Scottish High Court of Justiciary Decisons

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Cite as: 2007 JC 61, [2006] ScotHC HCJAC_78, 2006 SCCR 667, [2006] HCJAC 78, 2006 GWD 35-713

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Philip

Lord Sutherland

[2006] HCJAC 78

Appeal No: XC682/05

OPINION OF THE COURT

delivered by LORD PHILIP

NOTE OF APPEAL AGAINST CONVICTION and SENTENCE

WILLIAM JAMES STEPHEN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: C. Mitchell; Purdie & Co., Edinburgh

Alt: S. Murphy, Q.C., A.D.; Crown Agent

26 October 2006

[1] The appellant was convicted by a jury at Dunfermline Sheriff Court on 22 January 2004 of two charges of lewd and libidinous practices and behaviour, in contravention of section 6 of the Criminal Law Consolidation (Scotland) Act 1995. He now appeals against conviction on the ground of misdirection by the trial sheriff. The terms of the charges of which the appellant was convicted were as follows:

"(1) on various occasions between 1 May 2002 and 31 December 2002 both dates inclusive, at the various locations aftermentioned you WILLIAM JAMES STEPHEN did use lewd, indecent and libidinous practices and behaviour towards C, born 29.3.1988, c/o Dunfermline Police Station, a girl then over the age of 12 years and under the age of 16 years and you did

(a) at [address in Lochgelly] kiss her naked breasts, attempt to remove her

pants, push your private member into her mouth, put your erect private member into her hand and induce her to masturbate you;

(b) at Cluny Clays, Cluny, Fife within motor car registered number B5

PPR touch her breasts over her clothing, stroke her legs, touch her private parts, pull her legs open with intent to kiss her private parts;

within motor car registered number B5 PPR induce her to masturbate you and to perform oral sex on you;

(d) in a lay-by between Falkirk and Dunfermline touch her breasts and

private parts over her clothing, kiss her, lift her up whereby her legs were round your waist and simulate sexual intercourse;

(e) at the entrance to Devilla Forrest, A985 near Kincardine, Fife, within

motor vehicle registered number B5 PPR, kiss her, take her hand and place it on your erect private member;

...

(h) at the car park for the Civic Centre, Friary Court, Inverkeithing, Fife

touch her bare private parts and make sexually suggestive remarks;

...

(j) at [address in Glenrothes], or elsewhere to the prosecutor unknown,

send her sexually suggestive texts by means of a mobile telephone

CONTRARY to the Criminal Law Consolidation (Scotland) Act 1995 section 6

(2) On various occasions between 1 May 2002 and 31 December 2002 both dates inclusive, at Rosyth Ex-Servicemen's Club, Admiralty Road, Rosyth, within motor car registered number B5 PPR you WILLIAM JAMES STEPHEN did use lewd, indecent and libidinous practices and behaviour towards J born 15.3.1988, care of Dunfermline Police Station, a girl then of over the age of 12 years and under the age of 16 years and did

(a) attempt to grab at her private parts over her clothing; and

(b) at [address in Glenrothes], or elsewhere to the prosecutor unknown,

send her sexually suggestive texts by means of a mobile telephone.

CONTRARY to the Criminal Law Consolidation (Scotland) Act 1995 section 6."

[2 ] After conviction the diet was adjourned for reports. The appellant failed to appear at the adjourned diet and a warrant was granted for his arrest. He was subsequently traced to Bulgaria from which country he was extradited and subsequently brought before the court at Dunfermline on 31 August 2005, when he was sentenced to 30 months imprisonment on charge (1) and to six months imprisonment on charge (2), these sentences to run concurrently from 10 August 2005.

[3 ] In the course of his charge to the jury, the sheriff said this:

"Now, it is not necessary that every individual element of the alleged crime should be corroborated. If you were to be satisfied that the commission of a course of lewd and libidinous conduct on the part of the accused in relation to either charge had been corroborated you would not need to look for corroboration of each alleged element in the lewd and libidinous conduct and behaviour. In a case not too long ago the appeal court said in relation to another case obviously - and this was a case of indecent assault - the question is whether there is corroborated evidence of an indecent assault. If so, it is not necessary to corroborate each individual item, because it was an indecent assault with various component parts.

Well, this is not a case of indecent assault, ladies and gentlemen, it is a case of lewd and libidinous conduct and behaviour which is said to consist of a catalogue of factual conduct and as I say what you are looking for is corroboration of that course of lewd and libidinous behaviour."

Later in his charge the sheriff explained to the jury that there was only one source of evidence, namely the complainer, in relation to the conduct libelled in each of the heads of charge (1), apart from heads (e) and (j). In relation to those heads there was corroboration from other sources which the jury could take into account. The sheriff continued:

"So, we have direct evidence of lewd and libidinous behaviour from C which is supported by these other sources of evidence that I have just described and they are capable of supporting that direct evidence. I quoted earlier what was said in the case about indecent assault and what the appeal court said in that case was 'The question is whether there is corroborated evidence of indecent assault. If so it is not necessary to corroborate each individual item'.

Now, the question in this case is whether there is corroborated evidence of a course of lewd, libidinous and indecent behaviour by the accused towards C and if there is such a course, if you find such corroborated evidence from the sources that I have just described, then it is not necessary for the Crown to corroborate each individual item. Obviously you have to look with particular care at those allegations that are uncorroborated, and I stress the credibility of the girl C is absolutely fundamental to your consideration of this charge. It is vital for the Crown that you accept her as being truthful and reliable in all important particulars.

If you were to accept that C has been entirely truthful and sufficiently reliable then the supporting evidence that I have described would entitle you to convict the accused of charge (1)."

[4 ] In presenting the appeal Miss Mitchell submitted, in an argument which was not the subject of submission in the court below, that the sheriff had erred in directing the jury that the evidence of C in relation to the conduct libelled in the separate heads of charge (1) was capable of corroboration by viewing the appellant's acts as a course of conduct. He had erred further in directing the jury that corroboration was not required in respect of each separate head. The case to which he had referred, and on which he had relied, Stirling v Macfadyen 2000 SCCR 239, was a case in which it was held that there was no need to corroborate every part of a single incident of indecent assault. In the present case the Crown had libelled a number of entirely separate incidents. Miss Mitchell advanced no argument in relation to charge (2), but submitted that since the Moorov doctrine had neither been relied upon by the Crown nor mentioned in the sheriff's charge, it would be inappropriate for this court to seek to invoke it, since the approach which the jury would have taken, had the doctrine been put before them, could only be the subject of speculation.

[5 ] The advocate depute argued that the sheriff's interpretation of the law was correct. The general principle was that if the evidence of the crime of lewd and libidinous practices and behaviour was corroborated, every element of the conduct need not be corroborated. The charge covered an eight month period and under the heads listed alphabetically in charge (1) the Crown had specified the various instances of conduct which constituted the offence. The conduct libelled did not constitute a number of different charges, but were instances of the accused's indecent behaviour. The crime of lewd and libidinous practices and behaviour was apt to cover a course of indecent conduct. The Crown could have relevantly libelled the same facts by listing the various loci, followed by specification of the various kinds of conduct in which the appellant had engaged, without linking individual instances of conduct to specific loci. In this case they had given the appellant added specification by linking the two. The appellant's conduct in relation to C had been charged as a single crime. By leading corroborating evidence in relation to heads (e) and (j) of charge (1) the Crown had provided corroboration of repeated, but differing, indecent conduct. The sheriff had made it clear to the jury that in order to convict they required to accept the evidence of C and that they could delete parts of the charge. The jury had made deletions, for example, in heads (e) and (f). The principle enunciated in Stirling v Macfadyen should be applied to the present case.

[6 ] The first question for this court is whether charge (1), as framed, constitutes a single charge, or a number of charges, each one of which requires corroborated evidence for its proof. Charge (1) differs, in one respect, from the form of charge commonly met with in cases involving repeated indecent conduct against children. In the more common form of charge the Crown simply set out the period of time over which, and the loci at which, the conduct is alleged to have taken place, and give specification of the various forms of conduct alleged, without linking individual instances to individual loci. The justification for such an omnibus charge is that the young witnesses may have difficulty relating particular conduct to particular instances. That form of charge has, in our opinion, long been understood to libel a single crime, constituted by a course of conduct on the part of the accused.

[7 ] If support for this view were needed, it may be found, firstly, in the fact that the nomen juris speaks of lewd and libidinous "practices" in the plural, while the word "behaviour" is apt to cover repeated or continuing conduct. Secondly, in Alison ii, 256, where the author is discussing the latitude of time allowed to prosecutors in the framing of charges, he says this:

"In crimes, also, which are committed through a long course of time, and whose atrocity depends in some degree on their long continuance, as incest, adultery, lewd and indecent practices with female pupils, or the like, a latitude still greater has, from the earliest time, been admitted in our practice."

The phrase "whose atrocity depends in some degree on their long continuance" indicates that in such cases, repetition of the conduct is regarded as an aggravation of the crime of which it forms part, rather than the commission of a separate crime. Moreover, there is a clear implication in the passage that the crimes referred to involve repeated acts on the part of the perpetrator.

[8 ] Also in Hume on Crimes ii, 222, it is observed:

" ... even a greater, perhaps, in some instances, an exceptional latitude, has been indulged in libelling those offences, which employ some space of time in the perpetration, or have been long persisted in, and reiterated on many occasions".

A number of illustrations are then given, including at page 223,

"In the case of Forbes, a school master, who was tried in 1758, for corrupting his female pupils by lewd and indecent practices, the indictment was remitted to an assize, bearing that these things had happened in some one or other of the months from May 1757 to April 1758".

We interpret these passages as confirming that, where a crime such as lewd and libidinous practices is alleged to have been committed repeatedly, it is legitimate to libel it as a single crime.

[9 ] If it is legitimate, as we hold, to libel such conduct as a single crime, it is similarly legitimate, in our opinion, to regard it for the purposes of corroboration as a single crime constituted by repeated criminal acts of the same character. Such an approach is consistent with the well established principle that, where an omnibus charge is libelled, corroboration may be found in evidence of particular instances of it.

[10 ] In the light of all these considerations, we take the view that charge (1) falls to be considered as a single charge in which the crime libelled takes the form of a course of indecent conduct. That was the basis on which the sheriff proceeded when he told the jury that they did not need to find corroboration of every individual element of the alleged crime, but that what they were looking for was corroboration of the course of lewd and libidinous behaviour. He was right to do so. The fact that the Crown provided additional specification in the libel by linking each instance of indecent conduct to a specific locus, does not have the effect of requiring corroboration of each separate head of charge (1). There was accordingly no misdirection.

[11 ] We did not understand Miss Mitchell to argue that, even if the sheriff's approach was correct, there was insufficient evidence to entitle the jury to convict. The available corroboration, as we have indicated, related to two differing instances of the seven instances of indecent conduct of which the appellant was ultimately found guilty. We consider that they constituted sufficient corroboration to entitle the jury to convict the appellant of the course of conduct spoken to by C, whose evidence they clearly believed.

[12 ] The appeal is therefore refused.