Scottish High Court of Justiciary Decisons

Borwick v. Procurator Fiscal [2002] ScotHC 9 (21 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Wheatley Lord Carloway	Appeal No: 1425/98 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by LAWRENCE GEORGE BORWICK Appellant; against PROCURATOR FISCAL, Kirkwall Respondent: _______

 

 

Appellant: Shead; Drummond Miller

Respondent: M. Stewart, A.D.; Crown Agent

21 February 2002

1. On 7 April 1998 the appellant was convicted on two charges on a complaint against him and on 5 May 1998 he was sentenced to three months imprisonment on the first charge and one month concurrently on the second charge.
2. Both charges arose from incidents on 14 February 1997. The first was a charge on wilfully supplying alcoholic liquor to several young girls at an address in Kirkwall, knowing that consumption of the liquor could be dangerous to their life and health and causing and procuring the consumption of the liquor by the girls: and it was further alleged that one of them, S.B., was rendered unconscious and urinated and vomited over herself. The second charge alleged that the appellant took a video film of the girls S.B. in her state of drunkenness and thereafter showed it to other persons to the embarrassment and distress of S.B. and her family and committed a breach of the peace.
3. A number of submissions were made at the trial and repeated in the grounds of appeal and the Sheriff prepared a report having regard to those grounds. Subsequently, however, additional grounds of appeal were lodged which raised questions as to the adequacy of the representation of the accused at the trial, and comments on those grounds were obtained from the solicitor who represented the appellant at the trial. As the argument before this court developed, however, it became clear that there were only two points with which it was necessary for us to deal. The first of these points was whether the facts found by the Sheriff in relation to the first charge were sufficient to amount to the commission of the crime charged in charge 1. The second was whether in the light of recent authority the facts found in relation to the second charge amounted to the commission of a breach of the peace. The second of these questions can be disposed of relatively briefly. As the charge narrates, the appellant videoed the girl in a drunken and distressed state. The charge itself however only states that this conduct was to the distress and embarrassment of the girl and her family. The Sheriff's findings show that he accepted a Crown submission that the breach of the peace lay in the taking of the video, not in the later showing of it, but his findings do not go beyond holding that one of the other girls at the party was upset and that S.B. herself was angry and embarrassed when she understood what had happened. In the light of the decision of this court in Smith v. Donnelly 2001 SCCR 800, it is clear that these findings do not justify a conviction for breach of the peace. The Sheriff very rightly regarded the appellant's conduct as highly reprehensible but that is not, it is now clear, sufficient for a conviction on this charge.
4. The Sheriff finds that on 14 February 1997 the appellant, who was 28 years of age at the time, held a party at the address libelled, which was attended by S.B., who was thirteen, and by a number of other young girls of a similar age. S.B. had been warned by her mother on previous occasions not to go to the appellant's house but nevertheless went. She had previously taken alcohol but not to the extent which occurred on this occasion. The Sheriff finds as follows:-

"At his suggestion, S.B. gave the appellant the sum of £5 for him to buy her a half bottle of vodka. He left the house to buy that and other alcohol and returned and gave the half bottle of vodka to her. She drank it all very quickly. The appellant also bought alcoholic drink for [two other girls] and gave it to them. He remained present in the house throughout the party."

5. The findings then narrate the consequences for S.B. who became very drunk and comatose. In his note, the Sheriff explains that he heard argument directed to the case of Khaliq v. HMA 1983 SCCR 483 and a submission on behalf of the Crown that it could be inferred from the nature of the transaction that the appellant had been guilty of the crime there discussed. The Sheriff found in terms that the appellant had culpably wilfully and recklessly supplied alcohol as detailed in the first charge.
6. In support of the appeal, it was submitted that the conviction of the appellant in the circumstances of this case was an extension of the crime described in Khaliq supra and was not justified by the later decision in Uhlaq v. HMA 1990 SCCR 593. This was not, it was submitted, a case of instigation to consume a dangerous substance and if recklessness was relied on, the standard to be met was high, as had been explained in Cameron v. Maguire 1999 SCCR 44. It had to be recalled that there was other alcohol available at the party and that the complainer S.B. had consumed alcohol previously.
7. In our view, this is not a case in which it is necessary to refer in any detail to the discussions of the crime of culpable and reckless conduct in Khaliq supra or other case. In the present case, the appellant, who was 27, invited S.B., who was 13, to the party, suggested that he should obtain alcohol for her, obtained a half bottle of vodka for her, gave it to her, was present in the house while she drank it and observed the consequences. A half bottle of vodka would be a substantial amount for an adult to drink in the course of an evening and plainly was likely to be damaging to a young girl. The appellant did not actually administer vodka to the complainer directly, but the case is very much the same as if he had done so. The circumstances in our view fall very directly within the decision in Khaliq supra, at least so far as the complainer S.B. is concerned. On the other hand, there are no findings which give any detail as to the quantity or nature of any alcohol supplied to the other girls mentioned in the charge, nor of any effects of the alcohol on them. In these circumstances, the conviction falls to be sustained, but in relation to S.B. only.
8. Much of the argument in relation to adequacy of representation related to the breach of the peace charge and need not be considered. There was criticism of the solicitor's alleged failure to cite and call witnesses and to call the appellant to give evidence. These criticisms were rejected by the solicitor who has given a full and detailed account of his dealings with the case and referred to supporting documents. None of the criticisms can be said to have any real bearing on the correctness or otherwise of the conviction on charge one, to the extent that we have sustained it and in these circumstances it does not seem to us to be necessary to take this issue any further. In these circumstances we shall quash the conviction on charge 1 and substitute a conviction limited to the case of the girl S.B. and quash the conviction on charge 2. There is also an appeal against sentence which remains to be disposed of.