Scottish High Court of Justiciary Decisons

AVRIL COWAN IN ROOM AND PLACE OF MALCOLM H. COWAN v. HER MAJESTY'S ADVOCATE [2001] ScotHC 24 (3rd May, 2001)

[1] Malcolm Harry Cowan was charged with one episode of lewd, indecent and libidinous practices towards three young girls, aged 7 and 9 at the date of the alleged offence, 9 May 1999. On 12 November 1999, after a trial, he was found guilty and on 3 December 1999 he was sentenced to 18 months imprisonment. He appealed against both conviction and sentence and obtained interim liberation on 16 December 1999. However, he died on 30 March 2000, before the appeal could be heard. His mother, Mrs. Avril Cowan applied for leave to continue with the appeal and was granted leave to do so.

[2] Leave to appeal against conviction was granted on one ground only, namely that the sheriff erred in permitting evidence to be led by the Crown which was not relevant to the charge before the jury and which was significantly prejudicial. The matter arose in the following way. The evidence directly concerned with the charge fell into fairly short compass. Two of the complainers spoke to the conduct complained of and the third spoke to part of it. There was also evidence of a statement by the accused to a police constable to the effect that the girls were telling the truth. There was, therefore, sufficient evidence to entitle a jury to convict. However, the particular incident spoken to was, undoubtedly, a single incident and could not be regarded, on the evidence led, as forming part of any course of conduct. The appellant was, and had been for some years, a friend of the step father of the children and he was, on the particular occasion, in the house as a result of that friendship. The children maintained that an incident involving lewd practices had occurred but the accused offered an innocent explanation of the incident. In any event, there was no suggestion that the accused had in any way sought acquaintance with the children or endeavoured to obtain access to them. However, the accused was a swimming pool attendant and in that capacity had done a considerable amount of work with young people.

[3] In the course of the trial, the procurator fiscal depute led evidence from Detective Constable Lindsay Black who was an officer with four years experience in the child protection unit and had undergone training in that unit. He was asked about that training and thereafter there was the following exchange:

At that point counsel for the accused made an objection on the ground that the matter of grooming was irrelevant. In answering the objection, the procurator fiscal depute said, inter alia,

Counsel for the accused then submitted that the whole issue of grooming or seeking acquaintance with young children was irrelevant to a case depending on evidence about a single incident. Having heard the argument, the sheriff said:

[4] Counsel for the accused pointed out that this was a trial not an educational exercise but the sheriff declined to alter his ruling. The witness was then recalled and reminded of the evidence he had given about people who set out to take advantage of children and was asked to continue with that evidence. He said:

[5] In presenting the appeal, senior counsel submitted that the evidence quoted above was totally irrelevant, prejudicial, unjustifiable and significantly inhibiting to the conduct of the defence and thus led to a miscarriage of justice. The complainer's evidence about the incident had been challenged on the basis that there was no deliberate indecency. The incident had begun because the accused had been in a toilet, urinating, without shutting the door and two of the children had seen his penis. So much was not disputed but as to the remainder, which contained the substantial libidinous practices complained of, the evidence was challenged. It was a case which depended directly on the evidence as to the particular incident. It was not in any sense a "grooming" case. There was no evidence or indication that the accused had ingratiated himself with the children or sought access to them. The defence had been in a position to lead a number of witnesses to give evidence as to the accused's good character and in particular to his good services and trustworthy character in his activities involving children in the course of his employment. Junior counsel, who appeared at the trial, had felt inhibited in leading that evidence, and had not done so, because of the risk that any such evidence would be seen as, or represented to be, evidence indicating that the accused was a person who put himself in a position to have access to children. What the procurator fiscal depute had said in answer to the objection was, indeed, a clear warning that that was the approach which the Crown was going to take. The sheriff had indicated that he might deal with any possible prejudice by directions to the jury but in fact he had not given any directions on this topic. The sheriff had been wholly wrong in admitting the evidence because of its alleged educative quality. The sheriff in his report had stated that in his view the incident was rather a non-event, that the evidence of the Detective Constable had been extremely low-key and that he would be surprised if it made any impression on the jury. He said that to repeat the evidence in the charge or refer to it might merely have drawn attention to it. He did, however, say that this could not really be described as a grooming situation. In his comments, the sheriff ended by saying that the evidence made no real impression on him and that he would be surprised if it made any impression on the jury. That approach simply highlighted the fact that the sheriff had not appreciated the problem.

[6] The advocate depute said that it was accepted that it was no part of the Crown case that the accused had engineered the situation in which the offence occurred and to that extent the evidence was strictly speaking not relevant. However, he submitted that there was no miscarriage of justice. The defence could not have been inhibited in leading character evidence. If the procurator fiscal had cross-examined any witness on questions of inappropriate behaviour that would have been objectionable. He accepted that the evidence had been deliberately led for a misconceived purpose, as appeared from what the procurator fiscal depute had said. However, the evidence was extremely general, added nothing to the general knowledge of the jury and was not a startling revelation in so far as it dealt with the fact that most child abuse was within the family. The sheriff had been entitled to take the view that a reference in the charge would do more harm than good. It was a very strong Crown case and the evidence had been clearly focused for the jury in the sheriff's charge.

[7] In our view, it is very plain that the evidence was wholly irrelevant and should never have been led. Further, we find it difficult to read what was said by the procurator fiscal depute as anything other than an indication that the purpose of leading the evidence was to lay a foundation for cross-examination of witnesses to the accused's character in a way which would involve imputation that in his normal employment he might have been taking the opportunity to place himself in contact with children. Even without such cross-examination, the leading of the evidence was clearly intended to place the evidence of character witnesses within a framework which would tend to take away from any force which it otherwise might have. Having regard to all these factors, we cannot regard the evidence as other than significantly prejudicial to the accused's defence. Of course, on the face of it, this was, a strong case for the Crown but there was an argument that the children had elaborated on what really occurred and the evidence led on this point was capable, in our view, of affecting the jury's consideration of that submission. In all the circumstances, it seems to us that the sheriff erred in admitting the evidence at all. There is force in the sheriff's comment that on occasions to refer to evidence of doubtful admissibility in a charge may simply remind the jury of something which they might otherwise have forgotten. In this instance, however, if the evidence was to be admitted at all, it was essential that the sheriff should do as he had indicated that he would, and make it absolutely plain to the jury that the evidence was admitted for some reason of the kind to which he had referred, and should not be treated as in any way reflecting upon the position of the accused or any witness on his behalf. In the whole circumstances we are unable to avoid the conclusion that there was serious risk of prejudice to the accused and a miscarriage of justice. Accordingly, the conviction will be quashed.