Scottish High Court of Justiciary Decisons

ALEXANDER LOVE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 214 (31st August, 1999)

The appellant was, on 2 December 1997, convicted after trial on three charges of shamelessly indecent conduct. He was sentenced to a cumulo term of imprisonment of ten years. He appealed against his conviction and sentence, the appeal against conviction being restricted at the hearing to that on the second of the three charges. That restricted appeal was successful. This court held that the trial judge had misdirected himself in his disposal of an application made in the course of the trial under section 275 of the Criminal Procedure (Scotland) Act 1995. We refer for the relevant background to the Opinion of the Court delivered on 21 July 1999.

On the decision of the court being announced the Advocate depute moved the court to grant authority to bring, in respect of that second charge, a new prosecution in accordance with section 119 of the Act. The hearing of that motion was adjourned until 23 July when argument was presented by the Advocate depute in support of the motion and by Miss Scott in opposition to it. At the close of the discussion the court made avizandum.

At the invitation of Miss Scott the court then proceeded to hear her in relation to the appeal against sentence. In the circumstance that the appellant now stood convicted of only the first and third charges, the sentence imposed by the trial judge inevitably required reconsideration. After hearing Miss Scott the court quashed the sentence of ten years and imposed on the appellant in respect of the first and third charges a cumulo sentence of four years imprisonment.

In support of his motion that authority be granted the Advocate depute observed that the verdict of the jury on the second charge had been unanimous, that the crime charged thereby (a course of shameless indecency towards, included repeated sodomy of, a young boy) was serious and that there was sufficient evidence to convict. Indeed it was, he argued, a strong case, the evidence against the appellant including a full confession made in the course of a tape recorded interview with police officers. In such circumstances there was an important public interest in bringing the matter to trial. The error which had led to the quashing of the conviction had been primarily that of the trial judge. He accepted that the Advocate depute at the trial had, in opposing the application under section 275, adopted the erroneous approach first suggested by the trial judge. He noted, however, that defence counsel at the trial had equally failed to recognise the fallacy of that approach, at one point apparently going so far as to accept that the timing of alleged events gave rise to a difficulty with her application. There had been an error common to the Crown and to the defence. The seminal cause of the miscarriage of justice at the trial had been the consideration first raised by the trial judge and then made the ground of his decision to refuse the application. In relation to the granting of authority to bring a new prosecution each case had to be looked at in its own circumstances. The fact that there had been a degree of fault on the part of the Crown was not fatal. He referred to Sinclair v. H.M. Advocate 1990 S.C.C.R. 412, per Lord Justice Clerk Ross at page 416B-E.

Miss Scott in opposing the motion relied on four elements - (1) the existence of fault on the part of the Crown, (2) the time which had elapsed since the alleged events founding the charge, (3) the age of the complainer and (4) problems in sentencing which would be faced by the sentencing court in the event of a conviction on a fresh indictment. In relation to (1) she submitted that it was immaterial that defence counsel at the trial had failed to challenge the erroneous approach. The Crown had opposed the section 275 application when it was first made, demanding more specification as to its basis; when that had been given, the Crown had maintained a vigorous opposition, in doing so adopting the erroneous approach. The relevancy of the line of evidence which defence counsel had sought leave to pursue must have been obvious to the Advocate depute, particularly in the context of the medical report, a Crown production. This was highlighted by the approach adopted by the Advocate depute in his address to the jury. The attitude of the Crown to applications made under section 275 was always an important consideration for a trial judge. The Crown had made an important mistake at the trial, as had been acknowledged by it at the hearing of the appeal. In relation to element (2), Miss Scott noted that the alleged events were, in terms of the indictment (as amended in the course of the trial), said to have occurred between April 1994 and December 1996. She referred to McGroarty v. H.M. Advocate 1991 S.C.C.R. 708, while acknowledging that the circumstances of that case were different. In relation to element (3), Miss Scott observed that the complainer on the second charge was 15 years of age at the time of the trial - now about 17. His youth was a material factor (Kelly v. Docherty 1991 S.C.C.R. 312). In relation to element (4), she argued that, if the appellant were convicted following a re-trial, a substantial term of imprisonment would inevitably be imposed in respect of that conviction. There was a risk that such a term, when added to any cumulo sentence imposed by this court in respect of the first and third charges, would result in a longer total term than would be appropriate for a cumulo sentence on the first, second and third charges.

Section 118 of the 1995 Act provides that the High Court may dispose of an appeal against conviction by -

No limits are expressly prescribed to the circumstances in which the court may grant authority to bring a new prosecution in accordance with section 119. Nor are any criteria prescribed for the exercise of the power to grant such authority. In the absence of such prescription the question to be addressed, in our view, is whether, in the circumstances of the particular case, it is in the interests of justice to grant or to refuse authority. That will involve a consideration of, possibly among other factors, the public interest and the interest of the appellant. It is, in general, in the public interest that where there is a sufficiency of evidence, a person accused of serious crime should be brought to trial and tried regularly. Where in the course of a trial an irregularity has occurred leading to a miscarriage of justice and to the quashing of the conviction on appeal, there will undoubtedly be occasions where the public interest calls for a re-trial. The empowering of the High Court to authorise the bringing of a new prosecution (first introduced in Scotland by an amendment to the Criminal Procedure (Scotland) Act 1975 effected by section 33 of, and Schedule 2 to, the Criminal Justice (Scotland) Act 1980) acknowledges that public interest. On the other hand there may often be considerations which singly or in combination lead to the conclusion that it would not do justice to the particular appellant that he be exposed to the possibility of a new prosecution. He has ex hypothesi already stood trial charged with the same or a similar offence arising out of the same facts. Where the irregularity which has resulted in the quashing of the conviction has been materially contributed to by the conduct of the Crown, that may be an important consideration in deciding whether it is just that the appellant should be exposed to the possibility of being required to stand trial again. Fault on the part of the Crown will, in our view, be a relevant, though not necessarily a conclusive, consideration. Sinclair v. H.M. Advocate is a case, though not the only case, in which authority has been granted to bring a new prosecution albeit some measure of fault on the part of the Crown contributed to the earlier miscarriage of justice.

In the present case there is, in our view, a strong public interest in favour of granting authority to bring a new prosecution under section 119. The second charge, if proved, constitutes a course of serious criminal conduct perpetrated over a significant period of time against a boy entrusted by his parents to the charge of the appellant. The evidence available to the Crown is clearly sufficient in law and includes a full confession to the alleged course of conduct recorded on tape during an interview under caution with police officers. The answer given by the appellant at the trial to this evidence was that, prior to the recording device being switched on, he was deceived and threatened by police officers. The truth of that matter is eminently for a jury to decide, as is the credibility of the accounts of the complainer and of the appellant respectively. There is available ample evidence, if accepted, to justify a conviction.

Of the counterbalancing elements relied on by Miss Scott elements (2), (3) and (4) are not, in our view, of major significance in this case. The criminal conduct alleged is of a kind often prosecuted significantly after the events; there is nothing to suggest that in this case there are any special factors relating to the evidence which are materially affected by the passage of time. The age of the complainer is not such as to give rise to the difficulties considered in Kelly v. Docherty. In the event of a conviction following a re-trial the sentence imposed by this court in respect of the first and third charges on the previous indictment will no doubt be drawn to the attention of the sentencing judge who will then be in a position to impose a sentence which takes due account of the earlier convictions and of this court's disposal in respect of them.

The most troubling factor is the conduct of the Advocate depute at the earlier trial. There is force in Miss Scott's observation that the attitude of the prosecutor towards applications made under section 275 is of importance, albeit the ultimate responsibility for the decision lies with the judge. The position adopted by the Advocate depute in this case was erroneous and was liable to have important consequences for the trial. Nonetheless, the error was initiated by the trial judge and the material opposition by the Advocate depute to the application was advanced only after defence counsel had appeared to acknowledge that there was force in the judge's observation. It was in these circumstances that the judge made the misdirected decision.

Weighing the whole circumstances we are on balance of the view that it is in the interests of justice that authority be granted to bring a new prosecution under section 119. The Crown's motion is accordingly granted.