Scottish High Court of Justiciary Decisons

JAMES S ANDERSON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 60 (24th July, 2001)

[1] The appellant is James Stewart Anderson who was convicted at the Sheriff Court at Glasgow of two charges which as recorded, with the deletions made by the jury, were in these terms:

1. [he] did abduct [the complainer] into [his] motor vehicle registration number G513 TGG on 12 August 1999 at Great Western Road Glasgow near to Chaplet Avenue, and convey him to [the appellant's] house at 373 Knightswood Road, Glasgow and did take him into the house there and detain him in said house against his will
2. on 12 August 1999 at 373 Knightswood Road, Glasgow you did use lewd, indecent and libidinous practices towards said [complainer aged 9] and did remove your clothing, expose your partly naked body to said [complainer]".

We pause to observe that, as counsel pointed out, on charge 2 the jury may in fact have intended to return a verdict that the appellant used lewd, libidinous behaviour towards the complainer. The difference is not, however, material for present purposes. The appellant was sentenced to three years imprisonment backdated to 26 August 1999. He appealed against his conviction on both charges.

[2] Conviction

The appellant's note of appeal contains three grounds, but when presenting the appeal Mr. Brown indicated that he was not insisting on the first ground of appeal and was content to present the appeal simply in terms of the second and third grounds, which referred to the first and second charges respectively.

[3] The first issue relates to the Sheriff's directions that the jury could find in the evidence of the complainer's distress after the alleged incident the necessary corroboration of the alternative in charge 1 of which the appellant was convicted. We can summarise the matter quite shortly.

[4] The complainer gave evidence to the effect that, when visiting his grandparents, he had gone out to look for his brothers in a park near Great Western Road. It was raining. He was approached by a man whom he identified at an identification parade as being the appellant. He asked the complainer what he was doing there and when he explained that he was looking for his brothers, the man grabbed him by the arm and put him into the front passenger seat of his car. He then locked the car door and drove him to the address in Knightswood Road. When they got there, the man grabbed the complainer and pulled him out of the driver's door. At that point the complainer hurt his knee on the road. The man held his arm pretty hard and took him into the house and upstairs to the bathroom where he began to run a bath and tried to take the complainer's clothes off. The complainer resisted and the man took him by the arm into the living room. There the man tried to take the complainer's clothes off and to undo his trainers, but again the complainer resisted and shoved the man into the fire. None of the complainer's clothes were taken off. At one point the complainer was in a bedroom where he played pool. While he was doing so, the man came into the room, having taken off all his clothes except a pair of red and blue striped boxer shorts. The man had then told the complainer to go downstairs to the living room and to take his own clothes off. The complainer went downstairs and tried to get out of the front door but a ladder fell on him. The man then put his clothes back on again, drove the boy back to the area where he had picked him up near the Lincoln Inn public house, let him out of the car and gave him 20 pence. The man went into the public house.

[5] The complainer went towards his grandmother's house, crying for his mother. On the way he met his father whom he told that somebody had pulled him off the street. His father had asked him to show him the man. He had pointed to the man's white car and had identified the man to the police in the public house. He thought that he had been in the man's house for about twenty minutes.

[6] Detective Constable Robertson gave evidence that, when first asked whether he had taken the boy home, the appellant had said "No", but then had said "No, wait a minute, I did take him home." He later said that the complainer had come willingly. When he saw the boy, he had asked him where his mother and father were. He had been trying to help him. In the light of this evidence, it is clear that the appellant admitted taking the complainer to his house but contended that the boy had gone with him willingly. That was also his position when he gave evidence at the trial The critical issue, so far as the first charge of abduction was concerned, was accordingly whether there was evidence which could corroborate the complainer's evidence that he had been taken and held against his will.

[7] For that purpose the Crown relied mainly on the evidence of the complainer's father to the effect that, when the complainer did not return home with his brothers at about 9.30 p.m., he had gone out to look for him. He had found him at about 9.45 p.m. when he heard a child screaming and crying. The complainer was very upset, crying and shaking. He told his father that a man had taken him away in a car and back to his house. It was not like his son to be so upset and screaming in the street. In addition, the Crown relied on medical evidence that the complainer had signs of recent grazing on his knee, which would have been consistent with his evidence that he had injured himself when he was taken out of the car. As Mr. Brown pointed out, however, the jury deleted the averment in charge 1 that the appellant had pulled the complainer from the car. That being so, the only source of corroboration for charge 1 which now fell to be considered was his father's evidence of the complainer's distress. We approach the matter on that basis.

[8] Mr. Brown accepted that, if the jury were satisfied that the distress of the complainer which his father observed was due to his having been taken away and kept by the appellant at his house, then evidence of that distress could indeed constitute corroboration of the complainer's evidence that these things had happened against his will. They would therefore be entitled to convict the appellant of charge 1. Mr. Brown argued, however, that the Sheriff had misdirected the jury on this matter and that the appellant's conviction should accordingly be quashed.

[9] The Sheriff's principal direction to the jury on the point was in these terms:

[10] In itself this direction was satisfactory, said Mr Brown. The problem arose, however, when it was recalled that in this case there was also evidence, relating to charge 2, to the effect that, while the complainer had been in a bedroom in the appellant's house, the appellant had appeared dressed only in his boxer shorts. That incident could, in itself, have been upsetting to the complainer. The jury should therefore have been directed, not simply that they had to be satisfied that the boy's distress was attributable to his abduction and detention rather than to how he would be received if he returned home late, but also that they had to be satisfied that the distress was due to his abduction and detention rather than to any indecent conduct by the appellant covered by charge 2. So far from giving the jury that direction, the Sheriff, when dealing with corroboration in relation to charge 2, had directed the jury that they "would not be entitled to look to distress in the context of charge 2". When the two passages in the Sheriff's charge were taken together, they amounted to a misdirection, since, if applied, they prevented the jury from considering the real possibility that some incident covered by charge 2, rather than the events covered by charge 1, was the source of the complainer's distress.

[11] It is clear both from the Sheriff's charge and from what the Advocate Depute told us, that the Crown position at the trial was that the complainer's distress was attributable to his abduction and detention. In presenting his argument, Mr. Brown was unable to tell us whether the defence agent had suggested that some other event during the abduction and detention, rather than the abduction and detention themselves, might have caused the complainer's distress. For that reason it is difficult to gauge to what extent this was a live issue at the trial rather than a point advanced, with the benefit of hindsight, in the Appeal Court. In any event, it appears to us that, even if they had thought that some incident during the complainer's abduction and detention might have played some part, the jury must have been satisfied that his distress had indeed arisen because he had been detained against his will and abducted by the appellant. It was only if they had been so satisfied that, applying the directions on distress which the Sheriff gave them, the jury would have found the necessary corroboration to convict the appellant on charge 1. That being so, we consider that there was no miscarriage of justice in this case and that the appeal against conviction on charge 1 must be refused.

[12] So far as charge 2 is concerned, in returning their verdict the jury deleted an averment to the effect that the appellant had attempted to remove the complainer's clothing. Counsel argued that what was left was simply a finding that the appellant had removed his own clothing and had exposed his partly naked body to the complainer. This could not, it was said, amount to using lewd, indecent and libidinous practices towards the complainer even though he was a boy of nine. Mr. Brown submitted that appearing dressed only in a pair of boxer shorts before a nine-year-old boy could not constitute an offence of lewd, libidinous and indecent practices. Similar sights were to be seen regularly on beaches throughout the summer. If matters had gone any further and the appellant had, for example, exposed his private parts to the complainer, that would, of course, have been different. But what the jury had found proved was not relevant to infer guilt of the offence libelled. The Advocate Depute resisted that argument. He contended that one had to have regard to all the circumstances. The appellant had abducted the complainer and was keeping him in a strange house. The boy was trapped there by himself. The appellant suddenly appeared before him in this state of partial undress. These factors made the situation very different from a man in a pair of trunks on a beach and were sufficient to allow the jury to infer the element of indecency which was necessary for a conviction of this offence.

[13] In our view, even when all the various factors mentioned by the Advocate Depute are taken into account, it cannot be said that, simply by appearing in front of the complainer in a pair of boxer shorts, the appellant was guilty of using lewd, indecent and libidinous practices towards the complainer. Whatever his motives might have been and whatever he might ultimately have done if events had worked out differently, in fact, on the jury's verdict, the appellant did nothing that was lewd or indecent or libidinous and therefore he did nothing that could constitute the offence libelled. That being so, the appeal against conviction on charge 2 must be allowed.

[14] The Sheriff sentenced the appellant to a cumulo period of three years imprisonment on the two charges. Plainly, we must reduce the sentence to reflect the fact that we have quashed the appellant's conviction on charge 2. Before being granted interim liberation the appellant spent just over a year in custody. While the first charge is indeed serious, we are satisfied that, having regard to the appellant's personal circumstances as outlined by the Sheriff in his report, we can properly reflect the gravity of the appellant's conduct by quashing the sentence of three years imprisonment and substituting a sentence of two years imprisonment backdated to 26 August 1999 in respect of charge 1.