Brouillard v. Her Majesty's Advocate  ScotHC 31 (25 May 2004)
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XC468/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION
JAMES JOSEPH BROUILLARD
HER MAJESTY'S ADVOCATE
Appellant: J. Wolffe, Shead; Hamilton Burns
Respondent: M. McLeod, A.D.; Crown Agent
25 May 2004 The appellant was convicted by a jury in the Sheriff Court of the following charges:
"(1) On 15 April 2000 at 30 Balgair Street and 91 Middleton Street, both Glasgow and elsewhere in Glasgow you did abduct (the first complainer), place him in a state of fear and alarm, confine him against his will in a motor vehicle registration unknown and convey him therein to Middleton Street aforesaid and did further confine him against his will in 91 Middleton Street aforesaid;
(2) Between 6 and 7 May 2000 at 30 Balgair Street, Glasgow or elsewhere you did abduct (the second complainer), place him in a state of fear and alarm and confine him against his will in said house; and
(3) Between 6 and 7 May 2000 at 30 Balgair Street, Glasgow or elsewhere you did use lewd, indecent and libidinous practices and behaviour towards (the second complainer) and did handle his private parts".
The appellant has appealed against his conviction on all three charges. We take first the grounds of appeal which are directed to his conviction on charges 1 and 2. The appellant was employed as a night watchman at a building site in Possil, Glasgow. In that connection a virtually derelict tenement block was being used for administrative purposes. One flat in the tenement was used as a site office and as a place where the appellant stayed when he was not patrolling the site. A make-shift bed had been made up there.  The first complainer was a 14 year old boy who was profoundly deaf and restricted in his speech, so much so that his evidence could only be taken from him through an interpreter. His emotional and psychological development, it could be seen, was less than would be expected of a boy of that age. On the morning of 15 April 2000 he left home without the knowledge or consent of his parents and went to the building site. It appears that the appellant knew the complainer slightly, having engaged in conversation with him and a cousin when they had previously been around the site. He had shown an interest in them, and may have given the complainer some small gifts such as picture cards. On this occasion the complainer agreed to go in a motor car with the appellant, although he had never done anything like that before. He left with the appellant in the car at about 11 a.m. The complainer stated in evidence that after the motor car had gone a short distance he decided that he did not want to be there and wrote a note to the appellant saying that he wanted to go home. The appellant said or wrote that it was "too late". Although the complainer tried to get out of the car the appellant took him to Govan where he had a flat. There the appellant told the complainer to go into the flat. He did so although he did not want to do this. He remained there for an unknown period until he and the appellant visited some local shops in order to buy food. At one stage the complainer tried to leave the flat, but without success because someone had come to the door. In his report the sheriff states that it was not clear how long the complainer remained in the company of the appellant or what happened during that period. There was a "blank" from about 1 or 2 p.m. The complainer did not return home until about 6.30 or 7.30 p.m., by which time his parents were extremely alarmed. The sheriff states that the complainer indicated clearly in his evidence that he did not wish to be with the appellant. His mother gave evidence that when he saw the appellant locally a few days later he hid behind the seats of the family car. He had made it clear to her that he did not want to go out any more, and wanted to end his life because of the incident and the trial.  The complainer in the second charge was 8 years of age. He had frequently been in the company of other boys in or around the building site. His main interest appeared to be picking up lemonade bottles which he took to the shops where he exchanged them for money. At around 6.30 p.m. on 6 May 2000 he went out to play with his older sister, but he did not obey his mother's instructions to stay at the front of the house. He went to the building site, apparently in order to get lemonade bottles. Later that evening, after his mother had been looking for him without success, the police were alerted. They began to look for him about 11 p.m. Two members of a police enquiry team who were on foot patrol at 12.15 a.m. the following morning decided to speak to the appellant at the flat which he used. They spoke to him through the door. He said that he was undressed. He took about five minutes to open the door. In answer to their enquiries he said that he had seen a small boy and that he was in the back room. He took them to the room where the police officers found the complainer sitting on a bench which looked as if it had been made up as a bed. The complainer gave evidence that he had been collecting bottles around the building site. He had gone into the close at the tenement where the appellant caught him and pulled him by the arm into the flat. He had not wanted to go to the flat and had told the appellant so. He thought that he had been kept there for a couple of minutes. However, it was not in dispute that he had been there for some hours. He confirmed that he was there until the police officers arrived and took him home. He indicated that he could not have got out and that the door was locked. This was confirmed by the police officers.  The appellant did not give evidence. However, evidence was given of a police interview in which he accepted that the first complainer had gone to Govan with him but denied that it was against his wishes. The second complainer, he said, had assured him that he had his mother's permission to be in the flat, and that he could stay out all night. However, he had not attempted to confirm that this was the case.  The first ground of appeal with which we are concerned relates to corroboration of evidence in support of the first charge. It is not in dispute that corroboration of the complainer's evidence on this charge depended on the application of the principle expounded in Moorov v H.M. Advocate 1930 JC 68, and in particular on whether the evidence led on the second charge could be used to provide such corroboration. It was on this basis that the sheriff gave directions to the jury.  For the appellant Mr Wolffe submitted that the incidents spoken to by the two complainers were wholly different in character. As a consequence the inference that they formed part of a single course of criminal conduct should not have been left open to the jury to draw. In the case of the first charge, the complainer had gone willingly in the appellant's car. He had been taken to the appellant's house and elsewhere and had been given something to eat. There was no suggestion that the appellant had acted improperly towards him. In the case of the second charge, the complainer had, on one view, been snatched and pulled into the flat occupied by the appellant and detained there until late at night for sexually predatory reasons. The evidence showed that the first complainer was already known to the appellant, who had given him small presents. There was no suggestion that he had given a present as an inducement to enter his car. In the case of the second complainer, there was no suggestion that the appellant had given him any present. There was merely evidence that he had handed over empty ginger beer bottles to him on previous occasions.  In these circumstances Mr Wolffe submitted that the evidence was such that it was not open to the jury to find that evidence in regard to the second charge could corroborate that relating to the first.  In his report the sheriff observes that the complainers in each case were male and were vulnerable, either by reason of age or by a combination of age and psychological development. Each of them was a boy who had played around the building site where the appellant was employed as a watchman. The two incidents were separated by less than a month and the locus was the same. We note that in each case there was evidence that the appellant detained the complainer against his will after the boy had put himself in a position where the appellant could more readily effect his detention - after the first complainer, having visited the site, had entered the car and after the second complainer had entered the site in search of bottles. There was, therefore, an underlying similarity between the two charges which would entitle a jury, properly directed, to draw the conclusion that there was a single course of conduct being persisted in by the appellant. On the other hand, we recognise that there were dissimilarities in the accounts given by the two complainers. In a case like this, which falls between the two extremes or lies in the somewhat open country, as Lord Sands expressed it in Moorov at page 88, it is a question of evaluation for the jury, again properly directed, as they were in this case. We are satisfied that, when account is taken of the similarities and the dissimilarities, there was evidence of such a connection between the two offences as could justify the inference that they formed part of a single course of conduct (see Reynolds v H.M. Advocate 1995 S.C. 142 at page 146). It was therefore a matter for the jury to decide.  The second ground of appeal with which we are concerned arises out of the sheriff's directions to the jury on another aspect of the case.  In the course of his charge he said the following in regard to the definition of the crime of abduction:
"Abduction, ladies and gentlemen, consists of the taking away or carrying off of a person against that person's will or the unlawful detention or confining of somebody either against their will without legal authority or in circumstances where the person may be unable to form a clear idea what they want. In this particular crime the real issue in abduction is the issue of deprivation of liberty and the restriction of free movement combined with a disregard for the wishes of the person concerned. No person can be convicted of abduction without him being aware that he has committed a crime and it is because of that that it is important for you to understand that the person who is charged with abduction must be clear in some way as to the wishes of the person concerned, unless that person is so young as to be unable to communicate his wishes. Now, it may be thought that abduction, in common parlance, may involve physical or forcible removal of a person and transportation elsewhere, holding them somewhere, that is not necessarily the case. The law does not require the presence of force in an abduction. It is the restriction of free movement against the will and without lawful authority which constitutes abduction in situations where one person takes another away from a state of personal freedom of movement. The will of the victim will vary and in assessing the true wishes of the alleged victims here you are entitled to have regard to the fact that they are young and you are entitled to have regard to the fact that the older of the two has a disability which you may consider affects his ability to communicate his views. That is something which you are entitled to have regard to in an abduction just as you would be entitled to have regard to the fact that a very, very young person may not even be able to speak his views, let alone making (sic) them properly. So the fact that one of the victims is young is of relevance and the fact that the other victim, while older, has a disability in relation to expressing his views, is also relevant and you will take all of that into account in deciding whether or not there has been in this case a confining against the will of the person concerned. It will be a matter for you to consider to what extent what you find to have been happening in each of those situations was happening in disregard of the wishes of the child. So far as proper authority is concerned you should understand that a stranger, that is to say a person unknown or unfamiliar with the parents of a child, a stranger, has no lawful authority to lead away a child. In deciding whether or not there has been an abduction in either case you are entitled to have regard to the whole circumstances, including the ages as I have already said, the ability, also the timescale involved, how long the abduction is said to have continued, and you can include also the time of day or night at which it is said that this has occurred just as you are able to consider whether or not there has been transportation to another part of the city and whether that has involved difficulties of the person concerned. So the whole circumstances of the case are available to you in order to decide whether in this particular type of situation there has been confining against the will of the person concerned. That is to say a restriction of that person's liberty so that they are not able to go about their business in the way that they would otherwise have wished to do. All of that will be seen in context when the evidence is looked at".
"THE FOREMAN OF THE JURY: Am I allowed to ask a question?
SHERIFF MacIVER: Yes, if it is related to the issue of what I have dealt with. If there are further directions that arise in relation to abduction, yes.
THE FOREMAN: Without the authority of parent does that come into the definition of being abducted?
SHERIFF MacIVER: Yes. I have also tried to make that clear. Again there are two different ages involved although the charge is the same. One boy is 14 and one is 8 and I have tried to make it clear that the issues of there being no lawful authority is an issue in abduction because in some cases the child may be in such a position that the child cannot convey his own will to the person who is said to have abducted him. In that type of situation clearly the person who is charged with the abduction is in a position where he must be satisfied that he has some form of authority to have custody of the child. So if I go back to the example which I gave you earlier when dealing with abduction, if a very young child of pre-school age was led away by the hand from a playground by a person who is a stranger to that child and to his family, then the very fact that there is no lawful authority may well be sufficient to establish abduction in that type of situation. As the age increases and the child gets nearer and nearer to being an adult the issue of lawful authority may well become less relevant and the abduction of an adult may fall into a category where lawful authority only becomes relevant in relation to, for example, whether or not the person alleged to be abducting has any legal right to abduct or to take away from a particular place. In the case of two people involved here, both are children, and the evidence, it is a matter for you to assess the evidence, the evidence which you have heard in each case was that there was no parental consent given in either case. You have to decide whether or not the lack of parental consent is relevant and whether it makes a difference. You will understand that parental consent becomes more relevant if the child is so young that they cannot communicate their wishes or if they cannot communicate their wishes because of any other reason. Where the child is able to communicate their wishes and if you understand and accept that the child is not willing to be with the person and has so communicated that wish, then the issue of lawful authority becomes an additional feature and need not be the only feature. So it is a case of combination of the wishes of the child and the age of the child and the right of the person to have possession of the child. It is a combination of all these features taken together depending on the age of the child and the ability to communicate the child's feelings to the person who has custody of the child temporarily; and all of those taken together will decide whether or not this is indeed an issue of abduction or whether it is something which is not a criminal offence".
Mr. Wolffe submitted, as the definition of the crime of abduction, the taking away or carrying off of a person, usually forcibly, against that person's will or the unlawful detention or confining of that person against his or her will. It was a defence that what was done was done with lawful authority. Mr. Wolffe said that in general he did not criticise the original directions given by the sheriff, although he submitted that the inclusion of "circumstances where the person may be unable to form a clear idea of what they want" was not clear, was too widely expressed and was not related to the terms in which the appellant had been charged. He also submitted that it was unhelpful for the sheriff to suggest there was a "sliding scale" in regard to the extent to which there required to be evidence that the child had expressed his views.  As regards the sheriff's response to the matters raised by the foreman of the jury, Mr. Wolffe said that he did not quarrel with the direction that it was not essential that the jury should be satisfied that each of the complainers had been caused fear and alarm, although he pointed out that nowhere had the sheriff explained to the jury that they were entitled to delete that or any other non-essential part of a charge when convicting the appellant.  Mr. Wolffe's main criticism was aimed at the directions in regard to the lack of parental authority. Here the sheriff had directed the jury that, to the extent that a child was not able to express his will (and hence did not do so), the matter of want of authority became significant. He had gone so far as to direct the jury that for a person to take away a child without parental authority could be enough of itself to constitute abduction. He had invited the jury to consider whether or not the lack of parental authority in the case of each of the complainers was relevant and made a difference. However, the absence of such authority was not a factor which could make up for a lack or shortage of evidence of unwillingness in a charge of abduction. He pointed out that in the case of the first complainer, the sheriff's directions entailed that it would have been open to the jury to disbelieve his evidence that he became unwilling to continue the car journey with the appellant, but yet to convict the appellant on the basis that he had taken that complainer away without parental authority. The sheriff's misdirection was of critical importance where, as in the present case, there were serious issues as to whether the appellant's conduct was in fact against the will of each of the complainers. This was of the essence of each of the two charges.  The Advocate depute submitted that, while the Crown had led not only evidence from each of the complainers that they had been detained against his will, but also evidence of the absence of parental authority, it was no part of the presentation of the Crown case that there was any alternative basis for conviction. In light of that, he accepted that the sheriff's directions on this matter were unnecessary, unhelpful and confusing. His analysis had nothing to do with the circumstances of the case. However, his directions should be understood in the context of the charge as a whole. The jury had been left in no doubt that they should consider the whole circumstances in order to decide whether each of the complainers had been confined against his will. He pointed out passages in the charge where, in dealing with the evidence in relation to each of the complainers he had spelt out that it was crucial for them to find that he had been unwilling. For example, in relation to the second complainer he said to the jury:
"Again, the question in charge 2 is in a sense a similar question that you have to ask as in charge 1, and the crucial issue again is: was (the second complainer) in your view taken into the flat against his wishes and confined there? That is the question which I think you have to answer, and you have to answer that by reference to all that you have heard including in his particular case whether or not you consider that a child of that age was adequately able to transmit his wishes and whether or not in the circumstances Mr. Brouillard was in, he should have made specific enquiry to ascertain whether or not he was truly in possession of (the second complainer's) real wishes".
"It would be sufficient to constitute the crime of abducting a child if there was evidence of her being led away by the accused or inducing her to follow. That would be sufficient to establish proof that she was taken away against her will".
However, as was observed by the Scottish Law Commission in their Report on Child Abduction (Cmnd. 64), which was presented to Parliament in February 1987, such evidence might be equally consistent with voluntary compliance on the part of the child (paragraph 2.4). A statutory solution was proposed, but has not yet been implemented. We also note that, without apparently suggesting that it was an example of the crime of abduction, Alison, Principles at page 630 states:
"The wickedly and feloniously enticing or inducing an infant child to leave its parents or guardians, without their knowledge or consent, is a crime at common law",
This is under reference to yet another inconclusive discussion, this time in the unreported case of Smith, 16 July 1829. In this appeal we do not require to resolve the outstanding questions as to the scope of the law of abduction, or as to whether the use of enticement is or is not consistent with the commission of that crime. In the present case the appellant was expressly charged with confining each of the complainers against his will. We can understand why in the circumstances of this case the sheriff invited the jury to take into account the extent to which the ability of each of the complainers to express his unwillingness was affected by his age or any other personal factor. This was a legitimate consideration for the jury to bear in mind in their assessment of the evidence of the complainers.  However, when he came to give further directions to the jury the sheriff plainly directed them that there could be cases in which "the very fact that there is no lawful authority may well be sufficient to establish abduction". He invited the jury to "decide whether or not the lack of parental consent is relevant and whether it makes a difference", and went on to state:
"Where the child is unable to communicate their wishes and if you understand and accept that the child is not willing to be with the person and has so communicated that wish, then the issue of lawful authority becomes an additional feature and need not be the only feature (emphasis added)".
These last words confirm that he left it open to the jury to conclude that the absence of parental authority was relevant to proof of abduction, and that it could be sufficient of itself to establish that crime. We are satisfied that these directions were not only unfortunate, but also constituted a misdirection of the jury. Each of the charges with which the jury were concerned alleged that the complainer had been confined against his will. Without the jury being so satisfied they were not entitled to convict. The charges were framed on the basis that each of the complainers was capable of having a will opposed to being confined by the appellant. The gravamen of each of the charges was not that the appellant had confined them without the knowledge or consent of their parents, but that he had confined them against their will. The sheriff plainly confused a defence against the charges with a case which was not sought to be made against the appellant. Standing these directions, and despite what he had originally said to the jury, we consider that there was a clear danger that the jury could be led into thinking that the absence of parental authority could, wholly or partly, provide a basis for the conviction of the appellant. This was particularly so in this case of charge 2, on which proof of charge 1 depended.  In these circumstances it is unnecessary for us to deal with a further ground of appeal which was directed to section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. We are satisfied that the misdirection by the sheriff constituted a miscarriage of justice. We will accordingly quash the appellant's conviction on the first and second charges of the indictment.  The appellant's conviction on the third charge was challenged on two related bases, the first being concerned with sufficiency of evidence on that charge and the second with the sheriff's directions in relation to that evidence. Mr Wolffe submitted that the essential question at the trial on this aspect was what, if anything, was done by the appellant to the complainer at the flat. The complainer's account, even on an interpretation most favourable to the Crown, was not capable of being corroborated by the other evidence relied on - in particular by the evidence of the police officers who had discovered the complainer at the flat. The complainer's evidence was that he had been wearing jogging trousers, that the appellant had touched his private parts through these trousers and that his shoes and his school jumper had remained on. In cross-examination the complainer had confirmed that his jogging trousers did not have a zip. The police evidence was to the effect that, when they had come across the complainer in the flat, he was wearing blue denims with the front zip down, had no shoes on and was wearing on his upper body only a T-shirt. This disparity of evidence as to the complainer's state of dress was particularly significant when the complainer's evidence had been challenged on the basis that any sexual interference with him had involved another individual in another place and at another time. The circumstances surrounding the complainer's presence in the flat were properly to be regarded as neutral in relation to the factum probandum of this charge. Reference was made to Smith v Lees 1997 J.C. 73 and to Fox v H.M. Advocate 1998 J.C. 94. The sheriff, in his rejection of a submission of no case to answer on this charge and in his directions to the jury in relation to it, had failed to recognise the significance of the divergence of testimony and of the neutrality of the surrounding circumstances. He had failed to remind the jury of the divergence of evidence in relation to the complainer's trousers and the presence/absence of a zip.  The Advocate depute submitted that, although the complainer was a restless and bored witness, he had given a relatively clear account to the effect that he had, in the manner described in the libel, been sexually interfered with by the appellant while at the flat on the night in question. His identification in evidence of the appellant as the perpetrator was consistent with the identification made by him at the identification parade. There was ample independent evidence to support his account. It was important to have regard to the context in which this 8 year old child had been found alone with the appellant (a relative stranger, aged 51) in the flat used by the latter. The discovery had been made at about 12.15 a.m.; it had taken the appellant about five minutes to open the locked door of the flat; the appellant had stated that the reason for the delay was that he was getting dressed; when the door was eventually opened the police officers had found the child in a state of partial undress (his shoes and jumper being off), sitting on a make-shift bed in a "quiet" or "flushed" state. In that context the officers had spoken to the child's lower clothing as having been disturbed (the zip of his trousers being down). Although there were discrepancies between the complainer and the police as to the type of trousers being worn by the complainer, the whole circumstances carried the inference of sexual misconduct by the appellant towards this child.  As the sheriff observed in his report to us, the complainer was "a lively and boisterous boy" who, when giving his evidence by video link, exploited the opportunities which that afforded for misbehaviour; he behaved "as a somewhat ill disciplined 8 year old boy who was both embarrassed and bored" by the process of giving evidence. That conduct is also evident from perusal of the transcript of his evidence. However, the sheriff gave to the jury clear directions as to how they should approach the testimony of such a child and it is clear that, although there were contradictions and other difficulties within that evidence, the complainer gave an account of conduct by the appellant towards him in the flat which could be interpreted as supporting the allegation in the charge (as amended). In these circumstances the primary legal question which arises in this appeal is whether there was other independent evidence of a nature which could provide corroboration of the complainer's account of events. In our view that question falls to be answered in the affirmative. The circumstances in which the complainer was found in the company of the appellant (recorded above in the narrative of the Advocate depute's submission) were most unusual. In that context the observed state of the child and his clothing was apt to confirm the complainer's evidence to the effect that he had been improperly interfered with in the area of his private parts. There is, it is true, a discrepancy in the evidence as to the type of trousers which the complainer was wearing at the material time. He spoke to these having been jogging trousers with no zip. The police evidence on the other hand was that the complainer, when found, was wearing denim trousers with a zip; that evidence is consistent with an answer given by the appellant in the course of a tape recorded interview conducted a few hours after the discovery of the child. The jury would have been entitled to accept as accurate the evidence that the complainer was wearing trousers with a zip fastening and to reject as unreliable the part of the complainer's evidence in which he said that at that time he was wearing jogging trousers. Such rejection would not disentitle them to accept as credible and reliable the complainer's account that he had been interfered with by the appellant at the time, in the place and in the manner libelled in the charge. If they accepted the complainer's testimony subject to that qualification, the independent evidence was such as was capable of confirming that qualified account.  In these circumstances there was, in our view, a sufficiency of evidence on this charge and the ground of appeal directed against the sheriff's rejection of the submission of no case to answer must be rejected. The sheriff in his charge did not specifically remind the jury of the complainer's evidence about the type of trousers he had been wearing. But, in our view, he was not obliged to do so. The jury was well aware of the terms and character of the complainer's evidence and had been given appropriate directions on how it should be approached. Any inconsistency between his evidence as to what he was wearing and evidence from other sources on that matter was, it appears, being relied on by the defence at this stage essentially as an element of a wider challenge to his credibility and reliability. A suggestion in this ground of appeal (as framed) that the complainer's mother had also testified that the complainer was wearing jogging trousers was departed from at the hearing. The sheriff did not, in our view, misdirect the jury on this aspect and this ground of appeal must also be rejected. Accordingly, the appellant's conviction on charge (3) must stand.  There is no appeal against sentence but, as the conviction on charges (1) and (2) has been quashed, the concurrent sentence on charge (3) may require reconsideration. There is also an outstanding devolution minute. In these circumstances the appeal will be put out for further hearing in relation to these matters.