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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Abernethy
Lord Nimmo Smith
C.G.B. Nicholson, CBE, QC,
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[2007] HCJAC 4
Appeal No: XJ 1429/05
OPINION OF THE COURT
delivered by C.G.B. NICHOLSON,
CBE, QC
in
APPEAL BY STATED CASE
in causa
JOHN GERARD KEARNEY
Appellant;
against
PROCURATOR FISCAL, GREENOCK
Respondent:
_______
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Appellant: Shead, Mitchell; Jim
Friel & Co, Glasgow
Respondent: Stewart, QC,
A.D.; Crown Agent
13 December 2006
[1] This
is an appeal by way of stated case against a conviction after trial on a charge
of breach of the peace. That charge set
out that:
" ..... on a
date between 01 April 2005 and 8 April 2005, exact date unknown, at Kilblain
Street, Greenock you JOHN GERARD KEARNEY did conduct yourself in a disorderly
manner approach Kirsty Spence and Paula Mitchell, both c/o Strathclyde Police,
seize said Kirsty Spence by the hand, refuse to release her hand, utter sexually
explicit comments, invite said Kirsty Spence and Paula Mitchell to attend at a
house with you, place them in a state of fear and alarm and commit a breach of
the peace."
[2] The foregoing charge called for trial
before the sheriff at Greenock on 14 June 2005, at which stage the
appellant was represented by a solicitor.
Having heard the evidence, the sheriff found the appellant guilty as
libelled. Thereafter the case was
continued for the preparation of various reports and, on 2 August 2005, the
sheriff imposed a fine of £750 and placed the appellant on the Sex Offenders'
Register for a period of five years. The
sheriff's decision was thereafter appealed by way of stated case.
[3] For
reasons to which we turn shortly the appeal was not in fact heard by this Court
until 13 December 2006. On that date, having heard counsel for the
appellant and the advocate depute in reply, we allowed the appeal on one
ground, and intimated that our reasons would be given in writing at a later
stage. Those reasons are set out later in
this Opinion; but, first, it is appropriate to narrate the history of this case
during the period between the date of the sheriff's determination and the date
of the hearing of the appeal, not least on account of the fact that the
appellant's grounds of appeal changed to a significant extent during that
period.
The background to the hearing of
the appeal
[4] Following
on the appellant's conviction an application for a stated case was lodged on 9 August 2005. Although that application has the appearance
of having been prepared by a solicitor, it was in fact signed and presented by
the appellant in person; and, as the sheriff has told us in his Note to the
Stated Case, the appellant appeared in person at the hearing on adjustments
which took place on 22
September 2005. In the
application for a stated case the matters which the appellant sought to bring
under review were:
"a) There was an insufficiency of evidence
to convict;
b) The nature and extent of the Crown
evidence lacked the necessary
credibility
and reliability to convict; and
c) On the findings of fact, a breach of
the peace was not committed.
Further on
the findings of fact a Breach of the Peace with an aggravation relating to a
sexual element was not committed."
[5] The
Stated Case, as adjusted, was duly lodged; and 16 December 2005 was assigned as a diet for
the hearing of the appeal. On that date,
however, having heard counsel for the appellant and the advocate depute in
reply, the Court discharged the diet of appeal and granted leave for amended
grounds of appeal to be lodged. "Adjusted"
grounds of appeal were duly lodged on 17 January 2006 in the following terms:
"1. The learned sheriff erred in holding
that the Crown had established that the offence had occurred between the 1st
and 8th of April. The Crown
libelled the date in question 'on a date between the 1 April 2005 and 8 April 2005, exact date unknown'. The Complainers said that the incident had
taken place 'during the Easter school holidays' but 'were unable to state to
the Court the date when the incident took place' (Finding in Fact 4).
2. The learned sheriff erred in finding
that esto the evidence of the complainers was both credible and
reliable, the circumstances amounted to a breach of the peace in terms of SMITH
V DONNELLY 2001 SCCR 800."
[6] At
a procedural hearing on 9 February
2006 the Court allowed the foregoing grounds of appeal to be
received, and continued the hearing to a further procedural hearing on 9 March 2006 to allow disclosure by the
Crown and consideration by those representing the appellant as to the possible
lodging of additional grounds of appeal.
Thereafter, further procedural hearings took place on 9 March, 13 April,
and 26 May, after which an additional ground of appeal was lodged on behalf of
the appellant. It was in the following
terms:
"3. The Crown failed to disclose the
relevant witness statements. They were
obliged to do so having regard to their obligations under the common law and
Article 6(1) of the Convention. The
failure referred to deprived the Defence of the opportunity to properly prepare
and present the appellant's defence. In
inviting the Sheriff to convict, in the absence of disclosure, the Lord
Advocate, through the Procurator Fiscal, was acting oppressively et separatim
incompatibly with the appellant's right to a fair trial guaranteed by Article
6(1). Such an act was ultra vires. Reference is made to section 57(2) of the
Scotland Act 1998. Accordingly there has
been a miscarriage of justice."
[7] Following
on the lodging of the foregoing additional ground of appeal the case called for
a further procedural hearing on 16 June
2006. At that hearing the
Court allowed the further ground of appeal to be received; and, in light of the
fact that, by then, there were three new grounds of appeal in place of those
originally set out in the application for a stated case, the sheriff was
requested to provide the Court with a supplementary report. The Court also directed that a further
procedural hearing should be assigned for a date subsequent to receipt of that
supplementary report.
[8] The
sheriff's supplementary report was received at the end of June and, on 12 September 2006, a further
procedural hearing took place at which the appeal was continued for a full
hearing on a date to be afterwards fixed.
As noted above, that hearing took place on 13 December 2006. As a consequence of the various adjustments
and additions which had occurred during the preceding year there were by that
stage three new or adjusted grounds of appeal before the Court. Stating them shortly, they related to: (1) the issues surrounding the date of the
alleged offence; (2) the question whether the activity complained of amounted
to a breach of the peace; and (3) the issue concerning disclosure.
Facts found proved by the sheriff
[9] So
far as relevant for present purposes the sheriff's findings in fact are as
follows:
"1. The complainers, Kirsty Spence and Paula
Mitchell, suffer from learning difficulties and attend a special school.
2.
The appellant is known to the complainers. He has, on occasion, been the driver of the
school bus transporting the complainers to school.
3. The complainers were unable to state to
the Court the date when the incident took place. The complainers stated that the incident took
place during the Easter school holidays.
On the date in question, the complainers, along with another friend, had
travelled to Braehead Shopping Centre, Renfrew.
On their return to Greenock, it was
the intention of Kirsty Spence to spend the night with the other complainer,
Paula Mitchell. Kirsty and Paula
returned to Kirsty's home for some clothes.
4. They then came in to Greenock town
centre to get the bus to Paula's house. It
was late and dark and they were sitting on a wall at the bus terminus at Kilblain
Street, waiting for their bus. The appellant came over to the two girls and
took hold of Kirsty's hand. Kirsty asked
him to let go. The appellant was holding
Kirsty's hand tightly and refused to release her hand.
5. The appellant then turned to Paula and
said, "She's a nice girl, but she could not handle me in bed". He was referring to Kirsty. This was a sexually explicit comment.
6. The appellant said this on more than
one occasion. The appellant let go of
Kirsty's hand after repeating the comment he had made to Paula three times. The appellant then asked both complainers if
they wanted to go up to his brother's house and if they wanted his phone number. The complainers said no.
7. The complainers thought the appellant
was serious. The complainers were scared
about the things said to them by the appellant.
The appellant walked away towards Greenock town
centre. The appellant's conduct was
genuinely alarming and disturbing to a reasonable person."
[10] The sheriff goes on to narrate that, initially, the complainers
were too scared to tell anyone what had happened, but that eventually they
spoke to a school auxiliary, and that the school contacted Paula's parents. They complained to the police, and, on 26 April 2005, the
appellant voluntarily attended at Greenock Police Station where he was
cautioned and interviewed. The sheriff
states that the appellant admitted that he had met both girls in Kilblain
Street, and that he had spoken to them. He denied the statement attributed to him, and
thereafter he was cautioned and charged.
Of some significance for present purposes, it is to be noted that, in
this part of the sheriff's findings, there is no finding to the effect that the
appellant, when interviewed by the police, specified any date when the meeting
between him and the girls had taken place.
It is also to be noted that no evidence was led for the defence in this
case.
The submissions for the parties
[11] Mr Shead, for the appellant, began his submissions by making
some general comments in relation to what was by then his third ground of
appeal, namely that bearing on the matter of disclosure. However, he then went on to present detailed
submissions in support of his first and second grounds of appeal, namely those
relating to the question whether it had been proved that the offence occurred
within the dates specified in the complaint, and whether, if so, the event in
question constituted a breach of the peace according to the law of Scotland. Having completed those submissions Mr Shead
then suggested to us that, since we might find it possible to dispose of the
appeal on one or other of those grounds, and without having to hear submissions
on the matter of disclosure, we might consider it appropriate to hear the
advocate depute in reply on the grounds already advanced, reserving, of course,
to Mr Shead the right to present further submissions on the matter of
disclosure in the event that we were to be against him in respect of both of
the first two grounds of appeal. That
suggestion appeared to us to be a sensible one in the circumstances, and we
accordingly called on the advocate depute to reply in respect of the two
grounds argued by Mr Shead at that stage in the proceedings. Having heard the advocate depute, we came to
the view that this appeal should be allowed on the first ground of appeal,
namely that relating to the date of the alleged offence, and we gave our
decision to that effect with an indication that our detailed reasons would be
given in writing at a later date. In those
circumstances it is now unnecessary for us to set out Mr Shead's submissions on
either the second or third grounds of appeal, nor do we require to express any
view on the merits of those submissions.
Consequently, we turn now to the detail of Mr Shead's submissions
regarding proof of the date when the alleged offence was committed.
[12] On that matter Mr Shead began by reminding us that the charge
in the complaint libels that the alleged offence took place "between 01 April 2005 and 8 April 2005, exact date unknown". However, the sheriff's findings do not
disclose that there was any evidence at the trial to show that the offence in
fact occurred between those dates. As is
stated, in finding in fact 3, the complainers "were unable to state to the Court
the date when the incident took place", and stated only that "the incident took
place during the Easter school holidays".
However, there was no evidence as to the dates of the Easter school
holidays, nor indeed to confirm that it was the Easter holidays in 2005 that
were being referred to rather than those in an earlier year. Mr Shead noted that, in the course of the
appellant's interview with the police on 26 April 2005, he is recorded as
having said that he had met, and spoken to, two unnamed girls in Greenock town
centre "two or three weeks ago". However,
the sheriff has not made any finding on that matter, and his mention of the
police interview is silent as to the naming of any date by the appellant. As Mr Shead pointed out, there is no other
evidence in the case to fix the date of the alleged offence.
[13] Mr Shead acknowledged that, by statute, a certain latitude as
to dates may be available to a prosecutor.
That arises by virtue of section 138(4) and Schedule 3, para. 4(1), of the Criminal Procedure (Scotland) Act 1995. Para. 4(1) of the Schedule provides:
"The
latitude formerly used in stating time shall be implied in all statements of
time where an exact time is not of the essence of the charge."
Mr Shead accepted that, in the
present case, time is not of the essence of the charge. However, he submitted that the latitude
allowed by the foregoing provision is not available where, as in the present
case, a prosecutor has specified a precise period between two dates. In such a case, he submitted, there must be
evidence that the alleged offence occurred between those dates; and, in the
absence of such evidence, the prosecution must fail.
[14] In relation to those submissions Mr Shead referred us to two
cases, namely Creighton v. HMA
(1904) 4 Adam 356, and Andrew v. HMA
1982 SCCR 539. In Creighton the
appellant had been charged with having had unlawful sexual intercourse with a
girl under the age of sixteen "between 14th January and 6th February 1904 (the
particular date being to the complainer unknown)". At the appellant's trial the evidence
negatived any criminal assault by him between the dates libelled, but the
sheriff charged the jury that they were entitled to bring in a verdict of
guilty provided they found that an assault had been proved subsequent to 11th December 1903. (Since this was a charge to which a statutory
time limit applied, it appears that the date chosen by the sheriff was the one
which occurred three months prior to the serving of the indictment.) The jury
convicted the appellant, and he appealed to the High Court of Justiciary. In the circumstances of that case the Court
allowed the appeal, holding that the Crown must confine itself to the dates
specified in the indictment. It may be
that the circumstances which led to that decision were somewhat special, and we
consider them in more detail later.
[15] In the more modern case of Andrew the facts were
relatively straightforward. In that case
the appellant was charged with having committed a theft "between 26th
and 31st October
1981". After having
deliberated for some time the jury sought further directions as to whether any
verdict of guilty had to be restricted to between those two dates. The sheriff said that, in light of the
evidence, the starting date could not be before 26th October but it
was open to them to substitute a later date in place of 31st October. In due course the jury returned a verdict of
guilty in respect of a date "between the 26th October and the 19th November 1981". The High Court allowed an appeal against
conviction and, in delivering the Opinion of the Court, the Lord Justice
General (Emslie) said (at p. 541):
"Now there
is no doubt that the verdict returned by the jury cannot stand for the simple
reason that the precise terms of this libel prescribed once and for all the
latitude which the Crown elected to take and it was only open to the jury to
find the appellant guilty of a crime within the scope of this libel provided
they were able to hold that the crime, whatever it was, was committed between
26th October and 31st October 1981. It was not open to the sheriff or the jury to
extend the latitude of time and thus to alter the indictment in the way which
was done."
[16] Mr Shead founded strongly on the foregoing passage in the
Opinion delivered by the Lord Justice General, and he urged us to follow it in
the present case. If we were to do so,
it would follow that the sheriff would have been entitled to convict only if he
was satisfied, by sufficient evidence, that the alleged offence had occurred on
a date between the two dates specified in the complaint. In fact, of course, the sheriff found the
appellant "guilty as libelled", and made no mention of having applied the
statutory latitude despite having had two opportunities to do so (in the
original Stated Case and in his Supplementary Note) had that actually been his
approach. That must mean, it was
submitted, that the sheriff had been satisfied that there was sufficient
evidence to establish that the alleged offence had occurred on a date between 1
and 8 April 2005. However, for the reasons already advanced, Mr
Shead submitted that there was simply no evidence to establish the commission
of an offence on any of these dates, and in those circumstances he invited us
to allow the appeal on this ground.
[17] In response the advocate depute began by indicating that his
primary position was based on the "latitude" provisions in the 1995 Act to
which we have already referred. He noted
that, in the case of Creighton, the decision of the Court is not on all
fours with that in the later case of Andrew, but was arrived at in the
special circumstances of that case. Moreover,
he submitted that an accurate analysis of the "latitude" provision is to be
found in a passage in the fifth edition of Macdonald's Criminal Law (at
page 217) which is quoted in the Commentary to the report of the case of Andrew
in 1982 SCCR, at page 543. In that
connection he noted that Lord Justice Clerk Macdonald had been a member of the
Bench in Creighton. The advocate
depute also noted that neither the case of Creighton nor the passage in
Macdonald appear to have been before the Court in the case of Andrew.
[18] The passage in Macdonald is in the following terms:
"Thus if a
crime is indicted as having been committed on 15th June - or during
the period between 5th and 15th June - the prosecutor has
an implied latitude extending from 1st May to 31st July. But if a crime is indicted as having been
committed during a period falling within two or more calendar months - as during
the period between 28th May and 5th June - there is no
implied latitude, because it is impossible then to ascertain to which three
calendar months the implied latitude should extend."
[19] The problem which arises in the second of the examples given in
the foregoing passage appears to be that, since the dates given in the
indictment span two months, it is impossible to say with certainty whether the
latitude should extend from 1st April until 30th June or
from 1st May until 31st July. There is thus an ambiguity: and that appears
to be the reason why the Court was not prepared to recognise any latitude in
the case of Creighton. In both
the present case, and in the case of Andrew, by contrast the libels
specify a period of time falling within a single calendar month. In that situation, the advocate depute
submitted, the statutory latitude is available in the present case, and the
ground of appeal directed at evidence of the date of commission of the offence
should fail.
[20] In the circumstances which we have just outlined we asked the
advocate depute whether he was inviting us to remit the present case to a
larger Bench with a view to a possible over-ruling of the decision in the case
of Andrew. However, he expressly
declined to make any such motion, and instead he submitted that we could simply
distinguish the case of Andrew on the basis that the decision in that
case appeared to have been arrived at without any consideration of Creighton
or of the passage in Macdonald which we have quoted above. On that basis he submitted that we, and the
sheriff, were entitled to hold that in the present case there was a statutory
latitude extending from 1st March until 31st May. That having been done, he went on to submit,
it could be held on the evidence of the two complainers that the present
offence was committed on a date falling within that extended period.
Discussion and decision
[21] Having now had the opportunity to consider in detail the
various authorities to which we were referred, including in particular the case
of Creighton and the passage in Macdonald which we have quoted earlier,
we tend to the view that the decision in the case of Andrew cannot be
reconciled with those earlier authorities.
Putting it shortly, the decision in Andrew appears to be
authority for the proposition that, where the Crown has elected to specify a
particular latitude of time, the statutory provision as to latitude cannot be
prayed in aid in order to extend the period further even where the period
specified by the Crown falls entirely within a single calendar month. By contrast, the decision in Creighton
and the passage in Macdonald both appear to vouch the proposition that the
statutory latitude will be unavailable only where the period specified by the
Crown spans more than a single month because, in that event, there must of
necessity be some ambiguity as to when the period of latitude (traditionally,
it would appear, one of three months) is to begin and to end.
[22] Having regard to the foregoing conflict between the cases of Creighton
and Andrew, we are of the view that, were it to be necessary to try to
resolve that conflict, that task could only properly be undertaken by a larger
Bench. However, we also consider that it
is unnecessary to contemplate that task in the context of the present case. We have reached that view not for the reasons
urged upon us by the advocate depute but because we have come to the conclusion
that considerations relative to the statutory latitude simply do not arise in
this case.
[23] In our opinion the starting point for a consideration of the
date when the present offence was committed must be the clear statement on the
first page of the Stated Case where the sheriff says that he found the
appellant "guilty as libelled". Nowhere
does the sheriff say anything about the statutory latitude. He does not say that the Crown ever invited
him to apply it, nor does he say that he considered it, and applied it, ex
proprio motu. Moreover, despite
being required by this Court to provide a supplementary report dealing with the
appellant's new and revised grounds of appeal, the sheriff effectively says no
more in that report than that the question of date was never raised by anyone
in the course of the trial. From all of
that it must follow, in our view, that, when the sheriff says that he found the
appellant "guilty as libelled", those words must mean that he found that the
appellant had committed the offence in question between 1st and 8th
April 2005, and not on any earlier or later date.
[24] That being so, the only question is whether there was
sufficient evidence in this case to entitle the sheriff to reach that
conclusion. In our opinion the only
evidence which was before the sheriff on that matter was the evidence of the
two complainers. Although the terms of
the appellant's interview with the police on 26 April 2005 are with the Court's papers, the sheriff does not
state that the transcript was ever lodged as a production. Moreover, in finding 13, where the sheriff
says something about that interview, he nowhere mentions that part of the
transcript where the appellant is recorded as having said that his meeting with
the girls took place "two or three weeks ago".
In those circumstances we do not consider that any regard can properly
be given to that passage in the interview transcript. In any event, of course, even if that part of
the transcript had been evidence in the case, it does not unequivocally
pinpoint any meeting as having taken place within the dates specified in the
complaint.
[25] Accordingly, we are left with no other evidence as to date
apart from the evidence of the two complainers.
As we have already noted, their evidence was simply to the effect that
the incident had taken place "during the Easter school holidays"; but, there was
no evidence from any other source as to the dates when those holidays occurred
in 2005, nor indeed was there even any evidence as to the date of Easter. We venture to doubt whether Easter school
holidays would in any event have lasted for only a single week so that, even if
there had been evidence as to their dates, it would have been unlikely that
such evidence would have indicated that the complainers must have been
referring to the single week specified in the complaint. At the end of the day, however, the only
evidence on this matter is the general reference to the Easter school holidays
in the evidence of the complainers. We
have formed the clear view that that evidence is vague and unspecific, and
certainly does not indicate beyond reasonable doubt that the incident to which
the complainers were referring took place within the dates specified in the
complaint. For that reason we consider
that an essential part of the charge has not been proved, and that this ground
of appeal, as advanced by Mr Shead, must succeed. We have accordingly answered the first
question in the Stated Case in the negative and have allowed this appeal.
