Scottish Criminal Case Reports, Issue 4, August, 2016 by Thomson Reuters

Actus reus Involuntary behaviour—Driving dangerously while asleep— Whether driver criminally responsible Alexander v Dunn 305

Sentence Anal and oral rape of two boys aged between seven and 11 over lengthy period by youth aged between 14 and 15—Whether six years’ detention without extended period excessive or appropriate McCormick v HM Advocate 308 Children—Considerations to be taken into account McCormick v HM Advocate 308

Evidence Corroboration—Mutual corroboration—Alleged incidents six years apart—Whether Moorov doctrine applicable JL v HM Advocate 365

Discount for guilty plea—Whether available for supervised release order O’Neil v HM Advocate 332

Corroboration—Mutual corroboration—Alleged incidents 10 years apart—Whether Moorov doctrine applicable RF v HM Advocate 319

Extended sentence—Considerations to be taken into account—Importance of denial of offence McCormick v HM Advocate 308

Corroboration—Mutual corroboration—Alleged incidents 11 years apart—Whether Moorov doctrine applicable RG v HM Advocate 360

Road Traffic—Disqualification—Dangerous driving—Special reasons—Emergency—Constable attending emergency call with flashing lights but no use of siren Watt v Murphy 314

Identification—Fingerprints—Whether print on scanned fingerprint form identified as that of accused Ross v HM Advocate (Sy) 380 Human rights Time bar—Application lodged before domestic remedies exhausted—Application not then rejected as inadmissible— Whether exceptional circumstances rendering application admissible O’Neill and Lauchlan v UK 337

Road traffic Causing death by dangerous driving—Car owner sitting in driving seat with passenger sitting on his lap—Whether owner driving HM Advocate v Cooper 352

Supervised release order—Whether discount for guilty plea available O’Neil v HM Advocate 332 Solemn procedure—Judge’s charge—Failure to identify elements of charges six years apart which might make Moorov applicable—Whether misdirection JL v HM Advocate 365 Words “Driving” HM Advocate v Cooper 352

2016 S.C.C.R. 305–380

Rape Attempted rape—Whether offence under s.1 of Sexual Offences (Scotland) Act 2009 RCB v HM Advocate 374

Road traffic—Disqualification—Totting up—Exceptional hardship established—Whether can thereafter impose disqualification for offence Hamand v Harvie (Sy) 379

SCOTTISH CRIMINAL CASE REPORTS

Appeal Unreasonable verdict—Charge of threatening behaviour— Sheriff accepting evidence of witnesses that accused struck windscreen with metal bar—No evidence of damage to windscreen—Whether sheriff entitled to treat witnesses as credible Aien v Richardson 327

August 2016 2016 S.C.C.R. 305−380

Dangerous driving—Driving dangerously while asleep— Whether driver criminally responsible Alexander v Dunn 305

Scottish Criminal Case Reports Edited by Sir Gerald H Gordon CBE, QC, LLD Alexander v Dunn Aien v Richardson HM Advocate v Cooper Hamand v Harvie (Sy) JL v HM Advocate McCormick v HM Advocate O’Neil v HM Advocate

*657938*

305 327 352 379 365 308 332

O’Neill and Lauchlan v UK 337 RCB v HM Advocate 374 RF v HM Advocate 319 RG v HM Advocate 360 Ross v HM Advocate (Sy) 380 Watt v Murphy 314

The Scottish Criminal Case Reports are published by Thomson Reuters (Professional) UK Limited trading as W Green, 21 Alva Street, Edinburgh, EH2 4PS (Registered in England & Wales, Company No 1679046. Registered Office and address for service: 2nd floor, 1 Mark Square, Leonard Street, London, EC2A 4EG). Typeset by LBJ Typesetting Ltd. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire. No natural forests were destroyed to make this product: only farmed timber was used and replanted. ISSN 0263-2381 Orders to: W. Green, PO Box 1000, Andover, SP10 9AF. Tel: 0345 600 9355. Email: TRLUKI.orders@thomsonreuters. com. Individual back issues of the Scottish Criminal Case Reports are available for the years 1986-2015. The views expressed in the commentaries to the Scottish Criminal Case Reports are those of the contributors and not necessarily those of the Law Society of Scotland. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queenâ&#x20AC;&#x2122;s Printer for Scotland. Crown Copyright legislation is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO. All rights reserved. No part of this publication may be reproduced or transmitted in any form, or by any means stored in any retrieval system of any nature, without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material, including permission to reproduce extracts in other published work should be made to the publishers. Full acknowledgment of the author, publisher and source must be given. Thomson Reuters and the Thomson Reuters Logo are trademarks of Thomson Reuters. ÂŠ 2016 Law Society of Scotland

A Stated Case

19 January 2016

HELEN ALEXANDER

Appellant

against JOHN DUNN (Procurator Fiscal, Edinburgh)

Respondent

[2016] HCJAC 3 Actus reus—Involuntary behaviour—Driving dangerously while asleep—Whether driver criminally responsible Road traffic—Dangerous driving—Driving dangerously while asleep— Whether driver criminally responsible—Road Traffic Act 1988 (c.52), s.2 C The appellant was charged with dangerous driving, contrary to s.2 of the Road Traffic Act 1988, the libel being that she had fallen asleep while driving and caused her car to collide with another car. The trial sheriff found that the appellant “had been lethargic and lacking energy as a result of menopausal symptoms”, that by falling asleep while driving her driving fell far below what would be expected of a competent and careful driver and that it would be obvious to such a driver that to fall asleep would be dangerous, and convicted her. She appealed to the High Court by stated case. Held that once a driver is asleep, his actions cannot be said to be voluntary, as he lacks consciousness, but that the act of falling asleep, in the absence of special circumstances, is a voluntary act and, when it occurs in the context of driving, will usually be regarded as dangerous (para.4); and appeal refused.

Cases referred to in the opinion of the court: Allan v Patterson, 1980 J.C. 57; 1980 S.L.T. 77 Attorney General’s Reference No. 1 of 2009 [2009] 2 Cr. App. R. (S.) 742 Farrell v Stirling, 1975 S.L.T. (Sh. Ct) 71 Hill v Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R. 193 Jiminez v The Queen (1992) 173 C.L.R. 572 Kay v Butterworth (1945) 61 T.L.R. 452 Macleod v Mathieson, 1993 S.C.C.R. 488 R v Wilson [2010] EWCA Crim 991; [2011] 1 Cr. App. R. (S.) 3.

Helen Alexander was convicted of dangerous driving in the terms described in the opinion of the court after trial on 3 August 2915 in the sheriff court at Edinburgh before Sheriff Bowman and appealed to the High Court by stated case.

The appeal was heard on 18 November 2015 by the Lord Justice Clerk (Carloway, as he then was), Lord Brodie and Lord Drummond Young. For the appellant: S. Collins, Solicitor advocate, instructed by Capital Defence, Solicitors, Edinburgh. For the respondent: Edwards AD. On 19 January 2016 the Lord Justice General (Carloway) delivered the following opinion of the court.

305

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306 A

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Alexander v Dunn

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LORD JUSTICE GENERAL [1] On 3 August 2015, at the sheriff court in Edinburgh, the appellant was convicted of dangerous driving contrary to s.2 of the Road Traffic Act 1988. The libel was that the dangerous driving consisted in the action of falling asleep on 7 September 2014, when driving in Longniddry, causing the appellant’s car to cross the central reservation and to collide with an oncoming car, causing damage to both cars and injury to the passengers in the other car. At the outset of the trial, the appellant offered to plead guilty to the lesser offence of careless driving in terms of s.3 of the 1988 Act, but this was not accepted by the respondent. [2] The appellant had got up at 6.30am. She had worked a shift as a community staff nurse from 8.00am to 12.30pm, as she had done on the previous day. She had gone to visit her mother for about three hours. She was driving home at about 5.00pm when the accident occurred. The sheriff found that the appellant “had been lethargic and lacking energy as a result of menopausal symptoms”. There is a specific finding that, “by falling asleep while driving”, the appellant’s driving fell far below what would be expected of a competent and careful driver. It would be obvious to such a driver that to fall asleep when driving would be dangerous. [3] The sole question is whether the sheriff was entitled to convict the appellant of dangerous driving by reason of her falling asleep. The test for what constitutes dangerous driving is an objective one (Allan v Patterson). It is whether the driving falls far below the standard to be expected of a competent and careful driver and occurs in the face of obvious and material dangers which were or ought to have been observed, appreciated and guarded against (LJG (Emslie) at p.60). It is no defence for a driver to assert that he did not intend to drive in a manner which was dangerous or that he did not intend to fall asleep at the wheel. [4] The act of driving, which is deemed to be dangerous, still requires to be voluntary. Involuntary actions cannot form the basis for a conviction. Once a driver is asleep, his actions cannot be said to be voluntary, as he lacks consciousness. However, the act of falling asleep, in the absence of special circumstances, is a voluntary act and, when it occurs in the context of driving, will usually be regarded as dangerous. That is because drivers who fall asleep: “are always aware that they are feeling sleepy, . . . there is always a feeling of profound sleepiness and they reach a point where they are fighting sleep . . .”. Although that is a passage of testimony quoted from R v Wilson (at p.13), it coincides with human experience (see Attorney General’s Reference No. 1 of 2009 at p.745; Kay v Butterworth). It does not require formal proof. A jury are entitled to infer, from the fact that a driver falls asleep, that, prior to falling asleep, he or she was aware of doing so and ignored the obvious dangers in so doing. [5] There may be special circumstances which make falling asleep involuntary. These include the onset of a medical condition, such as sleep apnoea, narcolepsy or a hypoglycaemic episode (e.g. Farrell v Stirling; Macleod v Mathieson). However, a driver who knows of his medical condition, and can foresee that he may fall asleep, will be precluded from relying on that condition. It is for an accused to put any special circumstances in issue, and thereafter for the Crown to establish beyond reasonable doubt that the act of driving was nevertheless voluntary because the special circumstance ought to have been foreseen (Hill v Baxter).

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[6] The court has had regard to the views of the High Court of Australia in Jiminez v The Queen. However, the decision in Jiminez was based upon a recognition that a driver may have no warning of the onset of sleep (para.19). There is no basis for such a possibility in this case for the reasons given. The question must be answered in the affirmative and the appeal refused.

COMMENTARY In this case the Crown libelled the act of falling asleep as itself the dangerous action of the matter, although one might have expected them to libel the accident and leave it to the accused to plead that her driving was involuntary. The court then decided the case on the basis that there was a presumption that falling asleep is a voluntary act, which could be displaced only by evidence of some medical condition, in which case the question will depend on whether the accused was aware of his condition.

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A Appeal Against Sentence

12 April 2016

ADAM McCORMICK

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 50 Sentencing—Children—Considerations to be taken into account Sentencing—Extended sentence—Considerations to be taken into account—Importance of denial of offence—Criminal Procedure (Scotland) Act 1995 (c.46), s.210A—Crime and Disorder Act 1998 (c.37), s.86(1)

C Sentence—Anal and oral rape of two boys aged between seven and 11 over lengthy period by youth aged between 14 and 15—Whether six years’ detention without extended period excessive or appropriate

Section 210A of the Criminal Procedure (Scotland) Act 1995, as inserted by s.86(1) of the Crime and Disorder Act 1998, provides that where a court intends to pass a determinate sentence on a person for a sexual offence and considers that the period for which he would otherwise be subject to a licence would not be adequate for the protection of the public from serious harm from him, it may pass an extended sentence. The appellant was convicted at the age of 17 of serious sexual offences against boys aged between seven and 11 including anal and oral rape committed when he was aged between 14 and 15. The trial judge imposed a sentence of six years’ detention, representing a deduction on account of his immaturity from a notional sentence of nine years and arrived at after consideration of the English Sentencing Guidelines for such offences by adults. The appellant appealed to the High Court against sentence. Held (1) that it was not illegitimate in sentencing a child to consider the sentence which an adult offender might attract, and that ultimately the correct sentence may even be identified in such a manner (para.3), but that in selecting the sentence for a child, the court must have regard to the best interests of that child as a primary consideration, and that a factor in that will be the desirability of the child’s reintegration into society (para.4); (2)(i) that a juvenile’s irresponsible conduct was not as morally reprehensible as that of an adult; that juveniles had a greater claim to be forgiven for failing to escape the negative influences around them; and that even the most heinous crime was not necessarily evidence of an irretrievable depraved character, that these considerations were relevant to the retributive and deterrent aspects of sentencing, in that they indicate that the great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders, but that they also show that an important aim, some would think the most important aim, of any sentence imposed should be to promote the process of maturation, the development of a sense of responsibility, and the growth of a healthy adult personality and identity, that it is important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met, but that it is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done (para.5), but 308

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McCormick v HM Advocate

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(ii) that other than to the extent that his youth made him less blameworthy than an adult, it was not clear that the trial judge had in mind any of these important factors—the welfare of the child offender, the need to facilitate rehabilitation and reintegration into society, and that it did not seem that she considered these factors at all, merely allowing a discount from an appropriate adult sentence to allow for immaturity, and that in that regard she erred (para.6); (3)(i) that the criminal justice social work report also highlighted the appellant’s denial of the offences as a considerable concern, and one which limited the scope of offence-focused work which could reduce risk, that this was a significant factor in determining the extent to which an extended sentence might be necessary to protect the public from serious harm, and that such persistent denial in these circumstances hampered the assessment of risk, and meant that an assessment of risk as “moderate” required to be viewed with some caution, even where other protective factors were in place (para.7, p.312E); and (ii) that this was a case in which an extended sentence was necessary for the protection of the public, that it might well be that the effect of such an order would assist the reintegration of the appellant, but that although that was an important consideration in general, it was merely an incidental benefit and that the critical question was whether the terms of the section were met (para.7, p.313B–C); and (4) that in selecting the appropriate custodial term of an extended sentence, the court had regard to the fact that the extension period was specifically designed to reduce risk, and that the overall sentence required to be considered (para.8); and appeal allowed and sentence quashed, and extended sentence of eight years, with custodial period of five years substituted. Dicta of Lady Hale in R (Smith) v Secretary of State for the Home Department, [2005] UKHL 51; [2006] 1 A.C. 159; [2005] 3 W.L.R. 410; [2006] 1 All E.R. 407 adopted.

Cases referred to in the opinion of the court: Greig v HM Advocate [2012] HCJAC 127; 2012 S.C.C.R. 757; 2013 J.C. 115 Hibbard v HM Advocate [2010] HCJAC 111; 2011 S.C.C.R. 25; 2011 J.C. 149; 2011 S.L.T. 247 R(Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 A.C. 159; [2005] 3 W.L.R. 410; [2006] 1 All E.R. 407. Adam McCormick was convicted on 26 November 2015 of the offences described in the opinion of the court after trial in the High Court at Glasgow before Judge Johnston and a jury, and was sentenced on 11 January 2016 to six years’ detention. He appealed to the High Court against sentence on the grounds referred to in the opinion of the court. The appeal was heard on 12 April 2016 by Lady Dorrian and Lady Clark of Calton. For the appellant: Mackintosh instructed by John Pryde & Co, SSC, Solicitors, Edinburgh. For the respondent: Carmichael, AD.

On 12 April 2016 the appeal was allowed. Lady Dorrian delivered the following opinion of the court. LADY DORRIAN [1] The appellant was convicted at the age of 17 of two serious sexual offences committed against two boys between the ages of seven and 11 when he himself

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was between the ages of 14 and 15. The offences included oral and anal rape, as well as other sexual assaults. The offences were repeated and committed over a lengthy period of time in each case. The sentencing judge imposed a sentence of six years’ detention. The sentencing judge considered that an adult offender could well face a sentence of nine years for these offences, which was consistent with a term of 8–13 years discussed in the Sentencing Guidelines for England and Wales. To reflect the age and immaturity of the appellant a substantial reduction from that was required. It was not considered that an extended sentence was required. The appellant was described as constituting a moderate risk of reoffending, having a supportive family, would be released under licence in due course and would be subject to the notification requirements of the Sexual Offences Act 2003. [2] Counsel for the appellant submitted that the trial judge had erred in commencing with the sentence which might be appropriate for an adult offender. When sentencing a child it was necessary, whilst taking into account the requirements for retribution, deterrence and the need to protect the public, also to take into account as a primary consideration the welfare of the child and the desirability of his reintegration into society. The trial judge should not have started by looking at the appropriate sentence for adult males, but at what was an appropriate sentence for someone of the appellant’s age. In any event, the trial judge had not taken account of the welfare of the child offender or of the desirability of reintegration into society. In the result a custodial term of six years was excessive. Reference was made to Greig v HM Advocate where a 52-year-old man was sentenced for offences of rape and lewd practices against each of two young girls (aged six to nine) committed by him when he himself was 14–15. The sentences were reduced on appeal from eight years to five years.That was a case in which considerations of reintegration into society did not apply, but they were of paramount importance in the present case, and a shorter period of detention should have been imposed to allow for this. Counsel also submitted that the whole circumstances and the terms of the criminal justice social work report [CJSWR] are such that the trial judge also erred in not imposing an extended sentence. Although there were protective factors present in this case, the terms of the report indicated that the terms of s.210A were met. Whilst the court could only impose such an order if satisfied that the terms of the section were met, there was the additional benefit in a young offender that it might assist his reintegration into society. [3] The trial judge selected the sentence which she did by considering the length of sentence which might be appropriate for an adult in the circumstances of this case, and having selected a figure of nine years as being a likely sentence, decided that a reduction from that to six years would reflect the relative immaturity of the child. We accept that it is not illegitimate in sentencing a child to consider the sentence which an adult offender might attract; and ultimately the correct sentence may even be identified in such a manner, but in doing so the court should take careful regard of the observations in Hibbard v HM Advocate, para.15: “In a sense therefore, it is correct to say that the sentencing process should not simply involve an exercise of looking at past cases involving adult offenders committing similar crimes and then deducting a percentage, which is deemed appropriate to differentiate adult from child, from the level of the adult sentence. Nevertheless, if precedents for similar crimes involving adults on the one hand and children on the other are analysed, there is bound to be a recognisable arithmetical difference in the two levels.

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Those for a child will be proportionately lower, even if the exercise has not involved a direct comparison. It is not illegitimate, therefore, for a court to look at the sentences for adult offenders, since by doing so it will gain some knowledge of the recognised levels. With that information, it will realise that any sentence imposed on a child, with his welfare as a primary consideration, ought normally to be significantly below those levels. The court does not consider that the trial judge did other than perform that type of exercise before selecting the punishment part.” [4] In selecting the sentence for a child, the court must have regard to the best interests of that child as a primary consideration. Moreover, a factor in that will be the desirability of the child’s reintegration into society (art.40 [see infra]). These points were again made in Greig v HM Advocate: “[9] The problem which arises in this appeal is the identification of the correct principles to be employed in sentencing an adult offender for crimes committed when a child. The court accepts that, were the appellant to have been sentenced when he was still a child, any sentence for these crimes would have been significantly less than if the crimes had been committed by an adult. In sentencing a person who is a child, regard must be had to the best interests of that child as a primary consideration (see Hibbard v HM Advocate, under reference to the United Nations Convention on the Rights of the Child, Art.3.1). Regard must be had also to the desirability of the child’s reintegration into society (Art.40).” [5] In R (Smith) v Secretary of State for the Home Department Lady Hale addressed the reasons for treating juveniles differently from adults. The circumstances were very different, but the principles apply equally: “23. On 1 March 2005, the United States Supreme Court decided, in Roper v Simmons, that the Eighth and Fourteenth amendments of the United States Constitution forbad the imposition of the death penalty upon offenders who were under 18 when the offence was committed. In doing so, the majority explained, at pp.15–16, three general differences between juveniles and adults: ‘First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” (Johnson v Texas (1993) 509 US 350, 367) . . . It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behaviour.” Arnett, “Reckless Behaviour in Adolescence: A Developmental Perspective” (1992) 12 Developmental Review 339 . . . The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure . . . This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty” (2003) 58 Am Psychologist 1009, 1014 . . . (“[A]s legal minors, (juveniles) lack the freedom that adults have to extricate themselves from a criminogenic setting”). The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E Erikson, Identity:Youth and Crisis (1968).’

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24. In the court’s view, the first of these meant that a juvenile’s irresponsible conduct was not as morally reprehensible as that of an adult; the second meant that juveniles had a greater claim to be forgiven for failing to escape the negative influences around them; and the third meant that even the most heinous crime was not necessarily evidence of an irretrievable depraved character. Furthermore, at p.19: ‘It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg and Scott 1014–1016.’ 25. These considerations are relevant to the retributive and deterrent aspects of sentencing, in that they indicate that the great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders. But they also show that an important aim, some would think the most important aim, of any sentence imposed should be to promote the process of maturation, the development of a sense of responsibility, and the growth of a healthy adult personality and identity. That is no doubt why the Children and Young Persons Act 1933, in s.44(1), required, and still requires, every court dealing with any juvenile offender to have regard to his or her welfare. It is important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met. But that is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done.” [6] Other than to the extent that his youth made him less blameworthy than an adult, it is not clear that the trial judge had in mind any of these important factors—the welfare of the child offender, the need to facilitate rehabilitation and reintegration into society. It does not seem that she considered these factors at all, merely allowing a discount from an appropriate adult sentence to allow for immaturity. In that regard we consider that she erred. [7] Moreover, we are also satisfied that she erred in concluding that this was not a case where an extended sentence was necessary. Her reasons for so concluding were the assessment of a moderate risk of re-offending, a supportive family background, and the prospect of gaining education when in custody. She also noted as protective factors that on release the appellant will be subject to licence conditions and subject to registration under the Sex Offenders Act. However, as the trial judge also noted, the CJSWR also highlighted the appellant’s denial of the offences as a considerable concern, and one which limited the scope of offence-focused work which could reduce risk. In our view this is a significant factor in determining the extent to which an extended sentence might be necessary to protect the public from serious harm. Such persistent denial in these circumstances hampers the assessment of risk, and means that an assessment of risk as “moderate” requires to be viewed with some caution, even where other protective factors are in place. We note that the CJSWR states that the appellant “requires a moderate level of supervision in order to assist him to desist from further acts of sexual behaviour”. He has a lack of insight into his behaviour, which is troubling. The author of the report stated: “I am of the opinion that a considerable amount of work is required on his part in order to reach a point where a reduction in the level of supervision can be undertaken without placing children that he comes into contact with at risk of sexual abuse”

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adding that further interventions are required in order to address the subject’s attitude towards the index offences.The reporter considered that the appellant’s failure to accept responsibility was a barrier to offence-focused work and required to be addressed at the earliest opportunity to promote a reduction in risk. In conclusion the author wrote that: “Proposals outlining the nature and focus of post release supervision have been noted within this submission which I believe would best manage the level of risk that Mr McCormick may pose upon liberation from custody.” Against the whole background of the terms of that report allied to the very serious nature of the offences, committed by one so young, and giving due respect to the discretion of the trial judge, we are unable to agree that this is a case in which an extended sentence was not necessary for the protection of the public. It may well be that the effect of such an order would assist the reintegration of the appellant, but although that is an important consideration in general, it is, as Mr Mackintosh suggested, merely an incidental benefit: the critical question is whether the terms of the section are met. [8] In selecting the appropriate custodial term of an extended sentence, the court has had regard to the fact that the extension period is specifically designed to reduce risk. The overall sentence requires to be considered. In the circumstances we consider that an appropriate sentence would be an extended sentence consisting of a custodial term of five years with an extension period of three years. We therefore quash the sentence imposed by the trial judge and impose said extended sentence.

D COMMENTARY Recent expert opinion is to the effect that denial of the offence is not a reliable guide to the likelihood of re-offending.

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A Appeal Against Sentence

4 May 2016

NATASHA WATT

Appellant

against B

LIAM MURPHY (Procurator Fiscal, Aberdeen)

Respondent

[2016] SAC (Crim) 16 Sentence—Road Traffic—Disqualification—Dangerous driving— Special reasons—Emergency—Constable attending emergency call with flashing lights but no use of siren—Whether special reasons for not disqualifying—Road Traffic Act 1988 (c.52), s.2—Road Traffic (Offenders) Act 1988 (c.53), s.34, Sched.2 C

The appellant pled guilty to dangerous driving, contrary to s.2 of the Road Traffic Act 1988, an offence which carries mandatory disqualification in the absence of special reasons as provided for by s.34 of the Road Traffic (Offenders) Act 1988, Sched.2 to which provides that if disqualification is not imposed the offender’s licence is to be endorsed with three to 11 penalty points, which, in the case of a “new driver” such as the appellant, would lead to the loss of her licence. She was a police officer attending an urgent call for assistance at the time of the incident. She was not herself an accredited emergency driver but was the only driver asked to answer the call. She activated her blue flashing lights but omitted to activate her siren. She drove through a red light at a speed of about 10 mph. The sheriff, who placed weight on the facts that the appellant was not an accredited emergency driver, and that dangerous driving was a serious offence, took the view that it was not inexpedient to inflict punishment on her and disqualified her for driving for 12 months, and she appealed to the sheriff appeal court. Held (1) that the fact that the appellant was not an accredited emergency driver was irrelevant in the circumstances, and that what properly fell to be considered by the court were her actual conduct and the circumstances in which it took place (para.17); (2) that the seriousness of the offence was entirely neutral when special reasons came to be considered (para.18); and (3) that the appellant would probably not have entered the junction in the face of a red light were it not for the emergency nature of the mission she was undertaking, that, in other words, the extenuating circumstances generated by the emergency were unquestionably connected to the commission of the offence, that, whilst the appellant did plead guilty to a charge of driving dangerously, it was a momentary failing on her part which created that offence, that it may have been unfortunate that she failed to activate the vehicle’s siren but that in driving as she did she had in mind the safety of other road users; she activated the vehicle’s blue lights and significantly reduced the speed of the vehicle, and that against that background it was eminently open to the court to determine that special reasons ought to have been held established by the sheriff; and appeal allowed and disqualification quashed, and six penalty points imposed. Cases referred to in the opinion of the court:

Husband v Russell, 1997 S.C.C.R. 592; 1998 S.L.T. 377 314

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Watt v Murphy (SAC)

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R v Lundt-Smith [1964] 2 Q.B. 167; [1964] 2 W.L.R. 1063; [1964] 3 All E.R. 225 (Note) R v Robert John O’Toole (1971) 55 Cr. App. R. 206 Tedford v Dyer [2006] HCJAC 37; 2006 S.C.C.R. 285. Natasha Watt pled guilty on 23 February 2016 in the sheriff court at Aberdeen before the sheriff (Stirling) to a charge of dangerous driving. The sheriff repelled a plea of special reasons and disqualified her for 12 months. She appealed to the sheriff appeal court against the disqualification on the grounds referred to in the opinion of the court.

The appeal was heard on 4 May 2016 by Sheriff Principal Scott QC (Vice President) and Sheriff Morris QC. For the appellant: McCall QC, instructed by John Pryde & Co, Solicitors, Edinburgh. For the respondent: Carmichael, QC, AD. On 4 May 2016 the appeal was allowed. Sheriff Principal Scott delivered the following opinion of the court. SHERIFF PRINCIPAL SCOTT [1] The appellant, who at the time of the offence was a serving police officer, pleaded guilty to a contravention of the Road Traffic Act 1988, s.2 as amended. [2] The appellant had been driving a police vehicle. She and her colleague were en route to an emergency call. During the journey they received a “distress call”. Those officers already in attendance at the appellant’s intended destination were seeking urgent assistance. The appellant and her colleague were the only officers asked to attend to provide assistance. In mitigation, the sheriff had been informed that the “distress” of the officer making the call was such that the appellant had heard the officer scream. [3] At para.9 in her report, the sheriff narrated the circumstances of the collisions detailed in the charge. In responding to the distress call, the appellant had only activated the flashing blue lights on the police vehicle. She had inadvertently failed to activate its siren. [4] Senior counsel for the appellant emphasised that as the appellant had approached the junction in question the speed of her vehicle was approximately 15 mph. She had slowed the vehicle down to 10 mph as she passed through the red light at the junction. Senior counsel pointed out that emergency vehicles such as that being driven by the appellant are permitted to proceed through a red light provided they proceed as if it were “give way” scenario. That was how the appellant had approached her entry to the junction. [5] Against that background, the sheriff rejected the proposition that special reasons existed as to why the appellant should not be made subject to the mandatory minimum 12-month disqualification. Senior counsel for the appellant, in criticising the sheriff’s approach, elaborated upon her written arguments in support of the appeal. [6] Senior counsel maintained, at the outset of her submission, that the sheriff ought to have adopted a two-stage approach. The existence or otherwise of extenuating circumstances firstly required to be considered. Where such circumstances were found to exist the court then required to take them into account. Senior counsel contended that the sheriff only appeared to have taken into account the fact that the appellant had been responding to an emergency call.

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2016 S.C.C.R.

[7] In determining whether special reasons had been made out in the present case, the question which the sheriff ought to have addressed was whether it was more likely than not that the emergency nature of the distress call to which the appellant had been ordered to respond and to which she and her colleague were the only officers responding (viz. the extenuating circumstances) was directly connected to the manoeuvre at the junction (viz. the commission of the offence). Senior counsel submitted that, if the sheriff was so satisfied, she ought then to have considered whether the circumstances were such that the court ought properly to take them into account. [8] Senior counsel argued that, on any view of the matters, the appellant had, in a very short space of time, found herself at the heart of a situation imbued with great urgency. It was, she submitted, reasonable to infer that the appellant must have feared for the safety of the police colleague who had summoned her assistance.The manoeuvre she undertook in these circumstances was dangerous owing to the fact that she had been compelled to enter what senior counsel described as a “blind junction” and that, whilst the vehicle’s blue lights were on, the appellant had omitted to press the second button which would have activated the vehicle’s siren. Other vehicles approaching and entering the junction were consequently deprived of being alerted by the sound of the siren. [9] Senior counsel referred to para.24 onwards in the sheriff’s report. She maintained that there was nothing to indicate in what way the sheriff had applied her mind to whether extenuating circumstances (viz. the emergency) were directly connected to the commission of the offence. Put another way, senior counsel contended that the sheriff had failed to consider whether, but for the appellant having been ordered to respond to the distress call, the appellant would probably not have embarked upon the manoeuvre at the junction. [10] Reference was made to the sheriff’s response to the grounds of appeal at para.26 of her report. That response, senior counsel argued, overlooked the fact that the offending conduct consisted of a momentary piece of driving which in turn gave rise to the danger. Contrary to the sheriff’s approach, senior counsel submitted that the use of the blue flashing lights ought to have been viewed as a positive feature. It had been an attempt by the appellant to make the police vehicle more visible to other road users. [11] The sheriff’s reliance, as seen from para.27 in her report, upon the fact that the appellant was not an authorised emergency driver was also criticised by senior counsel. She submitted that the status of the driver was not the pertinent issue. What mattered were the driver’s actual conduct and the circumstances giving rise to that conduct. Senior counsel once again stressed that the appellant and her colleague formed the only police unit deployed to respond to the distress call and the appellant was aware of that fact. [12] To that extent, the circumstances of the appellant’s offending were no different, submitted senior counsel, to those in the cases of Husband v Russell and R v Lundt-Smith. It had been wrong for the sheriff to distinguish these cases owing to a lack of emergency driver accreditation on the part of the appellant. The case of Lundt-Smith was an example of special reasons being held established in the context of an emergency even where the driving in question gave rise to the most serious of consequences. Senior counsel submitted that there were parallels between the present case and that of Lundt-Smith. [13] Senior counsel submitted that the sheriff ought to have concluded that public safety would not be imperilled by this appellant being allowed “to remain on the road”. The sheriff’s approach was criticised to the extent that

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she had overlooked the existence of those (numerous) cases where special reasons had been held established for ordinary citizens who merely perceived themselves to be acting in am emergency situation. [14] Reference was also made to the case of Tedford v Dyer where special reasons were made out for an appellant who drove his friend to hospital in a situation which was not a critical emergency and where there were other options available to the appellant. In Tedford, the court noted that “some account must always be taken of the fact that, when faced with an anxious and unexpected situation, people may sometimes react, with the best of intentions at the time, in a manner which, viewed in retrospect, and in the cold light of day, might have been considered to be unwise”. (See para.13.) [15] In the case of R v Robert John O’Toole the Court of Appeal had approved the first instance decision in Lundt-Smith. At p.210 in the O’Toole case, Sachs LJ stated the following: “Each case naturally falls to be determined on its own facts and of course nothing in this judgment is intended to suggest that driving which is careless or reckless can in any circumstances be condoned by the courts. On the other hand it is for courts when imposing sentences in cases such as the present one to recognise that balance which must be maintained in the interests of the public between the essential element of not unnecessarily impeding the answering of the calls of humanity in emergencies and that of not involving road users in unnecessary risks. Great care has to be applied in determining on which side of the line a case falls. The tensions under which drivers of ambulances and fire engines have to work must not be overlooked and it is within the knowledge of the Court from other cases that any imposition of ill-judged penalties naturally tends, in detriment of the public interest, to cause unrest in the services on which everyone depends for rescue.”

Decision

[16] The sheriff’s “sentencing” reasons are to be found at pp.8 and 9 of her report but particularly within para.24. She appears to have arrived at the view “that it was not inexpedient to inflict punishment” on the appellant. We observe, firstly, that that does not appear to be a useful approach to the issue which faced the sheriff (viz. whether special reasons had been established in all the circumstances of the case). [17] At all odds, it is plain that the sheriff placed much weight upon the fact that the appellant was not an accredited emergency driver. To our mind, in the circumstances of this case at least, that was an irrelevant factor. We agree with senior counsel for the appellant’s submission to the effect that what properly fell to be considered by the court were the appellant’s actual conduct and the circumstances in which that conduct took place. [18] The sheriff also stressed the facts that appellant had pleaded guilty to s.2 of the Road Traffic Act 1988 and that dangerous driving is a serious offence. Neither of these observations can be gainsaid. However, it will very often be the case that the court is called upon to consider the issue of special reasons where serious offences have been committed, the case of Lundt-Smith being an example. It is reasonable to anticipate that such cases will often involve contraventions of s.2 of the 1988 Act. Accordingly, once again, we conclude that the sheriff relied upon a feature which was entirely neutral when the establishment or otherwise of special reasons came to be considered. [19] The sheriff was also wrong to distinguish the case of Husband v Russell and Lundt-Smith “because in those cases the drivers appeared to have been properly qualified emergency drivers . . .”. In our view, as in Husband v Russell

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the appellant’s manoeuvre through the junction was embarked upon and executed precisely because she was involved in an emergency journey in which it was, at the very least, important for the appellant and her vehicle to arrive at the locus from where her distressed police colleague had already summoned urgent assistance. (See Lord Prosser at p.595.) [20] On the factual matrix presented to the court and in light of the observations set out in the various authorities we have reached the conclusion that the sheriff’s approach to the matter cannot be supported. For our part we are satisfied that the appellant would probably not have entered the junction in the face of a red light were it not for the emergency nature of the mission she was undertaking. In other words, the extenuating circumstances generated by the emergency were, to our mind, unquestionably connected to the commission of the offence. Whilst the appellant did, indeed, plead guilty to a charge of driving dangerously, it was a momentary failing on the part of the appellant which created the offence. It may have been unfortunate that the appellant overlooked to activate [sic] the vehicle’s siren but in driving as she did she had in mind the safety of other road users; she activated the vehicle’s blue lights and significantly reduced the speed of the vehicle. Against that background, it is, in our opinion, eminently open to this court to determine that special reasons ought to have been established by the sheriff. That being so, we have quashed the disqualification imposed at first instance. [21] In inviting us to remit the entire period of that disqualification, senior counsel reminded us that the court would then be obliged to endorse the appellants’ licence with anything between three and 11 penalty points. We were informed that the appellant is a “new driver” and that she would lose her licence were anything from six penalty points upwards to be imposed. A letter from the appellants’ new employers dated 28 April 2016 was provided for the court. It was explained that the appellant’s journey to and from her place of employment each day would involve a time consuming trip using public transport. Her employers, the letter told us, regarded the appellant as a valued employee and would be concerned that her employment might be compromised were she not in a position to drive to her place of work. [22] In these circumstances, therefore, we have decided that the appellant’s licence should be endorsed with five penalty points.

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A Appeal Against Conviction

6 May 2016

Appellant against

HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 52 Evidence—Corroboration—Mutual corroboration—Alleged incidents ten years apart—Whether Moorov doctrine applicable The appellant was charged with, inter alia, raping B, his partner’s 17-year-old sister, in his home in 1991, the rape having started while she was asleep (charge (7)); with using lewd practices towards his daughter, N (dob May 1998) in 2003, by removing her clothing, exposing his penis to her and simulating intercourse (charge (8)); and between 2002 and 2004 by rubbing her naked breasts (charge (9)); and with using lewd practices towards his son (dob 2001) by ejaculating in his mouth (charge (10)). There were two other young children in the family, born in 1993 or 1994 and in 1995, and no allegations were made against the appellant in respect of them. The Crown relied on the Moorov doctrine in order to corroborate the complainer’s evidence on charge (7) by the evidence on charges (8), (9) and (10), and the trial judge repelled a plea of no case to answer. The appellant was convicted of charges (7), (8) and (9) but acquitted of charge (10). He appealed to the High Court on the ground that there were no exceptional circumstances to justify applying the doctrine to offences so far apart in time. The Crown accepted that as between the charges there were no special or extraordinary features. Held (1)(i) that the key question in the application of Moorov is whether the events alleged are so connected in time, place and circumstances as to show that they are examples of an underlying intent to pursue a particular course of conduct (para.18, p.323D); and (ii) that it was clear that where the prosecution involves a limited number of charges separated by long periods of time, great care must be taken before applying Moorov, even where there are similarities in the behaviour alleged, and that otherwise there was a real risk that evidence that, in truth, points only to a general disposition to commit a particular type of offence will wrongly be used as corroboration (para.18, p.323E); (2) that there is no support in the authorities for the view that it is only in an extreme case that a submission of no case to answer can be upheld (para.23, p.325D); and (3) that there were no special or extraordinary features in the case, but there were dissimilarities, and no explanation for the substantial lapse of time, and that, given the evidence about other children, the later events were not the first opportunity to resume the alleged course of conduct, and the submission of no case to answer should have been upheld (para.24); and convictions on charges (7), (8) and (9) quashed.

Cases referred to in the opinion of the court: A v HM Advocate [2014] HCJAC 41; 2014] G.W.D. 16-291 Dodds v HM Advocate, 2002 S.C.C.R. 838; 2003 J.C. 8; 2002 S.L.T. 1058 H v HM Advocate [2015] HCJAC 42; 2015 S.C.C.R. 242; 2015 S.L.T. 380

319

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320 A

RF v HM Advocate

2016 S.C.C.R.

K v HM Advocate [2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 915 Livingstone v HM Advocate [2014] HCJAC 102 Moorov v HM Advocate, 1930 J.C. 68; 1930 S.L.T. 596 Pringle v Service [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 Reynolds v HM Advocate, 1995 S.C.C.R. 504; 1995 J.C. 142; 1996 S.L.T. 49 S v HM Advocate [2014] HCJAC 135; 2015 S.C.C.R. 62 Stewart v HM Advocate [2007] HCJAC 32; 2007 S.C.C.R. 303; 2007 J.C. 198. R F was charged with, inter alia, the charges set out in the opinion of the court, and was convicted as set out there on 15 April 2015 after trial before Lord Kinclaven and a jury. He appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 31 March 2016 by Lady Smith, Lady Dorrian and Lord Bracadale. For the appellant: McConnachie QC, instructed by Gilfedder McInnes, Solicitors, Edinburgh. For the respondent: Di Rollo AD. On 6 May 2016 Lady Smith delivered the following opinion of the court. LADY SMITH Introduction

[1] On 15 April 2015, at the High Court in Glasgow, the appellant was convicted after trial of 11 charges involving the physical and sexual abuse of family members between 1976 and 2004. There were 13 charges on the indictment; the appellant was found not guilty in relation to charge (5) and charge (10) was found to have been not proven. The appellant was sentenced in cumulo to 12 years’ imprisonment. Charges (7), (8), (9) and (10)

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[2] This appeal relates only to charges (7), (8), (9) and (10). They were in the following terms: “(7) [O]n an occasion between 27 February 1991 and 6 March 1991, both dates inclusive, at (a residential address) you . . . did assault J B . . . and whilst she was asleep and incapable of giving or withholding her consent, penetrate her vagina with your penis, and after she had awakened continue to penetrate her vagina with your penis and you did rape her; (8) on an occasion between 7 May 2001 and 6 May 2003, both dates inclusive, at (a residential address) you . . . . did use lewd, indecent and libidinous practices and behaviour towards N P, your daughter, born 7 May 1998 . . . remove her clothing, lie on top of her and expose your penis and simulate sexual intercourse; (9) on an occasion between 7 May 2002 and 6 May 2004, both dates inclusive, at (a residential address) you . . . did use lewd, indecent and libidinous practices and behaviour towards N P . . . your daughter, born 7 May 1998, . . . and rub her naked breasts; (10) on an occasion between 19 July 2000 and 13 July 2001, both dates inclusive, at (a residential address) you . . . . did use lewd, indecent and libidinous practices and behaviour towards R P F, your son born 14 July 1989 . . . and did penetrate his mouth with your penis and ejaculate in his mouth.”

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Accordingly, on these allegations, the lapse in time between charges (7) and (8) was about ten years, the lapse in time between charges (7) and (10) was between nine and ten years and the lapse in time between charges (7) and (9) was about 11 years. [3] The Crown approached the case on the basis that it was necessary to find corroboration for charge (7) in charges (8), (9) and/or (10). Given the whole terms of the indictment, other approaches might have been adopted by the Crown but, as is clear from the trial judge’s report and the advocate depute’s submissions, that did not happen.

The evidence

[4] The complainer J B gave evidence in support of charge (7). She was the 17-year old sister of the appellant’s partner and was staying with them at their home. One night, when there was a party at the house, she went to sleep on a makeshift bed in a room where the children were sleeping. She said that the next thing she remembered was waking up to find that the appellant was on top of her, having sexual intercourse with her, with his penis inside her vagina. She told him to stop. [5] The appellant’s daughter N P gave evidence in support of charge (8). She said that, when she was four or five years old, she was in her bed, talking to the appellant about going to watch “CBeebies”. The appellant was also in the bed. He pulled down her pyjama trousers and pants, and his trousers, removed her clothing, lay on top of her, exposed his penis and simulated sexual intercourse. She described lying on her back with her legs apart “like an angel”, the appellant’s hands being on her head, him feeling heavy, him making a movement “up and down like the way a caterpillar moves, kind of”, him battering her head off the headboard, and his “private” looking like a big sausage and getting thinner. [6] NP also gave evidence in support of charge (9); she said that the appellant rubbed her naked chest on one occasion. [7] The appellant’s son R P F gave evidence in support of charge (10). He said that the appellant made him perform oral sex on him, in the appellant’s bedroom on the appellant’s bed. He said that the appellant shouted to him to come into his bedroom, that the appellant pulled down his trousers and boxer shorts, that the appellant’s penis was erect, that the appellant ejaculated into his mouth, that he, R P F then spat it out and the appellant told him to “fuck off”. [8] On the evidence, the lapse in time between charges (7) and (8) was about 11 years, the lapse in time between charges (7) and (10) was between nine and ten years, and the lapse in time between charges (7) and (9) was about 11 years.

No case to answer submission

[9] At trial, senior counsel for the appellant made a submission of no case to answer. He said that the Moorov principle could not apply as between charge (7) and charges (8), (9) or (10), relying particularly on the length of time that had elapsed between the events alleged.The trial judge repelled the submission, accepting the Crown submission which was to the effect that there was great coincidence in the conduct alleged and notwithstanding the time gap, Moorov could apply. He said: “I required to take the evidence at its highest for the Crown. Having heard both parties, I was not satisfied that the evidence led by the prosecution was insufficient in law to justify the accused being convicted of

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2016 S.C.C.R.

the offence . . . contained in . . . charge (7) on the indictment. Accordingly in terms of s.97(3) of the 1995 Act I rejected the submission.â&#x20AC;? [10] Although he notes, in his report, that he was addressed by senior counsel for the appellant on the significance of the lapse of time between the charges and the lack of connection between them, he does not explain why he rejected that submission. The appeal

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[11] The appellant appeals his conviction in relation to charges (7), (8) and (9). There are two grounds of appeal. [12] The first ground of appeal is that the trial judge erred in rejecting a submission of no case to answer in relation to charge (7); charges (8), (9) and (10) could not afford evidence of a course of conduct systematically pursued and so the doctrine of mutual corroboration (see: Moorov v HM Advocate) did not apply. [13] In support of this ground of appeal, senior counsel referred to Moorov v HM Advocate; K v HM Advocate; R v HM Advocate; S v HM Advocate; H v HM Advocate for his two central propositions. They were, first, that it was fundamental to the application of Moorov that the evidence be capable of showing such similarities in time, place and circumstances in the behaviour in the libel as to demonstrate that the individual instances are not isolated but are parts of one course of conduct systematically pursued by the accused and, secondly, that in this case, the gaps in time between the charges were of such length as required there to be some compelling or extraordinary feature linking the charges before it could possibly be concluded that they were a single course of conduct. In this case, neither of those requirements could be met. The gaps in time were unexplained. [14] The second ground of appeal is that esto the trial judge was correct to reject the submission of no case to answer, the jury were not entitled to find corroboration in the circumstances of charge (8) alone, the jury having acquitted the appellant of charge (10). The lapse of time between charges (7) and (8) was even greater than that between (7) and (10) and, again, there were no compelling or extraordinary features nor was there an explanation for the gap in time. [15] In relation to both grounds of appeal, senior counsel submitted that although there were points of similarity (family connections, home circumstances, two female complainers), there were also significant dissimilarities (J B was over the age of consent, N P was a very young child, the conduct alleged in the other charges was very different from that in charge (7)); there was nothing in the circumstances of the offences themselves which was compelling or extraordinary. He also relied on the fact that within the time lapses between the charges there were also available, within the family setting, two young childrenâ&#x20AC;&#x201D;a sister born in 1995 and a brother born in 1993/4â&#x20AC;&#x201D;but there were no allegations that either of them had ever been sexually abused by the appellant. The time gap could not, accordingly, be explained by intervening lack of opportunity: cf A K v HM Advocate at para.11; Pringle v Service at para.20. [16] For the Crown, the advocate depute submitted that only in extreme cases should the matter not be left to the jury and this was not such a case. She submitted that, although she could not point to any features which were extraordinary in the A K sense, the similarities in the conduct alleged in charges (7) and (8) demonstrated that they were component parts of a course

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of conduct. The allegations were that the conduct involved young female members of the family unit committed at a time when they were vulnerable to the appellant’s attentions in the family home, when they were in bed. Although penetration was not involved in charge (8), the mechanics as between it and charge (7) were remarkably similar. Charge (9) was demonstrative of exploitation. These charges were all eloquent of there being an underlying intent to obtain sexual gratification from vulnerable young female family members irrespective of their wishes. [17] The advocate depute accepted that the lapse of time was important but there was no maximum time lapse fixed by law beyond which Moorov could not apply. The circumstances of the behaviour alleged were, she submitted, compelling and it could not be said that on no possible view were the offences insufficiently connected for Moorov to apply. She relied on Reynolds v HM Advocate at p.508C–D; p.146D–E; Livingstone v HM Advocate; and A v HM Advocate. The trial judge did not err in refusing to uphold the no case to answer submission and, thereafter, it was open to the jury to convict.

Moorov

[18] Under the law of Scotland, to prove an allegation against an accused person, corroboration that a crime was committed and that it was committed by the accused is essential. Where the events in each of a number of charges are spoken to by only one witness, corroboration may be found by application of the principle in Moorov. However, the principle does not apply simply because there are similarities as between the conduct libelled in two or more charges involving different complainers. That is but part of what needs to be considered and will not, of itself, answer the key question of whether the events alleged are so connected in time, place and circumstances as to show that they are examples of an underlying unity of intent to pursue a particular course of conduct. Whilst the advocate depute was correct to say that there is no maximum interval of time fixed by law beyond which Moorov can apply, the longer the gap, the more difficult it will become to accept that evidence of two separate events may be regarded as corroborative of each other. It is, in particular, clear from the authorities that where the prosecution involves a limited number of charges separated by long periods of time, great care must be taken before applying Moorov, even where there are similarities in the behaviour alleged. Otherwise, there is a real risk that evidence that, in truth, points only to a general disposition to commit a particular type of offence will—wrongly—be used as corroboration. A long lapse of time is, accordingly, “very relevant” (K H, Lord Brodie at para.28). [19] In Moorov, Lord Justice General Clyde emphasised that something more than repetition by the accused of a series of similar crimes was required. Hence his observations at p.73: “The test I think is whether the evidence of the single witnesses as a whole—although each of them speaks to a different charge—leads by necessary inference to the establishment of some circumstance or state of fact underlying and connecting the several charges, which, if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstance or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might properly be used to corroborate the evidence of . . . the single witnesses, as a whole . . . . No merely superficial connexion in time, character and circumstance between the repeated acts—important as these factors are—will satisfy the test . . . . Before the evidence of single credible witnesses to separate acts can provide

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2016 S.C.C.R.

material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character or circumstances) 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. The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them . . .” (Our emphases) and at p.74, having pointed out the risk of confusion inherent in the use of the phrase, “course of conduct”: “[I]t is of the utmost importance to the interests of justice that the “course of criminal conduct” must be shown to be one which not only consists of series of offences, the same in kind, committed under similar circumstances, or in a common locus—these are after all no more than external resemblances—but which owes its source and development to some underlying circumstance or state of fact. . . . .” [20] Hence also, Lord Sands’ discussion of the significance of the lapse of time at p.89 of Moorov: “A great deal of the argument in the present case turned upon the question of time—the interval between the alleged acts. This is an important and, in some aspects, a vital consideration. This results from the quality of the acts as evidence of a ‘course of conduct’. A ‘course’ involves some continuity. Acts isolated by a long period of time do not make a course of conduct. But whether a series of acts is to be regarded as disclosing a course of conduct must depend upon the nature of the acts themselves and the surrounding circumstances. A course does not necessarily imply that the offence is committed or attempted every day or even every month. Opportunity or inclination may be intermittent. A man whose course of conduct is to buy houses, insure them and burn them down, or to acquire ships, insure them and scuttle them, or to purport to marry women, defraud them and desert them cannot repeat the offence every month, or even perhaps every six months. “Time, however, may undoubtedly be an important factor in determining whether evidence imports a certain course of conduct.” [21] Again, the need to look for evidence of continuity and the execution of a determined plan is stressed and it is of some note that Lord Sands did not envisage events in the relevant course of conduct being separated by periods of time so long as to be measurable in years. [22] In K, in directions which were described by the Lord Justice Clerk (Gill) as being “clear and accurate” (para.17), when referring to a time gap of eight years—that is, a lapse of time that was shorter than in the present case— the trial judge told the jury that, “in general it would be very difficult to think of time lapse of this length as being consistent with a single course of conduct”. When it came to a time gap of the order of 13 years, the trial judge in K went on to direct the jury, “the issue of lapse of time would be an even more important consideration . . . . barring the presence of some extraordinary feature it would not be possible to think of a time lapse of that order as being consistent with a single course of conduct”. Having agreed with these directions, the Lord Justice Clerk observed, at para.14, that: “where the interval is a long one, it is necessary to consider whether there are any special features in the evidence that nonetheless make the similarities compelling (Dodds v HM Advocate 2003 J.C. 8; Stewart v HM Advocate 2007 J.C. 198)”.

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Such features were found to have been present in K. There was evidence that, on the later occasion, that appellant had said things to the second complainer which were strongly indicative of him thinking that he was “carrying on from where he left off with the first complainer” (para.18) and were so compelling as to amount to “quite exceptional circumstances”. We should add that we do not consider that the Lord Justice Clerk was indicating that any test of exceptionality applied albeit that it was an appropriate description in that case; rather, it is clear from the opinions in K and H that where there is a long lapse of time, the features required are those which can properly be described as “special” or “extraordinary” so as to render any similarities “compelling”. It is not enough that a general description or characterisation applicable to all the charges may be arrived at. Something more is required—something special or extraordinary that casts the similarities in such a light as to demonstrate that they can properly be regarded as evidence of the requisite underlying unity of intent.

Decision

[23] The central issue in relation to both grounds of appeal came to be whether or not the jury were entitled to conclude that Moorov applied as between charges (7), (8)/(9), and (10) or between charges (7) and (8)/(9). The approach of the advocate depute was to say that the application of Moorov was a matter for the jury unless it could be said that on no possible view was there any connection between the offences, relying on Reynolds and Livingstone in support of that proposition. She suggested that that showed that it was only in extreme cases that matters should not be left to the jury. Whilst we readily accept that a submission of no case to answer ought not to be sustained if the trial judge considers that there is sufficient evidence to entitle the jury to conclude that the accused was guilty of the crimes alleged—where, to use Reynolds and Livingstone terminology, it would be “possible” as a matter of law for them to do so—the “connection” that the evidence needs to have demonstrated for that possibility to arise where Moorov is relied on remains evidence which meets the requirements explained by the Lord Justice General and Lord Sands in Moorov, as quoted above. Further, we do not accept that there is any support in the authorities for the view that it is only in an extreme case that a no case to answer submission can be upheld. The question is always one of sufficiency, namely whether there is evidence within which the jury could, as a matter of law, find corroboration. Where the Crown rely on the principle of mutual corroboration, the question is whether it, as explained in Moorov, could apply; could it properly be inferred that there was an underlying unity of intent connecting the separate acts? There is no presumption that it will apply unless the case is an extreme one, which is what the advocate depute seemed to suggest. [24] The advocate depute frankly accepted that there were not, as between these charges, any special or extraordinary features. Rather, she relied on the similarities as between the conduct alleged in charges (7) and (8), and in charges (7) and (10) and sought to persuade that they were compelling. We are not persuaded that they can properly be so regarded. We agree that there were no special or extraordinary features. Further, there were also dissimilarities, there was no explanation for the substantial lapse of time and, given the evidence about other children, the later events were not the first opportunities to resume the alleged course of conduct. Accordingly, we consider that the appeal is well founded. There was no proper basis on which the jury would have been entitled to infer the necessary underlying unity of intent; Moorov

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could not apply. The submission of no case to answer ought to have been upheld. [25] It follows that there was no proper basis on which the appellant could be convicted of charges (7), (8) and (9) and we will quash those convictions. COMMENTARY

This case, which is a fairly unusual successful appeal against a conviction based on Moorov, can be seen as a reassertion that what Moorov requires is â&#x20AC;&#x153;an underlying unity of intent to pursue a particular course of conductâ&#x20AC;? (para.18). But, although the court makes some reference to Moorov in general, it must be remembered that, like all, or at least the overwhelming majority of, Moorov cases, the instant case is fact-specific and depended on whether the circumstances were sufficiently special to explain the time gap. More specifically, the court did not disapprove the earlier recent cases to which it refers, did not say that Moorov could not have been applied had the time gap been shorter, or indicate what is the minimum time gap required to create a need to show exceptional circumstances: initially, and for a long time, the normal practice was not to indict cases in reliance on Moorov where there was a time gap of more than three years, but that practice has clearly not survived more recent hardening of attitudes to sex offences. It is worth remembering that the indictment in Moorov itself began with an allegation of forming a scheme to procure women as employees with the purpose of assaulting them sexually, but that that was not proved. The dates of the offences ranged from 1923 to 1930, but only one charge related to an incident in 1923 (charge (1), a charge of indecent assault in which the jury convicted of simple, assault), the remainder covered a period of only three years and included charges of both indecent assault and simple assault, and all the convictions for simple assault were quashed on appeal. I cannot resist pointing out that the final charge related to a date on or after February 1930, and the appeal against conviction was heard by a court of seven judges whose opinions were issued on 18 July 1930, all in what would surely nowadays be described as indecent haste! See also RG v HM Advocate, infra, p.360 and JL v HM Advocate, infra, p.365 and McAskill v HM Advocate [2016] HCJAC 64.

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A Stated Case

31 May 2016

MALCOLM AIEN

Appellant

against ANDREW RICHARDSON (Procurator Fiscal, Livingston)

Respondent

[2016] SAC (Crim) 18 Appeal—Unreasonable verdict—Charge of threatening behaviour— Sheriff accepting evidence of witnesses that accused struck windscreen with metal bar—No evidence of damage to windscreen—Whether sheriff entitled to treat witnesses as credible—Whether verdict of guilty unreasonable C The appellant was charged with a breach of s.38 of the Criminal Justice and Licensing (Scotland) Act 2010 which included an allegation that he struck a car windscreen with a metal pole. The Crown relied on witnesses who gave evidence that he had done so, but there was no evidence of damage to the windscreen. There was also evidence from the appellant’s mother which was consistent with the appellant’s police statement. The sheriff accepted the Crown witnesses as credible and convicted the appellant who appealed to the sheriff appeal court by stated case on the ground that in the absence of evidence of damage to the car the sheriff was not entitled to accept the Crown witnesses as credible. In the stated case the sheriff referred to, but did not set out, the evidence of the witnesses explaining why she found them credible. Held that, having regard to the absence of evidence of damage and to the evidence of the appellant’s mother, there was not an adequate explanation for the sheriff accepting the Crown evidence (para.16); and appeal allowed and conviction quashed. Observed that it was important that first instance judges give a full account, though not every word, of the evidence led, making discrete findings in fact to cover the relevant evidence on which the decision was based, and the reasons for making the findings in fact (para.18).

Cases referred to in the opinion of the court: Ballantyne v Mackinnon, 1983 S.C.C.R. 97 Cartner v Farrell [2012] HCJAC 67; 2013 J.C. 251 McKim v Richardson [2010] HCJAC 122; 2011 S.C.C.R. 57. Malcolm Aien was convicted of the offences described in the opinion of the court on 3 September 2015 after trial in the sheriff court at Livingston. The sheriff convicted him and he appealed to the sheriff appeal court by stated case on the grounds referred to in the opinion of the court. The appeal was heard on 31 May 2016 by Sheriffs Principal Scott QC (Vice President) and Lewis and Sheriff Morrison QC. For the appellant: Mackintosh, instructed by John Pryde & Co, Solicitors, Edinburgh. For the respondent: Niven Smith AD.

327

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328 A

Aien v Richardson (SAC)

2016 S.C.C.R.

On 31 May 2016 the appeal was allowed and the conviction quashed. Sheriff Morrison subsequently delivered the following opinion of the court SHERIFF MORRISON Introduction

[1] This is an appeal against conviction on 3 September 2015, and sentence imposed on 2 November 2015, by the sheriff at Livingston for an offence under s.38(1) of the Criminal Justice and Licencing (Scotland) Act 2010 and an offence of having an offensive weapon, namely, a metal bar, contrary to s.47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The first charge included allegations of shouting, swearing, uttering threats of violence and repeatedly striking the windscreen of a motor car with the metal bar. The charge did not libel damage to the car. The appellant was sentenced to a community payback order with a supervision requirement and a requirement to perform 150 hours of unpaid work in respect of the two charges and was ordered to pay compensation of £1,000 to the complainer in respect of charge (1). [2] The issue in this appeal was whether the case was one in which the court could, exceptionally, go behind the sheriff’s assessment of credibility and reliability. At the end of the hearing of the appeal, we quashed the conviction and indicated that we would give reasons later. The facts and background

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[3] The undisputed facts were that the complainer, Mr Nicol, went, on 20 December 2013, to collect his daughter for contact from the child’s mother, Miss Aien, at her house. There was a disagreement about when contact was to start. Mr Nicol then waited in his car with his partner, Miss Harkins. There was a telephone call between Miss Aien’s house and the appellant, Miss Aien’s brother, at his work. The appellant drove in his van to his sister’s house. There had been civil proceedings between Mr Nicol and Miss Aien and Mr Nicol had contact rights. Relations between the two families, including the appellant’s mother, were strained. [4] There were disputes in the evidence as to who telephoned whom and whether it was about the birthday of Miss Aien’s son or about Mr Nicol being at the house, and as to what the appellant did, whether he had a metal bar and what he did with it if he had. [5] By joint minute, Mr Nicol’s statement to the police shortly after the incident was admitted as evidence, as was the appellant’s interview with the police; both these documents were included in the appeal print. The statement of the appellant’s mother, who died in the summer of 2014 but was present in the house at the time of the incident, was admitted in evidence under s.259 of the Criminal Procedure (Scotland) Act 1995. That statement was not included in the appeal print but was produced, without objection, by counsel for the appellant in this appeal. A statement of Miss Aien is included in the appeal print, without explanation. [6] The sheriff found that Miss Aien telephoned the appellant and that he, after he arrived at his sister’s house, shouted, swore and uttered threats of violence towards Mr Nicol, went to his van, returned to Mr Nicol’s car carrying a metal pole and repeatedly struck Mr Nicol’s car, principally on the window (in fact, the windscreen), with the metal pole. Mr Nicol and Miss Harkins were terrified and Mr Nicol called 999. [7] The sheriff accepts, in para.18 of the stated case, that there was no evidence that there was damage to Mr Nicol’s vehicle. The sheriff made no finding of fact that there was damage.

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[8] In the application for a stated case, the ground of appeal against conviction was that the sheriff erred in ignoring the lack of damage to Mr Nicol’s car and, accordingly, no reasonable sheriff properly directed could have returned a verdict of guilty. Though not express, the implication is that, in the absence of evidence of damage, the sheriff could not have found Mr Nicol and Miss Harkins credible and reliable witnesses in relation to the charges. The sheriff directed her attention to the question of whether there was evidence that there was no damage and concluded that she could not find it established that there was no damage to Mr Nicol’s car. She records in her note that Mr Nicol did not answer the question whether there was damage. Miss Harkins said that as far as she knew there was no damage, and PC McCartney, who arrived at the scene shortly after the incident, did not recall looking at the car and could not speak to the question of damage. [9] In finding Mr Nicol and Miss Harkins credible and reliable witnesses, the sheriff had regard to the fact that the appellant was not known to Miss Harkins before the incident and not involved in any dispute with the Aien family. The sheriff found in para.12 that the statement of the appellant’s mother was, in a number of respects, consistent with the accounts given by the Crown witnesses, Mr Nicol and Miss Harkins, and, in para.13, that the statement supported the Crown case that the appellant had gone to his sister’s house to “sort out” Mr Nicol. Furthermore, the sheriff stated that the appellant’s evidence did not sit well beside the other evidence, most notably, that contained in his mother’s statement.

The submissions

[10] Before us, counsel for the appellant argued that: (1) given that there was no evidence of damage, the sheriff could not have believed Mr Nicol and Miss Harkins; (2) the sheriff could not have found Miss Harkins to be an independent witness; and (3) the sheriff had relied on the s.259 statement of the appellant’s mother which in fact contradicted the Crown evidence. In relation to the first argument, the point was, essentially, that the Crown witnesses could not be believed if there was no evidence of damage. In relation to the second argument, it was wrong of the sheriff to treat Miss Harkins as if she were an independent witness because, as was recorded by the sheriff, she was Mr Nicol’s partner at the time of the incident and married him before the trial.The sheriff’s reasoning for believing Miss Harkins was that the appellant was not known to her and she was not involved in any Aien family dispute. More importantly, in relation to the third argument, the sheriff was wrong to find support for the Crown case in the statement of the appellant’s mother. Our attention was directed to that statement which appeared to be consistent with the appellant’s statement to the police and did not appear to contain anything to support the sheriff’s assertion that it supported the Crown evidence that the appellant had gone to sort out Mr Nicol. It contradicted the Crown evidence of the appellant having a metal bar. [11] Mindful of the reluctance of an appellate court to go behind the findings of a judge at first instance on credibility and reliability, counsel referred us to three cases to support the proposition that, exceptionally, the court might do so. These were Ballantyne v Mackinnon; Cartner v Farrell, in particular at paras.14 and 15; and McKim v Richardson. [12] For the Crown, the advocate depute accepted that there was a difficulty in the analysis by the sheriff of the s.259 statement of the appellant’s mother, but that, since it was not mentioned in the grounds of appeal, the issue was not focused for the sheriff when preparing the stated case. He drew our attention

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to the reference in Cartner at para.14, to an appeal being dependent on the judge at first instance dealing with the reasons for the findings and the “decisions challenged”. It was submitted that the court, exercising its powers under s.182(6) of the 1995 Act, could remit to the sheriff for amendment to deal with the issue. He went on to accept that, if the court were minded to find this an exceptional case, there was little that he could say. Should the appeal be allowed?

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[13] A difficulty in this appeal is that the sheriff has not set out the relevant evidence of each witness. The sheriff refers to, but does not set out at all, evidence in explaining why a witness’s evidence was consistent or not consistent with other evidence or why the appellant was not credible. In para.12 of her note, it is stated that the s.259 statement was, in a number of respects, consistent with the accounts of Crown witnesses, but only one is mentioned (in the next paragraph) which was that the appellant had gone to “sort out” Mr Nicol. That does not appear to be supported by the s.259 statement. The appellant’s mother states that Miss Aien’s son telephoned the appellant about his birthday (which is consistent with the appellant’s statement at interview). She goes on to state that she told the appellant that Mr Nicol was there. The sheriff states, at para.13 that the appellant’s mother asked him to come; but that is not stated in her statement. It is apparent also that that statement contradicts the Crown evidence about the metal bar: the presence and use of a metal bar is expressly denied. The evidence of the appellant’s sister and that of her son were said by the sheriff to have inconsistencies; and also the appellant’s evidence did not sit well alongside their evidence. The sheriff does not set out what these inconsistencies were. [14] In Cartner at para.14, Lord Bonomy, delivering the opinion of the court, emphasises the need for the judge at first instance to give an account of the material events of the trial, of the evidence led and the court’s reasoning for making the findings and decisions challenged though every last word of evidence need not be noted. [15] We consider that the sheriff was wrong to approach the issue of damage to Mr Nicol’s car from the point of view of whether the evidence was that there was no damage rather than considering whether there was evidence of damage (of which she concedes there was none and makes no finding of damage). The sheriff was thus led into considering that the ground of appeal presupposed that damage would be caused if the appellant acted in the way spoken to by Mr Nicol and Miss Harkins. The sheriff goes on to consider what is in judicial knowledge about whether a windscreen might not be damaged by being struck. She does not deal with the issue of why, given that there was no evidence of damage, Mr Nicol and Miss Harkins should, none the less, be believed except to state, in para.25, that the evidence was that the car window was struck with force, there was no evidence that it shattered, but it did not follow that its remaining intact meant that the witnesses were lying. It seems to us that that rather begs the question as there was no evidence that the windscreen was struck other than what Mr Nicol and Miss Harkins said. In relation to the independence of Miss Harkins, we simply comment that she appears to be no more independent than any of the other civilian witnesses; but we do not rest our decision on that ground. [16] We have come to the conclusion that this is a case in which we can look behind the sheriff’s assessment of the evidence of the Crown witnesses. Having regard to the absence of evidence of damage, and the s.259 statement of the appellant’s mother, there is not an adequate explanation given by the sheriff

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for accepting the evidence of Mr Nicol and Miss Harkins.We are not persuaded that we should remit to the sheriff for further reasoning in relation to the s.259 statement. Although this was not a ground of appeal for the stated case, as was submitted by counsel for the appellant, it was the sheriff who introduced the statement and her interpretation of it as part of her reasoning for reaching her conclusions on credibility and reliability. She has given her reasons. We do not consider it necessary, therefore, to remit to the sheriff for her reasons. [17] Accordingly, we answer the first question for the opinion of the courtâ&#x20AC;&#x201D; was the sheriff entitled to convict the appellantâ&#x20AC;&#x201D;in the negative. In the light of that decision, and having quashed the conviction, it is not necessary for us to consider the other two questions, whether the sentence was excessive or the compensation order competent. [18] It remains for us to reiterate the importance of judges at first instance giving a full account, though not every word, of the evidence led, making discrete findings in fact to cover the relevant evidence on which the decision was based, and the reasons for making the findings in fact.

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A Appeal Against Conviction

10 June 2016

JASON THOMAS O’NEIL

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 56 Sentence—Discount for guilty plea—Whether available for supervised release order—Criminal Procedure (Scotland) Act 1995 (c.46), s.209(1), (7) Sentence—Supervised release order—Whether discount for guilty plea available—Criminal Procedure (Scotland) Act 1995 (c.46), s.209(1), (7)

Section 209 of the Criminal Procedure (Scotland) Act 1995 provides that a court which passes a sentence of less than four years’ imprisonment on indictment may, if it considers it necessary to do so to protect the public from serious harm from the offender on his release, make a supervised release order (SRO) for a specified period which, in terms of subs.(7), may be for a period not exceeding 12 months from his release date and no part of which is later than the end of the entire term of imprisonment specified in his sentence. The appellant pled guilty to an assault which related to the third occasion on which he had assaulted the complainer, his partner, in a relatively short period. He was sentenced to imprisonment for 24 months, discounted from 30 months, and made subject to an SRO for 12 months, and appealed against the making of the order on the grounds that it was unnecessary and that it should have been discounted. Held (1) that the sheriff was entitled to conclude that the order was necessary (para.11); and (2) that such differences as exist between SROs and extended sentences do not affect the question of discount, both being imposed for the protection of the public (para.13), and that discount was not available in relation to SROs (para.14); and appeal refused. Gemmell v HM Advocate; Robertson v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 176; 2012 J.C. 223; 2012 S.L.T. 484, paras 88 and 89 explained. Cases referred to in the opinion of the court:

Gemmell v HM Advocate; Robertson v HM Advocate [2011] HCJAC 129; 2012 S.C.C.R. 176; 2012 J.C. 223; 2012 S.L.T. 484 Hepburn v HM Advocate, 2002 S.C.C.R. 934. Jason Thomas O’Neil pled guilty on indictment on 6 January 2016 in Dundee Sheriff Court to assault and was sentenced to 24 months’ imprisonment and made subject to an SRO for 12 months. He appealed to the High Court against the SRO on the grounds referred to in the opinion of the court.

The appeal was heard on 10 June 2016 by Lady Smith, Lord Brodie and Lord Malcolm. For the appellant: Mackintosh, instructed by Faculty Services Ltd. 332

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2016 S.C.C.R.

O’Neill v HM Advocate

333

For the respondent: Nicol AD.

On 10 June 2016 the appeal was refused. Lady Smith subsequently delivered the following opinion of the court. LADY SMITH Introduction

[1] In this appeal against sentence, at the close of the hearing we gave our decision—to refuse the appeal—and indicated that we would provide written reasons at a later date. That we now do. [2] The appellant pled guilty, at Dundee Sheriff Court, to the following charge of assault: “[O]n 22 September 2015 . . . you . . . did assault G G, your partner . . . . and did sit astride her, pin her down, seize her by the wrist, bite her on the head, rip out her hair, place her in a headlock, cover her nose and mouth with your hand, repeatedly strangle her, kick her on the head, strike her on the head, seize her by the body, pull her to the ground, tear her clothing and utter threats of violence, all to her injury; you . . . did commit this offence while on bail, having been granted bail on 28 April 2015 at Dundee Sheriff Court.” He had also been convicted of two separate charges of assault involving the same complainer, in 2014 and sentenced to six months’ detention. Whilst the charges were prosecuted on the same indictment, we do not consider it wrong to describe the appellant—using the plural as referring to the multiplicity of charges—as having previous convictions for violence. Significantly, this conviction related to the third occasion on which the appellant had assaulted the complainer in a relatively short period. [3] On this occasion, a custodial sentence was, again, imposed. The sheriff sentenced him to a period of imprisonment of 24 months, discounted in terms of s.196 of the Criminal Procedure (Scotland) Act 1995, from a headline sentence of 30 months. He also made a supervised release order (SRO) for a period of 12 months. [4] The offence on 22 September 2015 occurred at the appellant’s house, after he and the complainer had argued about a mobile telephone and money. The complainer telephoned the police when she got free of the appellant; when she told him she had done so, he said to her: “I’m gonna kick fuck out of you before they get here, so it’s worth going to jail for.”

The issues

[5] Two issues were raised in this appeal: (i) Whether the sheriff was entitled to impose the SRO at all? (ii) Whether, if he was entitled to do so, he erred in failing to discount its length?

The sheriff’s reasons

[6] In his report for this court, the sheriff states that he was concerned by the appellant’s propensity for violence. The sheriff’s conclusion that the appellant had that propensity is based on a number of factors: his record of previous convictions (which, in addition to the previous assaults on the same complainer, included convictions for vandalism, breach of the peace, breach of court orders, theft and road traffic offences); escalation in his violent behaviour; his

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O’Neill v HM Advocate

2016 S.C.C.R.

failure to comply with previous non-custodial disposals; his recognition that he has an anger management problem and his report to the author of the criminal justice social work report (CJSWR) that he uses marijuana to control his anger. [7] Regarding his decision to impose the SRO, the sheriff refers to advice within the CJSWR that there is a need for work to be done with the appellant to help him overcome his aggression and avoid further offending and to the action plan proposed being one which would take 12 months to complete. [8] In the circumstances, the sheriff considered that a “full 12 months SRO would be required”. Criminal justice social work report

[9] The context in which the author of the CJSWR recommended the 12-month action plan was as follows: the author’s professional opinion that the appellant posed a significant risk of physical and psychological harm to the complainer; her view that the harm may be imminent given previous failures to comply with bail conditions not to approach or contact the complainer; her opinion that he has a propensity for violence against women and may present a risk to future intimate partners if that propensity is not addressed; his admitted anger management problem; and that it was a matter of concern that a young man (only just 21 years of age) was accumulating a significant offending history that was escalating in severity. Regarding his attitude to women, it is also perhaps of note that the CJSWR records that the appellant acknowledged that there was another woman in his life who was frightened of him, namely, his mother, as he has displayed threatening and hostile behaviour towards her and in her home. The appeal The first issue

[10] Relying on that part of the CJSWR where the author states “it does not appear Mr O’Neil is a significant risk of harm to the general public at this time” and a submission that, contrary to the sheriff’s observation that the appellant had previous convictions for violence, he had only one such conviction, counsel submitted that the sheriff was not entitled to conclude that the imposition of an SRO was necessary to protect the public from serious harm on the appellant’s release. Whilst accepting that the appellant’s ex-partner and future partners were members of the public, he submitted that the sheriff had failed to direct his mind to the question of whether or not the order was necessary for public protection: Hepburn v HM Advocate. His concerns could have been met with the imposition of a non-harassment order. [11] We reject this ground of appeal. In all the circumstances, the sheriff was plainly entitled to conclude that such an order was necessary for protection of the public nor can we accept that he failed to have regard to the test of necessity. All that he says in his explanation for imposing the order is redolent of him concluding that that test was met. The second issue

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[12] This ground of appeal was based, firstly, on the proposition that SRO’s are distinct and different. They were said to be akin to the supervision requirement in a community payback order. Unlike extended sentences imposed under s.210A of the 1995 Act, they do not impose an additional period of licence. They simply render release from custody which would

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O’Neill v HM Advocate

335

otherwise be unconditional, conditional. It was, however, accepted that the focus on public protection was an element common to both and, ultimately, that the terms of s.18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which put an offender who breaches an SRO at risk of being returned to custody, mean that, in effect, there is no distinction to be drawn between extended sentences and SRO’s so far as the potential consequences for the offender are concerned. [13] We can deal with this aspect of the argument briefly. Such distinctions and differences as exist between SRO’s and extended sentences are not, in any way, indicative of the length of an SRO being amenable to a s.196 discount. On the contrary, importantly for present purposes, they both fall into the category of sentences imposed for the purpose of protecting the public. [14] Secondly, this ground of appeal was based on a submission that, on the authority of Gemmell v HM Advcoate, s.196 of the 1995 Act applies to SRO’s as much as to the custodial element of the sentence. Reliance was placed on the only express exception to discounts referred to in Gemmell being the extension period in an extended sentence. Reliance was also placed on the fact that in Robertson v HM Advocate, one of the appeals heard together with the appeal in Gemmell, the court reduced not only the headline sentences but also the length of the SRO that had been imposed. At paras 88–89, dealing with the appeal in Robertson, the Lord Justice Clerk (Gill)—as he then was—said: “On 4 February 2009 the sheriff sentenced the appellant to 20 months’ imprisonment, discounted from a period of two years, and imposed a supervised release order in terms of sec.209 of the 1995 Act for a period of ten months. He had regard to the appellant’s serious record for offences of violence including assault and robbery, for which he had served terms of imprisonment. He placed great significance on the need to protect the public, and on that account restricted the discount to one-sixth. [89] In my opinion, the headline figure of two years’ imprisonment was appropriate. In deciding on that figure the sheriff took into account the element of public protection. In this case too I would allow a discount of 25 per cent in the circumstances and apply it to the whole starting figure of two years. I would therefore substitute a sentence of 18 months’ imprisonment, and therefore a supervised release order of nine months.” Simply put, the appellant’s reading of “therefore” at the end of the penultimate line of para.89 (as set out above) was that it related to the discount—the headline sentence had been discounted by 25 per cent, “therefore” the SRO required to be discounted by 25 per cent.That reading is, however, conclusively shown to be flawed by two separate means. First, when discussing extended sentences, the length of which is whatever period the court considers “necessary” (s.210A(2)(b) of the 1995 Act) “for the purpose of protecting the public . . .” (s.210A(1)(b)), the Lord Justice Clerk, at para.67, had said: “[T]he obligation to impose whatever extension period is “necessary” for the purpose of protecting the public excludes the possibility of it being reduced to a period that ex hypothesi is not sufficient for that purpose by way of discretionary discount. . . .” To have discounted the SRO in Robertson would have flown in the face of that clear and strong statement of principle. The application of s.196 cannot, accordingly, be the explanation for the reduction in the length of the SRO in Robertson. [15] Secondly, there is a simple explanation for the reduction. Once the headline sentence had been discounted to 18 months, the s.209(7)(b) ‘ “cap”

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applied. Had the SRO remained at ten months, its length would have exceeded “the date by which the entire term of imprisonment specified in his sentence had elapsed”. Taking account of the relevant early release provisions (Prisoners and Criminal Proceedings (Scotland) Act 1993, s.1(1)), as the court was bound to do, meant that the SRO required to terminate after nine months. In short, the reduction is wholly explained by the terms of s.209(7)(b). [16] We, accordingly, have no difficulty in also rejecting this ground of appeal.

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A Application to European Court of Human Rights CHARLES BERNARD O’NEILL WILLIAM HUGH LAUCHLAN

28 June 2016

Applicants

against UNITED KINGDOM Applications nos. 41516/10 and 75702/13

Respondent

Human rights—Time bar—Exhaustion of domestic remedies— Application lodged before domestic remedies exhausted—Application not then rejected as inadmissible—Application before court two years after domestic remedies exhausted—Whether exceptional circumstances rendering application admissible—European Convention on Human Rights, art.35(1) C Article 35(1) of ECHR provides that the Court of Human Rights (ECtHR) can only deal with applications after all domestic remedies have been exhausted and within six months of the final decision by the domestic court. The applicants were convicted in June 2010, and their domestic remedies were exhausted in March and June 2014 respectively. The first applicant lodged his application to ECtHR in July 2010 while his appeal to the High Court was pending, and the second appellant lodged his application in November 2013. The two applications were conjoined and were dealt with in May 2016. The respondent objected to the admissibility of the first applicant’s application on the ground that on the relevant date, i.e. the date when it was lodged, he had not exhausted his domestic remedies or had any reason to believe that they would shortly be exhausted. Held that almost six years had passed since the first applicant lodged his application with the ECtHR and, more importantly, more than two years had passed since his domestic remedies were in fact exhausted on 27 March 2014, that, if the application been rejected for non-compliance with the rule on exhaustion of domestic remedies in the earlier stages of the present proceedings, the first applicant would have been able to submit a fresh application once his domestic remedies had been exhausted, that if the court were now to declare his application inadmissible on this basis, he would, through no fault of his own, be deprived of the possibility of lodging a fresh application since his complaints would have become time-barred on 27 September 2014 (that is, six months after the date of the final domestic decision), that applicants should not suffer a procedural injustice because of the manner in which the court had dealt with their application and that, given that the domestic remedies had indeed been exhausted in the meantime, the particular circumstances of the case justified treating it as an exception to the general rule that remedies are to be exhausted before bringing an application to the court or, at the very least, shortly thereafter (para.72); and objection dismissed.

Human rights—Delay—Period of nine years from charge to final disposal—Whether breach of right to hearing within reasonable time— Whether breach of that right rendered trial unfair—Whether accused entitled to damages—European Convention on Human Rights, art.6(1) Article 6(1) of ECHR provides that in the determination of a criminal charge against him everyone is entitled to a fair hearing within a reasonable time.

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The applicants were charged on petition in April 2005 with a murder committed between June 1997 and December 1998, but in December 2005 the Crown decided to take no further proceedings meantime. After further enquiry and the discovery of further evidence the applicants were indicted in 2008 for the murder and for a number of sexual offences. After some preliminary procedure, including an appeal to the Supreme Court, they were convicted in 2010 and appealed unsuccessfully, all as set out in the opinion of the court. The proceedings came to an end in 2014. The applicants applied to the ECtHR in 2010 and 2013 respectively on the ground that the respondent was in breach of art.6(1) by reason of the length of the proceedings and the consequent denial of their right to a fair trial, and sought satisfaction by way of pecuniary damages. Held (1) that, given the public policy issues at stake, prosecution for serious crimes such as murder, even some years after their commission, on the basis of progressively assembled or freshly discovered evidence is not in itself such as to raise an issue in relation to the state’s obligation under art.6(1) to ensure a criminal trial within a reasonable time, but that, depending on the circumstances, a significant lapse of time between the commission of a suspected offence and the laying of a “criminal charge” within the meaning of art.6(1) may be susceptible of bringing with it a need for heightened diligence in the conduct of the ensuing proceedings (para.87); (2) that what is determinative for the assessment under art.6(1) is whether or not the overall length of the proceedings, taken as a whole, can be regarded as excessive, and that, consequently, the court has on occasion found the overall length of proceedings to be excessive, even though the individual periods of time appeared normal when viewed separately (para.95); (3) that although there were no specific incidents of outright dilatoriness attributable to the Scottish prosecuting and judicial authorities, there were certain stages of the proceedings which were protracted (most notably, the passage of almost four years from the date the applicants lodged their notes of appeal against conviction and sentence and the date those appeals were finally determined), that although the applicants’ own actions greatly contributed to that delay, in view of the need for diligence triggered by the significant lapses of time both between the commission of the offence and the laying of charges, and between the laying of charges and the applicants’ conviction becoming final, the overall length of the proceedings (almost nine years in respect of the first applicant, and just over nine years and two months for the second applicant) was excessive and failed to meet the reasonable-time requirement (para.96); and that there had been a breach of art.6(1) (para.97); (4) that neither applicant had substantiated his claim that the delay had rendered his trial unfair, that this complaint was examined and rejected by the domestic courts which determined that the case against the applicants was a strong one and that any delay did not cause them material prejudice (para.99) and that the facts of the present case were consequently not capable of giving rise to an issue of unfairness, and the applicants’ complaints on that ground were manifestly ill-founded and fell to be rejected as inadmissible (para.100); and (5) that the breach of the applicants’ right to trial within a reasonable time was not owing to culpable dilatoriness on the part of the Scottish prosecuting or judicial authorities, but because, when viewed as a whole, the length of the criminal proceedings in question was excessive, that during this overall period found to be contrary to art.6(1), the applicants engaged in the exercise of multiple avenues of recourse aimed at preventing their trial in the first place and thereafter at having their conviction overturned, including pursuing ancillary proceedings before the Supreme Court, and that in the special circumstances of the present case, the finding of a violation of art.6(1) in itself constituted adequate just satisfaction for the purposes of art.41 of the Convention in respect of any possible non-pecuniary prejudice sustained by the applicants (para.106).

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Cases referred to in the judgment of the court:

Ambrose v Harris [2011] UKSC 43; 2011 S.C.C.R. 651; 2012 S.C. (U.K.S.C.) 53; 2011 S.L.T. 1005 Azinas v Cyprus [2004] ECHR 191; (2005) 40 E.H.R.R. 8 Baumann v France [2001] ECHR 340, (2002) 34 E.H.R.R. 44 Boddaert v Belgium [1992] ECHR 62; (1993) 16 E.H.R.R. 242 Cestaro v Italy [2015] ECHR 352 Deweer v Belgium [1980] ECHR 1; (1980) 2 E.H.R.R. 439 Dobbertin v France [1993] ECHR 6; (1993) 16 E.H.R.R. 558 Eckle v Germany [1982] ECHR 4; (1983) 5 E.H.R.R. 1 E K v Turkey (dec.), App no. 28496/95 (7 May 2002) Kalashnikov v Russia [2002] ECHR 596; (2003) 36 E.H.R.R. 34 Karoussiotis v Portugal, App no. 23205/08 (1 February 2011) Neumeister v Austria [1968] ECHR 1; (1968) 1 E.H.R.R. 91 Nicklinson and Lamb v United Kingdom (dec.) [2015] ECHR 709 Pélissier and Sassi v France [GC] [2010] ECHR 1427 Ringeisen v Austria [1971] ECHR 2; (1971) 1 E.H.R.R. 455 Ruotolo v Italy [1992] ECHR 32 Spiers v Ruddy [2007] UKPC D2; 2008 S.C.C.R. 1312; 2009 S.C. (P.C.) 1; 2008 S.L.T. 39 Vilho Eskelinen and Others v Finland [GC] [2007] ECHR 606 Yag˘ci and Sargin v Turkey [1995] ECHR 20; (1995) E.H.R.R. 505. Charles Bernard O’Neill and William Hugh Lauchlan were convicted on 10 June 2010 of murder and various sexual offences after trial in the High Court at Glasgow before Lord Pentland and a jury. They applied to ECtHR in 2010 and 2013 respectively on the grounds referred to in the opinion of the court. The applications were dealt with by the First Section of the court sitting as a Chamber composed of the following judges: Mirjana Lazarova Trajkovska, President, Ledi Bianku, Linos-Alexandre Sicilianos, Paul Mahoney, Aleš Pejchal, Robert Spano, and Pauline Koskel. For the first applicant: McClure Collins, Solicitors, Glasgow. For the second applicant: Fitzpatrick & Co, Solicitors, Glasgow. For the respondent: P McKell, Foreign and Commonwealth Office.

After deliberating in private on 3 and 24 May 2016, the court adopted the following judgment, which became final on 28 June 2016. PROCEDURE

1. The case originated in two applications (nos. 41516/10 and 75702/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under art.34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) by two British nationals, Mr Charles Bernard O’Neill and Mr William Hugh Lauchlan (the applicants), on 15 July 2010 and 28 November 2013 respectively. 2. The first applicant was born in 1962 and is currently detained in HMP Glenochil in Scotland. He was represented by McClure Collins Solicitors, a firm of solicitors practising in Glasgow. The second applicant was born in 1976 and is currently detained in HMP Edinburgh in Scotland. He was represented by Fitzpatrick & Co, a firm of solicitors practising in Glasgow. The UK Government (the government) were represented by their agent, Mr P McKell of the Foreign and Commonwealth Office.

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3. The applicants’ complaints concerning the length of their criminal proceedings were communicated to the government on 13 November 2012 and 17 December 2012 respectively. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The initial investigation

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4. On 16 February 1998 R M reported his ex-wife, A M, missing. 5. On 24 February 1998 police carried out an initial forensic investigation of an apartment which A M and her son had shared with the applicants in June 1997, the date she had last been seen. 6. An interim missing persons report was prepared by police and submitted to the procurator fiscal on 1 May 1998, with later reports following on 31 August 1998 and 8 September 1998. 7. On 30 June 1998 police obtained a search warrant in respect of the apartment A M had shared with the applicants. However, a full forensic examination of the property does not appear to have disclosed any relevant evidence. 8. On 18 August 1998 the applicants were sentenced to periods of imprisonment of eight years and six years respectively following their conviction for various sexual offences. The complainer in relation to some of those offences was A M’s son. Following conviction, both applicants were placed on the Sexual Offenders’ Register. 9. By September 1998 A M’s disappearance was being referred to by the procurator fiscal at Kilmarnock as “suspicious” and Crown counsel described the police enquiry into her disappearance as a “murder enquiry”. On 14 September 1998 the police sought authorisation for the release of the applicants from HMP Peterhead into their custody so that they could be interviewed with regard to the disappearance and suspected murder of A M. 10. On 17 September 1998, while serving their sentence at HMP Peterhead, the applicants were detained by the police under s.14 of the Criminal Procedure (Scotland) Act 1995 and removed to Queen Street Police Office in Aberdeen. On the same day the applicants were interviewed separately by police officers for over five hours. During these interviews they were directly accused of the murder of A M. Both applicants asked police officers if they were going to be charged with the murder, but received indications to the contrary. Following the interviews, neither applicant was arrested or charged with any offence owing to insufficient evidence. They were therefore returned to prison to continue serving their respective sentences. 11. By November 1998 no progress had been made in finding A M and the police enquiry was scaled down. A full missing person report was submitted to the National Missing Persons Bureau at New Scotland Yard (London). The case was continued as a live enquiry and periodic reviews were conducted by police. 12. The applicants were released from custody on licence on 22 May 2003 and 18 January 2002 respectively. They both travelled to Spain without notification, thereby breaching the terms of their parole licence in contravention of the Sex Offenders Act 1997. The Scottish Executive subsequently revoked their licences. 13. In April 2004 the applicants were arrested in Spain in connection with the apparent abduction of a 14-year-old boy. They were returned to the UK, where they were recalled to prison to serve the unexpired portion of their licence periods.

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14. On 10 November 2004 both applicants appeared on indictment in respect of offences contrary to the Sex Offenders Act 1997. They pled guilty and on 4 April 2005 they were sentenced to a further three years’ imprisonment, which was reduced on appeal to 18 months.

B. The charges

15. Between 1 and 4 April 2005 a decision was made by the procurator fiscal, following consultation with Crown counsel, to place both applicants on petition in relation to the murder of A M. The Crown’s position was that A M had threatened to report the applicants to the police after discovering that they were sexually abusing her son. The applicants’ had subsequently killed her and disposed of her body. 16. On 5 April 2005 the applicants were charged with the murder of A M and with concealing and disposing of her body in an attempt to pervert the course of justice. They appeared on petition at Kilmarnock Sheriff Court were they were committed for further examination and remanded in custody. 17. The police continued to pursue their investigation and enquiries. 18. On 6 June 2005 the Crown Office provisionally fixed a preliminary hearing date for 12 September 2005. That hearing date was set aside as the first applicant lodged a “devolution minute” . . . relating to a potential violation of the reasonable time guarantee contained within art.6(1) of the Convention. On 14 October 2005 the sheriff court held that the devolution minute had been raised prematurely as no indictment had been served. On 7 December 2005 the High Court dismissed the first applicant’s appeal against that decision and refused him leave to appeal to the Judicial Committee of the Privy Council. 19. Meanwhile, a proof of life report was produced on 18 November 2005 (supplemented on 5 January 2006), which concluded that A M had been dead since approximately June 1997. 20. In late 2005 Crown counsel had concerns regarding the sufficiency of evidence against the second applicant. Although the evidence against the first applicant was stronger, the understanding that the applicants had acted together would have made a trial against the first applicant only very difficult. Therefore, on 19 December 2005 the Crown decided to take “no proceedings meantime” . . . with regard to the 2005 petition. 21. Following reviews of the case in February and March 2006, Crown counsel instructed that no new additional material had come to light which would justify reconsideration of that decision. However, the decision would remain under periodic review. 22. Pursuant to s.65(1)(a) and (1A) of the Criminal Procedure (Scotland) Act 1995, a trial had to take place within 12 months of the accused’s first appearance on petition in respect of the offence, although this period could be extended either within the 12-month period or retrospectively . . . . The 12-month period for bringing proceedings expired on 4 April 2006 and the Lord Advocate did not seek an extension of time. On 26 April 2006 the applicants were informed that there would be “no proceedings meantime”. 23. By November 2006 both applicants had served the custodial element of their earlier criminal sentences and were released from prison. They both travelled to live in Spain for a period before returning to the UK in November 2007. 24. The police continued to conduct periodic reviews of the decision to take “no proceedings meantime” in respect of the 2005 petition. Furthermore, Central Scotland Police formed “Operation Aspen”, the objective of which

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was to look for evidence both of further sexual offending by the applicants, and of their involvement in the disappearance of A M. 25. As a result of Operation Aspen, new evidence came to light concerning the circumstances of A M’s disappearance and the applicants’ sexual offending. Consequently, on 9 September 2008 Crown counsel concluded that there had been a material change in the prospects of securing a conviction against both applicants on the murder charges contained in the earlier 2005 petition. C. The indictment

26. On 10 September 2008 the applicants were served with an indictment which contained the same charges as the 2005 petition. It also contained a number of additional charges relating to various sexual offences. 27. The second applicant lodged a devolution minute on 15 September 2008 in which he argued that certain missing evidence would have a prejudicial impact on the fairness of his trial. 28. The following day the first applicant lodged a devolution minute, arguing that he could not receive a fair trial within the meaning of art.6 owing to the significant delay which had occurred in his case. 29. On 10 October 2008 a preliminary hearing was held at the High Court in Glasgow where further preliminary notices and devolution minutes were served on behalf of both applicants. The Crown also made an application under s.65(3)(a) of the Criminal Procedure (Scotland) Act 1995 for a retrospective extension of the 12-month time limit contained within s.65(1) of that Act. . . . 30. Between 4 November 2008 and 20 February 2009 there were a number of preliminary hearings in respect of the Crown’s application for an extension. Following the hearing on 20 February 2009 the application was granted. The High Court found that the Crown had acted properly in investigating and reviewing the evidence between 1997 and 2008; that the expiry of the s.65 time limit had come about through a positive decision rather than through inadvertence; and that new evidence had since come to light so as to allow the Crown to proceed against both applicants. Although the applicants were granted permission to appeal, their appeal was refused on 5 June 2009. 31. At a preliminary hearing on 29 June 2009 the High Court allowed motions by the applicants to separate the murder charges from the sexual offences charges. The first applicant also argued that the murder charge against him should be dismissed for reason of delay. However, the court refused to dismiss the charge, finding, inter alia, that proceedings had begun on 5 April 2005; that the “reasonable time” permitted by art.6 had not been exceeded; that the fairness of the upcoming trial had not been jeopardised; and that there was no other compelling reason why it would be unfair to proceed to trial. 32. The first applicant appealed against the decision not to dismiss the charge against him. The Lord Advocate brought a cross-appeal against the decision to separate the charges. 33. Both appeals were dismissed on 26 November 2009. In dismissing the first applicant’s appeal, the appeal court accepted that the police had interrogated him “robustly” in 1998, but agreed with the High Court that he was not “charged” until 5 April 2005. The court considered that the Crown had acted without fault since that time, and, in the particular circumstances of the case, it could not be said that the matter would not be determined within a reasonable time. 34. The appeal court and the Supreme Court refused the first applicant leave to appeal on 26 November 2009 and 22 February 2010 respectively. 35. Further preliminary hearings took place between January 2010 and May 2010 in respect of various petitions and minutes lodged by the applicants.

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D. The applicants’ trials 1. Sexual offences

36. The applicants’ trial for the sexual offences took place between 19 April 2010 and 13 May 2010. On 12 May 2010 the applicants were convicted on numerous counts and sentenced to periods of imprisonment ranging from eight to ten years to run concurrently. Both applicants unsuccessfully sought to appeal against conviction and sentence. 2. Murder

37. The murder trial began at the High Court in Glasgow on 17 May 2010 with the Crown leading evidence from over 50 witnesses. 38. On 4 June 2010 the second applicant addressed the court on his devolution minute dated 15 September 2008 . . . . The High Court dismissed the minute as the arguments advanced by the second applicant related to unreasonable delay and not to missing evidence (which was the argument raised in the original minute). The second applicant did not appeal the decision. 39. On 10 June 2010 a jury convicted the applicants of murder and attempting to pervert the course of justice. They were sentenced to life imprisonment for murder, with a tariff of 30 years for the first applicant and 26 years for the second applicant. They were also sentenced to concurrent sentences of eight years’ imprisonment for attempting to pervert the course of justice.

E. The appeal against conviction and sentence

40. The applicants appealed against conviction and sentence. The first applicant lodged a note of appeal on 2 September 2010, containing numerous grounds and sub-grounds on a wide range of issues regarding all the charges. The sifting judges granted him leave to appeal against his sentence for murder, but not against his conviction. The second applicant lodged a note of appeal on 27 August 2010. On 3 February 2011 leave to appeal was refused by the judge at first sift. On 4 July 2011, following the second sift, leave to appeal against conviction was granted though restricted to two grounds relating to alleged errors by the trial judge. The second applicant was also granted leave to appeal against sentence. 41. The applicants subsequently applied under s.107(8) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) for leave to reinstate grounds which the sifting judges had found to be unarguable, including those relating to the length of proceedings. 42. An oral hearing took place on 8 November 2011. On 8 February 2012 the appeal court granted the first applicant leave to appeal against his conviction on one ground only, which alleged an error by the trial judge. The second applicant was refused leave to appeal on the grounds raised. 43. The applicants sought leave to appeal to the Supreme Court against the appeal court’s refusal to grant leave to appeal on the additional grounds. 44. On 19 April 2012 the appeal court granted both applicants leave to appeal on the issue of undue delay. The court also granted the first applicant permission to appeal against his conviction on another ground alleging apparent bias on the part of the trial judge. 45. A hearing took place on 29 and 30 April 2013 before the Supreme Court, which gave judgment on 13 June 2013. The main issue before the Supreme Court was whether the applicants could be said to have been “charged” on 17 September 1998 or whether the appropriate “starting point” for the purposes of art.6(1) was 5 April 2005. The court assessed the evidence

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in light of the relevant case law of the domestic courts and of this Court. In doing so, it distinguished the applicants’ case from that of Ambrose v Harris, in which the Supreme Court accepted that an appellant, who was complaining that there had been a breach of his right to legal advice under art.6(1), had been “charged” following his caution by police in connection with the alleged offence. The Supreme Court observed that as the “fair trial” guarantee under art.6 was distinct from the “reasonable-time” guarantee it had to be approached separately. Therefore, the fact that the applicants had been subjected to questioning on 17 September 1998 that might have affected their right to a fair trial did not mean that this was the relevant “starting point” for determining whether proceedings had been conducted within a “reasonable time”. The court concluded that the correct “starting point” in the applicants’ proceedings was 5 April 2005 and the case was remitted to the appeal court. 46.The appeal court dismissed the first applicant’s appeal against conviction and sentence on 27 March 2014, and the second applicant’s appeal on 19 June 2014. II. RELEVANT DOMESTIC LAW AND PRACTICE

[The court summarised the domestic law and continued:] ... THE LAW I. JOINDER OF THE APPLICATIONS

63. The two applications in the present case (nos. 75702/13 and 41516/10) raise the same issues. The Court therefore considers that they should be joined pursuant to r.42(1) of the Rules of Court. D II. ALLEGED VIOLATION OF THE “REASONABLE-TIME” REQUIREMENT UNDER ART.6(1) OF THE CONVENTION

64. The applicants submitted that the length of the criminal proceedings was incompatible with the reasonable-time requirement, laid down in art.6(1) of the Convention, which reads as follows: “In the determination of . . . any criminal charge against him everyone is entitled to a . . . hearing within a reasonable time by a . . . tribunal . . .” E

65. The government contested that claim. A. Admissibility 1. Non-exhaustion

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66. The government contended that the first applicant had failed to exhaust domestic remedies since, at the time of lodging his application with the Court (15 July 2010), his application for permission to appeal against conviction and sentence was pending. Furthermore, on the date his application was communicated to the government (13 November 2012), interlocutory proceedings concerning, inter alia, the issue of undue delay were pending before the Supreme Court. 67. The first applicant argued that the combined effect of the Supreme Court judgment in Spiers v Ruddy . . . and ss.34–38 of the Scotland Act 2012 . . . meant that by the time his appeal was considered by the Supreme Court, there was no longer any effective domestic remedy available to him. 68. The rule of exhaustion of domestic remedies in art.35(1) reflects the fundamentally subsidiary role of the Convention mechanism. It normally requires that the complaints intended to be made at international level should

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have been aired before the appropriate domestic courts, at least in substance, in compliance with the formal requirements and time limits laid down in domestic law (see, among many other authorities, Azinas v Cyprus and Nicklinson and Lamb v United Kingdom). 69. The object of the rule is therefore to allow the national authorities to address the allegation of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised, the national legal order has been denied the opportunity which the rule on exhaustion of domestic remedies is intended to give it to address the Convention issue. 70. The requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court (Baumann v France (extracts)), subject to exceptions which may be justified by the particular circumstances of the case, notably following the creation of new remedies. Nevertheless, the Court has accepted that applicants have exhausted domestic remedies where the last stage of such remedies was reached shortly after the lodging of the application but before it determined the issue of admissibility (Ringeisen v Austria, para.91; E K v Turkey (dec.); Karoussiotis v Portugal, paras 57, 87–92; and Cestaro v Italy, para.146). 71. The present case is not one where domestic remedies were exhausted “shortly after” the submission of the application with this Court. On the contrary, almost four years lapsed from the date of submission of the first applicant’s application (15 July 2010 . . .) to the date domestic remedies were finally exhausted in respect of his complaints (27 March 2014 . . .). Moreover, it cannot be said that at the date of lodging his application the first applicant had reason to believe that domestic remedies would shortly be exhausted. On the contrary, he lodged his application to this Court only one month after he was convicted of murder (10 June 2010 . . .), and nearly two months before he filed his note of appeal against conviction and sentence (2 September 2010 . . .). 72. However, almost six years have now passed since the first applicant lodged his application with the Court and, more importantly, more than two years have passed since the domestic remedies were in fact exhausted on 27 March 2014. Had the application been rejected for non-compliance with the rule on exhaustion of domestic remedies in the earlier stages of the present proceedings, the first applicant would have been able to submit a fresh application once domestic remedies had been exhausted. If the Court were now to declare his application inadmissible on this basis, he would, through no fault of his own, be deprived of the possibility of lodging a fresh application since his complaints would have become time-barred on 27 September 2014 (that is, six months after the date of the final domestic decision). The Court considers that applicants should not suffer a procedural injustice because of the manner in which it has dealt with their application. Therefore, given that the domestic remedies have indeed been exhausted in the meantime, it finds that the particular circumstances of this case justify treating it as an exception to the general rule that remedies are to be exhausted before bringing an application to this Court or, at the very least, shortly thereafter. 73. Consequently, the Court would dismiss the government’s objection under art.35(1) of the Convention.

2. Manifestly ill-founded

74. The government submitted that the applicants’ complaint should be declared inadmissible under art.5(3) on the ground that it is manifestly

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unfounded. They contended that regardless of when the time started to run for the purposes of art.6(1), there had been no delay. 75. However, the Court is satisfied that this complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of art.35(3)(a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions

76. The applicants submitted that the length of the criminal proceedings had been in breach of the “reasonable-time” guarantee under art.6(1) of the Convention. 77. The first applicant asserted that the proceedings had not been unduly complex and had not involved any difficult forensic or scientific work; that he had been under no obligation to assist the police in their investigation; and that he had raised the issue of delay in 2005, thereby putting the Crown on notice to properly arrange its affairs, which it effectively failed to do. 78. The second applicant argued that regardless of any complexity that might be identified, the proceedings in his case lasted for an excessive and unacceptable period. He also asserted that responsibility for the delay in prosecuting the case lay wholly with the state and that no period of delay could be attributed to him. 79. The government submitted that the applicants’ complaint should be dismissed on the substantive merits for the following reasons. 80. The applicants stood charged with the murder of A M. Both failed to accept their guilt or to assist the authorities with any investigation. Indeed the case against them had presented police with a challenging and complex enquiry, which was continually reviewed and saw numerous lines of enquiry pursued, leading to a gradual but significant development of the evidential landscape against the applicants. Furthermore, the main witness, the son of the deceased, suffered from profound psychological issues arising from sexual abuse suffered at the hands of the applicants, and it took some time for him to fully cooperate with the authorities in their investigation. It took the police from 1998 to 2005 to resolve the difficulties that these, and other, issues may have presented in any prosecution and to arrive at a point where they felt there was sufficient evidence in order to proceed against the applicants. After the applicants were charged with the murder of A M in 2005, it was a process of careful, reasoned analysis that resulted in the decision being taken not to prosecute at that time. However, further surveillance work undertaken by the police in 2007 and 2008 resolved the problems that had stood in the way of any prosecution in 2005. As soon as a decision was made to prosecute, an indictment was served, the Crown sought a retrospective extension of time within which to prosecute the applicants, and the case thereafter proceeded without delay. 81. The government emphasised that both applicants were serial sexual offenders who had been sentenced to a number of periods of imprisonment between 1998 and 2010. In the circumstances, given the background to the murder of A M, the procedural history of the case, and the applicants’ criminal records, the government contended that should this Court find there to have been an unreasonable delay, the applicants were not significantly prejudiced by it.

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2. The Court’s assessment (a) The period to be taken into consideration

82. The period to be taken into consideration under art.6(1) of the Convention must be determined autonomously. In criminal matters, the “reasonable time” referred to in art.6(1) begins to run as soon as a person is “charged” and covers the whole of the proceedings in question, including appeal proceedings (see Neumeister v Austria, para.18). “Charge”, for the purposes of art.6(1), may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the (suspect) has been substantially affected” (see, among other authorities, Deweer v Belgium, paras 42, 46; and Eckle v Germany, para.73). 83. In the present case it is common ground that the criminal proceedings brought against the two applicants ended with the final appeal decision, which was on 27 March 2014 for the first applicant and on 19 June 2014 for the second applicant . . . . There is, however, a dispute among the parties as to the starting date for calculating the length of those proceedings. 84. The government, relying on the reasons given by the Supreme Court in its judgment of 13 June 2013 . . ., contended that the starting-point for calculating the length of proceedings should be 5 April 2005, when the applicants appeared on petition at the sheriff court . . . . However, both applicants asserted that the correct starting-point was in fact 17 September 1998, that being the date when they were interviewed and accused by police officers of having murdered A M . . ., so that the impugned criminal proceedings against them should be taken to have lasted well over 15 years. 85. The Court, for its part, does not consider it necessary to resolve the disputed issue as to the starting-date in the present case. First, even assuming, as the government plead, that the period to be assessed is taken to have commenced on 5 April 2005, the Court is satisfied, as explained below, that the resulting overall length of the criminal proceedings cannot be regarded as compatible with the requirement of a “trial within a reasonable time” under art.6(1) of the Convention. Secondly, a finding that the proceedings began on the earlier date proposed by the applicants would not have materially affected the Court’s overall conclusion, since the lapse of time between September 1998 and April 2005 was not the result of a lack of diligence on the part of the authorities. Consequently, the following reasoning of the Court in its examination of the applicants’ complaint under this head proceeds on the assumed basis that the period to be taken into consideration began on 5 April 2005. On this basis, the proceedings lasted almost nine years for the first applicant and just over nine years and two months for the second applicant.

(b) The reasonableness of the length of proceedings

86. The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case which call for an overall assessment (Boddaert v Belgium, para.36) and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v France [GC], para.67). On the latter point, what was at stake for the applicant has also to be taken into account (see, among many authorities, Vilho Eskelinen and Others v Finland [GC], para.67). 87. Generally speaking, it sits in conflict with the principles underlying a justice system governed by the rule of law that persons suspected of criminal offences should be kept in a prolonged state of uncertainty, with the threat of

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prosecution hanging over them for an unjustifiably protracted period before they are eventually charged and brought to trial. None the less, given the public-policy issues at stake, prosecution for serious crimes such as murder, even some years after their commission, on the basis of progressively assembled or freshly discovered evidence is not in itself such as to raise an issue in relation to the state’s obligation under art.6(1) to ensure a criminal trial within a reasonable time. That said, depending on the circumstances, a significant lapse of time between the commission of a suspected offence and the laying of a “criminal charge” within the meaning of art.6(1) may be susceptible of bringing with it a need for heightened diligence in the conduct of the ensuing proceedings. 88. In the present case, the applicants were prosecuted for serious criminal offences of murder and perverting the course of justice, attracting a weighty sentence of imprisonment if convicted. Although they were not remanded in custody at any point during the relevant proceedings (compare, for example, the situation of the applicant in Kalashnikov v Russia, para.132), the Court accepts that what was at stake was significant. 89. With regard to the length of the proceedings, the Court notes that the disappearance of A M was reported to the police by her ex-husband in February 1998, although the disappearance itself probably dated back to June 1997 . . . . Yet, on the working assumption being operated by the Court in the present case . . ., the “charges”, within the autonomous meaning of art.6(1) of the Convention, were not laid against the applicants until April 2005 . . . . Thereafter, the proceedings lasted until 27 March 2014 for the first applicant and until 19 June 2014 for the second applicant . . . . This duration—of some nine years—is long for criminal proceedings, particularly given the lapse of almost eight years between the commission of the suspected offence and the bringing of the “charges”. Such a long duration calls for convincing justification by the respondent state. . . . 90. The Court must therefore give careful scrutiny to the question whether the competent domestic authorities exercised the necessary diligence when conducting the relevant criminal proceedings against the applicants. Consequently, it will examine the chronology of events throughout all phases of the criminal proceedings against the applicants in order to determine whether they received a “hearing . . . within a reasonable time” in the determination of the criminal charges against them, as guaranteed by art.6(1) of the Convention. Four distinct phases may be identified: notably pre-indictment (April 2005– September 2008); indictment to trial (September 2008–May 2010); trial (May–June 2010); and post-trial (June 2010–June 2014). 91. With regard to the pre-indictment period from April 2005 till September 2008, which in itself is of such an unusual length as to call for explanation, a number of mitigating factors may be accepted as being present. To begin with, the case against the applicants was of undoubted complexity, not least owing to the number of people involved in the proceedings. It is to be noted that at the applicant’s trial the prosecution led evidence from over 50 witnesses . . . . Furthermore, there were specific difficulties faced by the prosecution, including the disappearance of the supposed murder victim; the fact that her body was never recovered; the lack of forensic evidence linking the applicants to the crime; and the psychological problems suffered by the main witness, who was the son of the supposed victim and who had been sexually abused by the applicants . . ., which inevitably impacted on his ability to cooperate with the prosecution. During the three and a half years from April 2005 to September 2008, the police were conducting a difficult exercise of building up an evidential case against the applicants and periodically reviewing the

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evidence. The delay of the prosecuting authorities in going ahead was not because of negligence but because of a careful and reasoned analysis that resulted in a decision not to prosecute until there was a sufficiency of evidence against both of the applicants, who were suspected of having acted together . . . . Evidence obtained under the police Operation Aspen . . . led to the Crown concluding on 9 September 2008 that there had been a material change as to the prospects of securing both applicants’ conviction . . . . Indictment of the applicants followed swiftly on 10 September 2008. 92. In respect of the period between indictment and trial, which lasted some 20 months, the applicants lodged a number of motions designed to prevent their murder trial from taking place . . . . The Court reiterates that art.6 does not require suspects and defendants to cooperate actively with the judicial authorities. Nor can they be blamed for making full use of the multiple remedies available to them under domestic law (see, among other authorities, Yag˘ci and Sargin v Turkey, para.66). An applicant’s conduct does, however, constitute an objective fact which cannot be attributed to the respondent state and which must be taken into account in determining whether or not the length of the proceedings exceeds what is reasonable (Eckle v Germany, para.82). In this respect, the many successive motions and appeals lodged by the applicants carried with them an inevitable delaying effect. On the other side of the equation, there was no identified undue delay on the part of the Scottish prosecuting or judicial authorities during this second period. 93. The third stage, namely the applicants’ trial, which took place between May and June 2010 . . ., was not in itself over-long and discloses no unwarranted delay. 94. The fourth, post-trial, period, which lasted from June 2010 until June 2014, comprised not only the applicants’ appeals against conviction and sentence, but also ancillary appeals including a direct art.6 reasonable-time point argued before the appeal court and then the Supreme Court . . . . As in the second phase of proceedings, these ancillary appeals had an unavoidable delaying effect. None the less, this period of four years, which accounts for just under half of the total length of proceedings, does appear to be long for an appeal against conviction and sentence. 95. What is determinative for the assessment under art.6(1) is whether or not the overall length of the proceedings, taken as a whole, can be regarded as excessive (see Dobbertin v France). Consequently, the Court has on occasion found the overall length of proceedings to be excessive, even though the individual periods of time appeared normal when viewed separately (see, for example, Ruotolo v Italy, para.17). 96. In the present case, having fully considered the material before it, the Court considers that, although there are no specific incidents of outright dilatoriness attributable to the Scottish prosecuting and judicial authorities, there were certain stages of the proceedings which were protracted (most notably, the passage of almost four years from the date the applicants lodged their notes of appeal against conviction and sentence and the date those appeals were finally determined). Although the Court has accepted that the applicants’ own actions greatly contributed to that delay, in view of the need for diligence triggered by the significant lapses of time both between the commission of the offence and the laying of charges, and between the laying of charges and the applicants’ conviction becoming final, the Court considers that the overall length of the proceedings (almost nine years in respect of the first applicant, and just over nine years and two months for the second applicant . . . was excessive and failed to meet the reasonable-time requirement.

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97. There has accordingly been a breach of art.6(1). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

98. The applicants further complained under art.6(1) of the Convention about the alleged unfairness of their trial following such a prolonged delay. 99. Neither applicant has substantiated this claim. Furthermore, this complaint was examined and rejected by the domestic courts which determined that the case against the applicants was a strong one and that any delay did not cause them material prejudice. . . . 100. Consequently, the Court does not consider that the facts of the present case are capable of giving rise to an issue of unfairness under art.6(1). The applicants’ complaints are therefore manifestly ill-founded and fall to be rejected as inadmissible under art.35(3) and (4) of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

101. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damages

102. The first applicant claimed 333,900 pounds sterling (GBP) in respect of pecuniary damage and 10,000 GBP in respect of non-pecuniary damage. 103. The second applicant claimed 10,000 GBP in respect of non-pecuniary damage. 104. The government contested the applicants’ claims for damage, finding them to be excessive and having no causal link between the damage claimed and the violation alleged. It submitted that, in the event that the Court found there to have been a violation of art.6(1), such a finding would, in itself, constitute sufficient just satisfaction. In the alternative, only a modest award should be made. 105. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the first applicant’s claim. 106. The violation that the Court has found of the applicants’ right to trial within a reasonable time was not owing to culpable dilatoriness on the part of the Scottish prosecuting or judicial authorities, but because, when viewed as a whole, the length of the criminal proceedings in question was excessive. During this overall period found to be contrary to art.6(1), the applicants engaged in the exercise of multiple avenues of recourse aimed at preventing their trial in the first place and thereafter at having their conviction overturned, which remedies included pursuing ancillary proceedings before the Supreme Court. In the special circumstances of the present case, the Court considers that the finding of a violation of art.6(1) in itself constitutes adequate just satisfaction for the purposes of art.41 of the Convention in respect of any possible non-pecuniary prejudice sustained by the applicants. B. Costs and expenses

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107. The applicants also claimed GBP 3,694 and GBP 10,000 respectively for the costs and expenses incurred before the Court. 108. The government contested the applicants’ claims finding them to be excessive and there to be no basis for awarding legal expenses.

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109. According to the Courtâ&#x20AC;&#x2122;s case law, an applicant is entitled to the reimbursement of costs and expenses only insofar as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Rule 60 of the Rules of Court further requires that an applicant submit itemised particulars of all claims, together with any relevant supporting documents. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,500 to the first applicant for costs and expenses in the proceedings before the Court. In respect of the second applicant, the Court notes that he has claimed GBP 10,000 but has failed to itemise this figure as required by r.60 (2) of the Rules of Court. The Court therefore rejects his claim for reimbursement of his costs and expenses.

C. Default interest

110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. C COMMENTARY This is the last stage of a long saga, the earlier proceedings in which can be found at [2009] HCJAC 90; 2010 S.C.C.R 357; [2014] HCAC 22; 2015 J.C. 11; and [2014] HCJAC 62; 2015 J.C. 75; 2014 S.L.T. 813. The instant case is in line with earlier Scottish authorities. It points out that a long gap between the commission of the crime and the charging of the accused may call for convincing justification, and for heightened diligence in the subsequent criminal proceedings, In cases of long duration the court will give careful scrutiny to the question whether the necessary diligence has been exercised throughout the whole proceedings including the appeal proceedings. On the other hand, the existence of long periods of delay during the proceedings may not result in a finding that there has been a beach of art.6(1) if the length of the proceedings as a whole is not unreasonable. The case also illustrates the distinction between the right to a trial within a reasonable time and the right to a fair trial. The first may be sustained in the absence of any need to show culpable dilatoriness on the part of the domestic authorities, but the conduct of the accusedâ&#x20AC;&#x2122;s case will be relevant to whether he has any right to damages for unreasonable delay.

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A High Court Trial

10 May 2016

HER MAJESTY’S ADVOCATE

Prosecutor

against NATHANIEL DAVID COOPER B

Accused

[2016] HCJ 47 Road traffic—Causing death by dangerous driving—Car owner sitting in driving seat with passenger sitting on his lap—Whether owner driving—Road Traffic Act 1988 (c.52), s.1 Words—”Driving”—Road Traffic Act 1988 (c.52), s.1

Section 1 of the Road Traffic 1988 provides that a person who causes the death of another by driving a vehicle is guilty of an offence. The accused and another person, J, were charged with causing death by dangerous driving by driving a motor vehicle, in that the accused, while sitting in the driver’s seat, did move the seat back and away from the steering wheel and foot pedals and (J) without holding a driving licence did move over from the front passenger seat and sit in front of and on the lap of the accused and they did “both did drive said motor vehicle . . . fail to keep proper control of it, cause it to accelerate, lose control of [it] whereby [it] was caused to . . . . collide with [the deceased]”. J, who was sitting on the accused’s lap at his suggestion, pled guilty at a preliminary hearing. She gave evidence that she had sat on the accused’s lap at his suggestion, that she had panicked when the car nearly hit a toilet block at the gate of a caravan park and, instead of turning right into the park, it headed towards a static caravan, then did a 180 degree turn, went back towards the deceased’s caravan and crashed into it, killing the deceased as he was stepping outside it. According to J, she and the accused had got their feet mixed up fighting for the brake. She also gave evidence that the accused had helped her to turn off the access road into the park and that he grabbed the wheel when she nearly hit the toilet block. There was evidence that immediately before the accident the car had accelerated and had hit the caravan at about 20 mph. The accused told the police that he was trying to get to the pedals but could not feel them, and “couldn’t move with her sat on me”. The trial judge directed the jury: (1) (i) that a vehicle can have more than one driver at the same time; (ii) that driving involved an intention to control the movement, direction and speed of the vehicle; (iii) that whether someone is driving is a question of fact and degree, and that in cases where a vehicle goes out of control it was open to think that the question is not so much about who has operated the controls as who has failed to operate them, and that if a person in the driver’s seat with the intention of having or taking control of the vehicle puts it beyond his or her power to actually control it that does not necessarily prevent him or her from being classed as a driver (para.8); (2) (i) that they could take a precise view of the meaning of “driving”, as contended for by the defence, in which case they would have to consider what evidence was available to support the contention that the accused operated the controls of the vehicle, and that if they took 352

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the view urged by the defence that there was no acceptable evidence that the accused was to a substantial extent in control of the movement, direction or speed of the vehicle they would be bound to acquit; but (ii) that they could accept the Crown view, which, it seemed, was that the accused continued to be the default driver throughout, allowing some freedom to J under his directions but always ready, he thought, to take over if need be and certainly with the intention that that was how the arrangement would work; and (iii) that, though it was a thin case in this aspect, if they accepted J’s evidence about who was steering it would be open to them to accept the marks on the ground as spoken to by the police as corroborative of it (para.9). The accused was convicted under deletion of the words ‘did move the seat back from the steering wheel and foot pedals’.

Cases referred to in the judge’s note: Ames v MacLeod, 1969 J.C. 1 Blayney v Knight [1975] R.T.R. 279 Burgoyne v Phillips [1983] R.T.R. 49 Jones v Pratt [1983] R.T.R. 54 Langman v Valentine [1952] 2 All E.R. 803 McArthur v Valentine, 1989 S.C.C.R. 704; 1990 J.C. 146; 1990 S.L.T. 732 R v MacDonagh [1974] Q.B. 448; [1974] 2 W.L.R. 529; [1974] 2 All E.R. 257; (1974) 59 Cr. App. R. 55; [1974] R.T.R. 372 R (Traves) v Director of Public Prosecutions [2005] EWHC 1482 (Admin) Tyler v Whatmore [1976] R.T.R. 83 Nathaniel David Cooper was charged on indictment in the terms set out in the judge’s note and was convicted as set out there on 13 April 2015 after trial in the High Court at Aberdeen before Lord Stewart and a jury. For the Crown: A Brown, QC, AD. For the accused: Moggach, instructed by Lindsay & Kirk, Solicitors, Aberdeen.

On 10 May 2016 Lord Stewart issued the following note. LORD STEWART [1] Nathaniel David Cooper and Kylie Elizabeth Johnston were charged with causing death by dangerous driving contrary to s.1 of the Road Traffic Act 1988. The charge alleged that on 21 July 2013 on a road or other public place including the access road to the East Balthangie caravan park and at East Balthangie caravan park, Cumineston, Turriff, Aberdeenshire: “[Y]ou Nathaniel David Cooper and Kylie Elizabeth Johnston did cause the death of Andrew Harry Mackay . . . by driving a mechanically propelled vehicle . . . dangerously . . . and at the said . . . East Balthangie access road you Nathaniel David Cooper while sitting in the driver’s seat, did move the seat back and away from the steering wheel and foot pedals and you Kylie Elizabeth Johnston without holding a licence authorising you to drive . . . did move over from the front passenger seat and sit in front of and on the lap of you Nathaniel David Cooper and you did both drive said motor vehicle along the said access road and into the said East Balthangie caravan park, fail to keep proper control of said motor vehicle, cause said motor vehicle to accelerate, lose control of said motor vehicle whereby said motor vehicle was caused to leave the pathway, cross an area of grass, drive through a fence and collide with said Andrew Harry Mackay and a caravan in front of which he was then standing whereby the said fence, motor vehicle and

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caravan were all damaged and said Andrew Harry Mackay was so severely injured that he died: contrary to the Road Traffic Act 1988, section 1.” Ms Johnston pled guilty at a preliminary hearing and was cited as a prosecution witness against Mr Cooper. Mr Cooper’s trial took place in the High Court at Aberdeen over five days Tuesday, 7 to Friday, 10 April and Monday, 13 April 2015. Mr Cooper did not give evidence but he gave a full account at his police interview and the audio-video recording of the interview was put in evidence. The jury returned a majority verdict of guilty under deletion of the words “did move the seat back and away from the steering wheel and foot pedals”. [2] As the case was presented to the jury by counsel the issue was whether Mr Cooper was “driving” the vehicle, a Daihatsu Terios 4 × 4 manual gear change, within the meaning of s.1 of the 1988 Act. Much of the evidence was agreed or was uncontested. A factual point of controversy was whether Mr Cooper operated the vehicle’s controls, in particular the steering wheel, the brakes and the accelerator, to any extent at the material time. [3] The couple were in an on-off relationship. They had taken their child E, two years old, and Mr Cooper’s son F, four years old, for a weekend camping at East Balthangie. After a day out in the car they had returned to the caravan park and then decided to go out again to the nearest petrol station to buy cigarettes and sweets. On the way back from the petrol station Mr Cooper gave Ms Johnston control of the steering wheel while she was sitting in the front passenger seat and he worked the pedals from the driver’s seat. He was at the ready to correct her steering and when other vehicles approached he took over the steering again. When they turned into the access road to the caravan site he stopped the car and asked her whether she wanted to “have a go” sitting on his lap in the driver’s seat. The engine was still running with the handbrake on and the gears in neutral. Ms Johnston sat on Mr Cooper’s lap. She stalled a couple of times when trying to move off. The first time Mr Cooper restarted the engine. She then succeeded in moving off under Mr Cooper’s directions, letting off the handbrake and using the clutch and accelerator. [4] The car belonged to Mr Cooper. He had a driving licence and was insured to drive the car. Ms Johnston did not have a driving licence and was not insured to drive the car. She had never driven Mr Cooper’s car before. Mr Cooper told the police that he understood Ms Johnston to have driven her brother’s car “down some roads or something”: he did not know when or where. Ms Johnston denied this. Mr Cooper told the police afterwards that what he had done was not “appropriate”: “She’s not enough experience or nothing, no experience at all. I thought she’d maybe had with saying she had with her brother but obviously with what’s happened she hadn’t. Stupid daft mistake.” Mr Cooper explained to the police why he asked Ms Johnston to sit on his lap: “I said with it being a private road you’ll be alright down here and I said to her just keep it in first gear so she said okay so she jumped on me cause then I thought maybe that was safer. I can reach the pedals if I needed to . . . I said well if you can go down the road, but only in first gear and take it steady and listen to what I’m telling you and I’d like to be sat here just in case obviously I can try and stop it but I couldn’t when it happened.” On Mr Cooper’s own account to the police his vision was compromised with Ms Johnston sitting on his lap. The car travelled between 250 and 500 metres on the access road before reaching the entrance to the caravan park. The car stayed in first gear all the way and probably did not travel at more than about 10 mph.

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[5] The route into the caravan park takes a 90-degree left turn off the access road, passes between a shed on the left and the end of the toilet block on the right; after passing the end of the toilet block the route takes a 90-degree right turn round the end of the toilet block and proceeds straight ahead over a gravelled area onto the grass where the travelling caravan stances and tent pitches are located to the right-hand side. Things began to go wrong at the end of the toilet block. The driver’s side of the car passed close to the toilet block. Ms Johnston, on her own account, “panicked”. Instead of turning immediately right into the park, the car headed towards a static caravan on the grass opposite the toilet block and then arced right through 180 degrees on a course that took it back across the gravelled area and onto the grass park towards the static caravan belonging to Mr Mackay. The car crashed through the wooden fence in front of Mr Mackay’s caravan, ran Mr Mackay down as he stepped out of his caravan to get some fresh air and crashed into his caravan. Mr Mackay had been cutting up onions as he prepared to cook the evening meal for himself and his partner. He had gone outside because his eyes were stinging and tearful. [6] The jury heard from the police accident investigator that the speed at impact was about 20 mph. The investigator found signs of acceleration in the marks on the gravel and the grass and in the striation around the circumference of the tyres. Mr Cooper told the police that the engine had revved up. He speculated or purported to speculate that Ms Johnston had depressed the accelerator instead of the brake or had got her foot stuck between the accelerator and the brake. According to Ms Johnston she and Mr Cooper got their feet mixed up fighting for the brake. Mr Cooper told the police: “I was trying to get through to the pedals but I couldn’t feel the pedals or anything . . . I was like trying to get through and get in but obviously I had my seat too far back so she could sit and I couldn’t really move with her sat on me and I couldn’t get to the pedals.” Ms Johnston’s evidence was that Mr Cooper grabbed the steering wheel and that she let go as the car passed the corner of the toilet block; and that Mr Cooper had turned the car to the right. The police accident investigator told defence counsel that the marks on the gravel did not evidence a sudden movement to the right. [7] Counsel agreed that the case was unique so far as their researches went—the advocate depute is the editor of the current edition of Wheatley’s Road Traffic Law in Scotland. Counsel referred me to a number of authorities on the meaning of “driving”. Two of the reported cases discuss two persons sharing control of vehicles with one on them leaning over from the front passenger seat: but none of the cases features two people in the driver’s seat, one sitting on the other’s lap; and none of the cases involves a co-driver who does not actually operate any of the controls. In his speech to the jury the advocate depute submitted that a vehicle can be driven by two persons at the same time. It is possible, he said, to be guilty of dangerous driving by doing nothing—imagine a driver falling asleep; or a driver driving on a motorway and climbing into the back seat leaving the car to steer itself. Mr Moggach for the defence told the jury that the test of whether someone is driving is whether that person is “in a substantial sense controlling the movement and direction of the vehicle”. He submitted that the only evidence that Mr Cooper was controlling the vehicle came from Ms Johnston: the evidence was uncorroborated; and that, anyway, Ms Johnston’s evidence should be rejected because it was incredible and unreliable.

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[8] For my directions I drew on the cases cited by counsel and some other cases noted in the textbook passages to which counsel referred me (Wilkinson’s Road Traffic Offences (26th edn, London, 2013), paras.1.89–1.109; A Brown ed., Wheatley’s Road Traffic Law in Scotland (5th edn, Hayward’s Heath, 2014), pp.15–17, 32–53, 72–75). For the purposes of this note I have inserted the references into the following extracts from my directions to the jury: “Even if you find the driving to be dangerous you cannot convict unless you are satisfied beyond reasonable doubt by corroborated evidence that the accused was actually party to the dangerous driving in the sense that he contributed substantially to it at the material time. “As Mr Moggach (defence counsel) correctly submits this is not a case of ‘causing or permitting’ an unqualified driver to take control. There are statutory offences of that sort but that is not what is alleged here. “Nor is it a case of ‘being in charge’ of a motor vehicle while something unlawful is happening. There are statutory offences of that sort but that is not what it is alleged here. “Nor is it a case of culpable homicide or other criminally reckless conduct at common law. There are crimes of that sort but that is not what is alleged here. “Still less, as Mr Moggach correctly tells you, is it anything to do with common law negligence which might found a claim for compensation. If there is a claim for compensation, that claim will be decided elsewhere with different and less stringent rules of evidence. “The Crown has alleged dangerous driving by the accused contrary to s.1 of the 1988 Act and that is what the Crown has to prove before there can be a conviction. The Crown is not seeking an alternative verdict of any kind. “Ladies and gentlemen ‘driving’, as you might expect, is normally said to mean controlling the movement, the speed and the direction of the vehicle. In a standard manual gear change motor car such as you are dealing with here that would normally involve being in the driving seat and actually working the controls, namely the ignition switch, the gear lever, the hand brake, the accelerator, the footbrake, the clutch and the steering wheel or at least some of them. I emphasise ‘normally’. “The ways in which the movement, speed and direction of a vehicle can be controlled are said to be infinite (R v McDonagh). Driving has been held to include, for certain purposes, sitting in the driving seat of a towed vehicle using just the steering wheel and the brakes (R v McDonagh; R (Traves) v Director of Public Prosecutions). Depending on circumstances, driving can include coasting in a vehicle without power for a short distance even though the engine is off and the steering locked (McArthur v Valentine). It has included pushing a vehicle which has run out of fuel while standing outside the vehicle and leaning in with one hand on the steering wheel (Ames v MacLeod). “The case law establishes, as the advocate depute has correctly told you, that a vehicle can have more than one driver at the same time (Langman v Valentine; Tyler v Whatmore). The reported cases are about the front-seat passenger leaning over and working the steering wheel while the person in the driving seat works the pedals. “Driving involves the intention to control the movement, direction and speed of the vehicle. If someone intends to drive they may be a driver even though they have got the wrong keys and the most they can do is to release the hand brake and let the car coast (Burgoyne v Phillips). Grabbing the steering wheel from the passenger seat in an unintentional reflex action has been decided not to constitute driving because there is no intention to drive (Jones v Pratt). Equally, operating the controls by accident is not driving because there is no intention to drive (Blayney v Knight).

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“Whether or not someone is driving or is the driver is said to be a question of fact and degree (McArthur v Valentine). “In cases where a vehicle goes out of control I direct you that it is open to think that the question is not so much about who has operated the controls as who has failed to operate the controls. A leading Scottish case defines driving in terms of the extent of the individual’s ‘powers of intervention with the movement and direction of the vehicle’ (Ames v MacLeod). I direct you that if a person who is in the driver’s seat of a moving vehicle with the intention of having or taking control of the vehicle puts it beyond his or her power to actually control the vehicle that does not necessarily prevent them being classed as a driver.” [9] In discussing the application of the rules of evidence to this case I directed the jury in the following terms: “. . . The allegation that the Crown seeks to prove in line 27—this is important—is that both were driving and that they did ‘fail to keep proper control of said motor vehicle, cause said vehicle to accelerate, lose control of said motor vehicle . . .’. You can either take a precise view of the matter as urged on you by Mr Moggach (with a degree of justification from the case law) to the effect that there is no evidence or no acceptable evidence that the accused was to a substantial extent in control of the movement, direction or speed of the vehicle; and if you were persuaded of all that you would be bound to acquit. The accused, Mr Moggach says, ‘abdicated his role of driver in favour of Ms Johnston’. He was not driving within the meaning of the Road Traffic Act. “Or you can take the broader view urged on you by the advocate depute which amounts as I understand it to saying that the accused was and continued to be the default driver, allowing some freedom to Ms Johnston under his directions but always ready, he thought, to take over if need be and certainly with the intention that that is how the arrangement should work. “If you take the more precise view of ‘driving’ contended for by Mr Moggach you have to consider what evidence is available to support the contention that Mr Cooper operated the controls of the vehicle. What positive part if any did the accused play in failing to keep proper control, causing the vehicle to accelerate and in losing control of the vehicle? “The allegation is that the vehicle accelerated. The marks on both the ground and the tyres support that, you may think, on the evidence given by PC Neil Thomson the accident investigator. Did this happen as it was going towards, and turning away from the static caravan on the left? That is for you to decide. The accused says or implies that it was Ms Johnston who caused the vehicle to accelerate. At one point you may think he said, it’s a matter for you, ‘it seemed to rev up quick’: but in any event there is no evidence whatsoever that the accused was responsible for working the accelerator at that point. “What about steering? You may think that there was evidence from Ms Johnston that the accused helped to turn the car off the access road and repeated evidence from her that the accused took or grabbed the steering wheel at the toilet block. Do you remember Mr Moggach asking in crossexamination—it is entirely a matter for your recollection: ‘Did he say anything when you almost hit the toilet block?’ Answer: ‘That’s when he grabbed the steering wheel.’ It is a matter for your recollection: did she say at one point that this was because she was turning it too slowly? And did she imply that this was after passing the toilet block; that this was about turning to the right so as to avoid the static caravan on the left and to go into the park? Did she demonstrate the steering wheel being turned to take the car to the right? If this is true, the accused may well, on Ms Johnston’s evidence, have turned the car onto the course that led to the death of Mr MacKay.

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“The accused has never been asked about this directly: but in his police interview you may think that he stated that he did not steer the car and could not steer the car because of the position of the seat and the position of Ms Johnston. He repeatedly referred, you may think, to Ms Johnston steering the car towards one caravan then the other. At one point you may think he said: ‘I can remember steering away from the caravan.’ If so, it would be open to treat this as an admission. Equally the remark you might think, in its context, is open to interpretation, simply meaning that the car was ‘steering away from the caravan’. At another point he was asked, you may recollect, when describing veering towards the static caravan on the left and then veering away from it: ‘Who was doing the turning?’ Answer: ‘Kylie was doing everything. I just sat on.’ And you may think that he said he couldn’t get to the pedals or the steering wheel. “On the other hand you may recollect, it is a matter for you, that he said about the start of this bit of the journey that he worked the ignition with Ms Johnston sitting on his knee. And of course you may remember, it is a matter for you, the accused telling the police: ‘. . . So she jumped on me ’cause then I thought maybe that was safer, I can reach the pedals if I needed to . . .’. If he could reach the ignition and the pedals, has he satisfied you that he could not reach the steering wheel? “But even if you assess the accused to be lying about not being able to reach the steering wheel, that does not mean that the opposite is true. And the question is: where, if you discount the possible admission, is the corroboration that he actively steered the vehicle? “Mr Moggach concedes that there is sufficient evidence, meaning that there is corroborated evidence if you accept it and if you take the evidence at its highest, to prove the charge against the accused. But he is not specific. The advocate depute has not told you in clear terms where you should look for corroboration. I have pondered the matter. I have reached the conclusion, though you may well think it a thin case in this aspect, that if you accept Kylie Johnston’s evidence about who was steering and turning to the right it would be open to you to accept that the marks on the ground as explained by PC Neil Thomson are consistent with Ms Johnston’s evidence and therefore corroborative of it. Let me emphasise: before you can reach a conclusion based on that evidence you would have to reject the accused’s evidence about not steering; and you would have to take account of PC Thomson’s evidence I think, elicited by Mr Moggach in cross-examination, it is a matter for you, that the marks so far as they show the track of the vehicle on the gravel and the grass, do not evidence, a sudden movement to the right. You may or may not be left with a reasonable doubt on that point. It is a matter for you. “So much for the positive aspect of failing to keep proper control and of loss of control by accelerating and steering on the fatal course—what about the negative aspect and in particular the delay, failure or omission to apply the brakes. You may think that there is no evidence that the vehicle braked, no evidence from the accident investigator and no evidence from either of the people in the driving seat that they successfully worked the brake pedal. “If Ms Johnston is to be believed it would be open to conclude that she and the accused were getting their feet mixed up. She was trying to find the brake but his feet were in the way. As for Mr Cooper, you may recollect him telling the police: ‘I was trying to get through to the pedals but I couldn’t feel the pedals or anything . . . I was like trying to get through and get in but obviously I had my seat too far back so she could sit and I couldn’t really move with her sat on me and I couldn’t get to the pedals.’ It is entirely a matter for your recollection and assessment.

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“If you adopt the approach to the question of driving contended for by Mr Moggach, it is certainly correct as Mr Moggach states that unless you accept the evidence of Ms Johnston in its essentials you cannot convict. And Mr Moggach has given you a number of reasons for rejecting her evidence, pointing both to her demeanour and to certain possible contradictions in what she said. “If you take the broader approach contended for by the advocate depute you would wish to factor in the following points he founded on which go beyond who precisely had their hands or their feet on the controls at the particular time: it was the accused’s car and he was the only qualified driver; the journey on which he had set out was not yet complete and he intended to get his car back to the caravan site; it was admittedly his idea that Ms Johnston should ‘have a go’ under his directions or supervision; he remained in the driving seat with the intention of accessing the controls; he intended that he would take over if need be. You are reminded that he told the police: ‘I said . . . take it steady and listen to what I’m telling you and I’d like to be sat here just in case obviously, I can try and stop it. But I couldn’t when it happened.’ “When it came to the bit on Mr Cooper’s account he tried to take over but found, he says, that it was physically impossible. Is this how you recollect and assess the evidence? It is entirely a matter for you. “If you take the view that Mr Cooper was driving you have to consider whether his driving was dangerous. It is open to you to take into account the admissions made by him to the police that he meant to be able to reach the controls but found that Kylie Johnston—whom he had put on his lap— obstructed him; that his view out of the windscreen was compromised; that he knew Ms Johnston was unqualified and had never driven his car before; that, even if he is telling the truth about her reported previous driving, he had no certain knowledge of her skill and experience; he had earlier seen another caravan coming in and he knew there would be more people and possibly children around; he knew to be careful at the toilet block corner where there might be people. It’s open to you to take these things into account depending on your recollection and assessment of the evidence.” [10] The jury took one hour to reach their verdict. By a majority they returned a verdict of guilty under deletion, as already stated, of the words “did move the seat back and away from the steering wheel and foot pedals”. They did not delete the words “cause said motor vehicle to accelerate”. Of course causing the vehicle to accelerate could be seen as both a function of depressing the accelerator and as a function of not depressing the brake pedal. I think the verdict is consistent with the broader view, contended for by the Crown, of what constitutes driving within the meaning of s.1 of the Road Traffic Act 1988.

COMMENTARY We do not know, of course, why the jury made the deletion they did or what they thought its effect was. It may be just that it was uncorroborated, although it does not seem to have been in dispute. It occurs to me that there is another way of looking at this case, and that is via the doctrine of art and part. There is no question that the seating arrangements were made at the suggestion of the accused, so he was art and part in them. And these arrangements were so clearly dangerous, not to say reckless, to use the earlier term of the road traffic legislation, that there can be said to have been an agreement to engage in an operation that was clearly dangerous: cf Geo. Barbier & Ors (1867) 5 Irv 483; Gordon’s Criminal Law (3rd edn), para.5.47.

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A Appeal Against Conviction

15 July 2016

Appellant against

HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 60 Evidence—Corroboration—Mutual corroboration—Alleged incidents 11 years apart—Whether Moorov doctrine applicable

The appellant was charged with two offences of lewd and libidinous behaviour. Charge (1) related to behaviour in 1977 and 1978 towards a girl aged between nine and ten, and charge (2) to behaviour between 1988 and 1990 towards a girl aged between four and seven. Charge (1) involved exposing his erect penis to the complainer and digitally penetrating her vagina. Charge (2) involved exposing his penis to the complainer and holding it against her, watching pornography and masturbating in her presence, forcing her to masturbate him and repeatedly placing his genitals against her body, not all on the same occasion. The appellant was convicted and appealed to the High Court. Held that the similarities in the charges were superficial and the differences substantial, and there was nothing in the evidence which presented any compelling picture suggestive of a course of conduct systematically pursued by the appellant (para.16); and appeal allowed and convictions quashed.

D Cases referred to in the opinion of the court: Cannell v HM Advocate [2009] HCJAC 6; 2009 S.C.C.R. 207 Hogan v HM Advocate, 2012 J.C. 307 J L v HM Advocate [2016] HCJAC 61; 2016 S.C.C.R. 365 K v HM Advocate [2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 915 Reynolds v HM Advocate, 1995 S.C.C.R. 504; 1995 J.C. 142; 1996 S.L.T. 49 E R G was convicted of the offences set out in the opinion of the court on 27 August 2015 after trial before Sheriff Jamieson and a jury and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 23 June 2016 by the Lord Justice Clerk (Dorrian), Lord Bracadale and Lady Clark of Calton. For the appellant: C Mitchell, instructed by Paterson Bell, Solicitors, Edinburgh. For the respondent: McSporran AD. On 15 July 2016 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK Introduction

[1] On 27 August 2015, at Dumfries Sheriff Court, the appellant was convicted after trial of two charges of using lewd, indecent and libidinous practices and 360

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RG v HM Advocate

361

behaviour towards two pre-pubescent girls between 1977 and 1990. There were four charges on the indictment; charges (1) and (4) were found not to have been proven. On 7 October 2015, the appellant was sentenced in cumulo to 12 months’ imprisonment.

Charges (2) and (3)

[2] The charges depended upon the application of the doctrine of mutual corroboration. The terms of the libel were: “(2) on 2 occasions between 1 January 1977 and 31 May 1978, both dates inclusive, at (an address), you R G did use lewd, indecent and libidinous practices and behaviour towards A B, born 15.12.1967, then aged between nine and ten years, care of Police Service of Scotland, and did expose your erect penis to her, stroke her hair, place her hand on your naked penis, kiss her on the lips, place your hand on her vagina under her clothing and insert your fingers into her vagina; (3) on various occasions between 1 March 1988 and 30 March 1990, both dates inclusive, at (an address), you R G did use lewd, indecent and libidinous practices and behaviour towards C D, born 31.03.1983, then aged between four and seven years, care of Police Service of Scotland, and did expose your penis to her, place your penis between her legs and hold her against you, watch pornographic material in her presence, masturbate in her presence, place her hand on your penis and force her to masturbate you and repeatedly press your genitals against her body. . . .”

The issue

[3] On these allegations, the time lapse between charges (2) and (3) was about 11 years. This appeal was heard together with the appeal in J L v HM Advocate. This appeal raises identical questions about the application of the Moorov doctrine to charges involving lengthy lapses of time and jury directions in such circumstances. This opinion should accordingly be read in conjunction with the opinion in JL v HM Advocate.

The evidence

[4] The complainer in charge (2) testified to the appellant abusing her on two occasions between 1 January 1977 and 31 May 1978. She was between nine and ten years old. Her parents were friends of the appellant and his wife, and they socialised together. [5] On the first occasion, the appellant came into the complainer’s bedroom after coming home with her parents after a night out. He exposed his penis to her and asked her to touch it. He kissed her and then put her hand on his erect penis. He put his hand under her bedclothes and digitally penetrated her vagina with one finger. There was a second occasion, which again involved the appellant coming into the complainer’s bedroom after a night out with her parents. He put his hand under her covers. She told him that she would scream if he did not leave her bedroom. The appellant left and there was no further abuse. [6] The complainer in charge (3) was the appellant’s granddaughter. She testified to abuse by the appellant on various occasions between 1 March 1998 and 30 March 1990. She was between four and seven years old, and the abuse occurred when she visited her grandparents’ house. [7] On the first occasion, the appellant pressed his genitals against her body whilst lying on the couch. She could feel his penis erect. On one or two subsequent occasions, he placed his penis between her legs while she was in bed. On the last occasion, the complainer entered a room where the appellant

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362 A

RG v HM Advocate

2016 S.C.C.R.

was masturbating to a pornographic film. He asked her to masturbate his erect penis. The sheriff’s report

[8] At the conclusion of the Crown case, the trial sheriff heard a no case to answer submission. It was submitted that the Moorov doctrine could not apply in light of the lengthy gap in time between charges (2) and (3.) The sheriff concluded that there was no specific rule of law as to the interval of time between the charges which rendered the doctrine of mutual corroboration inapplicable, and he repelled the submission. He charged the jury that a lengthy time gap was not decisive in itself, but that it had to be weighed in the balance in deciding whether there was a single course of conduct. In relation to the second ground of appeal, the sheriff did not consider there to be a fixed rule of law requiring him to direct the jury to find “extraordinary”, “special” or “compelling” features before they could convict of two similar charges separated by a long interval. Submissions Appellant

[9] The first ground of appeal was that the jury was not entitled to return verdicts of guilty of charges (2) and (3). It was not appropriate to apply the Moorov doctrine to those charges since there was a gap of 11 years and there were no “special features” which made the similarities compelling” (K v HM Advocate). [10] The second ground of appeal was that the sheriff misdirected the jury in the application of the Moorov doctrine to charges (2) and (3). The sheriff ought to have directed the jury that, where the interval was a long one, it was necessary to consider whether there were any special features in the evidence that none the less made the similarities compelling. The lack of such a direction was material and the jury’s verdict was a miscarriage of justice. Crown

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[11] Notwithstanding the time interval, the Moorov doctrine was applicable. The evidence was such as to demonstrate that the individual incidents were component parts of one underlying course of criminal conduct persistently pursued by the accused. [12] There were striking similarities between the charges. Both charges involved pre-pubescent girls. The appellant occupied a position of trust in respect of each complainer. The first complainer referred to the appellant as “father Graham” and her parents socialised with him. The second complainer was the appellant’s granddaughter. Both of the offences occurred in a domestic setting, when the complainers were in bed. Both charges involved the appellant exposing his erect penis. The appellant encouraged each complainer to touch his penis and attempted to engage them in conversation about sexual matters. The sheriff did not err in leaving the matter to the jury. [13] In respect of the second ground of appeal, there was sufficient in law for the Moorov doctrine to apply and it was proper that the matter was left to the jury to consider (Reynolds v HM Advocate). K v HM Advocate was not authority that the specific directions contended for were required. The sheriff repeatedly emphasised that the jury had to decide whether an inference could be drawn that the individual incidents formed part of a course of conduct systematically pursued by the accused, and that the doctrine must be applied with caution. He emphasised the potential effect of a long time interval

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between offences, and did so by reference to the long time interval between charges two and three. [14] Given that there was a sufficiency of evidence which the jury found to be credible and reliable, if an additional direction were required, there had been no miscarriage of justice (Hogan v HM Advocate at para. 16).

Decision

[15] The opinion in this case should be read in conjunction with that in JL v HM Advocate. [16] In this case, the similarities were superficial, and the differences substantial. Even the written case and argument for the Crown suggested that the offences were “opportunistic”. There is nothing in the evidence which presents any compelling picture suggestive of a course of conduct systematically pursued by the accused. [17] The sheriff had rejected a no case to answer submission. At the time when that submission was made, there was a further, albeit earlier, charge involving a third complainer. We do not have the detail of the circumstances as spoken to in evidence by that complainer. We are unable to say that the sheriff erred in rejecting the submission of no case to answer, and indeed we were not invited to do so. Miss Mitchell recognised that the addition of a further complainer speaking to similar events might have justified rejection of such a submission. However, the jury having rejected the evidence in relation to the first complainer and acquitted on the charge relating to her, the jury were left with events relating to only two complainers separated by a substantial period of time. We note the observations of Lady Paton in Cannell v HM Advocate at para.31: “It is the function of the jury, properly directed, to assess the evidence and to decide whether or not various incidents involving the appellant were so linked in time, character and circumstances as to demonstrate a course of criminal conduct and a unity of purpose such that it would be appropriate to apply the Moorov doctrine and find mutual corroboration established: Sinclair v HM Advocate [1990 S.C.C.R. 412]. The appeal court is reluctant to interfere in such matters, but may do so where, for example there has been a misdirection; or where, following upon a discriminating verdict of the jury, convicting of some charges but not others, certain time lapses emerge between the various incidents which are so excessive in the circumstances that the law would not permit the application of the Moorov doctrine: cf Lord Justice Clerk Gill in Dodds v HM Advocate[, 2002 S.C.C.R. 838; 2003 J.C. 8; 2002 S.L.T. 1058] at para.7.” [18] In our view this is just such a case: the law would not permit the application of the Moorov doctrine to the circumstances of this case and this appeal must succeed. [19] So far as the second ground of appeal is concerned, although the jury eventually applied the doctrine in circumstances which could not be justified, the directions, proceeding on the basis of a rejection of the no case to answer submission referred to above, were equally unexceptional. The jury could have been in no doubt that: (a) it was not sufficient merely to have two credible witnesses speaking to similar crimes; (b) that the individual conduct, and all the circumstances required to be examined not just for similarities but for similarities which bound them together; (c) that they had to apply the rule with caution; (d) that a general disposition was not sufficient; (e) that they required to be satisfied that these were not simply isolated incidents but that each offence was a link in a course of conduct systematically pursued by the

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364 A

RG v HM Advocate

2016 S.C.C.R.

accused; (f) that any interval of time was a relevant factor to take into account in determining whether they could draw that conclusion; and (g) that a â&#x20AC;&#x153;great deal of time can separate incidents and might speak against there being a single course of criminal conduct.â&#x20AC;? In exceptional cases where there is one striking and singular element, or where the compelling circumstance comes from abuse of successive members of the same family, the trial judge will no doubt seek to put these matters into context in charging the jury. However, we are satisfied that a direction of the kind referred to in the grounds of appeal is not required [20] In light of our decision on the first ground of appeal, there was no proper basis on which the appellant could be convicted of charges (2) and (3) and we shall quash those convictions. COMMENTARY

See also R F v HM Advocate, supra, p.319 and J L v HM Advocate, infra, p.365, and McAskill v HM Advocate [2016] HCJAC 64. It appears that in the instant case the convictions may have been quashed not merely because of the time gap, but because the incidents were not sufficiently similar to justify the application of Moorov.

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A Appeal Against Conviction

15 July 2016

Appellant against

HER MAJESTY’S ADVOCATE

Respondent B

[2016] HCJAC 61 Evidence—Corroboration—Mutual corroboration—Alleged incidents six years apart—Whether Moorov doctrine applicable Solemn procedure—Judge’s charge—Failure to identify elements of charges six years apart which might make Moorov applicable— Whether misdirection

C The accused was convicted of lewd and libidinous behaviour towards his 14-year-old daughter in 2006 (charge (3)) sexual assault on his 13-year-old cousin in 2013 (charge (6)) and unlawful intercourse with his cohabitee’s 14-year-old daughter in 2014 (charge (11)). The Crown relied on the Moorov doctrine for the corroboration of charges (3) and (6); charge (11) was independently corroborated. Charge (3) involved oral penetration on various occasions and the offer of a mobile phone in return for sexual acts; charge (6) involved digital vaginal penetration and the provision of money and gifts; and charge (11) oral and vaginal penetration and asking the complainer not to disclose what he had done. The offences exhibited, inter alia, the following features (see para.31): the abuse in all three charges was prefaced by the accused talking to or messaging the complainers about sex; each complainer was abused in her home; each complainer was a member of the appellant’s extended family and in respect of whom the accused was in a position of trust and authority; inducements of gifts were offered to each of the complainers; the abuse in each case was penetrative; the accused threatened the complainers in charges (3) and (11) with consequences of revealing the abuse. In charge (3), the accused told the complainer that she would not be believed if she told anyone and that reporting the abuse would result in her younger brothers being taken away by the social work department. In charge (11) the accused told the complainer that he would go to prison if she reported the abuse to anyone. In his charge to the jury the trial judge did not identify the specific elements of the evidence which might make the case sufficiently compelling despite the time gap. The accused appealed against his conviction on charge (3) on the ground that the time gap between it and charges (6) and (11) was too great to allow the application of Moorov and on the ground of misdirection. Held (1) that the evidence presented a compelling picture indicative of a course of conduct systematically pursued by the accused (para.32); and (2) that a judge was not required to identify for the jury the specific elements of the evidence which might make the case sufficiently compelling, that it was made clear to the jury that they were looking for evidence which allowed them to conclude that the incidents were bound together as parts of a single course of criminal conduct systematically pursued by the accused, and they were advised that the doctrine required to be applied with caution, and that a general disposition was not sufficient, and their attention was specifically drawn to the gap in time, and that no more was required (para.33) and appeal refused.

365

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366 A

JL v HM Advocate

2016 S.C.C.R.

Cases referred to in the opinion of the court: A v HM Advocate [2014] HCJAC 41; 2014] G.W.D. 16-291 H v HM Advocate [2015] HCJAC 42; 2015 S.C.C.R. 242; 2015 S.L.T. 380 Hogan v HM Advocate [2012] HCJAC 12; 2012 S.C.C.R. 404; 2012 J.C. 307; 2012 S.L.T. 1055 K v HM Advocate [2011] HCJAC 52; 2011 S.C.C.R. 495; 2012 J.C. 74; 2011 S.L.T. 915 R v HM Advocate [2013] HCJAC 8; 2013 S.C.C.R. 190; 2013 J.C. 212 Reynolds v HM Advocate, 1995 S.C.C.R. 504; 1995 J.C. 142; 1996 S.L.T. 49 S v HM Advocate [2014] HCJAC 135; 2015 SCCR 62, Stewart v HM Advocate [2007] HCJAC 32; 2007 S.C.C.R. 303; 2007 J.C. 198. J L was convicted on of the offences set out in the opinion of the court after trial on 6 August 2015 in the High Court at Edinburgh before Lord Pentland and a jury and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

C The appeal was heard on 23 June 2016 by the Lord Justice Clerk (Dorrian), Lord Bracadale and Lady Clark of Calton. For the appellant: Ferguson QC, instructed by Faculty Services Ltd for Thompson & Brown, Solicitors, Glasgow. For the respondent: McSporran AD.

On 15 July 2016 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK Introduction

[1] On 6 August 2015, at the High Court in Edinburgh, the appellant was convicted after trial of three charges involving the physical and sexual abuse of his daughter, younger cousin and step-daughter between October 2006 and April 2014. There were 14 charges on the indictment: the charges of which the appellant was convicted were charges (3), (6) and (11); the remainder were withdrawn by the Crown during the course of the trial. On 24 September 2015, the appellant was sentenced to an extended sentence of 15 years with a custodial term of 12 years. He appeals against his conviction. Charges (3), (6) and (11)

5220.indd 366

[2] Charge (11) was independently corroborated, but charges (3) and (6) depended upon the application of the Moorov doctrine for mutual corroboration. The terms of the libel were that: â&#x20AC;&#x153;(3) [O]n various occasions between 1 October 2006 and 31 December 2006, both dates inclusive, at (addresses])in Scotland you J L did use lewd, indecent and libidinous practices and behaviour towards E F, your daughter, bom 3 March 1992, aged 14 years, a girl then of or over the age of 12 years and under the age of 16 years, c/o Police Service of Scotland, (address) and make indecent and inappropriate remarks to her, compel her to remove her lower clothing, lick and kiss her vagina, remove your lower clothing, expose your penis, penetrate her mouth with your penis and ejaculate in her mouth, enter the bathroom while she was having a bath and enter her bedroom, put your penis on her mouth and attempt to penetrate her mouth with your penis, compel her to shave her pubic hair, repeatedly ask her to perform

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JL v HM Advocate

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oral sex on you, ask to see her legs and pretend to check her skin for a skin condition and induce her to expose her legs and touch her legs, remove all your clothing and expose your naked body in her presence, and offer her a mobile phone to perform sexual acts with you: contrary to the Criminal Law (Consolidation) (Scotland Act 1995, section 6; (6) on various occasions between 1 July 2013 and 12 October 2013, both dates inclusive, at (addresses) in Scotland you J L did assault G H, your cousin, born 1 March 2000, aged 13 years, c/o Police Service of Scotland, (address) and while she was asleep, lie on the bed where she was, when she woke, mb[sic] and stroke her legs repeatedly, mb against her, turn her around, place your arms around her, press your body against her, kiss her, place your hand over her mouth, put your hands under her underwear, handle her vagina, penetrate her vagina with your fingers to her injury and touch and wrestle with her; provide her with money, purchase cigarettes for her and other gifts: contrary to section 3 of the Sexual Offences (Scotland) Act 2009; (11) on various occasions between 1 December 2013 and 9 April 2014, both dates inclusive, at (an address) you J L, a person who had attained the age of 16 years, did have unlawful sexual intercourse with E P, born 2 August 1999, aged 14 years, c/o Police Service of Scotland, (address), a child who had attained the age of 13 years but had not attained the age of 16 years and penetrate her mouth with your penis and penetrate her vagina with your penis, and ask her not to disclose what you did to her: contrary to section 28 of the Sexual Offences (Scotland) Act 2009. . . .â&#x20AC;?

The issues

[3] The appeal was directed against charge (3). The appellant contended that the Moorov doctrine was inapplicable to that charge given the lapse of time between charges (3) and (6) (six years and six months) and charge (11) (six years and 11 months). It was conceded that the Moorov doctrine could be applied as between charges (6) and (11). It was also contended that the trial judge had misdirected the jury in the application of the Moorov doctrine in the context of the lengthy lapses of time between the charges.

The evidence Charge (3)

[4] The complainer (dob 3 March 1992) was the appellantâ&#x20AC;&#x2122;s only daughter. At the material time, she lived with the appellant, her mother and her two younger brothers. She was off school recovering from viral meningitis. She had been prescribed bed rest and a sofa bed was made up for her in the living room of the family home. [5] The complainerâ&#x20AC;&#x2122;s brothers were at school during the day and her mother worked as a school dinner lady. The appellant would return home at lunch time, ostensibly to look after the complainer. [6] Her evidence was that during these lunchtime visits the appellant started speaking to her about sexual matters. The appellant then said he could show her what could happen in a relationship, how boys would touch her and what they would expect from her. While the complainer was on the sofa bed, the appellant removed his trousers and asked her to take off her pyjama bottoms. The appellant then lay on the bed with her and proceeded to lick and kiss her vagina for about ten minutes. The appellant then stopped what he was doing, got up and went to the bathroom, from where the complainer heard him vomiting. [7] The next incident happened a few days later. The appellant had come home at lunch time. He again spoke to her about sexual matters and about what he said that men would expect her to do. He removed his trousers and

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underwear. His penis was erect. The appellant asked the complainer to come off the sofa and kneel down beside him. He said that he was going to move her head towards his penis and he got her to put his penis in her mouth. He instructed her to move her head backwards and forwards for five to ten minutes. [8] The complainer described further incidents in which the appellant induced her to take his penis in her mouth. This happened about another ten times over the following fortnight. On the last occasion, the appellant ejaculated in the complainer’s mouth. [9] About a week later, the complainer was in the bathroom of the family home having a bath. The appellant came in and locked the door. He removed his lower clothing and directed the complainer to take his penis in her mouth. She did so. She started to choke and feel sick. The appellant laughed, walked away and urinated in the toilet. [10] On another occasion, the appellant came into the complainer’s bedroom at night whilst she was in bed. She pretended to be asleep. He touched his penis against her mouth and ran it along her lips. She turned over and the appellant went away. [11] On a further occasion, the appellant came into the bathroom while the complainer was having a shower. He instructed her to shave off all her pubic hair. She was frightened and did what he asked. [12] The complainer had eczema. The appellant would ask to look at her legs, ostensibly to check her skin. He would feel up and down her legs and would move her underwear so that he could see her vagina. This went on for a couple of years. [13] Some time later, the appellant told the complainer that he would give her a mobile phone. He added that she knew what she would have to do if she wanted to have the phone. The complainer told the appellant that she was not willing to continue doing sexual things to him. The appellant was angry, and he gave the new phone to his wife as a Christmas present instead. Charge (6)

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[14] The complainer in charge (6) was the appellant’s younger cousin. Her date of birth was 1 March 2000. She first met the appellant at a family wedding when she was about eight years old. The appellant lost touch with her family but then unexpectedly got back in touch when the complainer was about 13. In the summer of 2013, the appellant started to become a regular visitor to the complainer’s family home. She grew to trust him and communicated with him a lot on Facebook. After a few weeks, the appellant began to speak about sexual matters in Facebook messages. The complainer said that she treated this as a joke. When the appellant visited her house, he asked her about boys and whether she had a boyfriend. He would play fight with her. On one occasion, he pinned her down in the kitchen and started to touch her on her breasts and her private parts. [15] Lengthy Facebook exchanges, showing the development of an inappropriately close and intimate relationship between the complainer and the appellant, were produced. The complainer said that the appellant promised to give her his horse. He started to collect the complainer from school and other places. He gave her money, alcohol and cigarettes. He invited her to stay at his house. [16] There came a time when the appellant broke up with his girlfriend. He left his house and needed somewhere to stay. The complainer’s family agreed that he could sleep in her bedroom, on the understanding that he would sleep

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at the bottom of her bed on top of the covers. The complainer’s evidence was that he cuddled into her when she was in bed. He came under the covers and lay beside her. He removed his trousers and touched her on her arms, sides and hips. This happened on a number of occasions. [17] The complainer described an occasion when she had been drinking alcohol and smoking cannabis. She came home and went to bed. She woke up to find the appellant in bed beside her. He put his hand over her mouth and inserted his fingers into her vagina. This went on for about ten to 15 minutes. The next morning the complainer was bleeding from her vagina.

Charge (11)

[18] The complainer in charge (11) was born on 2 August 1999. She lived with her mother and her brother. In 2013, the appellant started a relationship with the complainer’s mother and moved into their house. She saw the appellant as a father figure. The complainer did not have a good relationship with her mother. The appellant would sit and speak to her about her father and if she had a bad day he would discuss it with her. [19] In December 2013, the appellant began to have regular sexual intercourse with her in her bed. This happened on many occasions, sometimes five times a week. The complainer also described the appellant putting his penis inside her mouth. This would happen usually when they were alone in the house together. The complainer had come to regard the appellant as her boyfriend. He sent her a Valentine’s card and bought her a pair of boots. He told her that he would go to prison if she disclosed the abuse to anyone. The complainer said that she loved the appellant and that she thought that he loved her. [20] The duvet from the complainer’s bed was examined by forensic scientists. They found a mixed stain containing semen matching the appellant and cellular material matching the complainer. Their opinion was that this could be as a result of vaginal drainage of semen and vaginal cells from the complainer following unprotected vaginal intercourse to ejaculation with the appellant.

The trial judge’s report

[21] At the close of the Crown case, the trial judge heard a no case to answer submission. It was submitted that the Moorov doctrine could not be applied as between charges (3) and (6), and (3) and (11) because of the significant lapse in time between those charges. Esto the difference in time did not preclude the application of the doctrine, there was insufficient similarity in the character and circumstances of each charge. The trial judge repelled the submission, concluding that there was sufficient evidence that the appellant pursued a common course of criminal conduct against all three complainers. He identified many similarities between the circumstances of the offences, viz., the complainers were each teenage girls of 13 or 14 years old at the material times; the appellant was in a position of trust and authority in relation to each of them; the abuse in each case was penetrative in nature; and took place in a domestic setting. The appellant had abused the first complainer, his daughter, when the opportunity arose. In the case of his cousin, the second complainer, he cultivated a relationship with her and her family when she was 13 and the jury would be entitled to infer that his motive was to gain access to the child so that he could sexually abuse her. Shortly after that, he began a relationship with the mother of the third complainer and his abuse of her proceeded at a time when he was living with her mother and acting as a father figure. It was

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not difficult to discern a pattern and a common theme running through the evidence and the jury was entitled to infer that the appellant engaged in a single course of criminality directed against teenage girls when he was presented with the opportunity to do so. The time interval between the charges did not negate the existence of a single course of criminality. Submissions Appellant

[22] The first ground was that the trial judge had erred in repelling the no case to answer submission. The gap in time between charge (3) and charges (6) and (11) was such that it was necessary to identify an extraordinary feature or striking similarity between the character and circumstances of the respective charges before the doctrine of mutual corroboration could apply (H v HM Advocate). The similarities were not extraordinary. There were significant differences between charges (3) and (6): the conduct against the first complainer occurred during the day, whereas the conduct against the second complainer took place at night; only the first complainer was particularly vulnerable when the conduct started, being home from school unwell; there was no digital penetration of the first complainer and the second complainer did not testify to any oral sex; there was no “grooming” of the first complainer, as there had been with the second complainer; the conduct against the first complainer was more serious than that against the second complainer; only the first complainer was asked to shave her pubic hair. [23] There were significant differences between charges (3) and (11): the conduct with the third complainer was described as “consensual”, whereas that against the first complainer was “non-consensual”; the first complainer did not receive any text messages of a sexual nature; the third complainer spoke to sexual intercourse with the appellant, whereas the first complainer did not; the third complainer did not speak to the appellant performing oral sex upon her, unlike the first complainer; the third complainer was not asked to shave her pubic hair. [24] In the circumstances, there were no extraordinary or special features and the trial judge erred in failing to sustain the no case to answer submission. [25] The second ground of appeal contended that the trial judge misdirected the jury by failing to provide an adequate direction to the jury on how to approach the gap in time between the offences. He ought to have given the jury a clear and unequivocal direction that where the time gap between the offences was a long one, the jury required to consider whether there were any extraordinary features in the evidence that made the similarities compelling. Crown

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[26] Notwithstanding the time intervals, the Moorov doctrine was applicable. The evidence was such as to demonstrate that the individual incidents were component parts of one underlying course of criminal conduct persistently pursued by the accused. [27] There were striking similarities between the charges. There was a common theme underlying them. The appellant prefaced the abuse of all three complainers with a discussion about sexual matters. In charges (3) and (6), there were discussions about boys and boyfriends prior to the abuse. Each complainer was abused in her home, and each was a member of the appellant’s extended family. The offending behaviour involved abuses of positions of trust and authority in all three charges. Inducements of gifts were offered to each of the complainers. The abuse in each case was penetrative in nature and it was

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misconceived to distinguish different forms of penetrative abuse (A v HM Advocate at para.10). There were threats of the consequences of revealing the abuse (charges (3) and (11)). The complainers were all aged 13 or 14. In charges (3) and (11), the abuse was perpetrated when the complainers were alone in their family homes and off school. [28] In respect of the second ground of appeal, the Crown submitted that there was sufficient in law for the Moorov doctrine to apply and it was proper that the matter was left to the jury to consider (Reynolds v HM Advocate). K v HM Advocate was not authority that the specific directions contended for were required. The jury was properly directed that the issue for their determination was to consider whether an inference could be drawn that the individual incidents formed part of a course of conduct systematically pursued by the accused. The jury was directed to apply the doctrine with caution. [29] Given a sufficiency of evidence which the jury found credible and reliable, if any additional direction were required, there had been no miscarriage of justice (Hogan v HM Advocate at para.16).

Decision

[30] The basic principles hardly bear re-stating. There is no maximum interval of time fixed by law beyond which the Moorov principle cannot apply (K v HM Advocate, Lord Justice Clerk (Gill) at para.14). The probative effect of a significant time gap can only be determined in light of all the circumstances of the case (S v HM Advocate, Lord Justice Clerk (Carloway) at para.10). The search is always for an underlying unity of intent such as to indicate a course of conduct on the part of the accused. The more similar the conduct is in terms of character, the less important a significant time gap may be (S v HM Advocate). Conversely, ordinary similarities may suffice where there are shorter gaps because a course of conduct may be more readily inferred. Even where there has been a substantial interval of time, compelling similarities will merit consideration of the whole circumstances for the jury (K v HM Advocate). [31] The case of K v HM Advocate was a case involving two complainers in which the gap between the charges was one of 13 years. There were some conventional similarities between the offences, but it was accepted by the Crown (para.14) that these were not sufficient to remove the case from the category of isolated instances of similar conduct to one where the inference of a course of conduct could legitimately be drawn. It was a case where there was one singular striking factor which was so individual that it allowed that inference to be drawn, when the other circumstances themselves would not have permitted it. As Lord Emslie put it, the doctrine was not stretched, it was found applicable in the “quite exceptional circumstances” of the case. It is in this context that one requires to read the words of Lord Justice Clerk Gill in para.15 that the question was whether there were “some extraordinary features in the evidence that could be said to change the whole complexion of the Crown case”. The court was not setting any general test of exceptionability before circumstances could be considered sufficiently compelling to admit of the application of Moorov in a case where there is a long time interval between events spoken to by one complainer and those spoken to by another (R F). As has been pointed out “even a long interval may be acceptable if there are other compelling similarities” (Stewart v HM Advocate, Lord Gill, LJC, para.23). Whether such compelling circumstances exist requires to be addressed by an assessment of the evidence as a whole. The evidence must be such as to show that the events are linked in such a way as to justify the conclusion that each is a component part in a course of conduct being systematically pursued by

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the accused. It is not enough that the events constitute isolated instances of similar conduct, or show a propensity to act in a particular way. As the court explained in R v HM Advocate (Lord Carloway, 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 (see NKS v HM Advocate, [[2006] HCJAC 12; 2006 S.C.C.R. 70], Lord MacLean, delivering the opinion of the court, para.10) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (Ogg v HM Advocate, 1938 J.C. 152; 1938 S.L.T. 513, Lord Justice Clerk (Aitchison), p.158; K v HM Advocate, Lord Justice Clerk (Gill), 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, Lord Justice General (Hope), delivering the opinion of the court, p.508) and a proper direction of the trial judge.” As the court also noted in S v HM Advocate, Lord Justice Clerk (Carloway) para.10: “The particular relevance of a significant time gap between offences can only be determined in light of all the circumstances. The more similar the conduct is in terms of character, the less important a significant time gap may be . . . Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time. . . .” Applying these dicta to the circumstances of the present case, we consider that the features relied on by the advocate depute and referred to by the trial judge present a highly compelling picture suggestive of a course of conduct systematically persisted in by the appellant. These features are: • The abuse in all three charges was prefaced by the appellant talking to the complainers about sex. In charge (3,) the complainer was asked if anything of a sexual nature had taken place between her and her boyfriend. The appellant said he would show the complainer what could happen in a relationship, how boys would touch her and what they would expect of her. In charge (6), the appellant chatted to the complainer on Facebook about his private parts. When he visited the complainer at home, he asked her about boys and boyfriends. The appellant asked the complainer whether she was bi-sexual and asked whether she had sex with girls. In charge (11), the appellant sent text messages to the complainer asking her to perform sexual acts on him. • Each complainer was abused in her home. • Each complainer was a member of the appellant’s extended family and in respect of whom the appellant was in a position of trust and authority. • Inducements of gifts were offered to each of the complainers. In charge (3), the appellant offered the complainer a new mobile phone subject to her continuing to perform sexual acts on him. In charge (6), the appellant promised the complainer his horse and gave her money, cigarettes and alcohol. In charge (11), the appellant sent the complainer a Valentine’s card and bought her a new pair of boots. • The abuse in each case was penetrative. Charges (3) and (6) involved the appellant compelling the complainers to take his penis in their mouths; charge (11) concerned digital penetration of the complainer’s vagina. • The appellant threatened the complainers in charges (3) and (11) with consequences of revealing the abuse. In charge (3), the appellant told the

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complainer that she would not be believed if she told anyone and that reporting the abuse would result in her younger brothers being taken away by the social work department. In charge (11) the appellant told the complainer that he would go to prison if she reported the abuse to anyone. • The complainers were each 13 or 14 years old. • The circumstances of the perpetration of the abuse. In charge (3), the complainer was off school recovering from meningitis and at home alone. The complainer in charge (11) was also off school and at home alone. In charge (6), the appellant inveigled his way into the complainer’s bedroom and abused her when she had been drinking alcohol and smoking cannabis. • The calculating manner in which the abuse was perpetrated. In charge (3), the complainer was off school and at home recuperating. In charge (6), the appellant gained the trust of the complainer and her family to be permitted to sleep on her bed. In charge (11), the appellant would speak to the complainer about her father and if she had a bad day he would discuss it with her.

[32] In the circumstances, the evidence presented a compelling picture indicative of a course of conduct systematically pursued by the appellant. The first ground of appeal fails. [33] The remaining issue relates to the question whether the trial judge required to identify for the jury the specific elements of the evidence which might make the case sufficiently compelling. We are satisfied that that is not required. It is the function of the judge to assess whether there is a sufficiency of evidence. It is for the jury to say whether looking at the evidence as a whole, they find it sufficiently compelling to entitle them to conclude that the incidents are all component parts in a course of conduct. The directions in this case were entirely unexceptional and it was made clear to the jury that they were looking for evidence which allowed them to conclude that the incidents were bound together as parts of a single course of criminal conduct systematically pursued by the accused. In that regard they were advised that the doctrine required to be applied with caution, that a general disposition was not sufficient and their attention was specifically drawn to the gap in time. We do not consider that any more was required. [34] This appeal is refused.

COMMENTARY This case was clearly much stronger than either R F v HM Advocate, supra p.319 or R G v HM Advocate, supra, p.360. But I still have difficulty in characterising two series of offences, six years apart as a single course of conduct and not two separate courses of conduct, albeit arising from a particular disposition. See also McAskill v HM Advocate [2016] HCJAC 64.

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A Appeal Against Conviction

22 July 2016

RCB

Appellant

against HER MAJESTY’S ADVOCATE B

Respondent

[2016] HCJAC 63 Rape—Attempted rape—Whether offence under s.1 of Sexual Offences (Scotland) Act 2009—Sexual Offences (Scotland) Act 2009 (asp 9), ss.1, 3—Criminal Procedure (Scotland) Act 1995 (c.46), s.294, Sched.3, para.14(b)

Section 1 of the Sexual Offences (Scotland) Act 2009 creates the offence of rape which can be committed by penile vaginal penetration, and s.3 of the Act creates an offence of sexual assault, which can be committed by, inter alia, sexual penetration including penile vaginal penetration. The Act makes no reference to attempts. Section 294 of the Criminal Procedure (Scotland) Act 1995 provides that an attempt to commit an indictable offence is itself an indictable offence, and para.14(b) of Sched.3 to that Act provides that a person charged with an offence may be convicted of an attempt to commit it. The appellant was originally charged with sexually assaulting the complainer by penetrating her vagina with his fingers and his penis and thus raping her, all contrary to ss.1 and 3 of the 2009 Act. At the close of their case the Crown moved to amend the indictment by deleting the averment of digital penetration and adding the word “attempt” before the words “penetrate” and “rape”, so that it became a charge of attempted rape contrary to ss.1 and 3 of the Act. The amendment was opposed by the defence on the ground that an attempt to rape was not an offence under s.1, and the reference to that section should have been deleted. The trial judge allowed the amendment and the appellant was convicted of the amended charge, and appealed to the High Court. Held that an attempt to commit rape under s.1 was just that and not another form of the offence under s.3, and the Crown were correct not to delete the reference to s.1 (para.17), and appeal refused. Observed that it should not be at all difficult to indicate administratively on a schedule of previous convictions that a contravention of s.1 was for an attempt, and that it would be desirable for this to happen (para.18). Cases referred to in the opinion of the court:

Brown v Docherty, 1996 J.C. 48; 1996 S.L.T. 325 HM Advocate v K [2015] HCJAC 114; 2016 S.C.C.R. 74; 2016 S.L.T. 142 Wilson & Forbes v Morton, High Court, 1975, unreported. R C B was convicted in December 2015 after trial in the High Court at Glasgow before Lord McEwan and a jury of a contravention of s.1 of the Sexual Offences (Scotland) Act 2009 in the circumstances described in the opinion of the court, and appealed to the High Court against conviction on the grounds referred to in the opinion of the court.

The appeal was heard on 18 July 2016 by the Lord Justice Clerk (Dorrian), Lord Bracadale and Lady Clark of Calton. 374

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For the appellant: Alonzi, instructed by Faculty Services Ltd, for Douglas Wright, Solicitors, Saltcoats. For the respondent: McSporran AD.

On 22 July 2016 the Lord Justice Clerk delivered the following opinion of the court. LORD JUSTICE CLERK [1] In December 2015 at the High Court at Glasgow, the appellant went to trial on an indictment containing the following charge: “(2) [O]n 9 July 2014 at Victoria House, Boyle Street, Irvine you R C B did sexually assault C D, born 19 September 1986, formerly residing at (address) now deceased, and whilst she was intoxicated, under the influence of drugs and incapable of giving or withholding consent, did remove her lower clothing and underwear, expose her private parts, expose her breasts, write on her body with eye liner, handle her body, lie on top of her, penetrate her vagina with his fingers and penetrate her vagina with your penis and you did thus rape her: contrary to s.1 and 3 of the Sexual Offences (Scotland) Act 2009.” At the close of the Crown case the advocate depute moved to amend the charge to delete the words “penetrate her vagina with his fingers” and by adding the word “attempt” before the words “to penetrate” and “rape” in the remainder of the charge. The result was a charge in the following terms: “(2) [O]n 9 July 2014 at Victoria House, Boyle Street, Irvine you R C B did sexually assault C D, born 19 September 1986, formerly residing at (address) now deceased, and whilst she was intoxicated, under the influence of drugs and incapable of giving or withholding consent, did remove her lower clothing and underwear, expose her private parts, expose her breasts, write on her body with eye liner, handle her body, lie on top of her, and attempt to penetrate her vagina with your penis and you did thus attempt to rape her: contrary to ss.1 and 3 of the Sexual Offences (Scotland) Act 2009.” [2] The amendments were opposed by the defence to the extent that reference to s.1 of the 2009 Act remained in the amended charge. It was submitted that there could be no attempt to rape contrary to that section. The trial judge repelled the defence objection, and this appeal relates to that decision. It is not suggested that there was insufficient evidence to justify a conviction of attempted rape, rather the argument is that there can be no attempted rape under s.1 of the 2009 Act. [3] In repelling the defence submission, the trial judge observed that it was competent for a jury to convict an accused of any indictable offence. Section 294 of the Criminal Procedure (Scotland) Act 1995 provides: “(1) Attempt to commit any indictable crime is itself an indictable crime.” [4] Although it was true that attempted penetration could qualify as a s.3 offence in itself, it was a non sequitur to suggest that it was not also an attempt under s.1.

Submissions

[5] The submission made to us reflected that made to the trial judge. The amendments to the narrative of the charge ought also to have involved deletion of the reference to s.1 of the Sexual Offences (Scotland) Act 2009. Actual penetration was an essential element for any charge under that section, and

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therefore it should only have been open to the jury to convict the appellant of attempting to commit a s.1 offence. The terms of s.1 of the 2009 Act did not include attempted rape, and consequently a conviction under that section was incompetent. [6] Section 294 of the 1995 Act provided that an attempt to commit an indictable crime was itself an indictable crime. It did not provide that an attempted crime was the same as a completed crime. Esto any reference to s.1 in such a charge was necessary, the appropriate form of words would be “. . . and you did thus attempt to rape her in contravention of s.1 of the aftermentioned Act: contrary to s.3 of the Sexual Offences (Scotland) Act 2009”. [7] The advocate depute submitted that rape and attempted rape were distinct and separate offences from other sexual assaults. They had a separate sentencing regime (HM Advocate v K). Sections 1 and 3 of the 2009 Act both carried maximum sentences of life imprisonment if prosecuted on indictment (2009 Act, s.48 and Sched.2). Section 1 could only be prosecuted on indictment, whereas s.3 could be prosecuted summarily. The crime of rape contrary to s.1 was a plea of the Crown and could only be prosecuted in the High Court of Justiciary. It would be contrary to the intention of the legislature that a crime as serious as attempted rape be recorded only as a sexual assault, contrary to s.3. The legislative intention had been to provide for a statutory definition of rape with an expanded definition. [8] Paragraph 10(1) of Sched.3 to the 1995 Act provided that on indictment or, as the case may be, on complaint, which charged a completed offence, an accused might be lawfully convicted of an attempt to commit the offence. Paragraph 14(b) provided that where the facts provided under the indictment or the complaint did not amount to a contravention of the enactment (under which it was libelled), it was lawful to convict of the common law offence. Section 294(1) of the Act further provided that an attempt to commit any indictable crime was itself an indictable crime. [9] Section 50 and Sched.3 [to] the 2009 Act listed alternative verdicts for offences under the 2009 Act. These did not include attempts to commit any of the substantive offences there referred to, including rape or sexual assault, whether by penetration or otherwise. It would be unnecessary to do so standing the terms of s.294 and Sched.3 to the 1995 Act. [10] The charge had been appropriately libelled, save for the inclusion of a reference to s.3 of the 2009 Act which was unnecessary. Analysis

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[11] We have come to the conclusion that the trial judge was correct to repel the submission that the reference to s.1 should be deleted from the charge. Section 294 applies equally to statutory offences as to common law ones. It is competent for a jury to return a verdict of an “attempt” to commit any indictable offence, which would include an offence under s.1 of the 2009 Act. The fact that the completed offence under s.1 requires penetration does not prevent the libelling and proving of an attempt to commit a s.1 offence, where penetration had been attempted but has failed. As the Lord Justice Clerk (Carloway) said in HM Advocate v K at para.22: “Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person’s sexual integrity. It has, in that context, a separate sentencing regime.” An attempt is committed where:

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“[T]he intention to commit the crime was brought forward to the state of perpetration by the doing of some act to bring the intention into effect” (Brown v Docherty, Lord Justice General (Hope), p.50). [12] In that case the court proceeded on the basis that the principles governing what constituted an attempt at common law applied equally to an attempt to contravene statutory provisions (Lord Cameron of Lochbroom, p.64). [13] Attempt to rape or attempt to penetrate are not separately provided for within the terms of the 2009 Act. Schedule 3, which provides a long list of alternatives in respect of the primary provisions of the Act, makes no reference to attempts at all.That is powerful support for the argument that such provision was not necessary because the matter was already covered by s.294 of the 1995 Act. Section 294 applies to both common law and statutory offences. It is therefore quite clear that an attempt to commit rape—an offence under s.1—is an indictable offence. That is not in fact disputed. All that is disputed is whether it should have been libelled as contrary to s.1. [14] As is explained in Gordon, Criminal Law (3rd edn), para.6-47, the fact that a statutory provision creating an offence makes no reference to attempt is irrelevant, even if other provisions of the same statute do make such reference. The example is given of the offence under s.178 of the Road Traffic Act 1988 which makes it an offence to take and drive away a motor vehicle without consent. The statute does not provide for an attempt to commit such an offence, but the High Court held, in the unreported case of Wilson and Forbes v Morton, that an attempt to contravene s.178 may competently be libelled. [15] Section 19 of the Misuse of Drugs Act 1971, a UK statute, specifically provides for that statute what is otherwise provided for by s.294 of the 1995 Act. Section 19 provides that: “It is an offence for a person to attempt to commit an offence under any other provision of this Act. . . .” An attempt to have a controlled drug in one’s possession is an offence in contravention of s.5(3), even though the section itself makes reference only to the completed act (see Brown v Docherty) and in our view it is properly libelled as such, without any requirement also to make reference to s.19. [16] By analogy, the same reasoning applies to offences under the Sexual Offences (Scotland) Act 2009. In the course of the oral arguments advanced before us, it may be that the emphasis placed on s.294 was at the expense of full consideration of para.10(1) of Sched.3 to the 1995 Act to which the advocate depute had made reference in his written submissions, which provides that: “Under an indictment, or as the case may be, a complaint which charges a completed offence, the accused may be lawfully convicted of an attempt to commit the offence.” Accordingly, where the completed offence of rape contrary to s.1 has been libelled, a jury may competently return a verdict of attempted rape. They would do so by indicating the inclusion of the word “attempt” in returning their verdict but with no alteration of the relevant section of the Act which has been libelled. [17] An attempt to commit the offence of rape under s.1 is just that: it is not another form of offence of the kind referred to in s.3. The mens rea is the same as that required for the completed act, even though the actus reus be different.

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RCB v HM Advocate

2016 S.C.C.R.

It follows that the advocate depute at the trial was correct not to move to delete reference to s.1. [18] One of the issues raised in the course of argument was a concern on the part of the appellant that what would appear on his record would reflect a contravention of s.1 simpliciter, without indicating that his conviction had been for attempted rape rather than the completed offence. We do not have sufficient information before us as to the means by which convictions are administratively recorded for the purpose of a criminal record to enable us to assess how real a concern that might be—it is not apparent that there is real consistency in such matters. However, we are of the view that it should not be at all difficult administratively to indicate that the conviction was for an attempt, and that it would be desirable for this to happen. COMMENTARY

This is not likely to be the last appeal produced by the overlapping charges in the 2009 Act. The Crown accepted that the reference to s.3 was “unnecessary” (para.10), and did so although the indictment still contained a charge of sexual assault and averments of conduct constituting sexual assault. It is not clear whether the reference was to the original or the amended indictment, or whether it was there originally because of the averment of digital penetration, that being a separate offence under s.3(2)(a)—but it is also a separate offence, sexual assault by penetration, under s.2, and that section was not libelled. Under the old, simple, law, the entire alleged incident could have been charged as rape, the digital penetration being part of the narrative, and the court may yet have to decide whether this should still be the position, despite the fact that that would mean that part of the narrative would constitute a separate statutory offence. After all, many, if not most, rape charges narrate preliminary assaults of a sexual nature, and it does not look as if it is Crown practice always to libel ss.2 and/or 3 as well as s.1.

5220.indd 378

20/08/16 4:51 PM

SUMMARY Hamand v Harvie (Procurator Fiscal, Glasgow)—[2016) SCA (Crim) 15—4 May 2016 Sentence—Road traffic—Disqualification—Totting up—Exceptional hardship established—Whether can thereafter impose disqualification for offence—Road Traffic Offenders Act 1988 (c.53), s.35 Section 35 of the Road Traffic Offenders Act 1988 provides that where a person is convicted of an offence involving disqualification and the penalty points to be taken into account number 12 or more he shall be disqualified for a minimum period unless the court is satisfied that such disqualification would involve exceptional hardship. The appellant pled guilty to driving while using a mobile phone (charge (1)) and while uninsured (charge (2)). The magistrate heard evidence and found that exceptional hardship had been established, and then, having drawn attention to a previous similar offence committed a week before the current offence, disqualified the appellant for six months on charge (2), and he appealed to the sheriff appeal court. In delivering the opinion of the court (Sheriff Principal Scott QC (Vice President) and Sheriff Morris QC), Sheriff Principal Scott said: ... [6] For our part, we agree with the submissions advanced on behalf of the appellant. In our view the allowance of an exceptional hardship proof carries with it the clear implication that the court was restricting its consideration to the issue of whether a mandatory disqualification by way of the totting up procedure might be avoided . . . . Moreover, where such a proof does take place and where exceptional hardship is held established by the court, the court cannot then in effect cast that determination aside and instead reintroduce a disposal which it had already ruled out, viz. a discretionary disqualification. [7] Therefore in the circumstances of this case, we consider the approach of the magistrate to have been an illegitimate one. He was not entitled to consider and to impose a discretionary period of disqualification. All that being so, we shall quash the six-month disqualification period imposed on charge (2) and in lieu thereof we shall order that eight penalty points be endorsed on the appellant’s licence and of course, for the avoidance of doubt, exceptional hardship having already been established, there will be no mandatory period of disqualification resulting as a consequence of the totting-up procedure. [8] For completeness, we are reminded that the penalty points in respect of charge (1) cannot stand in these particular circumstances. They will be removed and the appellant’s licence will simply be endorsed in respect of that charge.

F For the appellant: Findlater, instructed by Faculty Services Ltd. For the respondent. Carmichael.

G 379

5220.indd 379

20/08/16 4:51 PM

SUMMARY Ross v HM Advocate—[2016] HCJAC 54—14 June 2016 Evidence—Identification—Fingerprints—Whether print on scanned fingerprint form identified as that of accused B

The appellant was charged with, inter alia, theft of a car. His fingerprints were taken and entered on a police Livescan form in the circumstances described in the opinion of the court. He was convicted and appealed to the High Court. In delivering the opinion of the court (the Lord Justice Clerk (Dorrian), Lord Menzies and Lady Clark of Calton) refusing the appeal, the Lord Justice Clerk said: [1] In this case it was suggested that there was insufficient evidence to establish that the comparative fingerprint came from the appellant on the basis of the inability of police officers to identify him. We disagree. Crown Production 17 of the Livescan fingerprint form in the name of a Daniel Ross gave a date of birth and other details corresponding with that of the appellant. The scan is recorded as having taken place at 22.38 hours at St Leonard’s Police Station on 23 December 2015 by PC McDougall and PCSO Trevis who spoke in evidence to taking that recording. They both spoke to the system in operation within the police station as to the taking of fingerprints and entering the material for Livescan purposes. In order to transfer the scanned image to the database PC McDougall required to enter a password. Both witnesses said they would not be able to identify the individual to whom the form related but that person was someone who had been processed through the police station and arrested. The charges which had been preferred against that individual are recorded on the form and accord with the charges made against the appellant at St Leonards earlier that night. Police officers identified the appellant as having been interviewed at St Leonards Police Station that evening, during which interview he confirmed his name, address and date of birth, all of which coincide with those on the fingerprint form. The interview concluded at 21.02 hours when the appellant was cautioned, charged and arrested. The sheriff considered that from these facts there was sufficient to entitle the inference to be drawn that the comparison prints on Crown Production 17 were indeed those of the appellant. We agree with the analysis of the sheriff. For the appellant: C M Mitchell, instructed by Beaumont & Co, Solicitors, Edinburgh. For the respondent: McSporran, AD.

G 380

5220.indd 380