Scottish High Court of Justiciary Decisons

BRIAN FAULDS v. HER MAJESTY'S ADVOCATE [2000] ScotHC 67 (21st June, 2000)

The appellant is Brian Faulds who appeals against his conviction at the High Court at Glasgow of two charges. The first of these charges, which was charge 2 on the indictment, was a charge of assaulting two police officers in the execution of their duty by presenting an imitation firearm at them which they believed, or suspected on reasonable grounds, to be an actual firearm and by pointing it at them and menacing them with it. The second charge of which he was convicted was charge 3 on the indictment. This was a charge of having in his possession an imitation firearm with intent by means thereof to cause persons to believe that unlawful violence would be used against them, contrary to section 16A of the Firearms Act 1968. Both the second and third charges related to the same incident.

Charge 1 on the indictment, of which the appellant was acquitted, related to an alleged incident which was said to have occurred some time earlier at a different address and involving an assault on two employees of West of Scotland Water, again by presenting an imitation firearm at them. The offence was thus similar to the offence in charge 2. Only one of the West of Scotland employees, Mr McKee, gave evidence actually identifying the appellant. For corroboration of the identity of the assailant the Crown therefore relied on the evidence of the witnesses in charge 2 to a similar assault and on the application of the Moorov doctrine. In these circumstances the trial judge gave the jury directions on the application of the Moorov doctrine to charge 1 and no complaint is, or indeed could be, made about the terms of that direction as a statement of the law of Scotland on the topic.

In the event, as we have said, the jury acquitted the appellant of charge 1 and so we must assume either that they rejected the identification evidence of Mr McKee or that they did not find the necessary inter-relation between the acts. But the jury convicted the appellant of charge 2 and indeed of charge 3. So far as charge 2 is concerned, there was evidence from two police officers identifying the appellant as the assailant. Therefore there was sufficient evidence of identification of the appellant as the person who had been at the locus where the incident in charge 2 occurred, without the need to apply the Moorov doctrine. Indeed, as far as we can judge, in the case of charge 2 the issue between the parties was not as to the identification of the appellant, but as to whether or not there had in fact been an assault on that occasion. That was a matter which the jury had to consider and they obviously resolved the dispute by concluding that there had indeed been an assault. In view of the evidence relating to charge 2, it is not surprising that the trial judge directed the jury that they could convict the appellant on charge 2, even if they acquitted him of charge 1, whereas, of course, he also directed them that they could not convict the appellant of charge 1 if they were acquitting him of charge 2. That all follows from the nature of the evidence and from the application of the Moorov doctrine. Were it not for what were said to be the particular circumstances of this case, Mr Alonzi would not in fact have challenged what was said by the trial judge.

Indeed, in presenting the appeal on behalf of the appellant, Mr Alonzi did not seek to argue that the direction given by the trial judge was in any respect wrong in law. Rather, his argument was that there had been a conversation between the Advocate Depute and the defence counsel acting at the trial in which, putting matters shortly, an indication had been given that the Crown were proceeding on the basis that charges 1 and 2, and in consequence charge 3, stood and fell together in the sense that, if the appellant was not convicted of charge 1, then he would not be convicted of charge 2 either. Defence counsel understood that the Crown were going to proceed on that basis. Mr Alonzi argued that this understanding could have had an influence on the way in which defence counsel approached his task in addressing the jury. We have to say that, when we asked Mr Alonzi in what respect the defence counsel's speech to the jury would have differed if that had not been his understanding, he very frankly said that he could not tell us how the speech would have differed.

The Advocate Depute who appeared in Court today was not the Advocate Depute who conducted the trial. He was able to say, however, that his understanding was that, at the end of the evidence, there had indeed been a conversation between defence counsel and the Advocate Depute in which the Advocate Depute initially suggested that it might be possible for the Crown to find independent corroboration for charge 1 without needing to rely on the evidence on charge 2 and the Moorov doctrine. But after some discussion, the final position of the Advocate Depute was that he agreed that he could proceed in respect of charge 1 only by invoking the Moorov doctrine to provide the necessary corroboration.

We have examined the transcript of the speech of the Advocate Depute and indeed of defence counsel. In so far as the Advocate Depute's speech is concerned, it includes a passage where he explains, in broad terms, the nature of the Moorov doctrine and then says this:

Mr Alonzi accepted that the high point of his argument was really in the remarks of the Advocate Depute at the end of the passage which we have quoted. It is correct to say that, if these remarks had been made in isolation, it might have been thought that they were at least ambiguous or, indeed, that they were suggesting that the appellant could be convicted on charge 2 only if he were being convicted on charge 1 also - in other words that the two charges stood and fell together. But that passage does not fall to be read in isolation. On the contrary, in the light of the immediately preceding passage to which he refers it is quite clear that the Advocate Depute's position was indeed that the jury should start with charge 2, where there was clear identification of two people if the jury accepted it. And if they accepted that evidence, then they could use it to corroborate the evidence of the single witness on charge 1. In other words, he was inviting an entirely orthodox application of the Moorov doctrine. Having examined defence counsel's speech we can detect nothing in it to suggest that he misunderstood the position or that he thought that the Moorov doctrine was not being applied in the ordinary way in relation to charge 1 only.

In any event the simple fact of the matter is that it was for the trial judge to direct the jury and to give the appropriate directions in law. As we have said, Mr Alonzi has accepted that he cannot point to any error in law in those directions. It would therefore be possible for this appeal to succeed, if at all, only if he could point to some prejudice which defence counsel, and therefore the appellant, had suffered from some misunderstanding of the Crown position. As we have noted, Mr Alonzi was unable to point to any such prejudice. In particular, he could not say that the matter would have been dealt with differently by defence counsel. In these circumstances we are satisfied that there is no merit whatever in this ground of appeal. There was a second ground of appeal but Mr Alonzi explained that he was not insisting in it. In the circumstances we refuse the appeal against conviction.