APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: 279/98
OPINION OF THE COURT
delivered by LORD SUTHERLAND
APPEAL AGAINST CONVICTION and SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Burns, Q.C.; Balfour & Manson
Respondent: Mulholland, A.D.; Crown Agent
24 June 1999
The appellant was convicted of charges of rape and assault. He now appeals against the conviction for rape, on the ground that there was no corroboration of penetration. The circumstances of the offence, as narrated in the trial judge's report, were that the complainers in the two charges, L.F. and S.A., were engaged. They had become friendly with the appellant and on the night in question were drinking with the appellant and a friend of the appellant in a public house. At closing time the complainers invited the appellant and his friend to their flat. After a time the friend left. Later, a bed was made up for the appellant on the livingroom floor. F. and A. went to bed, leaving the appellant in the livingroom. In the bedroom F. and A. had sexual intercourse and thereafter F. went to sleep. A. suffered from a stomach upset, probably due to taking too much drink and ecstasy, and went to the toilet. While he was there there were three closed doors between him and the bedroom. He estimated that he was there for about 10 to 15 minutes. F. woke up to find a person lying on top of her having intercourse with her. She realised that it was the appellant. He had his hand across her mouth. She tried to get away. She felt something cold against her face and the appellant said that if she did not stop struggling he would spray it on her face. He had on an earlier occasion had a can of mace and had been talking about it. During the course of the appellant having intercourse with her she became aware that A. had come back into the room.
Accordingly there was clear evidence of penetration from F., but in the absence of any forensic evidence the only corroboration could come from A. A. was asked if when he got to the bedroom anything was happening and he replied "Yes, when I opened the bedroom door Mr. Riley was raping my fiancée". Later when asked what he was actually doing he replied
"Well, he was raping my fiancée. That's what he was doing, and he was thrusting as you would when you're having sex or raping. He had both of her hands in one of his hands. She was crying and shaking her head and crying and saying, 'no' and 'he's got a knife he's going to kill us'".
He accepted that what was taking place was under the covers. While he was in the room the appellant pointed towards him in a threatening gesture what he recognised was a can of mace. That is what constituted the second charge of assault. It should be noted that the defence was that what took place in the bedroom was with the consent of the complainer F. but that the appellant was unable to achieve penetration. It was not put in cross-examination to A. that he was wrong in his impression that the appellant and F. were actively engaged in having intercourse at the time when he came into the room.
Mr. Burns on the appellant's behalf today argued that, while it might be open to the jury to conclude that F. was being penetrated when A. came into the room, there was insufficient evidence to justify the jury coming to the conclusion that this was a case of rape rather than attempted rape. Mr. Burns submitted that the case of Fox v. H.M. Advocate 1998 S.C.C.R. 115 did not assist in the present matter. In Fox the question was whether the corroboration was sufficient to distinguish between a criminal offence and an innocent explanation. In that situation it would be legitimate to take the view that all that is required is evidence to confirm or support the evidence of the principal witness that a crime had been committed. In the present case, however, there is no doubt that a crime was being committed but the question was whether the crime was one of rape or of attempted rape. In that situation something more was required than simply confirmation or support of the complainer F's evidence and this was not available. It was not available because A's evidence was equally consistent with either crime.
In our view A's evidence was amply sufficient to corroborate the evidence of F. There is not the slightest doubt from his evidence that his impression at the time when he entered the room was that the appellant was having intercourse with F. and was not merely attempting to do so. He gives a justification for forming that impression when he says "He was thrusting as you would when you are having sex or raping". This evidence, in our view, was quite sufficient to corroborate the evidence of F. that the appellant was engaged at the material time in having intercourse. We may say that we do not agree with Mr. Burns that there is a distinction to be drawn between evidence required to corroborate a crime as opposed to an innocent explanation and evidence which is required to corroborate one crime rather than another. On any view, however, we are entirely satisfied that A's evidence was quite sufficient to confirm or support, and therefore corroborate, F's evidence. We shall accordingly refuse the appeal against conviction.
The trial judge imposed a sentence of ten years imprisonment in cumulo. It is clear, however, that the assault charge played little part in the determination of this sentence and for practical purposes the sentence was ten years for rape. The ground of appeal in relation to the sentence is that the trial judge took into account the details leading to a previous conviction in January 1994 as narrated to him by the advocate depute at the request of the trial judge. It was submitted that such details should not have been taken into account and led the trial judge to impose a sentence which was excessive. The trial judge accepts that he did enquire of the advocate depute what were the circumstances of that conviction and that when he was given the details he took those details into account. The conviction was narrated in the schedule of previous convictions as being one for assault to severe injury and danger of life, for which the appellant received a sentence of four years imprisonment. The circumstances briefly were that the complainer had had a short term relationship with the appellant. The appellant went to her house, having been drinking, and then proceeded to assault her fairly violently. The details of the assault were narrated by the advocate depute in a submission extending over three pages of transcript. The trial judge tells us that in deciding the appropriate level of sentence he took into account the details of this conviction as showing that the appellant was a danger to women.
Mr. Burns submitted that the trial judge should not have had regard to any of the circumstances of the previous conviction and should have confined himself simply to noting that the appellant did have a conviction for a serious offence. Counsel referred to Connell v. Mitchell (1908) 5 Adam 641. In that case the Lord Justice Clerk, having dealt with the issue in the case which related to the relevancy of the complaint, added this:
"I wish to add that we were told in the course of the debate that it is the practice of magistrates to look at the details of previous cases in which convictions have been pronounced against the same accused in considering what punishment they would award in a new case. I must say that that is not a proper practice. I have never heard of it being done in the Supreme Court. Under the old law previous convictions were proved and the amount of punishment that was given was before the court. I do not think the court ever looked at the details of the charges of which the man was convicted, because to do so without having the evidence before them might lead the court to suppose that a great deal had been proved at the trial which was not proved. As I pointed out in the course of the debate, the verdict of a jury convicting a man of a number of acts, collective acts under one charge, merely means that they convicted him of the whole or part, a substantial part, nothing more. The judge knows what is proved at the trial and considers that matter in the sentence imposed, but a judge considering the convictions afterwards cannot know them. As proof that no such practice ever existed in the court of Justiciary, we have since the passing of the Act of 1887 had the practice, to save expense and trouble, of bringing up simply a list of convictions written on the last conviction, and none of the details of these convictions can be known to the court. It is a painful duty to deal with a man who has 10 or 11 convictions, but one cannot enquire what the details of these previous details were. I think the magistrates would be doing right in a case of this kind to consider the previous convictions and the penalties which were pronounced in considering what penalty they will now pronounce; but as to the details of the case I do not thing it would be right that they should consider them or know them at all".
Counsel submitted that the practice laid down by the Lord Justice Clerk in Connell has been followed ever since. In Baker v. McFadyen 1952 S.L.T. (Notes) 69 it was followed in a case where the defence wished to go into detail about previous convictions in order to minimise the effect of them. In McGlennan v. McKinnon 1998 S.C.C.R. 285 it was said that the court could not look behind previous convictions in order to discover whether they related to incidents which could be used to constitute a course of conduct for purposes of harassment. After referring to Connell the Lord Justice General said
"In that case the only documentation available to the magistrates had been a list of previous convictions and the penalties imposed. Here by contrast, argued the advocate depute, the sheriff had the extract convictions and copy complaints. He should be able to look at the conduct described in these when deciding whether the respondent had pursued a course of conduct amounting to harassment. While the exact scope of the Lord Justice Clerk's dictum may require to be determined some day, I am satisfied that in the present case the sheriff could not take account of this material for the purpose envisaged by the Crown".
Counsel accordingly argued that any reference to any of the details of the convictions stated in the schedule was not legitimate.
The advocate depute accepted that in the present case no notice had been given to the appellant or his advisers that details of the previous conviction were going to be produced. He also accepted that in the present case too much by way of detail was given to the court rather than simply indicating the general nature of the major previous conviction. He said that if the Crown were intending to produce information about a previous conviction this should be done following the procedure in Robertson v. H.M. Advocate 1997 S.C.C.R. 535 where an extract conviction was produced, which contained all the necessary information which could not be disputed, without going into the matter in any further detail. He submitted that as far as Connell was concerned the comments made by the Lord Justice Clerk were obiter although he accepted that since that time this appears to have been the accepted practice. He pointed out that Connell was decided under the terms of the 1887 Criminal Procedure Act, sections 63 to 65 of which related to extract convictions. Those sections set out three different classes of case in which it was said that extract convictions may lawfully be put in evidence as aggravations of the offence committed on the particular complaint or indictment before the court. The procedure today is substantially different. In the first place all convictions are now placed before the court, rather than only analogous convictions. Since the advent of social enquiry reports, information can be placed before the court from another source to enable the court to arrive at the proper disposal of the case, even though that information is not contained in a notice of previous convictions. Under section 101(7) of the 1995 Criminal Procedure (Scotland) Act the court may have regard to any previous convictions in deciding on disposal. He referred to Sillars v. Copeland 1966 S.L.T. 89, which showed that previous convictions, contained in what would now be a social enquiry report, could be founded on by the court even though they were not contained in a notice of previous convictions, provided that the accused had the opportunity to challenge any such alleged convictions. He referred to the English procedure where, under a practice direction, it is provided that in the Crown court the police will provide brief details of the circumstances of the last three similar convictions or of convictions likely to be of interest to the court. Accordingly the dicta in Connell should now be regarded as outmoded and overtaken by subsequent events.
In our view it is clear that since 1908 the desiderated practice is that laid down in Connell but it is equally clear that the climate has substantially changed since that date. Under the 1887 Act previous convictions could only be used as aggravations of the offence and only analogous previous convictions were regarded as relevant. Thus the general character of the accused was not in issue, merely the offence itself. The more modern approach is to take all circumstances into account which are relevant to a proper disposal of the case. This is made clear from the wording of section 101(7). At least since the case of Sillars it is apparent that previous offences, which are frequently referred to in social enquiry or other reports, can be taken into account by the court, and this reinforces the view that in modern practice not only the fact of a previous conviction is relevant but also the nature of that conviction. If, for example, an accused is charged with indecent assault and is convicted and his schedule of previous convictions shows six offences of breach of the peace, it will be extremely relevant to sentence for the court to be aware that all of these convictions related to making indecent telephone calls to women. We can see no reason in principle why the court should be deprived of this information when the duty of the court is to decide on what is the appropriate disposal, in the circumstances not only of the case but also of the accused. We are therefore satisfied that the rigid restrictions laid down in Connell are no longer suited to the principles of modern sentencing practice.
We would, however, entirely accept that this does not mean that it is appropriate to examine closely the detailed evidence which led to any previous conviction, particularly as this could easily lead to disputes between the Crown and the accused as to precisely what occurred. Where, however, there is no scope for dispute we see no reason why the court should not have before it information as to the general nature of the conviction, such as could be provided by the terms of the charge to which the conviction relates, possibly by way of full extract convictions as was done in Robertson. To take such a course would be sufficient to bring to the court's attention the general flavour of the previous convictions without going behind the convictions in any way to enquire into the circumstances which led to them. It is, of course, of importance, as was pointed out in Sillars, that the accused should be given notice that the Crown are intending to provide the court with greater specification of any particular conviction. Accordingly, in appropriate cases, and we should emphasise that this should be regarded as an exception rather than a standard practice, if the Crown consider that there are factors relating to previous convictions which ought to be before the court in deciding on the appropriate disposal it would be appropriate for the Crown to append to the notice of previous convictions the extracts of those convictions which the Crown considers should be before the court. This would give ample notice to the accused that the nature of these convictions was to be relied upon. In situations where the court itself may wish to find out more detail about a previous conviction and where the Crown do not immediately have the appropriate information, plainly the case would require to be continued in order that the accused should have the opportunity of considering the extract convictions which were to be produced. We note that this was the course taken in the case of Rozanski v. Ingram 1981 S.C.C.R. 100 where the appeal at its first hearing was adjourned to enable the court to obtain information about earlier speeding offences. This course was taken by a strong court, the members of which could hardly have been unaware of the practice laid down in Connell but were not apparently deterred in any way from calling for this additional information. In summary, therefore, we are of opinion that the rigid rule laid down in Connell can no longer be regarded as a universal practice. In appropriate cases the court should have before it such information as it requires to enable it to arrive at a proper disposal of the case, having regard not only to the circumstances of the offence but also the background of the offender. This information should, however, be restricted to the terms of the charge on which the previous convictions are based with no additional information such as the circumstances or facts which led to that conviction.
Returning to the facts of the present case it is clear that far more information was placed before the trial judge than should have been placed before him. If the advocate depute had restricted her comments about the previous conviction to saying that it involved an assault in her own home on a woman, no objection in our view could have been taken to that course, that being information which would have been apparent from the terms of the charge on which the conviction was based. As it is, however, the trial judge may have been influenced by the very great detail entered into by the advocate depute as to the horrendous nature of that particular assault, which was not strictly relevant to the matter before the trial judge. As there is a risk that the trial judge may have taken improper information into account we shall therefore consider the matter of sentence de novo. There is no doubt that this was a bad case of rape which, by itself, would have attracted a substantial sentence. The appellant has a long list of previous convictions, including three convictions for assault and a conviction finally for assault to severe injury and danger of life for which he received four years imprisonment. Although there was no sexual element in that last conviction it is relevant that it was, from its very nature, obviously a serious assault and it was an assault on a female complainer in her own home. In our view the combination of the gravity of the present offence and the appellant's bad record is such that the appropriate sentence for the present offence would be one of ten years imprisonment, which will be backdated to 14 January 1998.