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Cite as: [2005] ScotHC HCJAC_113, [2005] HCJAC 113

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McNeil v. Her Majesty's Advocate [2005] ScotHC HCJAC_113 (19 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Wheatley

Lord Macphail

[2005HCJAC113]

Appeal No: XC116/04

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL AGAINST CONVICTION

NEIL FERGUSON McNEIL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: W.G. Jackson, Q.C., J. MacDonald; McClure Collins, Edinburgh

Respondent: A. Turnbull, Q.C., A.D.; Crown Agent

19 October 2005

The background
[1] On 26 October 2001 the appellant was convicted after trial in the High Court at Glasgow of a number of sexual offences perpetrated between 1977 and 1997. The victims were the children and step-children, both male and female, of the appellant's mistress. Certain of the charges on the indictment (charges (1), (4), (6), (8) and (9)) were framed under reference to the nomen iuris of shameless indecency - at the date of the trial understood to constitute a crime under the law of Scotland. Certain other charges on the indictment (charges (5), (7) and (10)) were of rape. The remaining charges (charges (2) and (3)) were directed against a co-accused only. In the course of the trial various amendments were made to the particulars of charges (1), (4), (6), (8) and (9). In his address to the jury the Advocate depute invited them not to convict the appellant of rape on charges (5), (7) and (10) but, in each case, of certain statutory offences. These were, in respect of charge (5), of section 4 of the Sexual Offences (Scotland) Act 1976 (the offences being alleged to have been committed on various occasions in 1979 when the victim was aged 15), in respect of charge (7), of sections 3 and 4 of the 1976 Act (the offences being alleged to have been committed on various occasions between 1988 and 1992 when the victim was between the ages of 10 and 14) and, in respect of charge (10), of sections 3 and 4 of the 1976 Act and of section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995 (the offences being alleged to have been committed on various occasions between 1993 and 1997 when the victim was between the ages of 12 and 15). The Advocate depute's intimated intention to adopt that course of action had earlier been the subject of objection by counsel for the appellant. The trial judge repelled that objection. In the event the jury returned in respect of each of charges (1), (4), (6), (8) and (9) a verdict of guilty under certain deletions. In respect of charges (5), (7) and (10) they returned verdicts of guilty of the statutory offences referred to, except in respect of charge (10) where the verdict of guilty was in respect only of section 4 of the 1976 Act and of section 5(3) of the 1995 Act.

[2] The appellant has appealed against his conviction on charges (4), (5), (7) and (10). He also seeks restrictions on the convictions recorded under charges (1), (6), (8) and (9) to the periods when the children were respectively under the ages of puberty, with a substitution of a conviction for lewd and libidinous practices for that of shameless indecency (see Sneddon v H.M. Advocate 2005 SCCR 367). These restrictions are not opposed by the Crown. The conviction on charge (4) is challenged on the basis that, throughout the period in question, the female complainer was above the age of puberty. The convictions on charges (5), (7) (in part) and (10) are challenged on the basis that, the prosecution having commenced more than a year after the commission, in any case, of the relative statutory offence, the trial judge erred in ruling that it was open to the jury to return a conviction of such an offence and for the jury to return such convictions. In relation to the conviction on charge (7), it is accepted that, so far as that relates to section 3 of the 1976 Act, the conviction is unchallengeable.

The principal issue
[3] Mr. Jackson, for the appellant, presented as his principal contention that directed against the convictions of contravention of section 4 of the 1976 Act and section 5(3) of the 1995 Act. It is convenient to deal with that contention first.

The statutory provisions
[4] The statutory provisions which are of primary relevance are as follows. The 1976 Act (now consolidated in and replaced by the 1995 Act) provided by section 4(1) -

"Any person who has, or attempts to have, unlawful sexual intercourse with any girl of or above the age of 13 years and under the age of 16 years shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding three months:

Provided that no prosecution on indictment shall be commenced for an offence under this subsection more than one year after the commission of the offence".

Section 15 of the 1976 Act provided:

"If, upon the trial of any indictment for rape or any offence under section 3(1) of this Act [intercourse with girl under 13], the jury are satisfied the accused is guilty of an offence under section 2, 3 or 4(1) of this Act, or of an indecent assault, but are not satisfied that the accused is guilty of the charge in such indictment or of an attempt to commit the same, then and in every such case the jury may acquit the accused of such a charge, and find him guilty of

such offence as aforesaid, or of an indecent assault, and thereupon the

accused shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such an offence as aforesaid, or for indecent assault".

[Section 2 of the 1976 Act is concerned with procuring sexual intercourse by threats etc.; its statutory equivalent in the 1995 Act is discussed later].

Section 5 of the 1995 Act, as originally enacted, provided, in so far as material:

"(1) Any person who has unlawful sexual intercourse with any girl under the age of 13 years shall be liable on conviction on indictment to imprisonment for life.

(2) Any person who attempts to have unlawful sexual intercourse with any girl under the age of 13 years shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding three months.

(3) ... any person who has, or attempts to have, unlawful sexual intercourse with any girl of or over the age of 13 years and under the age of 16 years shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding three months.

(4) No prosecution shall be commenced for an offence under subsection (3) above more than one year after the commission of the offence.

...

(7) For the purposes of subsection (4) above, a prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay".

[In 1997 the maximum penalty on conviction on indictment under section 5(2) or 5(3) was increased to ten years imprisonment but with effect from a date subsequent to the expiry of the period to which the conviction on charge (10) related].

Section 14 of the 1995 Act provides:

"If, on the trial of an indictment for rape or an offence under section 5(1) of this Act, the jury -

(a) are not satisfied that the accused is guilty of the charge or of an attempt

to commit the charge; but

(b) are satisfied that the accused is guilty of an offence under section 5(2)

or (3) or 7(2) or (3) of this Act, or of an indecent assault,

the jury may acquit the accused of the charge mentioned in paragraph (a) above, and find him guilty of such offence as is mentioned in paragraph (b) or of an indecent assault, and the accused shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such offence or for indecent assault".

[Subsection 5(2) and subsections 7(2) and (3) of the 1995 Act are respectively re-enactments of subsection 3(2) and subsections 2(1) and (2) of the 1976 Act].

Submissions on the principal issue
[5] Mr. Jackson submitted that, as a matter of statutory interpretation, section 14 of the 1995 Act (which was that operative at the time of the trial) had to be read along with the time-bar contained in section 5(4) (and the equivalent proviso in section 4(1) of the 1976 Act). There was no Scottish authority directly in point. The trial judge had been referred to H.M. Advocate v Philp (1890) 2 White 525, Creighton v H.M. Advocate (1904) 4 Adam 356 and H.M. Advocate v Roose 1999 S.C.C.R. 259; the last supported the proposition that it was illegitimate to seek to circumvent a statutory time-bar by libelling a common law offence. Of more assistance for present purposes was the approach adopted by the House of Lords in Regina v J [2004] UKHL 42; [2005] 1 AC 562. Although the issue there for decision was not the same as here, the approach adopted to statutory construction supported that contended for - in particular the principle identified in the last sentence of paragraph 18 and the assistance which the House of Lords indicated was to be gained from R. v Cotton (1896) 60 J.P. 824. Reference was made in particular to the speeches of Lord Bingham of Cornhill at paras. 5, 14-20 and 24-5, of Lord Steyn at paras. 30 and 32-7 and of Lord Rodger of Earlsferry at paras. 53-64. The intention of Parliament, namely that the specified time-bar should operate in respect of an alleged contravention of section 4(1) of the 1976 Act (and section 5(3) of the 1995 Act), would be thwarted if section 14 could be used to return, without limit of time, a verdict of guilty of such an offence. The trial judge had been in error in accepting the Advocate depute's arguments based upon the phrase "as if" found in section 14 of the 1995 Act (and in its predecessor) and the maxim expressio unius est exclusio alterius. The consequence of the Crown's approach would be that it could at any time indict for rape, when there was no prospect in fact of securing a conviction on such a charge, and then secure a conviction under section 5(3) (or section 4(1)) when it could not have proceeded on a libel of contravention of the statutory offence. Leaving aside any question of bad faith, that was an unsatisfactory state of affairs which Parliament could not have intended.

[6] In response on this aspect the Advocate depute observed that it was clear from the judge's report that the background to the charges was a situation of concentrated and prolonged abuse involving a whole household. At the time of the trial (prior to the decision in Lord Advocate's Reference (No. 1 of 2001) 2002 SCCR 435) rape had been understood as requiring force or the threat of force as a necessary constituent of the crime. There had been no suggestion that the three young females had been willing parties to sexual intercourse with the appellant. In the circumstances of the trial and against the law as then understood, the Advocate depute had taken the view that the more appropriate course was to invite a conviction on the statutory alternative. The issue now before the court was one of statutory interpretation. It had, it was submitted, never been the intention of Parliament that the time-bar provision in section 5(4) of the 1995 Act should apply in circumstances where section 14 was invoked; nor had there been any such intention in respect of earlier equivalent legislation. The effect of section 14 was to give a power to a jury to return a conviction for unlawful intercourse in a way which was quite different from the returning of a verdict in a prosecution brought under section 5(3). That was clear from the use of the expression "as if" in section 14. There was no justification for reading a time-bar into that section, in which no reference was made to it. Under section 5(4) the time limit was only in respect of a prosecution for an offence under subsection (3). There was no intrinsic difference in the criminality of a conviction for a contravention of section 5(3) in a prosecution brought for that offence and a finding of guilt of that offence in a prosecution on indictment for rape; but Parliament had recognised that, where an issue of rape arose, more time would be required to investigate and to prepare the case for prosecution. The brocard expressio unius was of assistance here. Reference was made to Bennion on Statutory Interpretation (4th edition) at page 1072. The distinction between the two methods of proceeding was also pointed by section 5(4) providing that "No prosecution shall be commenced" after a certain time. That was quite different from the situation where the prosecution was for rape and the possibility of an alternative verdict arose in the course of the trial - perhaps upon a direction by the judge without instigation by the prosecutor. The principles discussed in Regina v J were not in conflict with the Crown's submission in relation to the availability of the alternative verdict. Reference was made in particular to Lord Steyn at para. 30, Lord Clyde at para. 43 and Lord Bingham at paras. 19 and 23. In that case a device was being used (by invoking another statutory provision) to prosecute for an offence which, if brought under the provision to which it truly related, would have been time-barred. In Scotland proceedings for rape would only be brought where there was a legitimate basis upon which to prosecute for that crime. The circumstances of this case were most unusual.

Discussion of the principal issue
[7] The issue for determination on this aspect of the appeal is one of statutory interpretation. Although the pertinent provisions have a statutory ancestry going back, so far as concerns Scotland, to the Criminal Law Amendment Act 1885, it is, for present purposes, the 1995 Act which falls to be construed. It is of assistance, in our view, to note the relative statutory framework. Section 5(1) provides that any person who has unlawful sexual intercourse with a girl under the age of 13 years shall be liable on conviction on indictment to imprisonment for life. Section 5(2) concerns a person who attempts to have such intercourse; this offence can be prosecuted on indictment or summarily, the maximum penalties on conviction being, as originally enacted, respectively two years and three months imprisonment. The material provisions of section 5(3) have already been noticed; this offence can again be prosecuted on indictment or summarily, the respective penalties being as in section 5(2). Section 14(b) refers not only to sections 5(2) and 5(3) but also to sections 7(2) and 7(3). Section 7(2) (which concerns prohibited modes of procuring or otherwise securing unlawful sexual intercourse) creates an offence which may be prosecuted either on indictment or summarily, the maximum penalties on conviction again being two years and three months respectively. Section 7(3) is in essence a declaratory provision to the effect that a man who induces a married woman to permit him to have sexual intercourse with her by impersonating her husband is deemed to be guilty of rape. Section 14 applies, and applies only, in a trial of an indictment for rape or an offence under section 5(1) - in respect of each of which the maximum penalty on conviction is life imprisonment. With the exception of the somewhat special provision in section 7(3), all the offences referred to in section 14(b) and the crime of indecent assault, are, at least as a generality, less serious than rape or a contravention of section 5(1). The general object of section 14 is accordingly to provide a procedural mechanism whereby in any trial, necessarily on indictment, for rape or for an offence under section 5(1) a verdict finding guilt of a less serious offence or crime may, in appropriate circumstances, be returned.

[8] Mr. Jackson's submission that the time-bar prescribed by section 5(4) should be read into section 14 has a prima facie attraction. The criminality in the end established is to all intents and purposes the same. Any special features of the present case are irrelevant to the issue of statutory interpretation. The legislative result must be the same whether the alleged rapist is of roughly the same age as the girl in question or, as here, much older (see Regina v J, per Lord Rodger at paras. 56-8).

[9] However, the submission, though attractive, fails, in our view, to recognise the distinct functions of, on the one hand, section 5(3) (as read with section 5(4)) and, on the other, section 14; and it is inconsistent with the statutory language used.

[10] The time limit prescribed by section 5(4) applies to a "prosecution ... for an offence under subsection (3)". A prosecution for an offence or crime is constituted, in our view, by criminal proceedings in which the indictment or complaint, as the case may be, sets forth a charge of that offence or crime; so, for example, a prosecution on indictment charging the crime of murder remains a prosecution for murder, even if, in the event, the jury returns on it a verdict of culpable homicide. Section 14, by contrast, is concerned not with a prosecution for an offence under section 5(3) but with a power available to the jury in a trial on indictment for rape or an offence under section 5(1). That power authorises the jury in certain circumstances to acquit the accused of the charge mentioned on the indictment but to find him guilty of one or other of several statutory offences (including section 5(3)) or of an indecent assault. The consequence of such a finding is that the accused is liable to be punished in the same manner as if he had been convicted upon an indictment for the offence or crime to which the finding relates. While we do not find in this context any assistance from the brocard expressio unius, the expression "as if" indicates that the procedural mechanism under section 14 is different from that on indictment for the alternative offence or crime. No mention is made in section 14 of any limitation, by reason of lapse of time, on the jury's power under that section. Had it been Parliament's intention to circumscribe that power by such a limitation, express provision to that effect would, in our view, have been made.

[11] The interpretation which we favour does not, we believe, involve a circumvention of Parliament's intent. The particular issue with which the House of Lords was concerned in Regina v J was quite different; it involved a deliberate, albeit bona fide, attempt to avoid the time limit prescribed by section 6(1) of the Sexual Offences Act 1956 by the bringing of a prosecution for another statutory offence, namely, that under section 14(1) of that Act. While R. v Cotton is referred to in their Lordships' speeches, it is plain that Lord Bingham, at least, would hesitate to accept all the reasoning of Pollock B. in that case (see Regina v J at para. 19). Moreover, Lord Bingham at para. 23 further makes it plain that, although it was unnecessary to decide the point, he inclined to the view that the alternative verdict provisions in section 37 of and the Second Schedule to the 1956 Act were not subject to the time limit in section 6. Among other factors he noted that, in the provision for an alternative verdict, there was no repetition of the time limit. Lord Clyde (para. 43) was careful to note that the case before the House was not concerned with problems of alternative verdicts. Lord Steyn (para. 30) observed that it was essential to concentrate on the precise way in which the appeal came before the House. Lord Rodger's observations, while instructive, do not deal expressly with the matter of alternative verdicts.

[12] Lord Bingham does not expand on the reasons which would cause him to hesitate to accept all the reasoning of Pollock B. Part of his concern may have been Pollock B's observation -

"In a case such as this, it would be the more reasonable construction of the sections [of the Criminal Law Amendment Act 1885] to hold that the time must be considered as the essence of the charge".

In our view the time-bar in section 5(4) of the 1995 Act is not "the essence of the charge" but a procedural bar to the bringing of a prosecution charging an offence under section 5(3). It is unnecessary for the purposes of this case to express a view on the general proposition that the effect of provisions for alternative verdicts is "to include in the original charge an implied averment of the charge on which he may be convicted" (Renton and Brown - Criminal Procedure para. 8-79). The Advocate depute submitted that, at least in the context of the statutory provisions here in issue, that proposition was misconceived. We accept that restricted submission.

[13] Where in Scotland the Crown prosecutes on a charge of rape (inevitably on indictment) it is right to assume, in the absence of compelling reasons to the contrary, that it does so on the basis, first, that it has before it information which, in the considered judgment of Crown counsel, supports such a charge and, second, that it is in the public interest to prosecute on that charge. If, in the event, the evidence at the trial does not satisfy the jury that rape has been proved beyond reasonable doubt (or in a prosecution for an offence under section 5(1) that the girl was at the material time in fact under 13) but that an offence under section 5(3) has been committed, we see no sufficient reason why it should be precluded from making, under section 14, a finding of guilt of the statutory offence, whatever the interval of time since that offence was committed. For these reasons we are satisfied that the appeal, in so far as founded on a challenge to the convictions on charges (5), (7) and (10), falls to be refused.

The second issue
[14] There remains the issue of the challenge to the conviction on charge (4). That conviction, in so far as concerns the appellant, was that he did

"conduct [himself] in a shamelessly indecent manner towards [the complainer] and ... did make indecent suggestions to her, display pornographic videos to her, induce her to masturbate your private member and to take same into her mouth, remove her clothing, ply her with alcohol and ... did take video recordings of [certain sexual acts]".

The period to which that conviction related extended from the complainer's fourteenth birthday to just short of her twenty third birthday. The complainer was accordingly throughout above the age of puberty, and it would not be open to substitute on this charge a conviction for lewd and libidinous practices. The Advocate depute submitted that a conviction for indecent assault should be substituted.

[15] The charge contains no allegation of assault. While the jury received from the trial judge a direction as to what constituted indecent assault, that was solely in the context of consideration of the charges of rape. The directions in relation to charge (4) were concerned only with the ingredients of what was then understood to be the crime of shameless indecency. While all the specified particulars of that charge could constitute what was then understood to be that crime, not all of them could, or at least could readily, be regarded as elements of indecent assault. The trial judge in her charge directed the jury, against the context of shameless indecency, that if the complainer, when aged 16 or over, had "truly consented" to what was going on, that would not constitute criminal behaviour. The jury, by returning a verdict of guilty without excluding the period from the complainer's sixteenth birthday, may be taken to have been satisfied that there was no true consent on her part to the appellant's conduct - at least during that period; but that inference, even in so far as it goes, can be safely drawn only in relation to their consideration of shameless indecency, not of indecent assault. While the circumstances of the present case can be distinguished in some respects from those in P v H.M. Advocate (reported along with Sneddon v H.M. Advocate), we are not satisfied that it would be appropriate in this case, even if competent, to exercise the court's power under section 118(1)(b) of the Criminal Procedure (Scotland) Act 1995 to the effect of substituting for the verdict returned on charge (4) an amended verdict of guilty of indecent assault, whether on a restricted or an unrestricted basis. We accordingly sustain the appeal in so far as relating to charge (4).

Disposal
[16] The appeal is accordingly allowed to the extent, first, of quashing the conviction on charge (4) and, secondly, of consent of the Crown, of restricting the periods to which charges (1), (6), (8) and (9) relate by substituting an alternative verdict of lewd and libidinous practices and by specifying the terminal date in each of these charges respectively as 25 December 1980, 10 December 1989, 8 January 1993 and 6 September 1993 - in each case the date immediately prior to the legal date of puberty of the respective child; quoad ultra the appeal against conviction is refused.

[17] The case will be put out for further consideration of sentence in light of this disposal.