Scottish Criminal Case Reports, Issue 3, June, 2016

Appeal Correction of record—Whether competent to correct failure to impose mandatory requirement to sit extended driving test Iqbal v Harvie 258

Evidence Corroboration—Mutual corroboration—Sexual assault and abuse of trust—No evidence of lack of consent in latter— Whether Moorov doctrine can apply CW v HM Advocate 285 Corroboration—Theft by housebreaking—Whether evidence of loss corroborated by evidence that house ransacked Reid v HM Advocate 233

Road traffic—Drink driving—First offender—Breath level 87— Whether disqualification for three years excessive Jenkins v Harvie 268 Road traffic—Forfeiture—Two drink- related offences within nine days—Whether forefeiture of vehicle excessive Li v Dunn 272 Solemn procedure Judge’s charge—Basic propositions applicable to appeals Sim v HM Advocate (Sy) 303 Productions—Defence right to remove productions for copying or inspection—Whether affected by statutory provisions for disclosure HM Advocate v AM 227 Statutory offence Obstructing police in execution of duty—Police called because of unwanted presence of accused—Police removing accused without arresting him—Whether acting in execution of duty Warwick v Harvie 261

Sufficiency—One offence proved independently by sufficient circumstantial evidence—Whether sufficient evidence to identify accused as responsible for other offences Martin v HM Advocate 276

Summary procedure Appeal—Appeal against refusal of objection to evidence— Whether competent Warwick v Harvie 261

Interpreters Complaint about standard of interpretation—Whether substantiated Lee v HM Advocate 247

Record—Amendment of record—Whether competent for appeal court to correct failure to impose mandatory requirement to sit extended driving test Iqbal v Harvie 258

Road traffic Sentence—Careless driving—Tailgating on motorway— Whether eight penalty points excessive McInally v Dunn 243

Sexual offence—Sexual abuse of trust—Whether lack of consent by complainer implied CW v HM Advocate 285

2016 S.C.C.R. 227–304

Sufficiency—DNA evidence—Theft by housebreaking—DNA evidence matching accused’s profile found on cigarette butt at point of entry—Whether sufficient to identify accused as perpetrator Reid v HM Advocate 233

SCOTTISH CRIMINAL CASE REPORTS

Compatibility issue Disclosure—Disclosure of recordings of interviewsof child complainers (JII’s)—Recordings lodged as productions— Whether Crown’s refusal to provide defence with copies of recordings breach of right to fair trial HM Advocate v AM 227

June 2016 2016 S.C.C.R. 227−304

Sentence Discount—Plea at trial diet—Whether sheriff entitled not to give a discount McInally v Dunn 243

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD HM Advocate v AM Reid v HM Advocate McInally v Dunn Lee v HM Advocate Iqbal v Harvie Warwick v Harvie

*657937*

227 233 243 247 258 261

Jenkins v Harvie Li v Dunn Martin v HM Advocate CW v HM Advocate Sim v HM Advocate (Sy)

268 272 276 285 303

ERRATUM On 2016 S.C.C.R. 84, references to Sheriff Principal Stephenson should read Sheriff Principal Stephen.

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A Appeal from Preliminary Hearing

29 September 2015

HER MAJESTY’S ADVOCATE

Appellant

against AM JM

Respondents

B

[2016] HCJAC 34 Compatibility issue—Disclosure—Disclosure of recordings of interviews of child complainers (JII’s)—Recordings lodged as productions— Whether Crown’s refusal to provide defence with copies of recordings breach of right to fair trial—European Convention on Human Rights, art.6(1)—Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss.121,160(3), 164—Code of Practice: Disclosure of Evidence in Criminal Proceedings, para.26.8

C

Solemn procedure—Productions—Defence right to remove productions for copying or inspection—Whether affected by statutory provisions for disclosure—Criminal Procedure (Scotland) Act 1995 (c.46), s.68 Section 121 of the Criminal Justice and Licensing (Scotland) Act 2010 places a duty on the Crown to disclose to the defence all material information of which they are aware, and s.160(3) allows for disclosure to be made by enabling the accused to inspect information at a reasonable time and in a reasonable place (“disclosure by access”). The Lord Advocate has issued a statutory Code of Practice under s.164 of the Act, para.26.8 of which provides that copies should not be provided of interviews of child witnesses.

Section 68 of the Criminal Procedure (Scotland) Act 1995 provides for the lodging of productions listed in an indictment to be lodged with the Clerk of Justiciary, but in practice they are now retained by the Crown and the accused has a right to make a request to the court to be allowed to borrow them for a specified purpose, including copying.

The respondents were charged with offences against children and the productions listed in the indictment included the discs of interviews of the complainers (JII’s). The Crown refused to provide the defence with copies of the JII’s but offered disclosure by access to them at the procurator fiscal’s office.

The respondents lodged compatiblity issue minutes at the preliminary hearing of the case, and submitted that that mode of disclosure was not compatible with their art.6 right to a fair trial and equality of arms. The presiding judge took the view that the Crown had adopted an illegitimate blanket policy which meant that discs with visual recordings of JII’s of children would never be given to the defence, and ordered the Crown to provide the defence with copies of the discs of the JII’s in a format which allowed them to be read but not copied, and subject to certain conditions. The Crown then appealed to the High Court.

Held (1) that the 2010 Act was concerned with the provision of information to the defence, its object being to ensure that the defence have knowledge of what evidence will form the case against the accused and what material there is available to refute it (para.16); but (2) that while the recordings in this case might provide powerful information, they were also listed productions and their inspection by the defence was covered by the 1995 Act, that intimation of such lists had the effect of bringing

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the productions specified under the control of the court whether or not they have been lodged, that it was for the court to determine, as master of its procedure, what may or may not happen to them, that if an accused wished to remove any production from the custody of the court or Crown for the purposes of copying or inspection by an expert, he was entitled to apply to the trial court to do so, and there was no need to invoke the disclosure regime, art.6 of the Convention or European Court jurisprudence (para.17); and (3) that the court had effectively granted such an application (para.18); and appeals refused on that basis.

Cases referred to in the opinion of the court:

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AG’s Reference (No.82a of 2000) [2002] 2 Cr. App. R. 24 Albert and Le Compte v Belgium [1983] ECHR 1 (1983) 5 E.H.R.R. 533 Davies, Petitioner, 1973 S.L.T (Notes) 36 Dowsett v United Kingdom [2003] ECHR 314; [2004] 38 E.H.R.R. 41 HM Advocate v B [2012] HCJAC 13; 2012 S.C.C.R. 336; 2012 J.C. 283 HM Advocate v Murtagh [2009] UKHL 36; 2009 S.C.C.R. 790; 2010 S.C. (P.C.) 39; 2009 S.L.T. 1060 Macleod v HM Advocate (No.2), 1998 S.C.C.R. 77; 1998 J.C. 67; 1998 S.L.T. 233 M(M) v HM Advocate, 2004 S.C.C.R. 658; 2005 J.C. 102 (sub nom Moir v HM Advocate) R v A (No.2) [2001] UKHL 25; [2002] 1 A.C. 45; [2001] 2 W.L.R. 1546; [2001] 3 All E.R. 1 Rowe and Davis v United Kingdom [2000] ECHR 91; (2000) 30 E.H.R.R. 1 Stott v Brown, 2001 S.C.C.R. 62; 2001 S.C. (P.C.) 43; 2001 S.L.T. 59 (both sub nom Brown v Stott).

A M and J M were charged on indictment with offences against children and took a preliminary issue objecting to the Crown’s refusal to supply them with copies of the interviews of two child witnesses, which had been listed as Crown productions. The preliminary hearing judge ordered the Crown to provide the defence with copies of the discs of the interviews in a format which allowed their computers to read but not to copy them, and the Crown appealed to the High Court.

The appeal was heard by the Lord Justice Clerk (Carloway), Lady Smith and Lady Clark of Calton.

For the appellant: McSporran, AD. For the first respondent: Duguid QC, Lenehan, instructed by Ian McCarry, Solicitor, Glasgow.

For the second respondent: Targowski QC, A J Macleod, instructed by Bob McDowall, Solicitor, Glasgow.

On 29 September 2015 the Lord Justice Clerk delivered the following opinion of the court.

LORD JUSTICE CLERK Introduction

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[1] This is an appeal against the decision of a judge, at a preliminary hearing on 24 June 2015 at the High Court in Glasgow, ordering disclosure by delivering copies of the disc recordings of police and social work joint investigative

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interviews (JIIs) of the complainers to the respondents’ agents, subject to certain conditions. The recordings last about six hours.

A

Background

[2] The respondents, who are aged 16 and 15, face two charges of sexual abuse involving two younger boys, contrary to ss.18, 20 and 21 of the Sexual Offences (Scotland) Act 2009. Special measures have been granted in relation to both complainers. These include the taking of their evidence on commission and the giving of evidence in chief in the form of prior statements (Criminal Procedure (Scotland) Act 1995, s.271I and M), viz. the recordings of the JIIs. [3] The discs and the transcriptions are listed as productions in the lists attached to the indictment. The discs are in the custody of the Crown. The Crown have refused to provide copies of the discs to the defence. Rather, they have elected to disclose the evidence “by enabling the accused to inspect [the discs] at a reasonable time and in a reasonable place” (Criminal Justice and Licensing (Scotland) Act 2010, s.160(3)). This method of disclosure is known as “disclosure by access”. It involves the Crown retaining possession of the discs at an office of the procurator fiscal. A room is available for the respondents’ agents and counsel to view the discs’ content. In order to do so, they must book an appointment about four days in advance, during ordinary working hours and subject to availability. The respondents’ agents are not permitted to remove the discs, but they may view them on as many occasions as is desired. The respondents wish to have the discs’ content viewed by a forensic psychologist, who is said to be able to comment on the interviewing process under reference to established guidelines. The Crown have declined to provide copies of the discs to the experts. The expert view may, it is said, ground an objection to the admissibility of the JIIs in whole or in part. The objection relates to the leading or inappropriate nature of the questioning.

[4] Both respondents lodged preliminary and compatibility issue minutes relating to the discs. The preliminary issue raised by the first respondent avers oppression, based on the limited means of access to the discs as proposed by the Crown and inaccuracies in the transcriptions of the JIIs, which have been provided. The preliminary issue raised by the second respondent relates to the accuracy of the transcripts and to certain content which, it is said, relates to a crime not charged. The compatibility minutes raise a complaint of a breach of art.6(3)(b) of the European Convention in that the mode of access to the discs does not afford the defence adequate time and facilities for the preparation of the defence. The principle of equality of arms was applicable, since the advocate depute prosecuting the case would be provided with copies of the discs, even if these could not be taken away from Crown Office premises.

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E

The 2010 Act

[5] Following the recommendations of the Coulsfield Review of the Law and Practice of Disclosure (2007), the Crown’s duties of disclosure are contained in Pt.6 the Criminal Justice and Licensing (Scotland) Act 2010. As soon as practicable after the commencement of proceedings, the Crown must review all relevant information and disclose to the accused all the material information of which they are aware (s.121). The prosecutor may disclose the information “by any means” (s.160(2)) and may “disclose the information by enabling the accused to inspect it at a reasonable time and in a reasonable place” (s.160(3)).

[6] The legislative provisions were informed by the recommendations of the review, which state (para.6.3):

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“disclosure of sensitive video evidence given by vulnerable witnesses could do great damage, if it led to circulation and duplication of the video images either as part of an effort to intimidate or out of sheer mischief”.

After assessing the practical difficulties in disclosing recordings, the review observed (para.17.4): “recordings of vulnerable witnesses may be unusually sensitive. Just as with a sensitive document, this cannot normally outweigh the requirement for recordings with potential exculpatory value to be made available to the defence. However, it may commonly be necessary to effect disclosure not by passing a copy of the tape to the defence, but by arranging for them to view it under controlled conditions.”

[7] In terms of s.164 of the 2010 Act, the Lord Advocate issued a Code of Practice, which has been laid before Parliament. Paragraph 26.8 of the code states: “Where information is assessed as being material, copies should not be provided to the defence where the information is of a personal and highly sensitive nature and disclosure of copies (electronically or otherwise) may be extremely distressing to any individual or where the information consists of: ... (ii) Visual (including audio) recordings of a child or other vulnerable witnesses being interviewed and . . .”

[8] The practical effect of this provision is that, while the legislation provides for an exercise of discretion on the part of the Crown to disclose material by “any means”, the Code of Practice contains a prohibition on copies being made available to the defence if the criteria set out in para.26.8 are satisfied.

Decision of the PH judge

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[9] The PH judge ordered the Crown to provide copies of the discs to the respondents’ agents in a format which allowed their computers to read, but not to copy, them. The judge imposed conditions whereby: (1) copies will not be made of the discs; (2) no disclosure of the recordings or its contents will be made unless necessary in the legitimate interests of the accused; (3) the discs will be returned at the end of the proceedings; (4) except when being viewed, the discs will be kept in a locked, secure container and not unattended or otherwise unprotected; and (5) the accused can view the discs under the supervision of his legal representatives.

[10] The judge’s view was that the Crown had adopted an illegitimate blanket policy whereby discs containing visual recordings of JIIs of children being interviewed will never be given to the defence. That policy left no element of discretion. It was in stark contrast to that which exists in England and Wales and Northern Ireland. In those jurisdictions, the prosecuting authorities provide copies of discs to the defence in their equivalent disclosure regimes.

[11] The practical problems, raised by the requirement that counsel and experts must view the recordings at the procurator fiscal’s office, were significant.

First, having to view the discs during office hours made it difficult, if not impossible, for counsel, who were usually in court during those hours, to do so for a sufficient length of time to allow meaningful preparation for trial. Secondly, it was highly unlikely that the Scottish Legal Aid Board would sanction travelling expenses of experts to and from that office.

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[12] The judge was unwilling to accept that the defence would be any less competent than the Crown in ensuring that the discs were not mislaid or misused. In the circumstances, the judge concluded that the Crown’s policy offended the respondent’s right to a fair trial under art.6 of the European Convention. Rather than terminating the proceedings, he ordered that the Crown should provide copies of the discs. He did not therefore make any order in relation to the preliminary issue minutes.

Submissions

[13] The principal contention for the appellant was that the judge had erred in holding that the respondents’ art.6 rights were breached by the decision to disclose the content of the JIIs by access, rather than providing copies. It could not be said that a failure to make copies available would inevitably result in an unfair trial. In terms of s.164 of the 2010 Act, the Lord Advocate had laid before the Scottish Parliament a Code of Practice. The Code of Practice established a clear, consistent and readily understood means which enabled parties to apply a practice meeting the legitimate and proportionate aims of balancing the rights of an accused person and those of the witnesses.

[14] Article 6(3)(b) was not absolute. Limited qualification of those rights was acceptable when reasonably directed towards a clear and proper public objective, if it represented no greater qualification than necessary. The code represented a fair balance between the rights of the respondents and the general public (Stott v Brown). Disclosure by access was a justified and proportionate response to the obligations placed upon the appellant and did not unnecessarily impede preparation of the defence. It balanced the interests of the respondents, victims and society (R v A (No.2) at para.38). Equality of arms did not equate to identical preparation (AG’s Reference (No.82a of 2000); MM v HM Advocate at paras. 46–47). The adequacy of time allowed would depend on the complexity of the case (Albert and Le Compte v Belgium). This case was not complicated. Any limitation on access was counterbalanced by other safeguards, including: legal representation; viewing by an expert; repeated opportunities to view; and the provision of the transcripts (Dowsett v United Kingdom at paras. 41–42; Rowe and Davis v United Kingdom at para.61; and HM Advocate v Murtagh).

[15] The respondents endorsed the approach of the trial judge. They stressed the content of the guidance on JIIs produced by the Scottish Government (2011), which stated (para.206) that a copy of a JII may be required in civil proceedings. The practice in England and Wales and Northern Ireland was emphasised.

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Decision

[16] It is important to distinguish between different regimes. The first is that of “disclosure”. This is concerned with information which would either (a) materially weaken or undermine the evidence which is likely to be led by the prosecution; (b) materially strengthen the defence case; or (c) be likely to form part of the prosecution evidence. The duty is on the prosecutor from the earliest appearance of an accused on petition or indictment (if there is no petition) or when an accused pleads not guilty to a summary complaint. The duty is now statutory (Criminal Justice and Licensing (Scotland) Act 2010, s.121) and derives from the principles set out in Macleod v HM Advocate (No.2) and the subsequent Coulsfield Review. The object is to ensure that the defence have knowledge of what evidence will form the case against the accused and what material there is available to refute it.

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[17] This case is concerned with recordings of the JIIs. Whilst they may provide powerful information (Coulsfield Review, para.17.2), they are also label productions in the case. As such a different regime covers their inspection by the defence. No issue of disclosure per se arises in such circumstances. The defence have had formal notice, by way of the lists attached to the indictment (Criminal Procedure (Scotland) Act 1995, s.68(1)), of both the discs and the transcriptions. Intimation of such lists has the effect of bringing the productions specified under the control of the court whether or not they have been lodged and it is for the court to determine, as master of its procedure, what may or may not happen to them. No issue of substantive law arises. At this stage in the case the accused is entitled to see the labels, not as a result of the disclosure regime but in terms of the statute relative to the lists of productions (s.68(2)).

It can be inferred from reading ss.68(1) and (2) that the labels ought to have been lodged with the Justiciary Office along with the record copy indictment.

Whilst, in modern practice the Crown may retain them until the diet of trial (see eg HM Advocate v B), it does so subject to any order of the court. If an accused wishes to remove any production from the custody of the court or Crown for the purposes of copying or inspection by an expert, he is entitled to apply to the trial court to do so (Davies, Petitioner, LJC (Wheatley) at p.37).

There is no need to invoke the disclosure regime, art.6 of the Convention or European Court jurisprudence. There is no need to lodge a preliminary or compatibility issue minute. All that is required in respect of items referred to in the lists attached to the indictment is a request to the trial court to borrow them for a specified purpose (including copying). The court will thereafter decide, as a matter for its discretion but no doubt having regard to the principles of fairness, including equality of arms, whether it is in the interests of justice to grant the application.

[18] Given that the labels are to be used as evidence in chief, it is difficult to conceive of a situation in which the court would refuse such an application, albeit perhaps subject to conditions. The court has effectively granted that application. The appeals will simply be refused on that basis.

COMMENTARY

E

This case makes it clear that the accused’s rights of access to listed productions are unaffected by the 2010 Act. Whether para.26.8 of the code is compatible with ECHR remains to be authoritatively decided, although the preliminary hearing judge in this case clearly thought that the Crown’s “blanket” practice of allowing only disclosure by access was not. Talking of “blanket” practices, one assumes that publication of the opinion in this case was postponed because of the court’s blanket practice of not publicising pretrial decisions.

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A Appeal Against Conviction

3 March 2016

COLIN REID

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 41 Evidence—Corroboration—Theft by housebreaking—Whether evidence of loss corroborated by evidence that house ransacked Evidence—Sufficiency—DNA evidence—Theft by housebreaking— DNA evidence matching accused’s profile found on cigarette butt at point of entry—Probability of one in more than one billion that matched profile of another male unrelated to accused—Whether sufficient to identify accused as perpetrator The appellant was charged with theft by housebreaking. The Crown led evidence from the householder and evidence of DNA taken from a cigarette stub found near the point of entry. It was admitted that the DNA matched the profile of the appellant and that the probability of finding such matching in another male unrelated to the appellant was one in more than one billion.

There was also police evidence that the house was found to have been ransacked. The trial sheriff rejected a submission of no case to answer and the appellant gave evidence that the stub must have been left by him when he was delivering flyers in the area. He was convicted and appealed to the High Court.

In the appeal the Crown was prepared to concede that the householder’s evidence of loss had not been corroborated.

Held (1) (by the Lord Justice General and Lord Bracadale) that the Crown’s concession was unsound, that it was not necessary to prove theft that there be evidence from two separate sources, each describing the precise nature of the missing item and its disappearance, and that evidence that the house had been ransacked was sufficient to corroborate the householder’s evidence of loss (paras 3 and 4); and (2)(i) that the cases in which the finding of a fingerprint at a locus provided a sufficiency of evidence that an accused person has been present at or about the time of the commission of a crime provided an analogy for DNA cases (para.16), that the same basic principles applied in DNA cases (para.18); and that the statistic of one in a billion was sufficient for the jury to hold that the it was the appellant’s DNA on the cigarette butt (para.25); and (ii) that the sheriff was bound to refuse the submission of no case to answer since, on the basis that the appellant’s DNA was on the cigarette butt the jury were entitled in the absence of explanation to infer that the appellant had dropped or lost the cigarette during the housebreaking, and that thereafter the jury had rejected his explanation (para.26); and appeal refused.

Observed that in light of the cases of Dunbar v HM Advocate and Gartland v HM Advocate (both infra) a question was left about just what statistic is required for proof beyond reasonable doubt, and that that was a matter which may need to be revisited by a larger court, which may also attempt to review what may be seen as differing judicial views on what is a matter for a jury and what for a judge (para.25).

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Cases referred to in the opinion of the court: Campbell v HM Advocate [2008] HCJAC 50; 2008 S.C.C.R. 847 Dunbar v HM Advocate [2015] HCJAC 22; 2015 S.C.C.R. 186 Fox v HM Advocate, 1998 S.C.C.R. 115; 1998 J.C. 94; 1998 S.L.T. 335 Hamilton v HM Advocate, 1934 JC 1; 1933 S.L.T. 613 Harvie v HC [2014] HCJAC 68; 2014 G.W.D. 23–434 Langan v HM Advocate, 1989 J.C. 132; 1933 S.L.T. 613 McDonald v Herron, 1966 S.L.T. 61 McGartland v HM Advocate [2015] HCJAC 23; 2015 S.C.C.R. 192 Mackie v HM Advocate, 1994 S.C.C.R. 277; 1994 J.C. 132; 1995 S.L.T. 110 Maguire v HM Advocate, 2003 S.C.C.R. 758; 2003 S.L.T. 1307 Slater v Vannet, 1997 S.C.C.R. 578; 1997 J.C. 226; 1998 S.L.T. 112 Welsh v HM Advocate, 1992 S.C.C.R. 108; 1992 S.L.T. 193.

Colin Reid was convicted of theft by housebreaking on 21 April 2015 after trial before Sheriff Neilson and a jury at Inverness Sheriff Court and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 3 March 2016 by the Lord Justice General (Carloway), Lord Bracadale and Lady Clark of Calton.

For the appellant: C M Mitchell, instructed by Faculty Services Ltd, for Burkingshaw Criminal Defence, Solicitors, Peterhead.

For the respondent: Erroch, AD.

D

On 3 March 2016 the appeal was refused. The following opinions were subsequently delivered.

LORD JUSTICE GENERAL Introduction

E

[1] This appeal raises a sharp issue of sufficiency of evidence in circumstances where an item has been left at the scene of a housebreaking, upon which DNA is found linking it to the accused. The court has looked at recent dicta in: Dunbar v HM Advocate and McGartland v HM Advocate against the background of Campbell v HM Advocate; Maguire v HM Advocate; Welsh v HM Advocate; and, much earlier, Hamilton v HM Advocate. There is a side issue about the corroboration of a householder’s testimony that items had been stolen during the “ransack” of her home.

The trial

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[2] On 21 April 2015, after a trial at the Sheriff Court in Inverness, the appellant was found guilty of a charge which libelled that: “[O]n 31 March 2013 you . . . did break into the residential property . . . at . . . Drumnadrochit . . . and steal jewellery, a watch and a jewellery box.”

He was sentenced to 15 months’ imprisonment.

[3] The locus is a detached house in Drumnadrochit, not far from Urquhart Castle. The female householder, who was aged 76, gave evidence that, on Sunday, 31 March 2013, she went out, leaving the house secure. When she returned at about 2.30 pm, she noticed that a bureau in her sitting room had been emptied onto the floor, as had a drawer of a cabinet in the lounge. Glass in an internal door leading from her dining room to a conservatory had been

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smashed. Similarly, the door then leading out into her garden had been broken.

Upstairs bedroom doors had been opened.

[4] The householder said that, when the police came, they discovered a cigarette butt in the conservatory. It had been taken away by a scenes of crime officer. Neither the complainer nor her husband smoked. There had been no workmen in the house before the incident. The appellant had never been in her house with her permission. Her husband would not have instructed anyone to do odd jobs without telling her. She had noticed the cigarette butt on the carpet, to the right of the patio door. It was very near to where the entry point would have been. She had signed Label No.1 (“plastic bag containing cigarette butt”), although she could not remember having done so.

[5] The scenes of crime examiner gave evidence. Inside the house, he had found a stone, which had been used to gain entry by breaking the glass doors.

He referred to some of the rooms, notably the dining room, living room and a bedroom as having been “ransacked”. He took possession of a cigarette “end”, (Label No.1) which was just inside the point of entry at the patio door. He had signed the label of the butt and had asked the complainer to do so. The butt had later been “taken apart”, although at the time it had been reasonably round in shape and reasonably clean. It had been intact, but was now fragmented.

[6] In terms of a joint minute, it was agreed that: “The . . . DNA sample from the accused . . . was compared with . . .

Label 1—a cigarette butt. Cellular material on the cigarette butt was analysed and the partial male profile obtained matched the corresponding DNA types in the DNA profile of the (appellant). The estimated probability of finding such matching DNA profiles if another male unrelated to (the appellant) is the contributor of this DNA is 1 in more than 1 billion. . . .”

[7] The sheriff formed the view that there was sufficient evidence from which to infer that the person who had smoked the cigarette was the same person who had been the perpetrator of the crime. The butt had been found close to the point of entry and exit. It had not been there when the house had been secured, but had been there shortly after it had been broken into. The butt had been in a reasonable condition, suggesting that it had not been brought into the house on a shoe. She repelled the no case to answer submission.

[8] The appellant gave evidence that he had lived in Skye and did general gardening and related work, including in the Drumnadrochit area. He did not say that he recognised the complainer’s house. He did put flyers through doors. He explained his DNA being on the cigarette butt on the basis that he was a smoker and, at the end of March, he would have been handing out flyers in the area. He sometimes shared his cigarettes with others.

Submissions Appellant

[9] The first contention was that the evidence had been insufficient. The Crown intended to concede that there was no corroboration of the theft, thus leaving a conviction of housebreaking with intent to steal. Otherwise, the evidence was from a “single source”. Hamilton v HM Advocate, in which the appellant’s fingerprints had been found on a bottle at the locus, could be distinguished. Similarly, Langan v HM Advocate, in which a fingerprint in blood had been found, was different. In the present case, there was no evidence about when the DNA had been put on the butt. It was not clear whether the butt had been smoked. In contrast, Welsh v HM Advocate had involved “wet

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blood” DNA. On the other hand, in Dunbar v HM Advocate, it had been determined that, where the only evidence was a DNA “match” of 1 in 4 million, this was insufficient. The statistical strength of the DNA finding did not provide a corroborated circumstantial case that the appellant had been the perpetrator. There was a lack of evidence on how, why, when and where the cellular material containing the appellant’s DNA had come to be on the butt.

It was speculation to say that he had smoked the related cigarette.

[10] The second contention was that the sheriff had not properly directed the jury on where corroborated evidence of the appellant’s participation in the housebreaking could be found. She ought to have explained what evidence the jury had to accept, and what inferences they required to draw, before finding the case proved.

Crown

C

D

[11] The advocate depute did concede that there was insufficient corroboration of theft of the items libelled (McDonald v Herron). There was, on the other hand, sufficient evidence that the appellant had been the housebreaker. It had been a common-sense inference that the appellant had smoked the cigarette.

It was settled law that, if an accused person leaves anything at the scene by which his presence at the time of the offence can be proved, and he can give no reasonable explanation for that presence, the jury may convict him of an offence such as housebreaking or theft (Hamilton v HM Advocate). Harvie v H C and Dunbar v HM Advocate could be distinguished. The statistical probability in the DNA finding was much higher than in Dunbar; the match here being the highest degree of probability. The nature of a cigarette butt meant that secondary transfer was unlikely (cf, McGartland v HM Advocate.

No specific directions on sufficiency had been required.

Decision

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[12] The householder gave clear, and unchallenged, evidence that, in essence, her house, or part of it, had been broken into, searched and certain specific items taken from it. For a sufficiency of evidence for theft, the search for corroboration falls to be carried out in terms of the Lord Justice General (Rodger)’s dictum in Fox v HM Advocate (at p.121). It merits repetition: “While evidence can provide corroboration only if it is independent of the direct evidence which it is to corroborate, the evidence is properly described as being corroborative because of its relation to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met.”

Fox rejected the fallacy in Mackie v HM Advocate that circumstantial evidence is corroborative only if it is more consistent with the direct evidence than with a competing version.

[13] It is worth commenting in limine that the issue of a sufficiency of evidence for theft was not raised at the trial or in the note of appeal. Thus the court does not have a report from the sheriff on the issue. It may be that there were other adminicles of evidence bearing on the issue. However, as matters stand, there was evidence from the scenes of crime officer that the house had been “ransacked”. The word “ransack” brings with it a notion not only of disturbance, but search (see the original Old Norse meaning in Shorter Oxford

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English Dictionary), plunder and pillage (ibid, see also Chambers and Collins Dictionaries) in the sense of randomly stealing things, as well as causing general chaos and destruction (Penguin: Concise English Dictionary). Whatever precise meaning was intended by the scenes of crime officer, his testimony conveyed the idea of search for the purpose of theft. As such, independent evidence that a house was “ransacked” provides confirmation or support for a householder’s testimony that that is indeed what happened, ie, items were stolen in the course of a housebreaking.

[14] The concession from the Crown is thus not a sound one. In that respect, the present circumstances are to be distinguished from the situation where there is no evidence at all to corroborate a person’s account of a possession having been removed. That was the position in McDonald v Herron.

It appears to have been the rationale in Harvie v H C, although it is not clear why, in that case, evidence that money had been removed from a drawer was not corroborated by video footage of the respondent removing “items” from the drawer, which she had no reason to be accessing, and putting them in her pocket. It is not necessary to prove theft that there be evidence from two separate sources, each describing the precise nature of the missing item and its disappearance.

[15] In Hamilton v HM Advocate, a shop had been broken into and goods and cash stolen. It could be inferred that the culprit had refreshed himself from a bottle of raspberry wine during the break-in. His fingerprints were on the bottle, which had been wrapped in paper. The accused lived locally, but otherwise the fingerprint evidence, spoken to by two witnesses from Scotland Yard, was all that there was to incriminate him. The Lord Justice General (Clyde) said (at p.4): “Finger-print evidence is undoubtedly competent; that is settled. If it is believed, it constitutes real evidence of the presence of the accused at the scene of the crime, in something the same way as a fragment of clothing (left behind by the criminal) or his boot-mark might be.”

Lord Sands made some additional observations (at p.5): “It is well settled . . . that, if an accused person has left anything by which his presence on the scene at the time of the offence can be proved and he can give no reasonable account of his presence there, the jury may convict him of such an offence as housebreaking or theft. Now, what was left, or used to be left, occasionally in the past was generally garments or such instruments as tools. But I do not see any reason why it should be held on the one hand that to leave a chattel behind which clearly shows the owner’s presence warrants a conviction if the jury so judge, while on the other hand, if a man leaves something behind which just as clearly shows his presence in the shape of a finger-mark, it should be unreasonable for the jury to convict.”

In a later passage (at p.6) he added: “I do not for a moment say that a jury are bound to accept finger-print evidence, and expert evidence connected with it, in every case as conclusive.

It is a question for the jury in the particular case, and, in order to disturb their verdict, it would be necessary to conclude that it was not a view which a jury might reasonably have taken.”

Lord Sands’ reference to the issue being one of fact for the jury rather than one of law for the judge is important in defining the respective roles and distinguishing sufficiency of evidence from reasonableness of verdict.

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[16] There have been several reported instances thereafter in which the finding of a fingerprint at a locus has been advanced as providing a sufficiency of evidence that an accused person has been present at or about the time when a crime has been committed. They provide an analogy for DNA cases (infra).

Sometimes, where the object upon which the fingerprint was discovered could readily have found its way into the locus from an innocent setting, the evidence has been held insufficient to place the accused at the scene at the relevant time. The existence of other possibilities than that presented by the prosecution appear to have been regarded as fatal to a conviction in certain circumstances, especially where a print is found on ubiquitous plastic shopping or bin bags.

This is best illustrated in Slater v Vannet and Campbell v HM Advocate.

[17] In Slater the charge of theft by breaking into commercial premises was not made out where the accused’s palm-prints were found on a plastic bag in the particular premises, which the appellant said he had recently visited, as he had neighbouring premises. The premises were open to the public during normal trading hours. Campbell is an example of differences in judicial opinion on just what can be inferred from the presence of a fingerprint on a bin bag wrapping a rifle and concealed in an accused’s girlfriend’s flat, where he stayed, and where he was when the rifle was discovered. The trial judge and four sifting judges had considered it not even to have been arguable that this evidence was insufficient to allow the jury to infer the accused’s connection with the rifle. Upon a reference from the Scottish Criminal Cases Review Commission, three different judges reached a radically different conclusion, holding that the only inference was that the accused had, at some point, come into contact with the bag used to wrap the rifle. He might, it was said, have done this before the bag was used to wrap the rifle, although the appellant had given no evidence of such a possibility and there were no other bin bags in the flat. In holding that the evidence was insufficient, the court were content to observe (at para.21) that, although: “It would be for the jury, examining the circumstantial evidence as a whole, to decide what inferences to draw . . . in our view the evidence . . . did not reach the stage or attain the level at which a jury would be entitled in law to consider competing interpretations including one of guilt. . . .”

The decision seems to straddle sufficiency and reasonableness. Whilst acknowledging that inferences of fact are for the jury to determine, their ability to do so was instantly removed. The jury had, of course, been content to draw the inference complained of.

[18] The court in Campbell took time and care (at paras.23 et seq) to contrast the circumstances with those in similar cases. Thus in Maguire v HM Advocate the finding of the appellant’s DNA on the inside surface of a mask, discarded in the course of a robbery, was sufficient, but a mask was not “an impersonal or neutral item such as [a] black plastic bag”. It is helpful to repeat the dictum of Lord Hamilton in Maguire (at para.18) quoted in Campbell (at para.23): “Much will depend on the nature of the item on which the fingerprint or other identifying link was found and its association in time and in place with the crime. The readiness with which the accused may innocently have come to be in contact with such an item may be such that, even in the absence of an explanation from him, no inference of sufficient association between him and the crime can legitimately be drawn.”

That, as stated, is no doubt correct as a generality. However, judges must remain wary of trespassing into the jury’s realm of fact. What inferences are to

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be drawn from evidence that an accused is proved to have handled a particular object, including wrapping, found at the scene of a crime must be a matter primarily for the jury to assess. Recourse can usefully be had to Lord Sands’ dictum, in relation to fingerprints, that it is only when the jury’s inference reaches the level of unreasonableness that an appellate court should intervene.

[19] The same basic principles apply in DNA cases (Welsh v HM Advocate, LJC (Ross) at p.118) even if the statistics in DNA findings may not demonstrate the certainty of fingerprint comparison evidence, where no conclusion is presented by the experts until a specific number of points of identity are found.

[20] It may not be especially helpful to describe all the cases in this area.

Each can be said to turn on its own facts. Langan v HM Advocate, for example, is at the other end of the spectrum, in which a bloody fingerprint could be said almost inevitably to lead to an inference of guilt. It remains interesting, however, that the Lord Justice Clerk (Ross) was at pains (at p.135) to stress that, whether a jury might draw a particular inference, may “turn upon whether any explanation was put forward by the appellant for the presence of his fingerprint”. It is important for a judge not to lose sight of the need for an evidential base for any alternative innocent explanation unless it is one which is so obvious, having regard to the ways of the world, as to require no support from the witness box.

[21] Dunbar v HM Advocate follows the same line of reasoning as appears in Campbell. The evidence demonstrated that a package had been sent from a Post Office in Leith to Saughton prison containing five books. Concealed in the spine of each book was a brown envelope containing drugs. In the area of the seal of one of these envelopes was cellular material from which an incomplete DNA profile was obtained. This was male in origin and matched that of the accused. The probability of finding such matching DNA from a male other than the accused was one in four million. This was based on a Caucasian database, which statistically favoured the accused. Other material on the envelopes produced a DNA match with a co-accused who was caught on CCTV in the post office when the package was posted by a third party in his company.

[22] To some, including the sheriff and the jury, the statistically based DNA evidence created a sufficient link between the accused and the placing of drugs into the envelope. A figure of four million to one in the context of a local Edinburgh crime, in which the accused were from that vicinity, may seem bordering on the conclusive, in the absence of an explanation from the accused as to how what was effectively his DNA came to be on the area of the seal of one of the envelopes. Yet the court found that the statistical base was insufficient. Lord Eassie’s reasoning, with which the other members of the court agreed on this point only, was that the one in four million was “very far from attributing, or even approaching, the uniqueness of identity” of fingerprints. Because, upon his arithmetic (using for some reason the population of the UK), there was a 0.87 per cent chance that some other male in the UK had produced the DNA on the envelope, there was an insufficient link to the appellant. There was “simply . . . a possibility that he, among an indeterminate plurality others (sic), may be a possible source of the crime scene cellular material”. Once again, this may be seen as a surprising view of the statistical base. A more reasonable approach may be to restrict the geographical spread of the cohort of potential culprits to the Edinburgh area.

The statistics may then be seen to approach the degree of mathematical certainty which juries are asked to guard against when assessing reasonable doubt.

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[23] It is worth remarking en passant that, insofar as the SCCR rubric (pt.

(2)) in Dunbar suggests that the court held that the jury had not been entitled to infer that the DNA on the seal came from saliva, it is incorrect. That was the view of Lord Eassie alone.

[24] The sister of Dunbar is McGartland v HM Advocate, decided by the same court on the same day but reaching a different conclusion. There, the DNA of the accused was found on a knot of the clingfilm which packaged drugs smuggled into Kilmarnock prison in a parcel posted in Newlands. This time the match was one in 158 million. The appellant’s son was a prisoner, although he was not the addressee. The appellant had no explanation for the presence of what must have been his DNA. Lord Malcolm correctly reminded himself (at para.27) of the different functions of judge and jury. In rejecting the contention that the sheriff ought to have sustained the no case to answer submission, he said (at para.28): “[T]he presence of the appellant’s DNA on (the knotted) part of the polythene package, allowed the inference that he was involved in the supply of the drugs . . . In the absence of any contrary explanation, this allowed the jury to reach the view that it had been proved that the appellant was knowingly participating in, and therefore concerned in, the whole operation. . . .

[29] On many occasions the court has recognised that there can be circumstances which call for an explanation, and that the absence of such from an accused person is a relevant consideration for the jury (Langan v HM Advocate is a good example) While all accused persons have a right to silence, they should be aware that if there is an innocent explanation, but it is never tendered, there can be consequences.”

[25] All of this appears eminently sensible and sound in law. Yet, reconciling Dunbar and McGartland may only be possible upon the basis of the difference between one in four million and one in 158 million. In the present case, the statistic is one in one billion and that is sufficient upon which to hold that the jury were entitled to hold that it was the appellant’s DNA on the cigarette butt. It does, however, leave a question about just what statistic is required for proof beyond reasonable doubt. That is a matter which may need to be revisited by a larger court, which may also attempt to review what may be seen as differing judicial views on what is a matter for a jury and what for a judge.

[26] On the basis that the appellant’s DNA was indeed on the butt, which is the end of a smoked cigarette, the question is what inference can be drawn from that. The answer may appear straightforward. It is that the appellant had been smoking the cigarette at some point and, for whatever reason, he had dropped or lost it in the course of the housebreaking. There are other possible explanations, but, at the no case to answer stage (with which this appeal is concerned), there was none from the appellant. In these circumstances, the sheriff was bound to refuse the defence submission. Thereafter, the appellant tendered his explanation and this was ultimately rejected by the jury. There was no need for the sheriff to give any special “route to verdict” instructions in what was a relatively straightforward trial.

[27] The appeal is refused.

LORD BRACADALE [28] I agree that for the reasons set out by your Lordship in the chair this appeal should be refused. In addition, I agree that the evidence of the householder that items were stolen is sufficiently corroborated by the evidence from the scenes of crime officer that the house had been “ransacked”.

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[29] I also have some concern about the approach to the statistical evidence of the court in Dunbar v HM Advocate. Without, in the absence of expert evidence on the matter, forming a concluded view, it seems to me that the approach in Dunbar might be valid if the appellant had been drawn at random from the population of the UK. But that is to ignore the other evidence in the case. That evidence reflected the local nature of the case. The package was sent to HM Prison Edinburgh. The postal box used to dispatch the books in which the sealed envelopes containing the drugs were secreted was purchased in the Post Office at Leith and the package was then posted there. Assuming that the inference could be drawn that the DNA on the seal was deposited by the person who sealed the envelope (while Lord Eassie considered that that inference was not open, the other judges reserved their position on this matter), it would be a reasonable conclusion that that too was done in the Edinburgh area. It would appear that the accused came from the Edinburgh area.

Accordingly, it seems to me that the approach to the statistical evidence in Dunbar requires to be considered with a degree of caution.

A

LADY CLARK OF CALTON [30] I agree that this appeal should be refused. As I adopt a narrow approach to the appeal, it may be helpful to set out briefly my reasons.

[31] The main issue raised by the appellant is whether the sheriff erred in refusing to uphold the submission on behalf of the appellant at the end of the Crown case, that there was insufficient evidence to identify the appellant as the perpetrator of the offence charged. There was an alternative ground of appeal in relation to the terms of the charge given by the sheriff in relation to the identification evidence.

[32] At the end of the Crown case, there was evidence that a cigarette butt found inside the householder’s house, near the point of entry, at the outer glass door, which had been broken by a stone to gain entry to the house. There was evidence from the scene of crimes officer about the recovery of the cigarette butt. A joint minute agreed that the police took a DNA sample, in the form of a mouth swab, from the appellant; the said DNA sample was analysed and compared with said cigarette butt; cellular material on the cigarette butt was analysed and a partial male profile obtained, matching the corresponding DNA types in the DNA profile of the appellant; the estimated probability of finding such a matching DNA profile with another man, unrelated to the appellant as the contributor of this DNA, is 1 in more than 1 billion. This was not a case in which there was any evidential dispute about the DNA evidence and no forensic expert was led. At the end of the Crown case, there was no innocent explanation to explain the appearance of a cigarette butt with the DNA results in a position inside the house, near to the point of entry, in circumstances where the householder had left the house secured, prior to the break-in, with no cigarette butt in that area.

[33] In my opinion, on the evidence available, there was a sufficiency of evidence which would entitle the jury to infer that the appellant had smoked the cigarette butt and dropped it in the course of perpetrating the offence.

[34] I consider, however, that the facts in this case are very far removed from Dunbar v HM Advocate. There are potentially many difficulties which may arise in trying to assess the probative value of DNA evidence and the sufficiency thereof on the facts of an individual case. DNA profiling evidence, in its current form, does not uniquely identify individuals and both the science and statistical underpinning of DNA evidence may be very complex. In this appeal, we have had no opportunity to consider expert evidence in any form.

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I am not persuaded therefore that, in this appeal, this court is well placed to assess the forensic evidence and statistics considered by the court in Dunbar.

My opinion is therefore restricted to the particular circumstances of the present case.

[35] Counsel for the appellant was also critical of the charge to the jury. I consider that there is no merit in this submission. The sheriff gave standard directions in this simple evidential case.

[36] The Lord Justice General also refers to a side issue about the corroboration that items had been stolen during the “ransack” of the house.

This issue was not raised by the appellant and is not part of the appeal. We have no report by the sheriff. For these reasons I consider that the issue should not be entertained. The advocate depute did raise this matter, but the court was not fully addressed about this issue, which may have more general implications.

COMMENTARY

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1. The rejection of the Crown’s concession regarding evidence of loss provides an example of evidence, other than evidence of recovery, which is sufficient to corroborate evidence that specific articles were stolen, although some purists might have suggested that in this case it only proved that something like “a quantity of articles” were stolen. See also Carson v McGlennan, 2000 S.L.T. 810.

2. In any case which depends on DNA or fingerprint evidence, two questions can arise—is the fingerprint or DNA that of the accused, and if so what inference can be drawn from its presence? In this case, as in McGartland, there seems to have been no real dispute as to the identity of the DNA in question, which rather leaves Dunbar on its own as a case in which the identity of the DNA was the crucial point, although Lord Eassie did also consider the question of inference from the presence of DNA (at para.11). There is, of course, or at least there was until recently, little if any dispute as to what degree of resemblance was sufficient in the case of fingerprints, but there is no comparable standard in relation to DNA—the question in any case is presumably one for the jury to decide on the basis of expert evidence, but in most cases in which DNA evidence is relied on the degree of probability is so high as to be effectively unchallengeable. The analogy between the fingerprint and the DNA cases to which the court refers is one relating to the inferences which can be drawn from the presence of the prints or DNA in the circumstances of the case rather than to any question of degrees of likelihood of their source being the accused.

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A Appeal Against Sentence

9 March 2016

MARK McINALLY

Appellant

against JOHN DUNN (Procurator Fiscal, Edinburgh)

Respondent

B

[2016] SAC (Crim) 5 Road traffic—Sentence—Careless driving—Tailgating on motorway— Whether eight penalty points excessive—Road Traffic Act 1988 (c.52), s.3—Road Traffic Offenders Act 1988 (c.53), Sched.2 Sentencing—Discount—Plea at trial diet—Whether sheriff entitled not to give a discount—Criminal Procedure (Scotland) Act 1995 (c.46), s.196(1) Section 3 of the Road Traffic Act 1988 makes it an offence to drive a vehicle carelessly, and Sched.2 to the Road Traffic Offenders Act 1998 provides for a maximum penalty of a fine and nine penalty points.

The appellant was charged with dangerous driving by driving too close to the vehicle ahead on a motorway. He pled guilty to careless driving at the trial diet and the sheriff, who described his driving as verging on dangerous, imposed a fine of £225 and eight penalty points. He appealed against the number of points imposed as excessive, the sheriff having erred in his assessment of his driving and having failed to give any discount for the plea.

Held (1) that the course of driving by the appellant on the day in question had properly been described by the sheriff as “tailgating”—driving some two to three metres from the car in front at motorway speed, that to drive in this manner was not momentary inattention or distraction but that any driver who drives in this manner deliberately courts danger, that the degree of culpability was high, that there was a clear likelihood that a serious collision might occur with the associated risk that injury and damage would be caused, that the sheriff was fully justified in categorising this type of driving as being at the upper end of careless driving, that the court would have been entitled to impose a period of disqualification for this type of aggressive driving; and that the sentence imposed was lenient (para.7); and (2) that only in exceptional cases will the court interfere with a discretionary decision on discount for which the sheriff has given cogent reasons (para.9); and appeal refused.

C

D

E

Cases referred to in the opinion of the court: Gemmell v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 1760; 2012 J.C. 223; 2012 S.L.T. 484 Ross v PF Aberdeen [2011] HCJAC 129; 2012 S.C.C.R. 1760; 2012 J.C. 223; 2012 S.L.T. 484 Watt v Dunn [2016] SAC (Crim) 2; 2016 S.C.C.R. 131.

Mark McInally pled guilty in the sheriff court at Edinburgh before Sheriff Maciver QC, to the charge of careless driving set out in the opinion of the court and was fined £225 and awarded eight penalty points. He appealed to

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2016 S.C.C.R.

the sheriff appeal court against the number of points on the grounds referred to in the opinion of the court.

The appeal was heard on 9 March 2016 by Appeal Sheriff Stephen, QC (President) and Sheriff PA Arthurson QC. For the appellant: Mackenzie of Beaumont & Co, Solicitors, Edinburgh.

For the respondent: Hughes AD.

B

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

C

SHERIFF PRINCIPAL STEPHEN [1] The appellant was charged by the respondent on summary complaint with a contravention of s.2 of the Road Traffic Act 1988 (Dangerous Driving). At the trial diet the prosecutor accepted the appellant’s plea of guilty to a contravention of s. 3 of the same Act namely driving without due care and attention on 3 December 2014 on the M90 near Echline Junction.

[2] The amended charge to which the appellant pled guilty is as follows: “(1) On 3 December 2014 on a road or other public place, namely M90 west bound at M9 spur, near to the Echline Junction, Edinburgh Mark Francis McInally did drive a mechanically propelled vehicle namely motor (sic) Vauxhall Astra motor car registered number AG58 ZSZ without due care and attention and did drive too close to the vehicle ahead: contrary to the Road Traffic Act 1988 s.3, as amended.”

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[3] The court imposed a fine of £225 and eight penalty points. The points range for the offence is three to nine penalty points. The court may order disqualification for this offence.

[4] In the note of appeal it was submitted that the sheriff erred in his assessment of the appellant’s driving in the morning in question which the sheriff had indicated was “ridiculous” and might lead to a serious accident occurring on a high-speed road such as the motorway. It was suggested that the sheriff was wrong to describe the appellant’s driving in this way and that the driving was verging on dangerous driving. Further, the substance of this appeal is that the sheriff, having considered the nature of the driving and the penalties open to him, erred in not discounting the imposition of eight penalty points.

Leave to appeal was allowed solely on the issue of lack of discount.

[5] Today, at the appeal hearing we allowed a late application in terms of s.187(8) of the Criminal Procedure (Scotland) Act 1995, allowing the appellant to advance a ground of appeal that the number of penalty points imposed for this offence was excessive. We did so due to the lack of authority on driving offences involving “tailgating” and due to the appellant having just been granted legal aid.

[6] Counsel for the appellant argued that in the absence of other aggravating factors such as undertaking, changing lanes, etc the appellant’s driving on the morning in question involved him travelling at the same speed as other vehicles on the motorway albeit close to the vehicle in front. This was at the lower end of the range of careless driving and this driving does not merit a starting -point or headline sentence of eight penalty points. The imposition of penalty points at the upper range of the penalties for careless driving (three to nine penalty points) was manifestly excessive. It was argued that the minimum or lower end of the range (three penalty points) was the appropriate penalty. Esto, the submissions on the penalty were not accepted, discount should have been

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afforded with the result that the appellant’s licence would have been endorsed with a lower number of penalty points. Ms Mackenzie pointed out that this appeal was comparable with the case of Ross v Procurator Fiscal, Aberdeen, decided along with Gemmell v HM Advocate.

[7] We disagree with the arguments advanced in this appeal. We consider that the appeal should be refused having regard not only to the facts on which the sheriff sentenced but also on sentencing and discount principles. The course of driving by the appellant on the day in question in December 2014 has properly been described by the sheriff as “tailgating”—driving some two to three metres from the car in front at motorway speed. To drive in this manner is not momentary inattention or distraction but instead any driver who drives in this manner deliberately courts danger. The degree of culpability is high.

There is a clear likelihood that a serious collision may occur with the associated risk that injury and damage is caused. The sheriff was fully justified in categorising this type of driving as being at the upper end of careless driving.

The sheriff’s assessment is supported by the clear advice given to drivers in the Highway Code as to stopping distances (r.126). At 70 mph the overall stopping distance is 96 metres. The adjective, “ridiculous” is one with which we take no exception for the reasons given by the sheriff in his report. To drive so close to the vehicle in front gives little or no chance of being able to stop without causing a collision. This is aggressive and irresponsible driving. The sheriff was correct to consider disqualification. We are of the view that the court is entitled to impose a period of disqualification for this type of aggressive driving. Having categorised the appellant’s driving to be at the very top end of the careless scale we consider that the sentence imposed of eight penalty points and a modest fine was lenient.

[8] The appeal was also argued on the matter of discount. The principles of sentencing discount are set out in Gemmell v HM Advocate. Recently this court considered whether penalty points were susceptible to discount and concluded correctly that they are (Watt v Dunn). Gemmell does not require any particular approach to discount. Indeed we agree that the question of discount is for the judgment or discretion of the sentencing court. There must be convincing reasons for allowing discount. Gemmell warns against a mechanistic approach to discount. It follows, as Lord Gill indicated in Gemmell at para.81: “Where the sentencer has given cogent reasons either for allowing the discount in question or for declining to apply a discount at all, I consider that it is only in exceptional circumstances that this court should interfere.

I repeat what I said in HM Advocate v Graham, [[2010] HCJAC 50; 2010 S.C.C.R. 641; 2011 J.C. 1; 2010 S.L.T. 715] paras 21, 22. Guidelines provide a structure for, but do not remove, judicial discretion. Guidelines should not lead to a mechanistic approach. The sentencing exercise should always involve the sentencer’s judgment and discretion which he must in every case exercise on a consideration of all of the circumstances. Those representing an accused who has tendered an early plea should bear this in mind when considering whether to lodge an appeal based solely on the amount of the discount.”

We endorse these views. The stage at which the plea was tendered in this case was at the trial diet and although there may be some utilitarian benefit in a plea at that stage, that factor, in the circumstances of this case, was marginal.

However, as discount is not an automatic entitlement, the issue for this court is whether the sheriff has given cogent reasons for not discounting the penalty points. In our view the sheriff has properly and fairly set out his reasoning having given due regard to the nature of the driving.

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McInally v Dunn (SAC)

2016 S.C.C.R.

[9] The question for the appeal court is whether the sentence imposed by the sheriff constitutes a miscarriage of justice. For the reasons we have already given we agree with the sheriff’s assessment of the offence and we adopt the principle that it is only in exceptional cases that this court will interfere with a discretionary decision on discount for which the sentencing sheriff has given cogent reasons. Indeed, we consider that a period of disqualification is justified on the facts of this case. Arguably, the sheriff has afforded the appellant a generously discounted penalty by firstly declining to disqualify and then, by restricting the penalty points imposed for reasons which unduly favour the appellant. The appeal is therefore refused.

C

D

E

F

G

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A Appeal Against Conviction

18 March 2016

SAN LEE

Appellant

against HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 39 Interpreters—Complaint about standard of interpretation—Whether substantiated The appellant, whose native language was Korean but who was proficient in English, elected to have the assistance of an interpreter at his trial for rape. He had not previously indicated that he had need of interpretation and his legal advisers were satisfied that he was capable of giving instructions in English and of understanding the evidence against him. At one stage in the trial he indicated to the court that he wanted the interpretation to stop as he found it distracting.

His counsel suggested that the interpretation should continue at least until lunchtime and the judge agreed. Nothing further was said about the matter.

The appellant did not give evidence. He was convicted and appealed to the High Court against conviction on the ground, inter alia, that the interpretation had been such as to impede his ability to understand the case against him, and that the interpreter had failed to translate parts of the evidence. He lodged an affidavit from an expert witness who identified some faults in the interpretation and stated that the interpreter was not appropriately qualified.

Held (1) that there was nothing to demonstrate that the interpreter did not possess the necessary skills and qualification or that he was anything other than efficient and professional in the service which he provided (para.38); and (2) that for the court to entertain a complaint of this kind, it must be satisfied that the appellant might have been prejudiced by his lack of understanding, that there was nothing substantial to indicate that the appellant might have suffered prejudice, that although the court has the primary obligation to ensure the fairness of the trial proceedings, the conduct of the defence was essentially a matter between an accused and his representatives, that if there had been any continuing difficulty with the interpreter, the appellant could have drawn that to the court’s attention, through his representatives, that on the basis that the minute recorded that any issue with the interpretation would be re-visited at lunchtime “if need be”, in the absence of any further complaint, the judge was entitled to assume that any issue had resolved itself and that there was no ongoing difficulty (para.39); and appeal on this ground refused.

Solemn procedure—Judge’s charge—Rape of complainer incapable of consenting through intoxication—Accused not giving evidence— Whether direction on reasonable belief in complainer’s capacity to consent misdirection leading to miscarriage of justice—Sexual Offences (Scotland) Act 2009 (asp 9), ss.1, 13

C

D

E

F

It is an offence under s.1 of the Sexual Offences (Scotland) Act 2009 to have sexual intercourse with a person without that person consenting and without any reasonable belief that she consents. Section 13 of the Act provides that consent is absent where the complainer is incapable because of the effect of alcohol of consenting to the conduct concerned.

G 247

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248 A

B

C

D

Lee v HM Advocate

2016 S.C.C.R.

The appellant was charged with raping the complainer while she was intoxicated with alcohol and incapable of giving or withholding consent, and lodged a defence of consent.

In her charge to the jury the trial judge directed them on the matter of reasonable belief in consent or in capacity to consent, saying that the Crown’s position was that there was a considerable “crossover” in the evidence relative to lack of consent and lack of reasonable belief that the complainer was capable of giving consent and that the accused had no reasonable belief that she consented or was capable of consent. She stressed that, if the jury accepted that the accused believed that the complainer consented and was capable of consenting and that this was reasonable, they required to acquit. The appellant, who did not give evidence, was convicted and appealed on the ground that the trial judge had materially misdirected the jury in directing them to apply a further test once reasonable belief had been established, and that in determining reasonable belief in capacity to consent they could have regard to the same features as they had considered relative to consent.

Held that the tenor of the charge would have been clear to the jury; viz. that, if they considered that the appellant believed that the complainer had consented, they required to acquit if that belief was reasonable (or had a reasonable doubt about that) (para.40); and appeal on this ground refused.

Observed, that although the issue did not arise for a decision and the jury were specifically asked to consider reasonable belief in consent by the Crown, a question remained as to why the judge gave the jury any specific directions on this topic, that as the judge correctly pointed out, the Crown case was periled on proving that the complainer was incapable of consenting because of her alcohol consumption, that once that matter was proved, in circumstances where the appellant gave no evidence and provided a “no comment” interview, it was difficult to see how the issue of reasonable belief could arise, as there was no evidence that the appellant believed, or could have believed, that the complainer was consenting to intercourse, but that a decision in that area remained, once more, for another day (see Drummond v HM Advocate [2015] HCJAC 30; 2015 S.C.C.R. 180 at para.20) (para.41).

Cases referred to in the opinion of the court:

E

F

Drummond v HM Advocate [2015] HCJAC 30; 2015 S.C.C.R. 180 Erkurt v Higson, 2004 S.C.C.R. 87; 2004 J.C. 23; 2004 S.L.T. 21 Hassan v HM Advocate [2013] HCJAC 10; 2013 S.L.T. 217 Johnstone v HM Advocate, 1997 S.C.C.R. 568; 1998 S.L.T. 788 McDougall v HM Advocate [2015] HCJAC 88; 2015 S.C.C.R. 407; 2015 S.L.T. 804 McPhelim v HM Advocate, 1960 J.C. 17; 1960 S.L.T. 214 Mikhailitchenko v Normand, 1993 S.C.C.R. 56; 1993 S.L.T. 1138 R v Tran [1994] 2 SCR 951.

San Lee was convicted of the charge set out in the opinion of the court after trial on 30 June 2014 in the High Court at Edinburgh before Lady Wolffe and a jury, and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 5 and 23 February and 18 March 2016 by the Lord Justice General (Carloway), Lord Menzies and Lord Bracadale.

For the appellant: CM Mitchell, Ross instructed by Faculty Criminal Appeals Unit for Livingston Brown Ltd, Solicitors, Glasgow.

For the respondent: Prentice QC, AD.

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On 18 March 2016 the Lord Justice General delivered the following opinion of the court.

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2016 S.C.C.R.

Lee v HM Advocate

249

LORD JUSTICE GENERAL

A

Introduction

[1] On 30 June 2014, at the High Court in Edinburgh, the appellant was convicted of a charge which libelled that: “[O]n 18 April 2012 in a minibus at Sainsbury’s Superstore, Drip Road, Stirling . . . you . . . did assault [RM] and while she was intoxicated with alcohol and incapable of giving or withholding consent, penetrate her vagina with your penis to her injury and you did thus rape her: contrary to section 1 of the Sexual Offences (Scotland) Act 2009.”

B

[2] On 29 July 2014, the appellant was sentenced to four years and six months’ imprisonment.

[3] The note of appeal raises, first, an issue of whether the appellant had a fair trial in circumstances in which, having initially stated that he did not want an interpreter at all and then changing his mind, the interpreter impeded rather than improved his understanding of the proceedings. Secondly, the note contends that the trial judge erred in her directions on reasonable belief.

C

The trial

[4] The indictment called at a preliminary hearing on 16 April 2014. There was no interpreter but, after discussion, it was recorded that there should be one for the trial. The trial commenced on Tuesday, 24 June, when an interpreter was sworn. It was only at that stage that a special defence of consent was tendered.

A jury was empanelled. A joint minute was read, agreeing that, on the night in question, the appellant had had sexual intercourse with the complainer.

[5] The following morning, it is recorded that the interpreter had relayed to the court that, during the reading of the joint minute, the appellant had asked that he should stop interpreting as the translation was distracting. The appellant was able to follow the English used. The judge asked to be addressed on this. The appellant’s counsel advised that the appellant had changed his position about the need for an interpreter several times in the course of the proceedings so far. He asked that the status quo of full simultaneous interpretation should continue “at least until lunchtime when, if need be, the position could be reconsidered”. The judge endorsed this view and directed the interpreter accordingly. The matter was not revisited during the trial.

[6] The complainer commenced her testimony. She was a university student. She had been drinking vodka with friends earlier in the evening. They had gone to a nightclub. She became separated from her friends. She had no memory of ever meeting the appellant, far less of having sexual intercourse with him. The first time she became aware of that possibility was when she awoke the following morning in a van in a supermarket car park. The appellant, who was also in the van, had told her that she had “better take the morning after pill”.

[7] CCTV images showed the complainer leaving the nightclub alone. She was followed about 45 seconds later by the appellant. A second segment of CCTV showed the complainer and the appellant walking together in the lane outside the nightclub. The appellant was steadying the complainer by putting his arm around her. He guided her to his van, which was parked nearby. Both entered the van and it drove off a short time later.

[8] The mobile phones of the complainer and the appellant were analysed, as was that of a male friend of the complainer, namely G R. G R had received a text at about 6.43 pm in which the complainer had said “getting steamy xxx”. Another text at 1.29 am stated simply “Help”. He took this as playful,

5150.indd 249

D

E

F

G

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250 A

B

C

D

E

F

Lee v HM Advocate

2016 S.C.C.R.

meaning that she had had a few drinks, not that she was in any danger. A further text said “disk”. He could not explain what this meant. At 1.38 am an entry had been created in the complainer’s mobile containing the appellant’s name and mobile number. There had been a number of missed calls from the appellant’s mobile to that of the complainer between about 4.22 am and 4.40 am. The appellant’s phone contained two photographs; one of the complainer’s driving licence, taken at about 4.47 am, and one of the complainer asleep, clothed and lying in the back seat of his van at 4.49 am.

[9] At about 5.38 am the complainer phoned G R. The call lasted just under a minute. His impression was that she was very distracted. She was listening to someone else. There was a further short call a few minutes later. It took two or three calls to see what she wanted. At about 5:45 am, she sent two one-word texts. Neither made sense. At 5:46 am, the complainer texted, “help”. There were further text exchanges in which the complainer said, “I have a black eye”. He had replied, “Yeah, you said. What have you been up to?”

It was agreed that she would come to his flat. When she arrived, the complainer was quite steady and not intoxicated. She was mainly worried about her black eye. They both went to sleep.

[10] The complainer explained that she had had her period that evening.

She had inserted a tampon before going out. She would never have had intercourse while she had her period. The tampon was not where it should have been. It was much higher inside her than was normal. It had not been noticed at her medical examination. She would never have got into a van with someone she did not know or had only just met. She had not been using any contraception at the time. She would never have had unprotected sex.

[11] When she awoke, the complainer’s face was swollen. She had a black eye. The appellant had told her she had fallen. She had no recollection of any fall. Her “whole body ached”. She had bruises on both arms and on her upper right thigh and above the knee of her left leg. She did not have these the previous evening before she went out.

[12] The appellant initiated a series of text messages with the complainer just before midday. The complainer asked how she had come by her black eye.

The appellant had texted: “You were drunk and you suddenly fell down. You were really drunk!!!” There was another call between the appellant and the complainer. Her friend J D had taken her mobile and asked the appellant (as if she was the complainer) “did we have sex last night?” and the appellant had replied “yes”.

[13] The forensic medical examiner found bruising on the complainer’s thighs and on the outer aspects of both her arms. There was linear bruising to the right thigh, close together. This was suggestive of being gripped by a whole hand. Moderate force had been used. No tampon had been in place during sexual intercourse. The FME did not think that he had used a speculum. Had a speculum not been used, he would not have expected to have noticed the tampon.

[14] The appellant had been traced by the police as the person who had rented the van. He had given a “no comment” interview.

Directions

G

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[15] The judge directed the jury that rape consisted of deliberate penile penetration “without the complainer’s consent, and without any reasonable belief on the part of the accused that the complainer consented”. She stressed that all three elements, that is deliberate penetration, lack of consent and absence of reasonable belief in consent, required proof by corroborated

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Lee v HM Advocate

251

evidence. She told the jury that there could be no consent if a complainer was incapable of consenting because of the effects of alcohol. She turned to reasonable belief and stated that it was for the Crown to prove that the appellant had no reasonable belief that the complainer consented. If an accused said that he believed that the complainer had consented, then the Crown had to prove that such a belief was not reasonable.

[16] On returning to the issue of consent, the trial judge said that the Crown had periled their case on proving that the complainer was incapable of giving consent by reason of her consumption of alcohol. Having gone through much of the evidence bearing upon that aspect, the judge turned separately to look at lack of reasonable belief. She explained that “the third element is the absence of reasonable belief by the accused that the complainer had the capacity to consent to sexual activity”. She repeated, what will be seen to be, an error in saying that the Crown’s position was that there was a considerable “crossover” in the evidence relative to lack of consent and lack of reasonable belief “that the complainer consented, or was capable of giving her free agreement and consent”. Once more, she said that the Crown’s position was that “the accused had no reasonable basis for believing that the complainer consented, or was capable of consenting to sexual contact”. Thus, the judge introduced the concept of reasonable belief not only in relation to consent but also for capacity to consent. She continued: “if you decide . . . that the accused did have a reasonable belief that the complainer was not incapable by reason of intoxication, so if you accept that the accused did have a reasonable belief that the complainer was not incapable by reason of intoxication so that she was capable of consenting, you would have to decide whether you were satisfied that he could not reasonably have held that belief. And in that eventuality, you would be entitled to have regard to those same chapters of evidence as related to the second element . . .”.

A

B

C

D

She stressed that, if the jury accepted that the accused believed that the complainer was capable of consenting and that this was reasonable, then they required to acquit, as they did if they had a reasonable doubt about that matter.

5150.indd 251

Evidence in the appeal process

E

[17] In support of what was to be one of two main grounds of appeal for which leave was granted, the appellant lodged a number of documents about the nature of the interpretation at first instance. First, he produced an affidavit from himself stating that he had gone to England from Korea at the age of 14 with no English because of a desire to become a professional footballer. He had spent two years at school in England, and had been given two hours extracurricular English each week. He maintained that he could not understand the court proceedings at the preliminary hearing. He had changed his legal team at that point. His Queen’s Counsel had been instructed by new agents. He had consulted him in person and by Skype. He had not required an interpreter for pre-trial meetings with his solicitor or counsel. The appellant had formed the view that his interpreter was from the south east of South Korea. He had a very strong accent. He was not very good at interpreting, would miss out a lot and was very slow. Sometimes the appellant did not know what the interpreter was saying in Korean. The interpreter had not asked for the witnesses to slow down. The appellant did not do anything about this because he thought that it would not be polite.

F

G

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252 A

B

C

D

E

F

G

5150.indd 252

Lee v HM Advocate

2016 S.C.C.R.

[18] According to the appellant, he had raised his concerns with his counsel.

The matter was discussed with the judge. The appellant was not able to follow the discussion between his counsel and the judge. The interpreter tried to explain it to him, but was unsuccessful. On either the Thursday or the Friday of the trial, the appellant spoke with the interpreter in Korean. He was becoming angry because of the standard of interpretation. He told the interpreter that he needed him to talk faster, that he was mumbling and going around in circles. The interpreter had replied in Korean. The judge had noticed this and given the appellant a row. The trial had been moved to a smaller court room after the first day. The Crown had asked the judge to tell the interpreter to lower his voice. After that, the interpreter had lost confidence. He became worse and mumbled more.

[19] An affidavit from the appellant’s friend, D A, stated that he had attended one pre-trial meeting in Edinburgh with the appellant and his solicitor. The appellant had no understanding of the proceedings nor the English language skills to deal with a solicitor discussing legal procedures. There was no discussion as to whether there should be an interpreter. On the journey back to England, D A had explained some of the things which were said and what they meant. During the trial, the appellant had regularly complained to D A about the interpreter. The appellant could not follow the evidence because the interpreter could not catch up with what the witnesses were saying. The appellant stated to D A that he was trying to listen to the witnesses in English and also to the Korean interpretation. This was confusing.

[20] Two reports and an affidavit from Professor Isabelle Perez, a professorial fellow in languages and intercultural studies in the School of Management and Languages at Heriot-Watt University, were produced. Her first report, dated 17 March 2015, had been prepared with reference to the Equal Treatment Bench Book, Guidance for the Judiciary (Judicial Institute, 3rd edn, 2014).

Although the appellant had said that he could “communicate on a reasonable basis in English”, such day-to day-conversation might require only a very low level of competence. Although the appellant had received two years of schooling in the UK, and that might be sufficient to attain a “good” level of fluency, additional contextual information suggested that the degree of his immersion in an English-speaking environment was limited. Even if he were assumed to have English competence equivalent to B2 (upper intermediate on a 6-point scale according to the Common European Framework for Languages), this was not necessarily sufficient for an individual to gain a full appreciation of what was happening in legal settings.

[21] Given his limited competence in English, the unknown quality of the Korean interpretation and the unfamiliar technical legal content of the output, the appellant’s ability to understand what was being said had been impaired.

The judge had not followed the recommendations contained in Ch.5 of the Equal Treatment Bench Book.

[22] In her second report, dated 10 November 2015, Professor Perez noted that the interpreter at the trial did not possess the Diploma in Public Service Interpreting [DPSI]. She concluded that he was not sufficiently qualified.

Professor Perez had listened to an excerpt from the trial proceedings on 27 June 2014. The speed of questioning and response was very fast, and at times too fast, for the purpose of interpreting fully and accurately. The recommended speed for English translation was between 100 and 120 words per minute.

140 wpm was considered fast. Professor Perez had transcribed and carried out a word count between 10:10:00 and 10:11:00, and again between 10:19:00 and 10:20:00. She had recorded a speed of over 180 wpm in both instances.

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[23] In her affidavit, Professor Perez criticised the interpreter for failing to mention the appellant’s interruptions to the court and for resorting to summary or gist interpreting. This was not appropriate for court purposes.

Every single detail and uttering in court might be relevant to the case. In her opinion, a qualified professional interpreter would not summarise in this way.

[24] An affidavit from the interpreter, Sung Woo Lee, stated that he was employed as a freelance interpreter with Global Languages. This case had been particularly difficult because the appellant had understood English. As the appellant was listening to the evidence in English, he had reacted to it. When witnesses said things, the appellant would say “that’s not true”. He was trying to listen in English and to the Korean translation. Sometimes the testimony was very fast. The interpreter would then try to convey the meaning rather than provide a word for word translation. He had been speaking at a normal conversational level. When he was asked to reduce his volume, he had done so, and moved closer to the appellant. The appellant had not complained that he could not hear him. The trial judge’s admonitory remarks had been addressed to him, not the appellant. The appellant had never made any complaint about the quality of his interpretation. Had he raised any issue, the interpreter would have informed the judge or the clerk and requested that another interpreter replace him.

[25] The interpreter had an MA in Theology. He had a Certificate in Public Service Interpreting from the Glasgow Interpreting Service. The certificate course covered the NHS, education, the court system, the police and other public service bodies. The course had lasted for six or seven weeks in 2000. He had attended the Global Languages internal course, which had involved three hours’ training specifically related to the courts. He had interpreted in two previous criminal court cases, one of which concerned child sexual abuse. He came from Pusan in Korea. The accent from Pusan was strong, but this was the first time that he had heard anyone from Korea say he did not understand him. His wife was from Seoul and she had never had any difficulty.

[26] Comments were sought and received from the appellant’s trial representative. His QC (sol adv) stated that the appellant’s English was good enough to provide instructions and to understand advice. No interpreter was present at any pre-trial consultation. The appellant had not requested one. The appellant had been able to follow what was being discussed. If counsel had had any concerns about the appellant’s ability to understand, he would have made the appellant aware of this and advised that an interpreter be engaged. Counsel had been able to discuss the evidence with the appellant in detail. The appellant had been able to explain his position in full in person and by email. Some of the emails were produced. Not uncommonly, there were some matters about which the appellant had been unable to give a satisfactory or convincing explanation.

[27] The question of the level of interpretation had first been mentioned by the clerk of court shortly before the trial had been due to start. Counsel had taken instructions. The appellant’s initial position had been that he wished to have the interpreter available only as a safety net for evidence which he could not follow. A short time later, he indicated that he wished to have full simultaneous translation. The pace of examination and cross-examination had been such as to allow time for full simultaneous interpretation.

[28] The matter of the interpreter had been raised on the second day of the trial (25 June 2014), as recorded in the court minute. Following discussion with the appellant, it appeared that the appellant had been trying to listen to the evidence of the witnesses in English, rather than the interpreter. The appellant’s

5150.indd 253

A

B

C

D

E

F

G

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254 A

B

Lee v HM Advocate

2016 S.C.C.R.

difficulties arose because of his proficiency in, rather than his poor grasp of, English. There was no serious issue with the appellant’s ability to understand the proceedings. The appellant had understood the evidence sufficiently to provide instructions. In any event, there was nothing in the evidence which required any additional input. All matters had featured in the witness statements and in counsel’s preparation for trial. Any difficulties experienced by the appellant were the same as any young man in his position, with no previous court experience, facing court proceedings on a serious charge, rather than as a consequence of poor English.

[29] The appellant’s instructing solicitor had had no concerns at all about the appellant’s understanding of what was being said at meetings and consultations pre-trial. He had no difficulty in understanding the appellant.

On each occasion the appellant had engaged fully in the discussions and was able to state his views on the evidence without difficulty. The appellant had been able to follow and fully understand the evidence.

Submissions

C

D

E

F

[30] Two grounds of appeal were granted leave. The first was that the appellant had not had a fair trial because the interpretation had been such as to impede the appellant’s ability to understand the case against him. The interpretation had not accorded with art.2(5) of the Directive 2010/64/EU. No issue was taken about the appellant’s ability to instruct counsel before and at the trial.

The focus was solely on the standard of interpretation at trial. The faults had been identified in Professor Perez’s reports and affidavits. The interpreter had not been properly qualified. The standard of his interpretation had fallen below acceptable standards and failed to provide an adequate procedural safeguard.

Reference was made to Hassan v HM Advocate and McDougall v HM Advocate.

[31] The second ground was that the trial judge had materially misdirected the jury in directing them to apply a further test, once reasonable belief had been established. She had also erred in directing them that, in determining reasonable belief, they could have regard to the same features as they had considered relative to consent. For example, the jury ought not to have considered the complainer’s memory loss since the appellant would have been unaware of it at the time.

[32] The advocate depute, who was asked for his submissions on the second ground, maintained (as the trial judge had done in her report) that the insertion of “reasonable” before “belief” in the impugned part of her charge had been a slip of the tongue. This error was not productive of a miscarriage of justice once it was looked at in the context of the whole charge (see Johnstone v HM Advocate 1998 SLT 788 at p.000, p.792; McPhelim v HM Advocate). It could not be said that the jury would have been confused by the direction on what evidence could be taken into account. It would defy common sense to suppose that they would have had regard to the complainer’s loss of memory in determining reasonable belief.

Decision

G

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[33] In Hassan v HM Advocate the court said (at para.33): “There is, of course, no difficulty with the proposition that, where an accused person is unable adequately to understand English at a trial diet, he has a right to have the assistance of an interpreter (HM Advocate v Olsson 1941 J.C. 63; art.6(3) of the European Convention). The assistance provided must be such as enables the accused to know what the case against him is and to defend himself properly, notably by being able to present his

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version of events to the court (Diallo v Sweden, 5 January 2010, App. No. 1320/07). The level of necessary assistance may vary according to the accused’s level of understanding English. Where his knowledge is good but incomplete, for example, it may be sufficient for the accused to have an interpreter available to assist in moments of difficulty.”

This is in line with the Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, which provides (art.2.8) that: “interpretation shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.”

[34] This appellant was proficient in English, even if it was not his native tongue. He had spent ten years in the UK, two of them at school. It is difficult to envisage why he required simultaneous translation of the testimony of the witnesses into Korean. Nevertheless, that was what he requested through his counsel. The court complied with that request, as it did also in the appeal process.

[35] The case against the appellant came primarily in the form of the testimony of the complainer, a doctor speaking to injuries and some of the complainer’s friends referring to events in the nightclub, texts and related matters. There was no technical evidence. It reflected, according to his own trial counsel, what had been anticipated in advance and discussed pre-trial.

The appellant’s position had been communicated to his legal advisers and it was, in due course, put to the witnesses where required. At no point did the appellant identify anything specific that he either did not follow or had been unable to deal with. The appellant elected not to give evidence, apparently well in advance of trial, so there is no issue in relation to his ability to present his account adequately to the jury. In these circumstances, it is impossible to perceive any unfairness such as would be conducive to a miscarriage of justice.

[36] As was pointed out in Hassan v HM Advocate (at para.34 following dicta in the Canadian case of R v Tran at p.978) the purpose of providing interpretation is to create a level and fair playing field. It is to provide: “interpretation assistance and not formal translation, such as might be expected in relation to a document, at a level which might be achieved by a linguistic expert after mature consideration and study. Interpretation is an art . . . what is required is interpretation which ensures that the accused person understands what is being said . . .”.

An accused has a choice to make. He may elect to listen to the evidence in English, but ask for assistance if he does not understand something, or he may decide to listen to the testimony in his native language through simultaneous translation from the interpreter. It is inevitable in the latter case that he will not be able to listen satisfactorily to both Korean and English at the same time. At any stage, of course, an accused can express the view that his election was wrong and seek an adjustment to the interpretation arrangements.

[37] The appellant’s complaint was that parts of the witnesses’ testimony were not interpreted into Korean. He was aware of this because he could hear in English those parts which (he says) were not interpreted. He did not, however, attempt to identify those parts said to have been omitted and what difference this made. It is difficult to see what difference could have been made. The appellant’s counsel and agent and the interpreter have all confirmed that, fundamentally, there was no material language difficulty at trial. There

5150.indd 255

A

B

C

D

E

F

G

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256 A

B

C

D

E

F

G

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2016 S.C.C.R.

was no complaint made by the appellant in the course of the evidence, speeches or charge. Notwithstanding the complaints made post-conviction by the appellant, and Professor Perez’s counsel of perfection, the court is not persuaded that this appellant had any difficulty in understanding the case against him or in communicating the nature of his defence to his representatives. There was no technical material requiring special translation. The fact that, occasionally, it was not possible or practicable to translate absolutely everything word for word because of the speed of diction used by the witnesses or counsel is not per se indicative of substantial unfairness. It is in the nature of a trial where interpreting facilities are provided.

[38] The appellant complains that the interpreter did not possess the DPSI. He did have the Certificate in Public Service Interpreting from the Glasgow Interpreting Service. This was the predecessor of the DPSI (Hassan v HM Advocate, (para.21). In any event, the interpreter had ten years’ interpreting experience. The booking form, which the Scottish Courts and Tribunal Service and its contractor Global Language Services Ltd use, specified the interpreter’s qualifications correctly and did not suggest that he did “not fully meet the requirements sought”. There is nothing to demonstrate that the interpreter did not possess the necessary skills and qualifications or that he was anything other than efficient and professional in the service which he provided.

[39] For the court to entertain a complaint of this kind, it must be satisfied that the appellant might have been prejudiced by his lack of understanding (Erkurt v Higson at para.8; Mikhailitchenko v Normand, LJC (Ross) at p.63).

There is nothing substantial to indicate that this appellant might have suffered prejudice. Although the court has the primary obligation to ensure the fairness of the trial proceedings, the conduct of the defence is essentially a matter between an accused and his representatives. As was observed in Erkurt v Higson (at para.6): “[W]hether an accused person is understanding what is going on, with or without the assistance of an interpreter, is something that can only be known to that person and his agent. If the agent perceives that a genuine problem has arisen in obtaining instructions on an issue which has arisen then it is for him to advise the court accordingly so that proper steps can be taken to resolve the difficulty.”

If there had been any continuing difficulty with the interpreter, the appellant could have drawn that to the court’s attention, through his representatives. On the basis that the minute of 25 June 2014 records that any issue with the interpretation would be re-visited at lunchtime “if need be”, in the absence of any further complaint, the judge was entitled to assume that any issue had resolved itself and that there was no ongoing difficulty.

[40] In relation to the second ground of appeal, there is, of course, an error in the judge’s use of “reasonable” in the impugned direction. This is clearly a linguistic slip. The tenor of the charge, however, would have been clear to the jury; viz. that, if they considered that the appellant believed that the complainer had consented, they required to acquit if that belief was reasonable (or had a reasonable doubt about that). There is a more significant misdirection, which is not strictly raised in the appeal, where the judge directs the jury that, if the appellant reasonably believed that the complainer was capable of consenting, they should acquit. It is not clear why, having given the jury clear directions on the requirements for proof of rape, the judge engaged in this curious frolic.

However, if anything, it favoured the appellant and no miscarriage of justice can be seen to have occurred. Similarly, the judge’s reference to using the

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Lee v HM Advocate

257

material relative to the issue of consent when considering reasonable belief may not be strictly correct in legal theory. However, the general meaning was clear. It should not be assumed that the jury would have taken the complainer’s loss of memory into account in relation to the appellant’s belief at the time.

[41] For these reasons, the appeal must be refused. However, although the issue does not arise for a decision and the jury were specifically asked to consider reasonable belief of consent by the Crown, a question remains as to why the judge gave the jury any specific directions on this topic. As the trial judge correctly pointed out, the Crown case was periled on proving that the complainer was incapable of consenting because of her alcohol consumption.

Once that matter was proved, in circumstances where the appellant gave no evidence and provided a “no comment” interview, it is difficult to see how the issue of reasonable belief could arise. There was no evidence that the appellant believed, or could have believed, that the complainer was consenting to intercourse. A decision in this area remains, once more, for another day (see Drummond v HM Advocate at para.20).

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A Appeal Against Sentence

30 March 2016

MAJID IQBAL

Appellant

against B

DAVID HARVIE (Procurator Fiscal, Dumfries)

Respondent

[2016] HCJAC 38 Summary procedure—Record—Amendment of record—Whether competent for appeal court to correct failure to impose mandatory requirement to sit extended driving test—Criminal Procedure (Scotland) Act 1995 (c.46), s.299(4) C

D

E

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Appeal—Correction of record—Whether competent to correct failure to impose mandatory requirement to sit extended driving test— Criminal Procedure (Scotland) Act 1995 (c.46), s.299(4) Section 299(4) of the Criminal Procedure (Scotland) Act 1995 provides that where an appeal court becomes aware of an error in the record of the proceedings of the court of first instance it may remit the case to that court to correct the error.

The appellant pled guilty to a contravention of s.2 of the Road Traffic Act 1988 and was fined and disqualified for 20 months without any discount being allowed for the plea, but the sheriff failed to impose a mandatory requirement to sit the extended driving test.

The appellant sought to appeal to the sheriff appeal court against his sentence on the ground that discount should have been allowed, but the sifting sheriff refused leave to appeal on that ground. He did, however, purport to allow leave to appeal only to allow the appeal court to remit the proceedings under s.299 for the record to be corrected or to substitute a competent sentence including the appropriate order to sit the extended test. The appellant then applied to the appeal court to be allowed to have his original ground of appeal reinstated. The court refused that application and then purported to use its power under s.299 to remit to the sheriff to amend the record of proceedings or to alter the sentence so as to include the required order to resit the test. The appellant then appealed to the High Court against that remit.

Held that s.299 operates only where it is clear that the record does not reflect the sentence which was in fact passed and that, in purporting to act under s.299(4), the sheriff appeal court had acted incompetently (para.5); and that accordingly the whole matter of sentence was open to the High Court (para.8); and appeal allowed and period of disqualification reduced to 15 months and order to sit extended test made.

Cases referred to in the opinion of the court: McGill v HM Advocate [2013] HCJAC 150; 2014 S.C.C.R. 46; 2014 S.L.T. 238 Murray v HM Advocate [2013] HCJAC 3; 2013 S.C.C.R. 88.

G

Majid Iqbal pleaded guilty before Sheriff Mohan at Dumfries Sheriff Court to a charge of dangerous driving and was fined and disqualified for 20 months, no discount having been allowed on that period. After the further procedure 258

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Iqbal v Harvie

259

described in the opinion of the court he appealed to the High Court on the grounds referred to in the opinion of the court.

A

The appeal was heard on 30 March 2016 by Lady Smith, Lady Dorrian and Lord Bracadale.

For the appellant: Ogg, instructed by Gilfedder McInnes, Solicitors, Edinburgh.

For the respondent: Brown QC, AD. On 30 March 2016 the appeal was allowed. Lady Dorrian subsequently delivered the following opinion of the court.

LADY DORRIAN [1] On a charge of contravening s.2 of the Road Traffic Act 1988, the sheriff imposed a fine of £600, reduced from a figure of £800 on account of the plea, and disqualified for 20 months. He did not discount the latter and an appeal was presented on that basis. The sheriff’s report indicates that he considers he should have discounted the disqualification, and would have done so by reducing the period to 15 months. The sifting sheriff notes that fact, but observes that a discount to the disqualification period is only appropriate for any period beyond that required for public protection. In his view the whole 20 months was required for that purpose, so he refused leave. However, he noted that the sheriff should have imposed a mandatory requirement to sit the extended test, so he purported to specify that factor as an arguable ground of appeal for the purposes of s.187(6). The sheriff’s report makes absolutely no mention of the mandatory requirement and it appears that, in error, he overlooked it, notwithstanding that the sifting sheriff proceeded on the assumption that this was an “omission”. The sifting sheriff refused leave to appeal the ground stated, but purported to grant leave to appeal “only to allow the sheriff appeal court to remit the proceedings under s.299 of the Criminal Procedure (Scotland) Act 1995 to the sheriff court in order for the entry to be corrected, or otherwise to alter the sentence in terms of s.167(8) of the 1995 Act or to substitute an entirely competent sentence, including the appropriate order to sit the extended test of competence to drive”.

[2] The appellant applied under s.187(7) of the Act, seeking to be allowed to argue the ground which had been disallowed. At the hearing on that matter, the court refused to allow the ground to be reinstated. Noting that there were thus no other grounds of appeal, save that inserted by the sifting sheriff, the sheriff appeal court then purported to exercise the power available to it under s.299(4) (b) of the Act to remit to the sheriff to amend the entry in the record of proceedings or to alter the sentence in terms of s.167 or to substitute an otherwise competent sentence, including the requirement to sit the extended test.

[3] In our view the interlocutor of the sheriff appeal court in this respect was incompetent.

[4] The terms of s.299 are not designed to cover the situation in which a sheriff has not in fact passed the sentence which he ought to have passed, even when that sentence is a mandatory one. It is not designed to alter or modify any sentence which has been passed, it is merely designed to correct “an entry in a) the record of proceedings or . . . b) the extract of a sentence passed . . . in so far as that entry constitutes an error of recording or is incomplete”.

[5] So, where it is clear that the record of proceedings or extract of sentence does not reflect the sentence which was in fact passed, s.299 may operate.

Where the defect comes to light during an appeal, s.299(4)(b) allows the court hearing the appeal to remit the matter to the sentencing court for correction.

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260 A

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However, this was not a case of an erroneous or incomplete record, it was a case where a mandatory element of the sentence was not actually imposed at all. In purporting to act under the power available to them in s.299(4) the sheriff appeal court acted incompetently.

[6] Section 167(8) allows the sentencing court, at any time before imprisonment has followed on a sentence, to alter or modify the sentence, as long as it does not pass a higher sentence. Even if it were possible for the sheriff appeal court to remit to the sentencing court, it is arguable that the sentence which was to be imposed was a higher sentence than the one originally passed, even though it be mandatory. More significantly, however, s.167 confers no power to an appeal court to remit the case to the sentencing court for such modification or alteration.

That is not surprising, because where there has been an error in sentencing, the appellate court itself can, and should, correct the error.

[7] Finally, the sheriff appeal court has no power to remit to the sheriff to “substitute a competent sentence”. The addition of the words “including” is rather baffling. It seems to imply that the sheriff appeal court considered that the sheriff might otherwise alter the sentence, as well as add the mandatory test. It is quite clear that the sheriff appeal court has no power to do this. The powers of that court regarding disposal of summary appeals are statutory. In respect of an appeal against sentence, the court’s powers are contained in s.189 and they are restricted to (a) affirming the sentence or (b) if it considers that a different sentence should have been passed, substituting that different sentence.

[8] Initially, the appellant attempted to appeal against the sift decision in this case, a course which in itself is not competent. However, that attempt was followed by an appeal against the decision of the sheriff appeal court to decide the appeal and to impose the order to which we have just referred. Given that the order was not competent, leave to appeal was granted, and in the circumstances we consider that the whole matter of sentence is open to us.

[9] In our view, the fact that the sentencing sheriff did not specifically refer to the public protection in explaining the sentence which he selected does not mean he left it out of account altogether. It seems to us highly unlikely that a sheriff would do so, and we consider that in general the sheriff is the person best placed to determine the extent of the public protection element in the sentence which he imposed. Given that the sheriff considered that he should have discounted the disqualification to a period of 15 months, it would appear that he did not consider that a period in excess of that was required for public protection. Further, it is clear that the sentencing sheriff failed to realise he required to make an order to sit the extended test. The sitting of that test is a factor designed for the protection of the public, and is thus relevant to the question whether allowing a discount would prevent sufficient public protection being in place, and would have been a highly relevant factor in determining whether, and to what extent, to allow a discount to the period of disqualification.

[10] In the circumstances, we will quash the sentence of disqualification imposed by the sheriff and substitute a period of 15 months, with an order to sit the extended test.

[11] The history of this case serves to remind us of the observations in McGill v HM Advocate, para.13 (following Murray v HM Advocate, para.32) that in relation to appeals against sentence: “. . . as a generality, it is less important to analyse each ground of appeal with the same degree of scrutiny as in a conviction appeal. If there appears to be an arguable ground stated, the whole sentence is likely to require review rather than an allowance or deduction made for a particular element omitted at first instance”.

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A Appeal under s.174 of 1995 Act

5 April 2016

WILLIAM WARWICK

Appellant

against DAVID HARVIE (Procurator Fiscal, Dumfries)

Respondent

B

[2106] SAC (Crim) 13 Summary procedure—Appeal—Appeal against refusal of objection to evidence—Whether competent—Criminal Procedure (Scotland) Act 1995 (c.46), ss.144(4), 174(1) Statutory offence—Obstructing police in execution of duty—Police called because of unwanted presence of accused—Police removing accused without arresting him—Whether acting in execution of duty— Police and Fire Reform (Scotland) Act 2012 (asp 8), s.90(2)(a) Section 144(4) of the Criminal Procedure (Scotland) Act 1995 provides that objections to the competency or relevancy of a summary complaint are to be taken before the accused is called on to plead, and s.174(1) of the Act provides for an appeal against the decision of the sheriff on such an objection.

The appellant was charged with obstructing police officers in the execution of their duty by struggling with them, contrary to s.90(2)(a) of the Police and Fire Reform (Scotland) Act 2012. They had been called by a householder because of the conduct of the appellant, who was intoxicated and whose presence outside her house was unwanted. The officers were not seeking to arrest or detain the appellant who refused a request to leave, but laid hands on him to assist him from the property.

The defence lodged a minute to the effect that the police were not acting in the execution of their duty, in that they had acted unlawfully in laying hands on the appellant without detaining or arresting him, and that they had no lawful authority to remove him unless he was committing an offence. The sheriff, having heard evidence on the minute, refused it. The appellant then purported to appeal under s.174(1) against that decision.

The sheriff in his report disclosed that the police officers, although entitled to detain or arrest, had chosen instead to prevent any escalation of the difficult situation which had developed outside the complainer’s house late at night, that the appellant was clearly intoxicated and was refusing to leave the curtilage of the complainer’s home, that the officers had given the appellant opportunities and time to leave voluntarily and that at that point the officers, in taking hold of the appellant, were trying to defuse the situation by ushering him away, and that there was, at that stage, no question of detaining or restraining him.

Held (1) that s.174(1) was restricted to decisions under s.144(4) and the appeal was incompetent (para.10); and (2) that the sheriff was entitled to reach the conclusion that the police were acting in the course of their duties, having responded to the householder’s complaint about the appellant’s presence at her property (para.17); and appeal refused.

Observed that an objection to the admissibility of evidence is an objection which the appellant may properly take and in summary proceedings ought to be dealt with at trial (or at trial within a trial), that it was unnecessary to hear evidence on the minute distinct from the evidence to be led at trial, and that

C

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G

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2016 S.C.C.R.

in summary proceedings, especially proceedings where two trial diets have been lost due to lack of court time, care must be taken to avoid superfluous procedure which merely serves to duplicate and protract these proceedings which should be summary in nature (para.11).

Craig v Normand, 1996 S.C.C.R. 823; 1997 S.L.T. 919 applied.

Cardie v Murray, 1993 S.C.C.R. 170; 1993 S.L.T. 525; Stocks v Hamilton, 1991 S.C.C.R. 190; Twycross v Farrell, 1973 S.L.T. (Notes) 85 distinguished.

Cases referred to in the opinion of the court:

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Cardie v Murray, 1993 S.C.C.R. 170; 1993 S.L.T. 525 Craig v Normand, 1996 S.C.C.R. 823; 1997 S.L.T. 919 MacAteer v Procurator Fiscal, Perth, HCJAC 18 December 2015 Monk v Strathern, 1921 J.C. 4; 1920 2 S.L.T. 364 Paterson v Harvie [2014] HCJAC 87; 2014 S.C.C.R. 521; 2015 J.C. 118; 2014 S.L.T. 857 Stocks v Hamilton, 1991 S.C.C.R. 190 Twycross v Farrell, 1973 S.L.T. (Notes) 85.

William Warwick was charged on summary complaint in the sheriff court at Dumfries with the charges set out in the opinion of the court. He lodged a minute raising a preliminary issue objecting to the leading of certain evidence.

The sheriff (Weir), having heard evidence on the minute repelled it on 12 November 2015 and the appellant appealed to the sheriff appeal court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 5 April 2016 by Sheriffs Stephen, QC (President), Lewis and Braid.

For the appellant: C M Mitchell, instructed by John Pryde & Co, Solicitors, Edinburgh.

For the respondent: Goddard, AD. On 5 April 2016 the appeal was refused. Sheriff Stephen subsequently delivered the following opinion of the court.

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SHERIFF STEPHEN [1] The appellant, William Warwick, appeals in terms of s.174 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) the sheriff’s decision to repel the minute lodged on his behalf objecting to the lawfulness of the actings of the police officers who will speak to the charges on this complaint, who took hold of him at the locus in charge (1).

[2] The charges on the complaint are as follows: “(1) [O]n 28 November 2014 at Babbington Drive, Dumfries you William Robert Warwick did resist, obstruct or hinder Lyndsay Nicolson, Ryan Kirk, Victoria Urwin and Kerry Bowie, all constables of the Police Service of Scotland, then in the execution of their duty and did struggle and fight with them and attempt to bite them; contrary to the Police and Fire Reform (Scotland) Act 2012, section 90(2)(a) you William Robert Warwick did commit this offence while on bail, having been granted bail on 17 November 2014 at Dumfries Sheriff Court; (2) on 28 November 2014 at the custody yard, Loreburn Street Police Station, Dumfries you William Robert Warwick did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout and swear, repeatedly kick the caged van door and challenge police officers to fight; contrary to section 89(1) of the

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Criminal Justice and Licensing (Scotland) Act 2010 you William Robert Warwick did commit this offence while on bail, having been granted bail on 17 November 2014 at Dumfries Sheriff Court; (3) on 28 November 2014 at custody area, Loreburn Street Police Station, Dumfries you William Robert Warwick did have in your possession a controlled drug, namely Cannabis a Class B drug specified in Part II of Schedule 2 to the Misuse of Drugs Act 1971 in contravention of section 5(1) of said Act; contrary to the Misuse of Drugs Act 1971, section 5(2) you William Robert Warwick did commit this offence while on bail, having been granted bail on 17 November 2014 at Dumfries Sheriff Court.”

[3] The essence of the objection before the sheriff, and before us, is that the police officers in taking hold of the appellant acted unlawfully, he having committed no offence. They had no reason or justification to arrest or detain him at the locus in charge (1), Babbington Drive, Dumfries on 28 November 2014. Accordingly, he having been assaulted by the police officers who were not acting in the course of their duty was entitled to resist. If the police officers were not acting in the course of their duties as constables the appellant could not be held to have contravened s.90 of the Police and Fire Reform (Scotland) Act 2012 by resisting them (charge (1)). The argument before the sheriff focused on the question whether the police officers were acting lawfully in the course of their duties. This seems to have led to an acceptance by those appearing before the sheriff that if the appellant was unlawfully detained or arrested at the locus above then not only would charge (1) fall, but charges (2) and (3) could not be supported by the evidence of the constables who speak to these charges as their evidence of what flowed from his detention would be inadmissible. That may be a correct approach in relation to charge (3), but otherwise that approach appears to overlook that even had the police officers been acting outwith the scope of their duties, it would still be open to the court to have convicted of the common law charge of assault in relation to charge (1); and possibly also of charge (2), depending upon the reasonableness or otherwise of the appellant’s conduct.

[4] The sheriff has provided a full account of the evidence led and submissions made relative to the minute. In particular, at para.29 the sheriff indicates: “It was clear that, when they (the police officers) attended at Babbington Drive, PCs Bowie and Nicolson were responding to a call from the householder of a flat there relative to the conduct of the appellant. The call was made shortly before 23.00 hours on a November night. The call requested assistance because the presence of the appellant on the property was unwanted. It was plain that both the police officers who responded to the call, and those who attended as ‘back up’, attended at the locus in the execution of their duty as police officers (cf. Monk v Strathern 1921 JC 5).”

And at para.30: “The evidence disclosed that the police operated on the basis of the following information and circumstances. They were responding to a request for assistance in removing the appellant from the locus. The call came from a female householder. Two females were within the ground floor flat at the property. It was late on a November flight. The appellant was intoxicated. His presence on the property, outside the flat, was unwanted.

The police had been called because the householder did not want this uninvited situation to escalate. The appellant was given a number of opportunities to leave the property voluntarily. Even before officers laid hands on him the appellant was verbally aggressive towards the police. He refused to leave.”

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And at para.31: “The evidence also described quite clearly that, in laying hands on his arms, the police were not seeking to either detain or arrest the accused. It was clear from the evidence that the decision to do so was an expedient one designed to assist an intoxicated, and unwanted, presence from the property.”

Procedural history

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C

[5] At the first diet or calling the appellant pleaded not guilty to the charges and was released on bail for trial on 11 May 2015.That trial and the subsequent trial fixed for 10 September 2015 did not proceed due to lack of court time. A further trial diet was fixed for 12 November 2015. The defence minute is dated 21 September 2015. The court minute of 12 November 2015 records that the appellant pled not guilty to the charges and evidence was led in respect of the minute for the defence. The minute was refused. The sheriff granted leave to appeal and thereafter the accused pled guilty and the diet was adjourned for the purpose of obtaining a criminal justice social work report.

On 23 November 2015 the case called by minute of acceleration and the appellant was permitted to withdraw his plea of guilty tendered some ten days earlier. Thereafter, various diets have been adjourned pending the outcome of the appeal.

Competency of the appeal

D

[6] The note of appeal is lodged in Form 19.1A under s.174(1) of the 1995 Act and r.9.1 of the Act of Adjournal (Criminal Procedure Rules) 1996.

[7] Section 174(1) of the 1995 Act is in the following terms: “Without prejudice to any right of appeal under section 175(1) to (6) or 191 of this Act, a party may, with the leave of the court . . . and in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the Sheriff Appeal Court against a decision of the court of first instance (other than a decision not to grant leave under this subsection) which relates to such objection or denial as is mentioned in section 144(4) of this Act. . . .”

E

Section 144(4) is in the following terms: “Any objection to the competency or relevancy of a summary complaint or the proceedings thereon, or any denial that the accused is the person charged by the police with the offence shall be stated before the accused pleads to the charge or any plea is tendered on his behalf.”

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[8] Counsel for the appellant, without conceding that the appeal was incompetent, accepted that the objection raised in the minute was not an objection to the competency or relevancy of the complaint nor was it a denial in terms of s.144(4). Whatever view the court came to on competency this court was asked to follow the approach taken in MacAteer v Procurator Fiscal, Perth and determine the merits of the objection which would allow the sheriff to proceed to conviction or acquittal without further appeal on this point.

[9] The advocate depute referred to the statutory provisions noting that s.144(4) of the 1995 Act restricted the ambit of appeal in terms of s.174 to preliminary pleas stated before any plea is tendered. The objection stated on behalf of the appellant was not a preliminary plea and was an objection which in summary procedure was a matter for the sheriff to determine, usually in the course of trial. He agreed with counsel for the appellant that irrespective of the view taken on competency, it would be expedient for the court also to determine the merits of the objection, and we proceed on that basis.

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265

[10] The minute, which is the subject of this appeal, proceeds as an objection to the statutory charge contravening s.90 of the Police and Fire Reform (Scotland) Act 2012 and the admissibility of evidence in support of that charge.

The minute purports to raise a preliminary issue objecting to the admissibility of evidence following his arrest and events following said arrest, said arrest being unlawful. That issue is not a preliminary plea objecting to the competency or relevancy of the summary complaint or the proceedings thereon. Any objection to the admissibility of evidence is an objection to be taken at trial which, in summary proceedings, the sheriff may consider either under reservation or following a trial within a trial. Accordingly the defence minute, not raising a preliminary plea and, in any event, not stated before the appellant pleaded to the charge cannot be the subject of an appeal under s.174(1) of the 1995 Act. The sheriff’s determination on the minute may competently be appealed at the conclusion of these summary proceedings in terms of s.175 of the 1995 Act. The appeal therefore falls to be refused as incompetent.

[11] The procedure adopted following the lodging of the minute is, in our view, irregular. An objection to the admissibility of evidence is an objection which the appellant may properly take and in summary proceedings ought to be dealt with at trial (or at trial within a trial). It is unnecessary to hear evidence on the minute distinct from the evidence to be led at trial. In summary proceedings, especially proceedings where two trial diets have been lost due to lack of court time, care must be taken to avoid superfluous procedure which merely serves to duplicate and protract these proceedings which should be summary in nature. In any event, in our opinion, this is not an objection to the evidence but rather that the evidence cannot support charge (1) as libelled.

Such an objection could properly form the basis of a submission in terms of s.160 of the 1995 Act that the appellant has no case to answer on the offence libelled in charge (1), subject always to the point made above that it would always be open to the court to convict of the alternative charge of assault at common law.

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The substantive grounds of appeal

[12] Counsel for the appellant submitted that the officers in laying hands on the appellant were not acting in the execution of their duty. They were not entitled to take hold of the appellant. They may only lawfully lay hands on an individual when detaining or arresting. Their laying on of hands could be considered to be a criminal act such as assault or abduction. They had no lawful authority to remove the appellant from the property unless he was committing an offence. In support of these submissions counsel referred to Twycross v Farrell; Stocks v Hamilton; Cardie v Murray and Craig v Normand. In Cardie when the police constable approached the break-dancer in the shopping centre and took hold of him by the arm and told him to calm down he had no intention of arresting or detaining him. The court decided that the police officer acted illegally. Accordingly, if police officers are not acting to detain or arrest, to lay hands on an individual is not lawful and therefore not in the execution of duty. The sheriff was not entitled to repel the minute.

[13] The advocate depute emphasised that the minute must be considered in the context of the facts and circumstances as disclosed. The officers were clearly acting in the course of their duty in prevention of a crime or avoiding the escalation of a situation which may lead to a crime being committed. By way of analogy, the advocate depute referred to the responsibilities of police officers in directing and ushering football fans to avoid the potential for disorder. In so doing police officers are clearly acting in the course of their

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duty. The depute argued that the authorities of Twycross, Stocks and Cardie could readily be distinguished. The circumstances of this case did not involve restraint or detention or arrest. In the case of Craig, which is of more assistance to the court, the police officers were called to a public service vehicle where an intoxicated female could not be roused and there were concerns for her safety.

Police officers took hold of her in order to assess the situation. The appellant reacted violently. It was held that the officers were acting in the execution of their duty.

[14] The question of whether police officers are acting in the execution of their duties must turn on the precise facts and circumstances of the particular case. In the present case, the sheriff concluded from the evidence that the officers who attended at the locus in charge (1) were acting in the execution of their duty throughout. The sheriff accepted the Crown’s submission that Constables Nicolson and Kirk were neither detaining nor arresting the appellant when they laid hands on him. Instead they were defusing a situation which had arisen and which gave rise to the female occupants of a flat in Babbington Drive calling for police assistance. The incident occurred around 11 pm on a November evening. The appellant was heavily intoxicated and was slurring his speech. He was standing close to the living room window looking into the flat.

Clearly the occupants of the premises did not wish to have his presence and wanted him to leave. They asked him to leave and when he would not leave they had called the police. The appellant refused to move and the police witnesses tried to persuade him to move on. This situation went on for some time.

[15] In our opinion this minute is misconceived. The issue of whether a complaint had been made is something of an irrelevance. Looked at objectively a complaint had been made by the householder who called the police to request assistance to facilitate the removal of the appellant from immediately outside her living room after 11 o’clock on a November evening. It is necessary to look at the facts and circumstances in their entirety. It is unnecessary that there be any complaint by a member of the public in order for there to be a breach of the peace or a contravention of its statutory equivalent, s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The appellant’s behaviour at the locus firstly, with regard to the occupiers of the dwelling house at Babbington Drive and secondly, with regard to his threats to the police, are capable of causing a reasonable person to suffer fear and alarm that being the objective test in terms of the statutory charge (Paterson v Harvie). It is unnecessary that either the occupiers, or indeed, the police officers, speak to fear or alarm. The facts and circumstances as narrated in the sheriff’s report are capable of constituting a breach of the peace or its statutory equivalent.

[16] Nevertheless, the sheriff did not require to answer the question whether the conduct of the appellant constituted a criminal offence. The sheriff instead decided the matter on the basis that the police were clearly acting in the course of their duties as police officers when after some prolonged negotiation with the appellant they sought to resolve the incident which had led to the householder calling for police assistance. The reasonable inference which can be drawn from the evidence as narrated in the sheriff’s report is that the police were seeking to defuse the situation and avoid having to detain or arrest the appellant. The officers could, without any criticism, have detained the appellant for the reasons we have already given. Instead, they tried to resolve the difficulty and only called for backup when the appellant threatened to “go fighting”, a promise which he subsequently fulfilled.

[17] The appellant referred to Stocks v Hamilton. That case involved the illegal detention of an individual who was lawfully in the police station for

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investigation of an armed robbery. When his lawful detention came to an end he was prevented from leaving the detention room and a struggle ensued. On appeal the Crown did not support the conviction and the court held that the police constable could not be said to have been acting in the exercise of his duty. As a result the statutory charge under the then Police (Scotland) Act 1967, s.41 was unavailable. In our opinion the sheriff was correct to distinguish the circumstances in this case from Stocks. In Stocks the illegality of the ongoing detention was clear. These circumstances do not exist here. Accordingly, we did not find Stocks v Hamilton to be of assistance. Likewise, the authorities of Twycross and Cardie fall to be distinguished on their facts. In these cases there was clearly restraint or detention by police officers which is absent here. On the other hand the circumstances in Craig v Normand are closer to the situation which arises here. In Craig the police officers took hold of the appellant to assist her and assess the situation. In this appeal, the evidence as reported on by the sheriff discloses that the police officers, although entitled to detain or arrest, chose instead to prevent any escalation of the difficult situation which had developed outside the complainer’s house late at night. The appellant was clearly intoxicated and was refusing to leave the curtilage of the complainer’s home. The officers had given the appellant opportunities and time to leave voluntarily. The police officers, in taking hold of the appellant, were trying to defuse the situation by ushering the appellant away. There was, at that stage, no question of detaining or restraining him. The sheriff was entitled to reach the conclusion that the police were acting in the course of their duties having responded to the householder’s complaint about the appellant’s presence at her property. We therefore detect no error in the sheriff’s approach to the minute. We will, accordingly, refuse the appeal as both lacking in competence and merit and remit to the sheriff (Weir) at Dumfries to conclude the trial which commenced on 12 November 2015.

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A Appeal Against Sentence

6 April 2016

PETER JENKINS

Appellant

against

B

DAVID HARVIE (Procurator Fiscal, Stranraer)

Respondent

[2016] SAC (Crim) 14 Sentence—Road traffic—Drink driving—First offender—Breath level 87—Whether disqualification for three years excessive—Road Traffic Act 1988 (c.52), s.5(1)—Road Traffic Act 1988 (Prescribed Limit) (Scotland) Regulations 2014 (SSI 2014/328) C

D

E

F

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Section 5 of the Road Traffic Act 1988 made it an offence to drive with a breath alcohol level in excess of 35 mg of alcohol per 100 ml of breath. The Road Traffic Act 1988 (Prescribed Limit) (Scotland) Regulations 2014 reduced the permitted limit in Scotland, but not in England, to 22 mg from 5 December 2014. The minimum period of disqualification for the offence is one year. The appellant, who had no previous convictions for drink driving, pled guilty to driving with a breath alcohol level of 87mg per 100ml of breath and was disqualified for 34 months and fined £1,400, reduced from three years and £1,500 because of the plea. He appealed against the sentence as excessive, and in his report the sheriff explained his sentence by reference to the fact that the appellant’s alcohol level was more than three times the prescribed limit and was comparable with a level of 138mg which would have led to a comparable period of disqualification in England.

Held (1) that disqualification is intended to be a penalty, and should reflect the gravity of the offence; but is also a deterrent measure and for public protection, that where the court is sentencing with public safety and protection in mind it is necessary to consider the risk posed by the offender, and that the level of the alcohol reading together with the offender’s antecedent behaviour especially for drink driving offences form two important factors in assessing risk (para.9); and (2) that the significance of the lower prescribed limit in Scotland relates not to the level of risk posed by the offender but rather that the importance of the limit is that it now makes it an offence to drive a motor vehicle after consuming lower levels of alcohol in excess of that limit (para.10), and that the risk presented by drivers committing a first drink driving offence is not increased by virtue of the lower limit (para.12); and appeal allowed and period of disqualification reduced to 22 months and fine to £900 reduced from two years and £1,000 because of the plea.

Peter Jenkins pled guilty on 10 February 2016 in the sheriff court at Stranraer before Sheriff Ireland to a contravention of s.5(1)(a) of the Road Traffic Act 1988 and was disqualified for two years and fined £1,400. He appealed to the sheriff appeal court against the sentence.

The appeal was heard on 6 April 2016 by Sheriffs Stephen QC (President) and Braid For the appellant: C M Mitchell, instructed by Michael Lyon Ltd, Solicitors, Glasgow.

For the respondent: Hughes AD. 268

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On 6 April 2016 Appeal Sheriff Stephen delivered the following opinion of the court.

SHERIFF STEPHEN [1] On 10 February 2016 at the Sheriff Court in Stranraer the appellant pled guilty at the trial diet to a contravention of s.5(l)(a) of the Road Traffic Act 1988. The appellant had been stopped at about 10 pm on 29 September 2015 by police officers on mobile patrol in Newton Stewart. The police officers had observed the vehicle swerving on the A714, Wigtown Road, Newton Stewart.

He had a breath alcohol level of 87 micrograms in 100 millilitres which clearly exceeded the prescribed limit of 22 micrograms of alcohol in 100 millilitres of breath.

[2] The sheriff disqualified the appellant from driving for a period of 34 months (reduced from three years) and imposed a fine of £1,400 (reduced from £1,500). This is the appellant’s first conviction for a drink driving offence although he has other road traffic convictions, mainly speeding.

[3] The court certified the appellant as suitable for inclusion on a drink driving rehabilitation course which, if successfully completed, could reduce the period of disqualification by a maximum of eight months.

[4] The appellant complains firstly, in respect of the length of his disqualification that the headline period of disqualification of three years was grossly excessive having regard to this being a first drink driving offence and on consideration of the sentencing guidelines for magistrates in England and Wales. It was accepted that they are not binding in this jurisdiction. The second complaint is that the financial penalty is also grossly excessive. The appellant derives income of £500 per week from his business and pays rent of £540 per month. The appellant will require to employ a driver during the period of his ban. Accordingly, it was argued that the period of disqualification and financial penalty were grossly disproportionate to the appellant’s conduct.

[5] The sheriff in his report explains both his methodology and reasons for imposing the period of disqualification. He explains that he was initially inclined to impose a period of disqualification in excess of three years to reflect the extremely high level of alcohol in the appellant’s breath and the attendant risk to which he put other road users. Having had regard to the appellant’s circumstances and the fact that this was his first offence for drink driving the sheriff restricted the period of disqualification to a headline sentence of three years. That period was reduced by two months to reflect the plea of guilty two days prior to trial which had resulted in the attendance of witnesses being countermanded.

[6] The sheriff summarises his reasoning on disqualification in the following terms: “My primary concern in assessing a suitable sentence for this matter was the very high level of alcohol in the appellant’s breath, 1 microgram short of four times the prescribed limit. I was bound to impose a period of disqualification to protect the public from his irresponsibility and that period had to be lengthy to reflect the gross excess over the prescribed limit.”

Accordingly, it is clear that the sheriff gave significant weight to the lower prescribed limit which applies now in Scotland and to the factor or ratio by which the alcohol reading exceeded that limit.

[7] The sheriff proceeds to distinguish the magistrates court sentencing guidelines for England and Wales as having no direct application in this jurisdiction. However, in the event that they assist, the sheriff applies a multiplier

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being the ratio of 1 to 1.59 which is the difference between the Scottish prescribed limit and the limit which applies in England and Wales. The result appears to equate the appellant’s alcohol reading with 138mg in England and thus the correct range of sentence had been reached in determining a headline sentence of 36 months.

[8] We consider that the sheriff’s approach is erroneous. The gravity of a drink driving offence should be measured in objective, absolute terms rather than by considering the number of times by which a driver exceeds the limit.

It is fallacious to equate a reading of 87 in Scotland with one of 138 in England and Wales, when one driver is likely to be considerably more impaired than the other. The fallacy of the sheriff’s approach can perhaps also be seen by considering what the approach would be were the limit to be reduced to zero (as some advocate). In that event, it would be mathematically impossible to view any transgression as being a certain number of times more than the limit.

[9] In our opinion, the proper approach to sentence in a drink driving offence is to consider the alcohol reading together with any aggravating and mitigating circumstances relating to the offence, such as the quality of the driving; and the offender, which must include consideration of his record or lack of record. Disqualification is intended to be a penalty. It should reflect the gravity of the offence; however it is also a deterrent measure and for public protection. A minimum disqualification of one year is obligatory for a contravention of s.5(l)(a) of the 1988 Act. Where the court is sentencing with public safety and protection in mind it is necessary to consider the risk posed by the offender. The level of the alcohol reading together with the offender’s antecedent behaviour especially for drink driving offences form two important factors in assessing risk. That is why the minimum period of disqualification for a second drink driving offence within ten years is three years.

[10] In our opinion the significance of the lower “prescribed limit” in this jurisdiction relates not to the level of risk posed by the offender but rather the importance of the limit is that it now makes it an offence to drive a motor vehicle after consuming lower levels of alcohol in excess of that limit. The offence threshold is thereby lowered in Scotland.

[11] Section 5(l)(a) of the 1988 Act and therefore the law on drink driving applies throughout the UK. The difference between this jurisdiction and England and Wales relates only to the lower “prescribed limit” by virtue of the Road Traffic Act 1988 (Prescribed Limit) (Sc) Regs 2014 which prescribe lower limits in breath, blood and urine for the purpose of the definition of “the prescribed limit” in s.11(2) of the Road Traffic Act 1988.

[12] Drivers who breach the lower limit will face an obligatory one year disqualification. The risk presented by drivers committing a first drink driving offence is not increased by virtue of the lower limit. A driver who has a reading of 87 micrograms of alcohol in 100 millilitres of breath is clearly guilty of an offence and also poses a risk to public safety but that risk is no greater than it was when the prescribed limit was the previous higher breath alcohol limit of 35.

[13] In this case the appellant falls to be sentenced for a first drink driving offence. He has committed other non-analogous road traffic offences. The appellant requires to carefully assess his responsibilities as a driver. Successful completion of the drink driving rehabilitation course will be one step in this process. The alcohol level in his breath is relatively high in our opinion. The sheriff was correct to consider a period of disqualification above the minimum obligatory disqualification of one year. However, we consider that the sheriff misdirected himself by applying a formulaic calculation of the period of

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disqualification based on the ratio of the alcohol reading above the prescribed limit rather than making an objective assessment of the alcohol reading and the other factors as we have mentioned. Accordingly, the assessment of the period of disqualification is one which we can now determine on the facts and submissions and we consider that an appropriate period of disqualification is two years which we will reduce to 22 months to reflect the plea negotiated prior to, but tendered at, the trial diet. The drink driving rehabilitation course, if successfully completed by 10 May 2017, will result in that period of disqualification being reduced by five months.

[14] That leaves the appeal on the level of fine imposed. Again for the reasons we have given we consider the sheriff misdirected himself as to the level of culpability and risk presented by the appellant. The fine imposed is excessive in our opinion and we will quash the fine of ÂŁ1,400 and instead order that the appellant pay a fine of ÂŁ900 which we have reduced from a starting-point of ÂŁ1,000.

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A Appeal Against Sentence

8 April 2016

CHENAO LI

Appellant

against B

JOHN DUNN (Procurator Fiscal, Stirling)

Respondent

[2016] SAC (Crim) 7 Sentence—Road traffic—Forfeiture—Two drink-related within nine days—Whether forefeiture of vehicle excessive

C

D

offences

The appellant, who belonged to a wealthy family, pled guilty to driving with three times over the permitted limit of alcohol in his breath on 22 August 2015 and with failing to provide a breath specimen on 31 August 2015. The sentencing sheriff imposed fines totalling £1,950 and disqualified him for three years. The sheriff, having regard to what she described as the cavalier and dangerous nature of the appellant’s behaviour, also ordered his vehicle (valued at £15,000) to be forfeited “in order to tailor a sentence that achieved public protection”, and he appealed to the sheriff appeal court against the forfeiture as excessive.

Held that the overall disposal in this case could not be regarded as excessive (para.12); and appeal refused.

Observed that where the court requires to consider whether the overall sentence might be regarded as excessive it was difficult to accept that the level of the fine and the value of the vehicle might not be taken into consideration (para.15).

Craigie v Heywood, 1996 S.C.C.R. 654 applied.

Quinn v Procurator Fiscal, Glasgow, 25 August 2010, unreported, distinguished.

Passage in Wheatley, Road Traffic Law in Scotland, para.8.11.5 disapproved.

Cases referred to in the opinion of the court:

E

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Carron v Russell, 1994 S.C.C.R. 681 Craigie v Heywood, 1996 S.C.C.R. 654 Quinn v Procurator Fiscal, Glasgow, 25 August 2010, unreported Whitefield v Procurator Fiscal, Portree [2012] HCJAC 70; 2012 G.W.D. 19-400 Wilson v Hamilton, 1996 S.C.C.R. 193.

Chenao Li pleaded guilty in the sheriff court at Stirling to the charges described in the opinion of the court and was fined and disqualified. The sheriff (Wade QC) also ordered his vehicle to be forfeited and he appealed to the sheriff appeal court against that order on the grounds referred to in the opinion of the court.

The appeal was heard by Appeal Sheriffs Scott QC (Vice President) and MacFadyen.

For the appellant: Keenan, Solicitor Advocate.

For the respondent: Prentice QC, AD.

G

On 8 April 2016 the appeal was refused. Sheriff Scott subsequently delivered the following opinion of the court.

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Li v Dunn (SAC)

273

SHERIFF SCOTT [1] The appellant pleaded guilty at an intermediate diet to contraventions of s.5(1)(a) of the Road Traffic Act 1988 and s.7(6) of the same Act. It can be seen from the complaint that these offences took place on 22 and 31 August 2015 respectively.

[2] The appellant was fined £750 discounted from £1,000 in relation to the contravention of s.5 of the 1988 Act and £1,200 discounted from £1,500 in relation to the contravention of s.7. The appellant was also disqualified from driving for a period of three years and an order was made for forfeiture of the appellant’s motor vehicle. The present appeal is brought solely to challenge the forfeiture order.

[3] The appeal is predicated upon the hypothesis that the forfeiture order made by the sheriff was disproportionate and excessive in the circumstances of the case. Whilst accepting that issues of public protection properly arose, the solicitor advocate for the appellant argued that protection of the public had already been addressed by way of the significant period of disqualification imposed. It was contended that the sheriff in ordering forfeiture of the vehicle had failed to afford adequate consideration to the value of the vehicle (£15,000) and, moreover, had erred in the court’s approach to public protection.

Reference was made to the case of Whitefield v Procurator Fiscal, Portree. Put shortly, when the entire disposal by the court was considered, it was maintained that that part of it representing the financial penalty which, in effect, had been created by the forfeiture order, rendered the overall disposal excessive.

[4] The solicitor advocate for the appellant referred to the cases of Craigie v Heywood; Carron v Russell; and Quinn v Procurator Fiscal, Glasgow. He highlighted the extreme nature of the driving in Craigie and the fact that, in Quinn, a forfeiture order had been quashed by the High Court on appeal. The solicitor advocate queried whether the forfeiture order made in the present case was necessary for public protection and submitted that it would not preclude the appellant from driving a different motor vehicle upon the expiry of the disqualification period. There was, it was argued, a limit to the protection afforded by the forfeiture order. Even if the forfeiture order did afford the public a measure of protection, the solicitor advocate for the appellant queried whether Parliament had intended that such an order should apply in the circumstances of the present case.

[5] In light of comments made at the second sift, the Crown had submitted written submissions for the benefit of the court and the advocate depute presented a concise yet helpful oral submission under reference to what appeared in writing. The advocate depute contended that each case involving the making of a forfeiture order would likely be very fact specific. There could be no doubt that the protection and safety of the public were important features. The case of Craigie made that clear. It was argued that any conduct which might demonstrate a cavalier attitude (on the part of an appellant) towards public safety constituted a weighty factor. Beyond all that, the advocate depute adhered to the terms of his written submissions.

[6] In her report, the sheriff provides a clear indication as to her rationale for making the forfeiture order. This was, of course, a situation in which the appellant had committed two significant road traffic offences, both drink related, and involving the use of the same motor vehicle, within a period of just over a week. In relation to the s.5 offence, the appellant had been nearly three times over the limit and as far as the s.7 offence was concerned, he had been obstructive and uncooperative. In having regard to the need for public protection, the sheriff records that she viewed the appellant’s attitude as being

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“cavalier and irresponsible” “not to mention downright dangerous”. She rejected the proposition that he was remorseful and expressed concern regarding the appellant’s ability to appreciate the serious nature of his offending and its consequences.

[7] It is also plain that, in mitigation, the information made available to the court suggested that the appellant came from a wealthy family who had provided the money to purchase the £15,000 car and that the appellant could meet a “substantial” fine. The appellant’s solicitor advocate did not seek to depart from that analysis on appeal. Indeed, the impression formed by the sheriff to the effect that the appellant had access to unlimited means did not appear to be challenged and was to an extent confirmed as it emerged that prior to conviction the appellant’s family had simply placed another motor vehicle at his disposal.

[8] Under reference to Wheatley’s Road Traffic Law in Scotland (5th edn), para.8.11.5 at p.317, the sheriff was of the view that the appellant met the criteria set out therein. She also concluded that the forfeiture order imposed would be utilised to “tailor a sentence that achieves public protection”. She had regard to the fact that the appellant had blatantly disregarded his bail undertaking in respect of the first offence when he committed the second offence under s.7(6) of the 1988 Act. The sheriff noted the proximity in time of the two offences and the fact that the second offence was arguably an escalation in the appellant’s offending. In her assessment, forfeiture of the appellant’s motor vehicle was, therefore, a reasonable measure to prevent re-offending.

[9] Against that background, and standing the scope of the argument presented on appeal, we have some difficulty in identifying the basis upon which the sheriff is said to have erred or misdirected herself. It seems to us that the case of Whitefield is of very limited assistance in the present context and might readily be distinguished on its own particular facts. Moreover, we do not consider that the other authorities cited on behalf of the appellant actually support the granting of this appeal.

[10] In the case of Craigie we note that the court detected “a disposition of such a nature that it would be appropriate to have a fairly severe penalty in this case and certainly that it would be appropriate that he should not have a car in order to repeat these performances”. In Carron the gap between the appellant’s two convictions was in the order of 16 months. The court was not persuaded that the forfeiture of the car could be said to be excessive in the serious circumstances of that case. It considered that the case could be said to be exceptional because of its particular circumstances. The case of Quinn, in our view, falls to be distinguished on its own facts. For instance, the appellant, with significantly more limited means than those of the appellant in the present case, would have required to continue making payment of finance charges notwithstanding the fact that she would no longer have the benefit of the car in question.

[11] However, insofar as it has been argued on appeal that the sheriff failed to give proper weight to the value of the appellant’s motor vehicle, we do not find that to be a compelling argument. Leaving aside the fact that it conflicts with what is said in Wheatley at p.317, as the sheriff points out in the final paragraph of her report, on the information provided to her, there was no basis upon which she might conclude that forfeiture of the vehicle would be in any way disproportionate. More importantly, the sheriff, rightly in our view, had proper regard to the fact that the cavalier nature of the appellant’s offending posed a clear risk to the public. When the level of the reading relating

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to the s.5(1)(a) offence is taken along with repeat offending a matter of days later, all against the background of the appellant’s subsequent attitude to his offending, it was, in our opinion, entirely legitimate for the sheriff to consider a forfeiture order.

[12] Her consideration of the order and its subsequent imposition were, to our mind, beyond the criticism levelled for the purposes of this appeal. We do not consider that the overall disposal in this case can be described as excessive on the facts and circumstances presented to the sheriff. It is to be noted that the minimum period of disqualification was imposed here. Whilst the solicitor advocate for the appellant sought to found to some extent upon the observation that the sheriff had proceeded to sentence the appellant without calling for reports that feature is, in our view, essentially neutral for the purposes of the appeal. The plea in mitigation had stressed the appellant’s prosperous background with no limitation being suggested as far as his means were concerned. In our opinion, whilst a forfeiture order can never constitute an absolute safeguard when it comes to protection of the public, that observation does not serve to restrict its use where there are compelling circumstances suggesting that an offender’s conduct was redolent of an exceptional disregard for the consequences of his behaviour. We have concluded that the conduct of the appellant in this case was sufficient to meet that test. Accordingly, the forfeiture order will stand. The appeal is refused.

[13] For completeness, and in more general terms, we find ourselves in agreement with the submissions presented on behalf of the Crown. In particular, each case requires to be considered on its own facts and circumstances with public protection, the overall penalty imposed on an offender and the financial means of the offender all being factors which may be relevant, either together or in isolation, when considering the making of a forfeiture order in relation to a motor vehicle.

[14] Finally, there was some discussion in regard to a sentence which appears within para.8.11.5 in Wheatley’s Road Traffic Law in Scotland, at p.317. That sentence reads: “It is inappropriate to consider the level of fine that might be imposed and the value of the car in deciding whether to order forfeiture.”

[15] In support of that proposition the case of Wilson v Hamilton is cited in the footnote at p.317. Having perused the opinion of the court in Wilson, it is difficult to understand why it might support the aforementioned proposition.

Indeed, where the court requires to consider whether the overall sentence imposed upon an offender might be said to be excessive, we find it equally difficult to accept that the level of fine imposed and the value of the motor vehicle might not be taken into consideration. At all odds, this apparent discrepancy had no bearing upon our disposal in the present appeal.

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A Appeal Against Conviction

29 April 2016

MATTHEW MARTIN

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 42 Evidence—Sufficiency—One offence proved independently by sufficient circumstantial evidence—Whether sufficient evidence to identify accused as responsible for other offences

C

D

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F

The appellant was convicted of six offences involving or connected to incidents of fire raising, between August 2013 and July 2014.

There was no direct evidence identifying the appellant as the offender, but he was present at or near the locus of the fires, all but one of which took place in caravans on laybys on the Perth to Oban Road. Two of the fires (charges (2) and (3)) related to caravans owned by the appellant and were charged as breach of the peace. Charge (5) was a charge of wilful fire raising. Charge (4) was a charge of wilful fire raising in a common close in Crieff, where the appellant had recently been housed. Charge (6) was a charge of theft by the appellant from a caravan at a layby about a mile from the locus of the earlier charges, which was set on fire about a fortnight later (charge (7)). Some of the stolen articles were found in the appellant’s possession. The Crown relied on the presence of sufficient circumstantial evidence to prove at least one charge (charge (5)) independently, and relied on Howden v HM Advocate, infra, for proof of the others on the basis that the circumstances showed that they were all committed by the same person. The trial judge repelled a submission of no case to answer and the appellant appealed to the High Court Held (1) that there was sufficient corroborated evidence to prove the appellant’s guilt of charge (5) (para.17); (2) that where one offence is proved by corroborated evidence it is open to the jury to look to the circumstantial evidence to examine the question whether it is proved beyond reasonable doubt that it was the same person who committed the proved offence and one or more other offences in respect of which there is insufficient evidence, that each of charges (2), (3) and (7) involved the catching fire of caravans in two laybys on the A85 within a mile of each other., that the events libelled in charges (2)–(7) occurred over a period between August 2013 and July 2014, that none of the offences had any apparent motive, that all featured the presence of the appellant, that while the fire in charge (4) occurred in a building, it happened very soon after the offence in charge (3), occurred in the same general vicinity, namely, an area of Perthshire, and very soon after the appellant had been rehoused in the building, and that, in addition, in relation to charge (4) there was some circumstantial evidence capable of pointing towards the appellant as being the perpetrator (para.18); and (3) that at the stage of submission there was at least sufficient evidence of reset on charge, which was sufficient to entitle to allow the sheriff to repel the submission (para.19); and appeal refused.

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

Cases referred to in the opinion of the court:

G

Al Megrahi v HM Advocate, 2002 S.C.C.R. 509; 2002 J.C. 99; 2002 S.L.T. 1433 (both sub nom Megrahi v HM Advocate) 276

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Martin v HM Advocate

277

Gillan v HM Advocate, 2002 S.C.C.R. 502; 2002 S.L.T. 551 Howden v HM Advocate, 1994 S.C.C.R. 19.

A

Matthew Martin was convicted on 6 May 2015 of the offences described in the opinion of the court after trial in Perth Sheriff Court before Sheriff Wood 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 24 February 2016 by Lord Brodie, Lord Bracadale and Lady Clark of Calton.

For the appellant: M Mackenzie, instructed by Faculty Criminal Appeals Service.

For the respondent: Edwards AD.

B

On 29 April 2016 Lord Bracadale delivered the following opinion of the court.

LORD BRACADALE Introduction

[1] The appellant was indicted at the Sheriff Court at Perth on seven charges.

On 6 May 2015, after trial, he was convicted of each of charges (2)–-(7) and acquitted of charge (1). Charge (2) libelled a breach of the peace: the charge narrated that on 14 August 2013 at a layby on the A85 Perth to Oban road near St Fillans the appellant set fire to a caravan belonging to him. Charge (3) libelled a breach of the peace: the charge narrated that on 22 October 2013 at the same layby on the A85 road the appellant set fire to a caravan belonging to him. Charge (4) libelled wilful fire raising: the charge narrated that on 3 November 2013 the appellant set fire to an armchair in the common close of the building at 1 Cornton Place, Crieff and the fire spread to the fabric of the building causing serious damage and endangering the lives of the occupants. Charge (5) libelled wilful fire raising: the charge narrated that on 24 April 2014 at the same layby on the A85 as libelled in charges (2) and (3) the appellant set fire to a caravan. Charge (6) libelled theft from a lock-fast caravan of a jacket and kettle at a different layby on the A85 on 25 June 2014.

Charge (7) libelled wilful fire raising: the charge narrated that on 15 July 2014 at the layby on the A85 which was the locus in charge (6) the appellant set fire to a caravan. The caravan in each of charges (6) and charge (7) was the same caravan. The appellant was acquitted of charge (1) which libelled wilful fire raising: it narrated that on 26 March 2013 in premises in Glasgow the appellant set fire to a door frame causing damage.

[2] The appellant had convictions for domestic assault in 2008 and 2012.

The sheriff imposed a sentence of four years’ imprisonment. The appellant has appealed against conviction and sentence.

Ground of appeal against conviction

[3] The ground of appeal against conviction is that the sheriff erred in rejecting the appellant’s submission of no case to answer in respect of charges (2)–(7).

In particular, it is averred that there was insufficient evidence of identification of the appellant as the perpetrator of the offences. At the stage when the no case to answer submission was made charge (1) was still before the court.

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[4] Certain evidence was agreed by joint minute and a number of witnesses gave evidence. With the exception of charge (5), to which we shall return later,

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Martin v HM Advocate

2016 S.C.C.R.

A

the following is a summary, taken from the sheriff’s report (not verbatim), of the evidence in relation to each of the charges.

Charge (1): On 26 March 2013 at the flat occupied by the appellant at 7 Longstone Place, Glasgow there was a fire which was extinguished by fire officers.

Police officers also attended. The appellant was alone in the flat when the police attended. The frame of the front door had been set on fire. Police found between ten and 20 tins of accelerant within the appellant’s flat.

B

Charge (2): Between 1 May 2013 and 30 June 2013 the appellant purchased two caravans which he parked in a layby on the A85 Perth to Oban road near St Fillans. On 14 August 2013 one of the caravans caught fire and the appellant called the Scottish Fire and Rescue Service. Between 9 am and 10 am a fire crew attended and extinguished the fire. The appellant was at the scene and no one else was present. The crew manager assumed that the fire had been started deliberately because it did not have a power supply and had been unoccupied.

C

D

E

F

G

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Charge 3: On 22 October 2013 the other caravan owned by the appellant caught fire. An unknown person reported the fire from a mobile telephone. Fire officers attended at about 10:30 pm and found within the caravan two separate fires which they subsequently determined had been started deliberately. The fire was attended by the same crew manager who had attended the earlier fire. When the crew attended the appellant was present with a generator and a light. The appellant was the only person in the vicinity.

Charge (4): On 23 October 2013 the appellant was rehoused and provided with accommodation at flat E, 1 Cornton Place, Crieff. This was a three-storey block of flats with a half landing between the first and second floors. Flat E was on the second (top) floor. Flat F, the other flat on the second floor, was occupied by Lorna Henderson. Prior to 3 November 2013 she had placed an armchair on the half landing in order that her mother could collect it along with other rubbish and take it to the skip. The half landing was a few steps down from the second floor. On 3 November 2013 the armchair was deliberately set on fire by the direct application of a naked flame. The fire took effect and spread to the fabric of the building. The flats were occupied and at least one was occupied by a family with children. Fire officers attended and extinguished the fire. The appellant was in his flat when the fire brigade attended. A tin of lighter fuel was found on a table in the living room in the appellant’s flat.

Charges (6) and (7): On 15 July 2014 a caravan belonging to Andrew Cooper, which was parked in another layby on the A85, about a mile from the layby which featured in the earlier charges, was set on fire. It was likely that the fire had been started deliberately by the ignition of combustible materials. At about 1 am on 16 July 2014 a police tracker dog tracked a scent from the burnt caravan to the door of the caravan belonging to the appellant in the other layby. The caravan which went on fire had been parked in the layby for four to six weeks. The door had been locked. Two or three weeks before the fire someone had forced open the door just above the lock and stolen a number of items. When the owner of the caravan told the appellant that the caravan

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had been broken into the appellant had put his head down and walked away. When the appellant’s caravan was searched articles from the burnt-out caravan were recovered.

A

The submission of no case to answer

[5] The sheriff repelled a submission of no case to answer in terms of s.97 of the Criminal Procedure (Scotland) Act 1995. He states that he applied the principle in Howden v HM Advocate and when he did so it was clear that “there was an adequate weight of circumstantial evidence to implicate the appellant in respect of all the charges”. He noted the evidence of the fire fighters regarding the presence of the appellant at each of the fires and their observations that they had not been called previously to any fires in that area. They had also spoken to the appellant’s apparent lack of concern in relation to the fires. The presence of multiple tins of accelerant, together with evidence that the fires in charges (3) and (4) had been started deliberately, would also permit an inference to be drawn by the jury in relation to charge (1). The appellant was found in possession of property identified as stolen from the caravan that was set on fire on 15 July 2014. The sheriff took the view that these were “all properly matters for the jury properly directed and applying their common sense”.

B

C

Submissions Defence

[6] Under reference to the summary of evidence set out in the sheriff’s report, counsel submitted that the evidence did not provide a sufficient basis to conclude that the appellant was the perpetrator of each charge. There was no direct eyewitness evidence that the appellant had started any of the fires. There was no forensic evidence. Presence at the scene was not enough. There was nothing unusual about his presence at each of the loci; no evidential significance attached to his actions. There was no thread in the evidence pointing to each of the offences having been committed by the same perpetrator. The offences had been committed at different times of day. The events described in each of charges (1) and (4) contained a different narrative from the other charges. The subject-matter of the other charges did not in themselves point to the guilt of the appellant. There was no basis for applying the approach in Howden v HM Advocate in this case. That approach required there to be at least one charge which was independently proved by corroborated evidence. Only then would it be open to a jury to be satisfied that a second and subsequent offences must have been committed by the person who committed the first offence. It was accepted that on that basis an accused could be convicted of all the charges irrespective of the lack of corroboration in respect of the second and remaining charges. This approach had no application to the facts here. The necessary single corroborated charge was not present. In any event, even if there was proof of identification in relation to one charge, the necessary close nexus in terms of similar facts was wholly lacking in the other charges.

D

E

F

Crown

[7] The advocate depute submitted that there was sufficient independent evidence to find each of charges (5) and (7) corroborated as a stand-alone charge. Thereafter the approach in Howden v HM Advocate could be applied in relation to the other charges. All the charges with the exception of charge (6) involved fire-raising. All except charge (4) involved unoccupied caravans.

All, with the exception of charge (4), had occurred in lay-bys on the A85. The

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charges reflected what amounted to a series of fires in a short period of time.

None of the offences had any apparent motive such as the making of an insurance claim. All featured the presence of the appellant as occupier (charges (2), (3) and (4)), caretaker (charge (5)) or neighbour (charge (7)). The offence in charge (4) involved the flat to which the appellant had been moved after the fire libelled in charge (3). It would be open to the jury on the circumstantial evidence in relation to each of the other charges to be satisfied that the perpetrator of the offence in charge (5) (and/ or charge (7)) had committed each of the other offences.

Discussion and decision

[8] In the light of the approach urged on the court by the Crown it is necessary to examine in more detail the evidence in relation to charge (5). Charge (5) was in the following terms: “On 24 April 2014 at a layby situated on the A85 Perth to Oban road outside St Fillans, Perthshire, you did wilfully set fire to a caravan and the fire took effect thereon and destroyed said caravan.”

C

D

E

F

G

5150.indd 280

The evidence in support of charge (5) was wholly circumstantial. We remind ourselves of the requirements of proof in a circumstantial case. It is necessary to look at the evidence as a whole. Each piece of circumstantial evidence does not need to be incriminating in itself; what matters is the concurrence of testimony.

Corroboration is found in the totality of the evidence from at least two sources.

The nature of circumstantial evidence is such that it may be open to more than one interpretation, and it is precisely the role of the jury to decide which interpretation to adopt. The jury are entitled to reject evidence which is inconsistent with the guilt of the appellant precisely because it is inconsistent with circumstantial evidence pointing to his guilt which they have decided to accept (Al Megrahi v HM Advocate at pp.528–53 (paras 29–36).

[9] The starting-point in considering the evidence in relation to this charge is para.13 of the joint minute of agreement which was entered into at the trial.

It is in the following terms: “On 24 April 2014 at a layby situated on the A85 Perth to Oban road outside St Fillans, Perthshire a caravan owned by Lief Stephen Yospa was set on fire. The said fire took effect thereon and destroyed the caravan. At this time the said Lief Stephen Yospa was in Wales, the accused was in possession of the keys for the said caravan and it was parked approximately two metres away from the accused’s own caravan. A fire investigator concluded that it is likely that said fire was started deliberately by the ignition of combustible materials in or near the said caravan.”

Paragraph 14 of the joint minute agreed that Crown Production 27 was a book of photographs taken on 25 April 2014 which included photographs of the debris of the caravan referred to in para.13 and the surrounding area.

[10] Paragraph 22 of the joint minute agreed that Crown Production 31 was a true and accurate transcript of the interview of the appellant in relation to charge (5) which was conducted at 14.40 hours on 25 April 2014 at Perth Police Office. At p.19 of the interview the following exchange takes place: “DC2: See nearby Lief’s caravan went on fire, there was, was there a barbecue nearby?

Suspect: Aye. DC2: On the barbecue there was a blue, blue glove.

Suspect: Aye.

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DC2: Did you ever see that blue glove before?

Suspect: Aye. It was me and my mate put it and it was full of grease from the caravan. The handles, you know the hand, the winding legs, right, been greasing them, put it in there. That’s my barbecue.

DC2: So, why was it at Lief’s caravan then?

Suspect: Eh when it was, it was blowing that day and my mate put it aside. That caravan cause it was blowing all over him, the ashes from the the barbecue.

DC2: Right. And I understand when you came into custody you had a blue glove in your pocket as well.

Suspect: Aha. DC2: Yeah. Do you think that’s a bit of a coincidence, that? There’s a blue glove at the door or near to where the caravan was set on fire and you’ve got a blue glove in your property or in your possession.

Suspect: That’s for my winding legs on my caravan.

DC2: Hmm. Suspect: Put grease on the legs.

DC2: But do you know what I am trying to say to you here?

Suspect: Aha. DC2: Is that where your car the caravans went on fire, there’s a barbecue sitting at the front door.

Suspect: Aha. DC2: Or where the front door was.

Suspect: Aha. DC2: And there’s a blue glove that is not fire damaged or not heat damaged at all.

Suspect: No. DC2: It’s still fully intact. Understand what I’m saying?

Suspect: Aye. DC2: And it’s lying next to the caravan. It was fully alight.

Suspect: Aye. DC2: But it’s not touched.

Suspect: It was in the barbecue. Cause my mate put it in the . . .

DC2: And you’ve got a blue glove in your possession.

Suspect: Aye, cause I’ve still got to do the other leg.

DC2: Mmhmm.

Suspect: And I’ve forgot that was in my pocket cause my mate sticks stuff in my pocket all the time. It’s a carry on, you know, with rubbish and bits and bobs he says ‘stick that in your pocket’ and then I stick it in my pocket. So, sometimes we stick sweet wrappers in my pockets.”

[11] In his report the sheriff summarises the evidence of the witnesses who gave evidence. Andrew Crumley was a friend of Mr Yospa, the owner of the caravan. Mr Crumley had stayed in it from time to time. In April 2014 there had been two other caravans and a camper van in the layby. The appellant’s caravan was parked at the end of the layby about ten feet from Mr Yospa’s.

Mr Yospa had returned to Wales. Sometime in April 2014 Mr Crumley gave the only key for the caravan to the appellant. Outside the appellant’s caravan there had been “all sorts of things” such as gas bottles, bicycles and barbecue equipment.

[12] Robert Fletcher owned the camper van. On 24 April 2014 his camper van was parked about 500 yards away from Mr Yospa’s caravan. Mr Fletcher knew the appellant and had spoken to him earlier on the day of the fire. After the conversation the appellant had returned to his own caravan at the end of the layby. Later that night the appellant came to Mr Fletcher and asked to use his telephone in order to call the fire service. He told Mr Fletcher that Mr Yospa’s caravan was on fire and that the appellant’s own telephone was not

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A

B

C

D

E

F

G

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282 A

B

C

D

E

F

G

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working. He also told Mr Fletcher that somebody had set fire to Mr Yospa’s caravan [13] The appellant told Mr Liversedge, the crew manager of the fire service who attended the scene, that there were no hazards or power supplies in the caravan. George Ferguson was a firefighter who saw the appellant. He was the only person whom Mr Ferguson had seen.

[14] Police Inspector McKinley attended and noted the round metal barbecue which was close to the damaged caravan and had in it a burnt branch, some ash and an undamaged blue latex glove. Christopher Williams, a watch manager of the fire service, noted that there was a tin of lighter fuel in the barbecue which had been about two feet away from the fire. He noted that the blue latex glove had not been damaged.

[15] From these various sources the circumstantial evidence may be analysed as follows. The caravan in charge (5) was owned by Lief Stephen Yospa. It was parked in a layby on the A85. The layby extended along the side of the loch. Mr Yospa’s caravan was parked approximately two metres away from the appellant’s caravan. Mr Yospa returned to Wales leaving the only key for the caravan with his friend Andrew Crumley who stayed in Mr Yospa’s caravan from time to time. Sometime in April 2014 Mr Crumley gave the only key for the caravan to the appellant. Mr Crumley stated that outside the appellant’s caravan there had been a number of items including barbecue equipment and a propane cylinder. Some of these items can be seen in photographs 1 and 2. Prior to the fire the barbecue had been moved to a point beside where the door of the burnt-out caravan would have been. The photographs show the barbecue close to the debris. Although it was described as a barbecue by witnesses it might be more accurately referred to as a fire pit.

It would be open to the jury to reject the explanation given by the appellant as to why the barbecue had been moved. In the barbecue there was a charred branch on top of ashes and a somewhat burnt tin of lighter fuel. A fire investigator concluded that it was likely that the fire had been started deliberately by the ignition of combustible materials in or near the said caravan.

Close to the end of the burnt branch in the barbecue was a blue latex glove.

When he was detained the appellant had a blue latex glove in his pocket.

[16] The evidence of Robert Fletcher demonstrates that the appellant was in the vicinity on the day of the fire. He had spoken to the appellant earlier in the day on 24 April and the appellant had returned in the direction of his own caravan. Later that night the appellant came to Mr Fletcher’s camper van and asked to use Mr Fletcher’s telephone in order to call the fire service. Significantly, the appellant told Mr Fletcher that somebody had set fire to MrYosba’s caravan, thus demonstrating knowledge that the fire had been started deliberately. The appellant told Mr Liversedge that there were no hazards or power supplies in the caravan.

[17] The advocate depute submitted that when all these strands of circumstantial evidence were taken together they provided a corroborated case identifying the appellant as having set fire to the caravan in charge (5). In our opinion, that submission is well founded. It would be open to the jury to infer from that body of circumstantial evidence that the appellant did set fire to the neighbouring caravan. When the evidence in relation to charge (5) is looked at as a whole, the concurrence of the testimony allows that inference to be drawn. Corroboration is found in the totality of the evidence.

[18] We accept the submissions of counsel on behalf of the appellant that in respect of each of the remaining charges, when looked at individually, there was insufficient evidence to allow it to go to the jury. It is necessary to consider

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whether the approach in Howden v HM Advocate is available in relation to the other charges. Where one offence is proved by corroborated evidence it is open to the jury to look to the circumstantial evidence to examine the question whether it is proved beyond reasonable doubt that it was the same person who committed the proved offence and one or more other offences in respect of which there is insufficient evidence. (Howden v HM Advocate, LJG (Hope) at p.24). The approach in Howden was approved in Gillan v HM Advocate, LJC (Gill) at para.20: “It (identification) comes from circumstantial evidence to the effect that the perpetrator on one charge was the same person who was identified as having been the perpetrator on the other.�

In our opinion it was open to the jury to take this approach in relation to charges (2), (3), (4) and (7). Each of charges (2), (3) and (7) involved the catching fire of caravans in two laybys on the A85 within a mile of each other.

The events libelled in charges (2)–(7) occurred over a period between August 2013 and July 2014. None of the offences had any apparent motive. All featured the presence of the appellant. While the fire in charge (4) occurred in a building, it happened very soon after the offence in charge (3). It occurred in the same general vicinity, namely, an area of Perthshire. It occurred very soon after the appellant had been rehoused in the building. In addition, in relation to charge (4) there was some circumstantial evidence capable of pointing towards the appellant as being the perpetrator.

[19] In relation to charge (6), at the stage of the submission under s.97 of the 1995 Act, there was at least sufficient evidence to found a charge of reset of the stolen property. That would be sufficient to allow the sheriff to repel the submission.

[20] For the above reasons we are satisfied that the sheriff did not err in repelling the submission of no case to answer in relation to each charge and the appeal against conviction must be refused.

A

B

C

D

Appeal against sentence

[21] In the ground of appeal it is averred that the appellant had not previously served a custodial sentence. He had longstanding mental health issues. It would have been appropriate for the court to have made further inquiries into the possibility of the imposition of a community payback order with a mental health requirement. In any event, if a custodial sentence was appropriate it was of excessive length.

[22] Counsel submitted that the appellant had found it difficult to engage and had initially refused to speak to the social worker to assist in the preparation of the criminal justice social work report. With encouragement and support he was able to engage and without intervention his mental health problems would not be addressed. The sheriff should have deferred sentence in order to obtain information as to whether the appellant would be a suitable candidate for a mental health treatment plan as a condition of the community payback order.

While it was accepted that the appellant had failed to cooperate when a forensic psychologist had sought to carry out an assessment the appellant had subsequently agreed to do so after he had discussed the matter with his legal representative. Given the whole background circumstances and the information available to the sheriff, he should have given the appellant a further opportunity to assist in having a report prepared to determine if a community payback order was a sentencing option that would reasonably have been available to the court. In any event, if a custodial sentence was the only appropriate disposal,

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E

F

G

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284 A

B

C

D

E

Martin v HM Advocate

2016 S.C.C.R.

the period of four years’ imprisonment was excessive. The sheriff had failed to attach appropriate weight to the mental health problems of the appellant.

[23] The sheriff noted the history set out in the criminal justice social work report of mental health difficulties that the appellant had experienced between 2010 and 2014. After his arrest he had been remanded in custody on 17 July 2014 and fully committed on 24 July 2014. He remained in custody until 1 September 2014 when he was made the subject of an assessment order which continued until 3 November 2014. The sheriff had before him a report dated 6 November 2014 prepared by Dr Andrea Macaulay, the psychiatrist who had responsibility for the appellant’s care during the assessment period. She concluded that there was no clear evidence that the appellant had ever suffered from a psychotic illness. She could find no evidence that he was suffering from a mental illness at the time of the alleged offences. She stated that while the appellant continued to display some traits of schizoid personality disorder there were not enough symptoms present to reach a definitive diagnosis. From the in-patient period of assessment it was clear that he did not currently have a mental disorder. She did not recommend any further psychiatric follow-up as there was no requirement for this. In addition, the sheriff had a psychiatric report prepared by Dr Nick Hughes dated 6 January 2015 in which the opinion was expressed that there was no evidence of mental disorder.

[24] Having reviewed the available information, the sheriff concluded: “However, as the appellant had been assessed by more than one psychiatrist as not suffering from any mental illness that requires hospital treatment, taking into account his past failures to engage with community support that was offered to him, his failure to cooperate with the psychologist instructed to prepare a report for the court and the fact that significant psychiatric or psychology support would nevertheless be available in prison, I was satisfied that only a custodial sentence would be appropriate in respect of these serious charges.”

We are satisfied that for the reasons given by him the sheriff was fully entitled to come to that conclusion. As to the length of the sentence, the appellant was convicted of a course of conduct involving setting fire to caravans and the premises at 1 Cornton Place, Crieff. Charge (4) was a particularly serious charge given that the lives of other persons in the building, including a family, were endangered. In these circumstances it cannot be said that the length of the sentence was excessive. The appeal against sentence must be refused.

COMMENTARY

F

In this case there was some (albeit insufficient) evidence connecting the accused with all the offences. Charge (4) does, however, seem somewhat different from the rest and one wonders whether it would have satisfied the requirements of Moorov.

G

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A Appeal Against Conviction

6 May 2016

CW

Appellant against

HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 44 Evidence—Corroboration—Mutual corroboration—Sexual assault and abuse of trust—No evidence of lack of consent in latter—Whether Moorov doctrine can apply—Sexual Offences (Scotland) Act 2009 (asp 9), ss.3, 42 Statutory offence—Sexual offence—Sexual abuse of trust—Whether lack of consent by complainer implied—Sexual Offences (Scotland) Act 2009 (asp 9), s.42 Section 3 of the Sexual Offences (Scotland) Act 2009 creates the offence of sexual assault, and s.42 of the Act creates the offence of sexual abuse of trust which consists of engaging in a sexual activity by a person who intentionally engages in a sexual activity directed towards a person under 18 to whom he is in a relation of trust. The appellant was charged with sexual assault, at common law and under s.3 on a complainer JW (charges (1) and (2)) and with sexual abuse of trust in relation to a complainer D A (charge (5)). The forms of sexual conduct were sufficiently similar to allow of the application of the Moorov doctrine between the charges, but there was no evidence of lack of consent in relation to charge (5). After evidence had been given by D A the appellant pled guilty to charge (5).

The accused made a submission that the evidence on charge (5) could not corroborate the evidence on the other offences since there was no evidence of lack of consent in respect of it. The trial sheriff did not accept this submission and directed the jury that lack of consent was implied in charge (5). He also directed them that each element of the charges required to be corroborated.

The appellant was convicted and appealed to the High Court on the ground of misdirection.

Held (1)(i) that the sheriff erred in holding that lack of consent was to be implied in charge (5), the question of consent or lack of consent not being material to that charge (para.26); and (ii) that by misdirecting the jury in this way, he effectively gave them the impression that an element of evidence on which it was critical for JW to be believed was corroborated, that the jury might well therefore have examined this aspect of the evidence of JW less critically, and been more easily persuaded to accept his evidence that he had not consented, or to conclude that the appellant had no reasonable belief in consent, that the direction impacted upon the central issues in dispute in the trial and constituted a material misdirection leading to a miscarriage of justice (para.37).

Observed (by Lady Dorrian and Lord Bracadale) that it was perhaps misleading to talk about a “charge” being corroborated, that what is being corroborated is the evidence of a witness in relation to a charge, that the whole point about the Moorov doctrine is that the commission of each crime is spoken to by only one witness, that the search is not for corroboration of the individual elements of the crime spoken to by an individual witness, but whether the nature of the evidence spoken to by the other witness is indicative

C

D

E

F

G

285

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286 A

B

CW v HM Advocate

2016 S.C.C.R.

of that underlying unity of purpose behind the accused’s acting which makes it appropriate to treat the several incidents as part of the one course of conduct (para.34).

Observed by Lord Malcolm that as the appellant pled guilty to charge (5), the view might be taken that clearly he was someone who was prepared to commit sexual offences of this general type., but that this was exactly the kind of thinking which judges have been anxious to warn against, that in Moorov it was stated that the rule requiring corroboration guards against the “twin dangers” of (a) that the crime may not have been committed, and (b) that if it was, it was not committed by the accused (the former being the more pertinent here), and that the problem was that as yet our law has not developed a sufficiently clear and certain test for distinguishing between a case of “a general disposition to commit a particular kind of offence” and the “underlying unity of purpose” mentioned earlier (para.53).

Cases referred to in the opinion of the court:

C

D

A v HM Advocate [2014] HCJAC 41; 2015 J.C. 27 B v HM Advocate [2008] HCJAC 73; 2009 S.C.C.R. 106; 2009 J.C. 88; 2009 S.L.T. 151 H v HM Advocate [2015] HCJAC 42; 2015 S.C.C.R. 242; 2015 S.L.T. 380 M v HM Advocate [2010] HCJAC 112; 2011 S.C.C.R. 47 McMahon v HM Advocate, 1996 S.L.T. 1139 Moorov v HM Advocate, 1930 J.C. 68; 1930 S.L.T. 596 Ogg v HM Advocate, 1938 J.C. 152; 1938 S.L.T. 513 P M v Jessop, 1989 S.C.C.R. 324 Pringle v Services [2010] HCJAC 127; 2011 S.C.C.R. 97; 2011 J.C. 190 R v HM Advocate [2013] HCJAC 8; 2013 S.C.C.R. 190; 2013 J.C. 212 S v HM Advocate [2014] HCJAC 135; 2015 S.C.C.R. 62 Tait v HM Advocate [2015] HCJAC 58; 2015 S.C.C.R. 308; 2015 S.L.T. 495.

CW was convicted of the charges set out in the opinion of the court after trial at Paisley Sheriff Court before Sheriff Ireland and a jury and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

E

The appeal was heard on 17 February 2016 by Lady Dorrian, Lord Bracadale and Lord Malcolm.

For the appellant: Ogg, Solicitor advocate, instructed by McCusker McElroy & Gallanagh, Solicitors, Paisley.

For the respondent: Erroch AD. On 6 May 2016 the following opinions were delivered.

F

G

5150.indd 286

LADY DORRIAN [1] The appellant was convicted after trial of the following charges: “(1) [O]n various occasions between 3 August 2006 and 30 November 2010, both dates inclusive at (an address in Paisley) and elsewhere you CW did indecently assault (JW) c/o Police Service of Scotland, Paisley and did while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him; (2) on various occasions between l December 2010 and 30 April 2012, both dates inclusive at (an address in Paisley) and elsewhere you CW did sexually assault (JW) c/o Police Service of Scotland, Paisley in that you

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while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him; contrary to section 3 of the Sexual Offences (Scotland) Act 2009.”

[2] His plea of guilty to another charge was eventually accepted after the evidence in relation to it had been led. That charge alleged that: “(5) [O]n various occasions between 1 June 2013 and 10 May 2014, both dates inclusive at an address in Paisley and elsewhere you CW, being a person who had attained the age of 18 years and who was in a position of trust towards (DA) born 3 November 1998, c/o Police Service of Scotland, Paisley, whilst said (DA) was a pupil at (schools in Paisley) and you did look after said (DA) at said schools, and you did engage in a sexual activity with or directed towards said (DA), a person who was under 18 years in that you did meet him outwith the school, take him for drives in your motor vehicle, tell him about your own sexual activities, supply him with alcohol and while intoxicated handle his penis over his clothing, handle his naked penis, masturbate him, place his penis in your mouth, masturbate in his presence, incite him to masturbate in your presence until ejaculation and cause him to ejaculate in your mouth; contrary to section 42 of the Sexual Offences (Scotland) Act 2009.”

[3] The first two grounds of appeal raise the question whether the evidence in respect of charge (5) was capable of corroborating the evidence of the complainer on charges (1) and (20), that he did not consent to the conduct alleged. Ground 3 raises a similar point in relation to proof of a lack of reasonable belief in consent in relation to charge (2). The final ground is that the sheriff erred in failing to direct the jury whether there was corroboration of a lack of reasonable belief in relation to charge (2), and where that might be found.

[4] The statutory provisions, so far as relevant, are as follows:

A

B

C

D

Section 3

“(1) If a person (‘A’)— (a) without another person (‘B’) consenting, and (b) without any reasonable belief that B consents, does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault.

(2) Those things are, that A— (a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, (b) intentionally or recklessly touches B sexually, (c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B, (d) intentionally or recklessly ejaculates semen onto B, (e) intentionally or recklessly emits urine or saliva onto B sexually.”

E

F

Section 14

“(1) This section applies in relation to sections 1 to 9.

(2) A person is incapable, while asleep or unconscious, of consenting to any conduct.”

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288 A

CW v HM Advocate (Lady Dorrian)

2016 S.C.C.R.

Section 42

“If a person (‘A’) who has attained the age of 18 years— (a) intentionally engages in a sexual activity with or directed towards another person (‘B’) who is under 18, and (b) is in a position of trust in relation to B, then A commits an offence, to be known as the offence of sexual abuse of trust.”

Section 45

B

C

“(1) It is a defence to a charge in proceedings under section 42 that A reasonably believed— (a) that B had attained the age of 18, or (b) that B was not a person in relation to whom A was in a position of trust.

(2) It is a defence to a charge in proceedings under section 42— (a) that B was A’s spouse or civil partner, or (b) that immediately before the position of trust came into being, a sexual relationship existed between A and B. (3) Subsection (2) does not apply if A was in a position of trust in relation to B by virtue of section 43(6).”

Evidence

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F

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[5] The complainer in charges (1) and (2) had been in care and was introduced to the appellant through the social work department when he was 16 or 17.

The appellant was introduced to him as a “befriender”. The evidence of the complainer on charges (1) and (2) on the question of consent was that when he was sober he had on a number of occasions consented to conduct of this kind between himself and the accused. However, he gave evidence that the incidents referred to in the charges had occurred when he was asleep or drunk and that on these occasions he had not consented. On such occasions he told the appellant to “fuck off”, at which point the appellant would stop what he was doing. The complainer had already laid down ground rules with the appellant that no sexual conduct was to take place when he was intoxicated.

He had told the appellant not to do these things to him and to stop touching him or sucking his penis when he was not consenting. He continued to see the appellant socially up to and including 2014 and there had been consensual sexual conduct between them in 2014. On occasions the appellant paid him £20, which was an agreed “fee” between them. In cross-examination he denied that all sexual contact between them had been consensual.

[6] The age of the complainer on charge (5) during the period of the libel went from just short of his 15th birthday to 15½. The appellant was his teacher, responsible for extra teaching of him, and in a position of trust. He then gave evidence of the incidents referred to in the charge. He accepted a suggestion from the Crown that the appellant had built up a relationship of trust with him before the sexual activity took place. The activity had been entirely started by the appellant. After this evidence the appellant pled guilty to charge (5).

[7] The appellant gave evidence that he had applied to the social work department to become a befriender to young people, and thus began his involvement with the first complainer. He had volunteered his services and had made an application online with the social work department in order to become a befriender. Befrienders were people who became involved with

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vulnerable children. They were trained not to have personal relationships with their clients. The complainer was vulnerable when they first met. He was about 15½ and living in a children’s home. In the appellant’s view, the complainer stopped being vulnerable when he became an adult at 18.

[8] The complainer had been 18 when he first came to the appellant’s flat, and 19 when the first sexual contact took place. Sexual conduct took place on numerous occasions but always with consent, and never when the complainer was drunk or asleep. The complainer had initiated the contact because he wanted money. The appellant had never forced his attentions on the complainer. The complainer had wanted to move on from being befriended to being a friend. The appellant knew from his training that he should not allow this to happen. In relation to the second complainer he admitted taking him for drives and supplying him with alcohol. There had been a combination of that behaviour and then sexual behaviour in May 2014. He understood the concept of grooming but had not been culpable of such an activity. He did accept that he had been guilty of a breach of trust in respect of the second complainer.

B

C

The submission to the sheriff

[9] In the Crown speech the procurator fiscal depute relied for corroboration on the application of the Moorov doctrine, citing a similarity of time, place and circumstance as indicating a course of conduct on the part of the accused.

Thus corroboration of the first complainer’s evidence came from the evidence of the second complainer, which evidence was unequivocal since the appellant had accepted his guilt on that charge.

[10] After the Crown speech the appellant’s solicitor made a submission in terms of s.97A of the 1995 Act that the evidence of the complainer on charge (5) was not capable of corroborating the evidence of the complainer on charges (1) and (2). The similarity of circumstances was not disputed, but the complainer on charge (5) had been silent on whether he had been a willing participant or had consented. Consent was not an issue for proof of charge (5), but was an essential element of charge (2) which required to be corroborated. Further, the circumstances in relation to charges (1) and (2) were such that the appellant would at least have had a reasonable belief that the complainer was consenting.

[11] The Crown response was that the evidence of lack of consent in charges (1) and (2) was clear. Reference was made to s.14 of the 2009 Act as to when a person is deemed to be incapable of providing consent, including when asleep or intoxicated. The evidence on charges (1) and (2) was corroborated by the evidence of similar sexual conduct in respect of a person who was not capable of providing consent because of his age. The statutory provision meant that the complainer on charge (5) was not capable of giving consent.

The sheriff’s decision

[12] The sheriff ruled that lack of consent was to be implied in charge (5), and that if the jury accepted the evidence of the first complainer regarding lack of consent, that evidence could be corroborated by the lack of consent implied in charge (5). Section 42 was silent on the question of consent but the offence was “predicated on a policy that lack of consent is a necessary assumption: such a victim is unable to give consent because of the position of trust between the victim and the perpetrator”.

[13] In his charge, the sheriff gave direction as to the central components of a charge of indecent assault, noting (albeit obliquely) that an absence of

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consent was the factor capable of rendering the acts in question an assault. He also directed as to the essential components of a charge under s.3 of the Act for the purposes of this case, namely an intentional or reckless act of sexual touching, a lack of consent and an absence of reasonable belief in consent. He directed the jury that all these elements required to be established by corroborated evidence. He defined consent appropriately, and drew attention to provisions indicating that there would be no free agreement when a person was incapable of consenting by virtue of the effect of alcohol or drugs, or sleep.

[14] In relation to corroboration, the sheriff explained that the Crown relied upon the Moorov doctrine. He reminded the jury that what required to be established for charge (2) was sexual conduct, lack of consent and an absence of reasonable belief in consent. He directed them (p.31) that: “If you’re satisfied that the . . . charges are so closely linked by their character, the circumstances of their commission, the place of commission and the time of commission, so as to bind them together as parts of a single course of criminal conduct systematically pursued by the accused, then the evidence of one witness about the commission of one crime can be sufficiently corroborated by the evidence of one witness about the commission of the other crime. In looking at the charges it’s the underlying similarity of the conduct which is described by the witnesses which you have to consider, in deciding whether the doctrine applies. It does not matter . . . that the charges have different names or are any more or less serious.”

He explained to the jury (pp.32–33) that the Crown relied upon the evidence of the second complainer, “to corroborate the account of (the first complainer) as to what he says happened to him in respect of each of charges (1) and (2)”.

[15] The sheriff explained that both witnesses would have to be found to be credible and reliable before this doctrine of mutual corroboration could be applied. It could be applied (p.34): “if, by reason of the character, circumstance, place of commission and timing of each charge, the crimes are so closely linked that you can infer that the accused, was pursuing a single course of crime. It’s not enough if all that it shows is that he had a . . . general disposition to commit this type of offence”.

[16] The sheriff then referred to the points of similarity upon which the Crown were relying, adding (p.35): “Also the Crown ask you to accept, and that you might infer, that because (the second complainer) was too young, being under 18, to consent, that lack of consent on (his) part. .allows you to find corroboration of the lack of consent by (the first complainer). . . .”

[17] It appears from the sheriff’s summary of the defence position (p.36) that the defence had accepted the proposition that: “as a matter of law the lack of consent by (the second complainer) is assumed, because at the time of the actions in charge (5) . . . he was under 18 and therefore his lack of consent is implied . . .”.

[18] The sheriff directed the jury (p.36) that the crimes were sufficiently close in time, character, place of commission, and circumstance, for the rule in Moorov to apply, but the questions for the jury were: (a) whether they found the first complainer credible and reliable; and (b) whether they were in fact satisfied as to the similarities. In essence he directed them (p.37) that if satisfied on the first complainer’s evidence that the acts spoken to by him were

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not consensual, they could find corroboration for that in the evidence of the second complainer.

A

Submissions for the appellant

[19] Expanding upon the arguments advanced before the sheriff, the solicitor advocate for the appellant submitted that an absence of consent was a critical matter for the Crown to prove in respect of either the common law charge of indecent assault, or a sexual assault under s.3 of the Act. These were all essential matters which required corroboration (Tait v HM Advocate).

The evidence led in respect of charge (5) could not corroborate a lack of consent, or, where required, an absence of reasonable belief in consent.

Section 42 and Pt.5 of the 2009 Act were silent both on the issue of consent and the matter of reasonable belief of consent or the lack of it. The fact there was no statutory provision as to consent and reasonable belief did not imply they could be inferred but rather that they were not required. All that was required to prove a s.42 contravention was that an accused intentionally engaged in a sexual activity with or towards a person under 18 whilst in a position of trust. A similar point was made in relation to absence of reasonable belief in consent. No matter what other similarities existed, these were essential issues on which there was no corroboration. If consent was not mentioned in respect of any offence, it was irrelevant to proof of that offence. Proof of an offence which did not require lack of consent for its commission could not corroborate evidence relating to an offence which did require lack of consent.

The case of A v HM Advocate, relied upon by the Crown, could be distinguished as concerning two children under 12, where again no issue of consent was relevant. Evidence in respect of lewd and libidinous practices relating to a girl between the ages of 13 and 16 could not corroborate a charge of rape. The crimes in question had to have the same requirements relating to a consent or reasonable belief before the doctrine could be applied. The precise elements required to be the same, albeit that an allegation of penile penetration could be corroborated by an allegation of digital penetration, both involving penetration.

B

C

D

Submissions for the Crown

[20] The advocate depute submitted that the fact that the crimes alleged were different would not preclude the operation of the Moorov doctrine. It was well established that the fact that crimes had a different nomen juris was not a bar to its operation. He referred to the words of the Lord Justice General in Moorov v HM Advocate at p.73: “Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind—but is related to—the separate acts.”

[21] In McMahon v HM Advocate, the Lord Justice General (Hope) at p.1142 referred to the established principle that the same nomen juris does not guarantee the application of Moorov and noted: “Nor does the fact that the crimes each have a different nomen juris necessarily point against its application. It is the underlying similarity of conduct as described in the evidence . . . which must be examined.”

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[22] Where crimes had a different nomen juris it was axiomatic to say that they would each have different elements. Once it was accepted that the doctrine could apply to crimes with a different nomen juris it had to follow that it could apply where the essential elements which the Crown had to establish for each crime were different. For example, in relation to a charge of rape, where penetration was an essential element, it was now accepted that such a charge could be corroborated by evidence of conduct towards another complainer falling short of penetration. In R v HM Advcoate, the Lord Justice Clerk observed [at para.21] that: “There is then no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as a more serious crime. Once that is recognised, it can be seen that the conduct of the appellant in charge (6) (1973) in removing the clothing of his 11-year-old niece, lying on top of her and then raping her in the manner libelled may be corroborated by the conduct in charge (4) (1978) of climbing on top of his 16-year-old daughter, removing her clothing and placing his private member against her private parts with the stated intention of having intercourse with her. The penetration in charge (6) is sufficiently corroborated by what appears to have been near penetration and an expressed desire to achieve it on charge (4). . . .�

[23] Logically, the doctrine could apply even where the requirements of consent in respect of each offence were different, so long as the evidence was capable of indicating a course of conduct systematically pursued by the accused. Hence, in A, the doctrine could be applied between charges of lewd and libidinous conduct under s.5 of the Sexual Offences Act 1976. The court upheld the conviction, despite a ground of appeal that the mens rea for each of the crimes was different. The Crown accepted that consent was irrelevant to a charge under s.42, but that did not mean that the evidence on charge (5) was incapable of providing corroboration for the evidence on charges (1) and (2).

[24] In this case, the fundamental approach of the appellant was misconceived. It was not appropriate to break down the crime in one charge into its essential elements, then look to see whether the complainer in the second charge spoke to those same elements. What one looked for were the conventional similarities in time, place and circumstances in the behaviour, such as to demonstrate that the individual incidents were component parts of one course of criminal conduct persistently pursued by the accused.

[25] The advocate depute addressed the similarities in the charges in this case, but we do not repeat those submissions, since Ms Ogg for the appellant accepted that there were otherwise sufficient similarities for the doctrine to apply. The course of conduct pursued by the appellant consisted of the repeated and prolonged sexual abuse of vulnerable young men over whom the appellant was, or had been, in a position of trust, perpetrated by the use of alcohol and when the complainers were alone with the appellant in his house, as instigated by the appellant.

Analysis and decision

G

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[26] In my view the sheriff erred in concluding that lack of consent was to be implied in a charge under s.42. The position in relation to s.42 is not the same as that which exists when a provision such as s.17 applies, in which case an individual who comes within the definition of the section is deemed to be incapable of consent. The focus in s.42 is on the factual conditions required for proof of the offence, those being: (a) that the complainer is under 18 years of age; and (b) that in relation to that person the accused is in a position of

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trust as defined in s.43. The question of consent or lack of it is immaterial. It is not the case that lack of consent is implicit. Rather Parliament has decided that where a relationship of trust exists such conduct should constitute an offence regardless of whether the complainer consents or not. Effectively, any consent is invalidated if the conditions in s.42 apply. Thus a complainer may consent but the offence would nevertheless be committed—hence the provision that an offence would not be committed if the parties were married or in a civil partnership, or if there was a sexual relationship between them before the relationship of trust came into existence. Accordingly, the sheriff’s observations in this regard constituted a misdirection, to the materiality of which I will revert later.

[27] That does not, of course, address the central evidential question in this case, namely whether evidence in respect of a charge where consent, or rather the absence of it, is not relevant may properly be used to corroborate evidence of another complainer in respect of a charge where the absence of consent was a critical issue.

[28] The short answer to that question is yes. In McMahon v HM Advocate the doctrine was applied as between evidence relating to charges of lewd and libidinous practices and that relating to a charge of assault with intent to rape.

Counsel had argued that the offences were of such a different nature that the doctrine of mutual corroboration was not available. The court disagreed, noting that although there was a requirement that the crimes should be “the same in a reasonable sense”, that did not depend upon the nomen juris to be attached to the crimes in question. That the crimes individually may be offences of lewd and libidinous conduct or on the other hand indecent assault, would not necessarily operate against the application of the rule. What one required to consider was whether there was an underlying similarity in the evidence indicating a consistent pattern or course of conduct such that it would be appropriate to consider the evidence of the witnesses as mutually corroborative. Any lingering belief that before the doctrine could apply the crimes averred required to be “the same” was decisively swept away in B v HM Advocate. Citing several cases where the doctrine had been applied in relation to charges where the crimes were different, the Lord Justice General (Hamilton) observed that the law had moved on and (para.6) had “developed to the extent that identity of the crimes charged is not a prerequisite for the application of the doctrine associated with that case”. Rather what was critical was similarity of conduct described in the evidence. As Lord Nimmo Smith noted [para.10]: “In McMahon v HM Advocate, Lord Justice-General Hope said (p.1142): ‘It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied.’

“This passage assists in understanding what was meant by the expression ‘underlying unity’ which was used by Lord Justice-General Clyde in Moorov (p.73).”

The charges to which the doctrine was applied in that case were: lewd and libidinous practices; sexually motivated breach of the peace; and public indecency. The former charges obviously related to children, the latter was directed towards an adult. The fact that it was a central element of the lastmentioned charge that it be public, did not prevent the operation of Moorov in relation to charges of lewd and libidinous practices which had no such public

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element to them. To accept the argument advanced for the appellant it would in my view be necessary to conclude that these cases had been wrongly decided.

It would certainly be necessary to conclude that PM v Jessop, in which evidence in a charge of sodomy—penetration essential—was corroborative of evidence of an attempted sodomy, where penetration is not an essential element for proof. The same would have to be said of A v HM Advocate where the doctrine was applied as between three charges of lewd and libidinous practices and one of rape. The observation in A v HM Advocate that there is no rule that what might be perceived to be a less serious charge cannot corroborate what may be considered as a more serious one accords with the approach taken in PM v Jessop as between an attempt and a completed act, despite the fact that the essential requirements for each offence were different. In A v HM Advocate the court noted that the fact that some of the conduct alleged involved penetration while others did not would not lead to the conclusion that they could not be part of the one course of conduct. The matter was also considered in M v HM Advocate which involved a charge of attempted rape, and one of rape involving allegations of repeated penetration. The Lord Justice General (Hamilton), giving the opinion of the court, observed that although the solicitor advocate for the appellant had asked the court to convene a larger court to reconsider PM v Jessop [at paras 4, 5]: “He was, however, unable to point to any authority which casts doubt on the soundness of that decision; nor could he demonstrate any flaw in its rationale. He accepted that, insofar as the law had developed since 1989, it had, at least in the case of child victims, tended to extend rather than to restrict the Moorov doctrine; see P v HM Advocate [1991 S.C.C.R. 933], McMahon v HM Advocate and B v HM Advocate.

[5] We declined to remit the case to a larger court. The decision in P v HM Advocate appears to us to be clearly sound and in point. We accordingly refused the appeal, intimating that we would give our reasons later.

The need for a written judgment arises only from the circumstance that the trial judge appears to have entertained a doubt on the matter. He refers in his report to an unnamed case in which he understood that in similar circumstances the Crown had conceded in an appeal that evidence of an attempt could not corroborate evidence of a completed act.

The case referred to has not been traced and we are accordingly unable to comment on it. The advocate depute, who resisted the appeal, assured us that the Crown’s position was that, in circumstances such as the present, evidence of attempted rape could corroborate evidence of rape. That is clearly correct.”

[29] In the Full Bench case of R v HM Advocate the court acknowledged the correctness of the observations of the Lord Justice General in B v HM Advocate, noting that the law had indeed moved on, and [at para.17] that it had: “done so 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, of children and young persons. The court today will not proceed upon outdated perceptions, such as those of Lord Sands (at p.89 [of Moorov]) on the connection between different forms of conduct by errant husbands, but upon its own developing knowledge of sexual and other behaviour and how one type of illegal activity can often be intimately connected with other types of different, but still illegal, acts. Sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise, is one model of this type.”

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[30] The court explained [at para.20] that: “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 [[2006] HCJAC 1; 2006 S.C.C.R. 70] Lord MacLean, delivering the opinion of the court, at 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, LJC (Aitchison) at p.158; K v HM Advocate [[2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 95] LJC (Gill) at para.10). Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury (Reynolds v HM Advocate [1995 S.C.C.R. 504, 1995 J.C. 142; 1996 S.L.T. 49] LJG (Hope), delivering the opinion of the court at p.508) under proper direction of the trial judge.”

[31] The tenor of all these authorities is destructive of Ms Ogg’s argument in the present case.The search is for evidence indicative of an underlying similarity between the circumstances of the offences such as to enable the conclusion to be drawn that there is a course of conduct which was being persisted in by the appellant. As has repeatedly been said, it is a question of fact and degree whether the nature of the evidence is such that it would be legitimate to draw the inference that the incidents are indeed components in one course of criminal conduct (see S v HM Advocate, para.9). As was explained by Lord Brodie in H v HM Advocate (para.27): “The existence of any underlying course of conduct will usually have to be inferred from the evidence led in support of the individual charges, but more is required than simply an indication of a general disposition to commit a particular sort of offence: Ogg v HM Advocate at p.158. As the Lord Justice Clerk (Carloway) put it in R v HM Advocate at para.20: ‘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.’

“However, in any particular trial it may not be entirely a matter of inference; other evidence heard by the jury may be relevant to establish an underlying course of conduct. In K v HM Advocate, for example, evidence of what could be interpreted as an acknowledgement by the accused that he was engaged in a course of conduct was determinative. Moreover, in relation to the charges on the indictment, while what is looked for are similarities pointing to an underlying unity of intent or purpose, that may be inferred even when the offences charged are not exactly the same: McMahon v HM Advocate at p.1142A; B v HM Advocate at para.6. As appears from R v HM Advocate at paras. 17 and 21: “[O]ne type of illegal activity can be intimately connected with other types of different, but still illegal, acts. Sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise, is one model of this type . . .

“There is then no rule that what might be perceived as less serious criminal conduct cannot prove corroboration of what is libelled as a more serious crime.’ ” [32] In A v HM Advocate the court cautioned against taking a compartmentalised approach when considering the application of the doctrine. In my view, the difficulty which arose in the present case came about by virtue of the fact that

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those appearing at the trial took such an approach, and misled the sheriff into doing so, hence the misdirection relating to the role of consent in s.42.

[33] As the Lord Justice General (Clyde) pointed out in Moorov [at p.72]: “The question in the present case belongs to the department of circumstantial evidence. This consideration is vital to the whole matter; and I do not think the real question in the case can be understood or appreciated otherwise.”

[34] If one bears that in mind, it is perhaps misleading to talk about a “charge” being corroborated: what is being corroborated is the evidence of a witness in relation to a charge. The whole point about the doctrine is that the commission of each crime is only spoken to by one witness, the search is not for corroboration of the individual elements of the crime spoken to by an individual witness, but whether the nature of the evidence spoken to by the other witness is indicative of that underlying unity of purpose behind the accused’s acting which makes it appropriate to treat the several incidents as part of the one course of conduct. In the present case the sheriff was entirely correct to say (p.31) that: “In looking at the charges it’s the underlying similarity of the conduct which is described by the witnesses, which you have to consider in deciding whether the doctrine applies. It does not matter, it does not matter that the charges have different names or are more or less serious.”

He was also correct when he said (pp.32, 33) that the Crown were relying on the evidence of the second complainer to “corroborate the account of the first complainer”.

[35] That does not mean that the evidence of the second complainer would require to address all essential elements of the charge which related to the first complainer: rather it simply means that if the evidence of similarity is sufficient for the application of the doctrine, his different account of what happened to him will suffice to corroborate the account of the first complainer, and so allow the several charges to be proved by the evidence of one witness to each.

[36] In such circumstances, where the offence is one, such as a s.3 offence, which has certain essential elements for its commission, the account of the complainer speaking to that charge would require to provide evidence from which all three elements could be established. Once he has given such evidence, however, his account may be corroborated by the evidence of the second complainer, without any requirement for the second complainer’s evidence to cover exactly the same essential elements. As long as both witnesses can be viewed as credible and reliable, and that they are satisfied, having been properly directed, that the doctrine can apply, the jury may convict of both charges. In the present case the first complainer did speak to all three elements. It was not suggested that the similarities in the evidence of the two complainers was not otherwise sufficient for the Moorov doctrine to apply. Indeed, Ms Ogg frankly conceded that but for the issue relating to consent, she would not have been presenting this appeal. In my view she was correct to say that: there were compelling features present which were capable of demonstrating that each offence was part of a course of criminal conduct persistently pursued by the appellant.

[37] The remaining issue to consider is whether the misdirection noted at paras 26 and 32 above was a material one. The advocate depute suggested that it was not, on the view that by suggesting a requirement for specific corroboration of an individual element of a charge where none was in fact

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needed, the misdirection created an unnecessary hurdle for the Crown to overcome. However, I consider that to be rather a simplistic way of looking at the matter, and one which does not place the misdirection in the proper context of the trial to which it related. All along the appellant had indicated his intention to plead guilty to the charge relating to DA; his plea was refused only for evidential reasons, and ultimately accepted after DA’s evidence and without DA being cross-examined. The critical issues in the trial were therefore whether JW had consented to the conduct alleged and whether there was an absence of reasonable belief on the part of the appellant that JW was consenting, against a background of evidence from him that on a number of other occasions he had indeed consented to sexual activity with the appellant. As we have noted, the sheriff erred in taking a compartmentalised approach to the issue of corroboration. He was correct to advise the jury as to the three elements of which proof was required to establish charges (1) and (2), but was in error in saying that where each of those elements had been spoken to by the complainer they required individually to be corroborated.

That was the cumulative effect of the directions given by him at p.21, lines 10–18; p.23, lines 1-8; p.24, lines 21–25; p.26, lines 5–16; and p.27, lines 12–24. Thus, when he came to give his detailed directions on the application of Moorov, he had already started on the wrong foot. As a result of the misdirection, the jury were effectively given the impression that an element of evidence on which it was critical for JW to be believed was corroborated. The jury might well therefore have examined this aspect of the evidence of JW less critically, and been more easily persuaded to accept his evidence that he had not consented, or to conclude that the appellant had no reasonable belief in consent. The direction impacted upon the central issues in dispute in the trial and in my view constituted a material misdirection and a miscarriage of justice. I would accordingly allow the appeal, in consequence of which the sentence imposed upon the appellant would require re-consideration.

LORD BRACADALE [38] I agree with your Ladyship in the chair that on account of its potential effects the misdirection by the sheriff was material, resulting in a miscarriage of justice. Accordingly, I agree that the appeal should be allowed. In addition, I fully agree with the analysis in paras. 27–36 of your Ladyship’s opinion in relation to the requirements of corroboration in a case of this kind.

LORD MALCOLM [39] The question raised in this appeal is whether the jury was entitled to treat the undisputed evidence of the complainer in charge (5) (DA), as corroborative of the evidence of the complainer in charges (1) and (2) (JW). There is a related issue concerning an alleged misdirection of the jury based on an erroneous understanding as to s.42 of the Sexual Offences (Scotland) Act 2009 (ground of appeal 2). JW’s evidence in support of the charges of indecent assault and breach of s.3 of the 2009 Act can be summarised as follows. He had been in a children’s home. When between the ages of 16–17½ he was introduced to the appellant by the social work department. There were sexual relations between JW and the appellant until JW was about 24 years of age, in that the appellant would masturbate JW and place JW’s penis in his mouth. This occurred with JW’s consent. Money changed hands. Occasionally this happened in the presence of both the appellant and his partner, again for payment. However, while dates and the number of occasions could not be specified, and contrary

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to “the ground rules”, on occasions the appellant did this when JW was drunk and/or asleep—though he would stop when told to do so. JW approached the police in 2013 after learning that someone else had made a complaint about the appellant. He continued to see the appellant and have consensual sexual contact with him until they stopped seeing each other in 2014.

[40] DA gave unchallenged evidence in support of the charge of breach of s.42 of the Act which can be summarised as follows. The appellant had been his school maths teacher, and then his tutor when DA was at college. On three to four occasions in May 2014, when DA was 15 years of age, the appellant took him to his house, gave him alcohol, and then indulged in the libelled activities, which bear striking similarities to those involving JW. Before this the appellant had built up a relationship with DA by taking him for drives in his car, discussing his sexuality, and getting him drunk. The sexual activity had been started by the appellant, otherwise it would not have occurred. DA trusted the appellant, and thought he had been there to help him. There was no cross-examination of DA’s evidence.

[41] The appellant then pled guilty to charge (5). In his evidence he explained that he had always been willing to plead guilty to the charge involving DA. (For obvious reasons the Crown wished to lead DA’s evidence before the jury.) The appellant said that on many occasions sexual contact with JW occurred, but always on a consensual basis.

[42] The sheriff rejected a submission of no case to answer in respect of charges (1) and (2), and in due course the jury convicted on both charges, which by then were the only matters upon which a verdict was required.

[43] The nub of the no case to answer submission, and the primary ground of appeal in this court, was that the Crown had to prove that, to the knowledge of the appellant, the sexual activity took place without JW’s consent. By contrast, charge (5) was of a breach of s.42, in respect of which the issue of consent or no consent was of no relevance. There had been no suggestion that DA did not consent to sexual contact, thus his evidence could not provide the corroboration necessary for a guilty verdict on charges (1) and (2).

[44] Before the sheriff, the Crown submitted that JW’s evidence that on occasions he did not consent to sexual conduct could be corroborated by the evidence of DA of similar actions of a similar sexual nature against a person not in a position to give valid (or effective) consent. In his ruling the sheriff held that, in respect of DA, his lack of consent was “implied by law”. It followed that if the jury believed JW, his lack of consent was corroborated by the lack of consent implied in charge (5).

[45] The sheriff’s view was that s.42 is predicated upon a policy that lack of consent is a necessary assumption; the victim being unable to give consent because of the position of trust between him and the perpetrator. This view of the law, which, as your Ladyship in the chair has observed, is an erroneous view of the law, was reflected in the sheriff’s charge to the jury. The sheriff said that, being too young to consent: “that lack of consent on the part of DA allows you to find corroboration of the lack of consent of JW, because (the appellant) had been told on certain occasions that JW was not consenting, and further would not have any reasonable belief . . . that is (the appellant) would not have any reasonable belief that JW was consenting”.

Later the jury members were told that DA’s lack of consent is assumed. The sheriff advised that, “there is enough evidence in law that the crimes alleged are

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sufficiently close in time, character, place and commission, and circumstance, for the (Moorov) rule to apply”. It was for the jury to decide whether the necessary link had been established, “especially for the acts by the accused with JW were consensual, or not?” (sic) (p.37 of the charge). The sheriff continued: “If they were not consensual then there would be corroboration found by you of JW’s account by the evidence and statutory . . . that’s from statute . . . implied lack of consent of DA in charge (5).”

[46] Leaving aside the more general question at issue in this appeal, I regard these directions as misdirections, being based upon an erroneous approach to s.42. The result was that the jury were told that they had to proceed on the basis that DA was not consenting to the appellant’s conduct. (In his comment about there being “enough evidence” as to time, character, etc, the sheriff was dangerously close to trespassing on the jury’s decision-making territory—but it is not necessary to pursue this point, which in any event was not the subject of a specific challenge.)

[47] Reverting to the first ground of appeal, namely that DA’s evidence simply could not provide the necessary corroboration of JW’s account of indecent assault and a breach of s.3 of the 2009 Act, the Crown’s submission to this court was that the underlying rationale for an offence under s.42 is not crucial, because there were sufficient similarities between the respective accounts for the rule in Moorov v HM Advocate, to be applied by the jury. In respect of both complainers the appellant was in a position of trust. The complainers were of a similar age: DA was 15—JW spoke to sexual conduct when he was 16–17 through to 24. The offences occurred in the appellant’s home. Drink was involved in both cases. The nature of the sexual conduct was much the same.

The period libelled in charges (1) and (2) ended less than two years before the events concerning DA. It followed that any misdirection of the jury did not lead to a miscarriage of justice because, even without an implied absence of consent approach to s.42, the necessary corroboration could be found in DA’s evidence.

[48] The reply on behalf of the appellant was that the factual similarities, including the nature of the sexual conduct, are insufficient when only JW spoke to an absence of consent on his part.

Discussion

[49] The Crown contends that there were sufficient similarities, notwithstanding the lack of evidence that the appellant took advantage of an unwilling DA. It may be important to remember that the touchstone for the application of the Moorov doctrine is not confined to a search for and assessment of similarities.

Despite all the twists and turns over the years, the fundamental test has remained much the same as laid down in Moorov. In the recent five-judge decision in R v HM Advocate, it was described as follows (at para.20): “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. . . .”

[50] Though this is a unitary test, it can be seen as having two parts: firstly, are there the similarities mentioned, and secondly, are they component parts of one course of criminal conduct systematically pursued by the accused? Usually, the focus has been on the first part of the test, no doubt on the thinking that the second part is covered if and when the necessary similarities are identified.

However, sometimes a subtle shift occurs in that the question posed and

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answered is, can the charges be described as examples of the same crime in a reasonable sense of the term? If an affirmative answer to that question is treated as sufficient for application of the rule of mutual corroboration, an important part of the legal test is side-stepped. A possible explanation for the difference of opinion in B v HM Advocate, is that the majority equiparated the “underlying unity” mentioned by Lord Justice General Clyde in Moorov with similarities in time, place and circumstances, plus similarities in the conduct described in the evidence; whereas Lord Eassie looked beyond these to a search for “a single unified course of criminal conduct”. His Lordship described the classic case of separate attempts to suborn witnesses in a forthcoming trial. This was to be distinguished from cases where, notwithstanding the conventional similarities, there are differences, for example as to purpose, which prevent the application of the doctrine—see para.31. (It can be noted that at para.18 in R, the court referred to the need for an “underlying unity of purpose.”) Lord Eassie required “similarity in the essence of the particular criminality of the conduct in issue”.

[51] That said, all such phrases still leave room for debate as to the correct judgment to be made in a particular case. These are not hard-edged rules. One could agree with the outcome of the case in B, while applying the same process of reasoning as that adopted by Lord Eassie, perhaps by reference to the developments in modern thinking mentioned by the then Lord Justice Clerk (Carloway) in R at para.17, and the example of “sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise . . .”. Whatever else, it is clear that the law has moved away from outdated rigid rules, such as identity of nomen juris and that a lesser crime cannot corroborate a greater one. Such restrictions excluded the application of the doctrine before one even approached the first hurdle.

Nonetheless, the fact remains that in R the court reaffirmed the need for the identified similarities to demonstrate a systematic course of criminal conduct; or, as it was put by Lord Justice General Clyde in Moorov at p.73, that they are, “subordinates in some particular and ascertained unity of intent, project, campaign or adventure, which lies beyond or behind but is related to the separate acts”. The Lord Justice Clerk (Alness) talked of “a nexus which binds the alleged crimes together”, having earlier referred to Dickson’s “unity of character” (pp.79, 80). In short, it is not enough simply to identify the alleged crimes as being the same in any reasonable sense of the term; something more is required. Were it otherwise, the second part of the test as described in R would be redundant, and one would be close to a “similar fact” evidential rule.

[52] A recent example of the court refusing to apply the Moorov doctrine notwithstanding “striking similarities” in the appellant’s conduct towards each of the complainers is to be found in Pringle v Services. Having begun its consideration by a reference to Ogg v HM Advocate, the court said: “the much more difficult question is whether the high test laid down by Lord Justice Clerk Aitchison—that the court be satisfied as ‘a reasonable and practical certainty’ that the offences are instances of one course of conduct pursued by the same person—can be met in this case” (para.19).

The court reminded itself that the Moorov doctrine should be applied: “with caution, to guard against the danger of evidence demonstrating the general disposition to commit a particular kind of offence being treated as corroboration”.

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of the term, and their particular circumstances were all very similar (pupils aged 14–15 assaulted on outward bound courses by their teacher), the court was not persuaded that the evidence concerned events which “formed part of a course of conduct which was systematically pursued by (the appellant)”.

[53] Reverting to the circumstances of the present case, many will need little persuasion that if someone is prepared to groom a 15-year old, give him alcohol, and then take advantage of him in the way spoken to by DA, there is every likelihood that he will be prepared to do the same in respect of an intoxicated JW. The appellant pled guilty to charge (5), so the view might be taken that clearly he is someone who is prepared to commit sexual offences of this general type. However, this is exactly the kind of thinking which judges have been anxious to warn against. In Moorov it was stated that the rule requiring corroboration guards against the “twin dangers” of: (a) that the crime may not have been committed; and (b) that if it was, it was not committed by the accused (the former being the more pertinent here). The problem is that, as yet our law has not developed a sufficiently clear and certain test for distinguishing between a case of “a general disposition to commit a particular kind of offence” and the “underlying unity of purpose” mentioned earlier.

[54] The sheriff erred in adopting an approach based upon a statutory implied absence of consent on the part of DA. However, there are striking similarities in the two complainers’ accounts, not least regarding the common involvement of alcohol. A juror might well infer that it would disinhibit DA, making it easier for the appellant to abuse him. In the case of the older JW, no doubt more alcohol would have been required, but, other things being equal, one can understand a view that it was acceptable for the jury to be left to decide whether this, allied to similarities in the behaviour complained of, plus the “befriending” backgrounds, was sufficient for application of the Moorov doctrine and would entitle the jury to convict on the remaining charges. (Given the plea to charge (5), strictly this is not a case of mutual corroboration.)

[55] It is often mentioned that great caution is required when considering the doctrine, and this even more so when there are only two complainers. It is obvious that a larger number of credible complainers will make it easier to identify a course of conduct systematically pursued, and vice versa. However there have been decisions on appeal when the court has appeared to treat no case to answer submissions in a Moorov case no differently from all others, employing a standard “take the evidence at the highest for the Crown” approach. I find this difficult to reconcile with a direction to the jury that they must approach Moorov with care. Be that as it may, the sheriff did direct the jury to adopt a cautious approach. Had he advised them to consider the issues in the context of the kind of considerations outlined in the preceding paragraph, then all may have been well. However, the sheriff did not do so. He adopted an erroneous approach. He told the jury that they had to assume that DA did not consent, and that the appellant could be taken to have appreciated this. On any view, this made it easier for the jury to find corroboration for JW’s account in that of DA. A correctly framed charge would not have misled the jury in this respect. While the same ultimate decision might have been reached by the jury, that cannot be known, nor confidently predicted. For these reasons I would uphold the second ground of appeal, which proceeds on the basis that there has been a miscarriage of justice arising from a misdirection of the jury.

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COMMENTARY The ratio of this case appears to be that the misdirection on implied consent in charge (5) was prejudicial in relation of the finding of a lack of consent in charges (1) and (2), with Lady Dorrian and Lord Bracadale taking the opportunity to emphasise the width of application of Moorov and Lord Malcolm wanting to maintain what little of the original requirements of the doctrine still remain.

I accept that it is not necessary to corroborate each detail of the conduct complained of, but I have doubts as to whether that should apply to such an important requirement as lack of consent (cf PM v HM Advocate).

The Crown appear to have felt able to rely on Moorov only by refusing to accept the plea to charge (5) before the trial began. If, however, as I accept is the case, Moorov is about inferences from evidence and not about the nomina juris of the crimes, it should not matter that the evidence relates to an event for which the accused has already been dealt with, whether by acquittal or conviction.

The provisions of s.288BA of the Criminal Procedure (Scotland) Act 1995 for the use of dockets are quite wide, and are clearly intended to extend the use of Moorov, but just how far this device can be used remains unclear, apart altogether from the difficulty of the jury understanding the difference between an accusation in a docket and a charge. In particular, it is not clear whether, and if so how, evidence of prior incidents for which the accused has already been dealt with, whether by acquittal or conviction, are to be included in the Crown case: see Scottish Law Commission Report No 229 (2012), paras 6.33 et seq.

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SUMMARY Sim v HM Advocate—[2016] HCJAC 48—19 May 2016 Solemn procedure—Judge’s charge—Basic propositions applicable to appeals B Gary William Sim and two other persons were convicted of murder while acting in concert, and appealed to the High Court on the ground of misdirection of the jury by the trial judge.

In delivering the opinion of the court (the Lord Justice General (Carloway), Lord Menzies and Lord Malcolm) refusing the appeal the Lord Justice General said: ...

Decision

[32] The grounds of appeal all relate to purported misdirections by the judge.

Before examining each of these in more detail, it is worth repeating certain basic propositions applicable to this type of appeal. First, a judge’s directions must be looked at in the context of the oral tradition in which they are given as part of the trial process. The words should not be scrutinised in isolation or as if they were part of a conveyancing document or a provision in a penal statute (Beck v HM Advocate [[2013] HCJAC 51;] 2013 J.C. 232, LJC (Carloway), delivering the opinion of the court, at para.40). Minor deviances from standard formulae will not normally be regarded as productive of miscarriages of justice, if the directions on a particular topic are, when the charge is read as a whole, clear and correct (ibid). Secondly, where an allegation of imbalance is made, it is not sufficient, for the purposes of advancing a successful appeal, to say that a judge has failed to mention a particular point made (or perhaps one not made) by a party. The contention must be “a substantial one . . . going to the whole ‘tenor’ or ‘purport’ of the charge” (Snowden v HM Advocate [[2014 HCJAC 100;] 2014 S.C.C.R. 663, LJC (Carloway), delivering the opinion of the court, at para.51, citing Scott v HM Advocate, 1946 J.C. 90; Younas v HM Advocate [[2014 HCJAC 114; 2014 S.C.C.R. 628;] 2015 J.C. 180, LJC (Carloway), delivering the opinion of the court, at para.54). Thirdly, a charge is not to be scrutinised as if the jury had not heard the evidence and the speeches (Keaney v HM Advocate [[2015 HCJAC 3; 2015 S.C.C.R. 81;] 2015 J.C. 259, Lady Smith, delivering the opinion of the court, at para.25, citing Withers v HM Advocate, 1947 J.C. 109 [; 1948 S.L.T. 10]). Fourthly, it is primarily for the parties to address the jury on what parts of the evidence are, or are not, significant. The judge does not require to conduct an independent audit of the evidence in order to extract all the points which may favour one party or the other (Younas v HM Advocate at para.56). ...

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For the first appellant: McConnachie QC, P. Templeton, Solicitor advocate, instructed by Wilson McLeod, Solicitors, Edinburgh.

For the second appellant: Duguid QC, S. Walker, Solicitor advocate, Instructed by Hughes Walker, Solicitors. Edinburgh.

For the third appellant: I Patterson, J Stephenson, Solicitor advocates, instructed by Thorley Stephenson, S.S.C., Solicitors, Edinburgh.

For the respondent: Niven-Smith AD.

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ERRATUM On 2016 S.C.C.R. 84, references to Sheriff Principal Stephenson should read Sheriff Principal Stephen.

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Appeal Correction of record—Whether competent to correct failure to impose mandatory requirement to sit extended driving test Iqbal v Harvie 258

Evidence Corroboration—Mutual corroboration—Sexual assault and abuse of trust—No evidence of lack of consent in latter— Whether Moorov doctrine can apply CW v HM Advocate 285 Corroboration—Theft by housebreaking—Whether evidence of loss corroborated by evidence that house ransacked Reid v HM Advocate 233

Road traffic—Drink driving—First offender—Breath level 87— Whether disqualification for three years excessive Jenkins v Harvie 268 Road traffic—Forfeiture—Two drink- related offences within nine days—Whether forefeiture of vehicle excessive Li v Dunn 272 Solemn procedure Judge’s charge—Basic propositions applicable to appeals Sim v HM Advocate (Sy) 303 Productions—Defence right to remove productions for copying or inspection—Whether affected by statutory provisions for disclosure HM Advocate v AM 227 Statutory offence Obstructing police in execution of duty—Police called because of unwanted presence of accused—Police removing accused without arresting him—Whether acting in execution of duty Warwick v Harvie 261

Sufficiency—One offence proved independently by sufficient circumstantial evidence—Whether sufficient evidence to identify accused as responsible for other offences Martin v HM Advocate 276

Summary procedure Appeal—Appeal against refusal of objection to evidence— Whether competent Warwick v Harvie 261

Interpreters Complaint about standard of interpretation—Whether substantiated Lee v HM Advocate 247

Record—Amendment of record—Whether competent for appeal court to correct failure to impose mandatory requirement to sit extended driving test Iqbal v Harvie 258

Road traffic Sentence—Careless driving—Tailgating on motorway— Whether eight penalty points excessive McInally v Dunn 243

Sexual offence—Sexual abuse of trust—Whether lack of consent by complainer implied CW v HM Advocate 285

2016 S.C.C.R. 227–304

Sufficiency—DNA evidence—Theft by housebreaking—DNA evidence matching accused’s profile found on cigarette butt at point of entry—Whether sufficient to identify accused as perpetrator Reid v HM Advocate 233

SCOTTISH CRIMINAL CASE REPORTS

Compatibility issue Disclosure—Disclosure of recordings of interviewsof child complainers (JII’s)—Recordings lodged as productions— Whether Crown’s refusal to provide defence with copies of recordings breach of right to fair trial HM Advocate v AM 227

June 2016 2016 S.C.C.R. 227−304

Sentence Discount—Plea at trial diet—Whether sheriff entitled not to give a discount McInally v Dunn 243

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD HM Advocate v AM Reid v HM Advocate McInally v Dunn Lee v HM Advocate Iqbal v Harvie Warwick v Harvie

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227 233 243 247 258 261

Jenkins v Harvie Li v Dunn Martin v HM Advocate CW v HM Advocate Sim v HM Advocate (Sy)

268 272 276 285 303