principal Stephen QC, Sheriff O’Grady QC and Sheriff Principal Dunlop QC), Sheriff Principal Stephen said: ... [9] In this case the sheriff made the comments he did at the conclusion of the evidence of the first Crown witness. The sheriff reports that the witness had been extremely distressed when giving her evidence, no doubt recalling the events when she was a teenager in the employment of the complainer. She spoke of behaviour being perpetrated towards her by the accused which was clearly of a sexual nature and which would be embarrassing and demeaning. The sheriff’s intention was to try to be decent to a witness who had been very distressed. The words complained of are these—“you have been very brave in giving evidence”. In our opinion, that comment is likely in the mind of a fairminded and informed observer to relate to the distress she suffered in giving her evidence. In our opinion, the words do not betray the sheriff’s view as to her credibility, reliability or the quality of her evidence. By contrast the sheriff’s remarks in Hogg [v Normand, 1992 S.C.C.R. 26; 1992 S.L.T. 736] went further and may have given the appearance of a qualitative assessment when announcing to the mother that the girls were “a credit to her”. Such comments could be construed as words of approval. Further, no conviction could follow in this case without there being evidence from more than one complainer as to the accused’s behaviour towards them of a sexual nature which the sheriff could accept as credible and reliable. Another factor which can be taken into account and which is referred to by the sheriff in his report is this—the accused and his solicitor were present in court when the remark was made yet no objection was made at the time nor in submissions at the conclusion of the evidence. That is yet another factor which the fair-minded and informed observer would have had regard to. For these reasons we cannot find any proper basis in the argument that the sheriff was apparently biased and we decline to pass the bill. For the complainer: Findlater, instructed by John Pryde & Co, Solicitors, Edinburgh. For the respondent: Keeegan QC, AD.

G 202

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*711743*

2017 S.C.C.R. 93–202

Discount for guilty plea—Whether 10 per cent insufficient Leathem v HM Advocate 157

SCOTTISH CRIMINAL CASE REPORTS

Sheriff appeal court—Initiating warrant—Whether appeal to sheriff appeal court against grant of warrant by bill of suspension competent McMillan v Mundell (SAC) 96

April 2017 2017 S.C.C.R. 93−202

93 202 129 200 166 185

JQ v Mundell Leathem v HM Advocate McMillan v Mundell (SAC) Potts v Gibson Reilly v HM Advocate Sangster v HM Advocate Wood v HM Advocate

116 157 96 109 142 119 100