Scottish High Court of Justiciary Decisons

 

 

HIGH COURT OF JUSTICIARY 2007HCJ14
	OPINION OF LORD UIST in the cause HER MAJESTY'S ADVOCATE against CHRISTOPHER THOMAS TRACEY ______________

 

 

Crown: Weir AD; Crown Agent

Accused: Paterson, Solicitor; Paterson Bell, Kirkcaldy

 

20 November 2007

 

The indictment

[1] The accused appeared before me for trial at Dunfermline High Court on 19 November 2007 on an indictment containing the following charge:

"on a number of occasions between 12 December 2006 and 4 January 2007, both dates inclusive, at 424 Murchison Path, Glenrothes, Fife and 100 Queen Margaret Drive, Glenrothes you did have unlawful sexual intercourse with DM, c/o Fife Constabulary, Glenrothes, born 7 March 1994, a girl then under the age of thirteen years: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 5(1);

you did commit this offence while on bail, having been granted bail on 1 November 2006 at Kirkcaldy Sheriff Court."

When the diet called before me Mr Paterson for the accused tendered a plea of not guilty to the charge.

 

Procedural history

[2] A preliminary hearing had taken place before Lord Turnbull on 13 July 2007 when the accused was represented by Mr Fyffe, Solicitor, who tendered a plea of guilty as libelled on his behalf. The plea was signed by the accused and the judge. The Minute of the preliminary hearing then continued:

"The Advocate Depute moved for sentence and for a proof to be fixed. He explained that the accused had pled guilty as libelled as he accepts that intercourse took place on two occasions on the understanding that the complainer was aged 15 or 16. The Crown's contention is that intercourse took place on one further occasion after the accused had been advised of the complainer's true age. The proof in mitigation would be to determine (a) the state of the accused's knowledge regarding the complainer's age and this would require evidence to be led; and (b) that intercourse did take place on a third occasion as this is not accepted by the accused.

Mr Fyffe for the accused addressed the court and stated that he had no opposition to that course of action. His position was that sexual intercourse took place on two occasions only. The Crown allege intercourse took place on one further occasion when the accused was aware of the complainer's true age. The accused asserts that he was advised of the complainer's true age but that intercourse did not take place after that time when he was so advised.

Lord Turnbull stated that in his view this was possibly a matter for a jury at trial.

Mr Fyffe submitted that the view taken by the defence was that the accused would be convicted of the offence libelled regardless of whether intercourse took place on two or three occasions.

Lord Turnbull replied that the case was about knowing what the complainer's age was.

Mr Fyffe felt that this point was central to the mitigation of the case rather than whether the accused committed the offence libelled.

The Court, being satisfied that the issues mentioned were not appropriate for a proof in mitigation, directed that a plea of not guilty be recorded and continued the preliminary hearing until 26 July 2007 at 10.00 am within the High Court of Justiciary at Edinburgh; bail continued."

[3] The minute of the continued preliminary hearing before Lady Dorrian on 26 July 2007 records that Mr Paterson appeared for the accused "and stated that the accused had pled guilty at the previous preliminary hearing however (sic) said plea had not been accepted by the court". That preliminary hearing was, on the motion of the Crown, continued to a further preliminary hearing on 23 August 2007 at Edinburgh High Court at which Mr Paterson appeared and, as the minute records, "intimated to the court that the accused maintained his plea of not guilty". The minute further records:

"The Advocate Depute advised the court that certain matters in the case were not in dispute. He stated that he anticipated that the jury in the case would be asked by the Crown or the defence to add a rider to their verdict in the event of their returning a verdict of guilty."

The trial

[4] When the case proceeded to trial before me the Crown led evidence from the complainer, her brother and mother, her two female friends, the sister of the accused and a police officer who spoke to parts of a police interview with the accused. The contents of a joint minute of agreement containing nine paragraphs also formed part of the Crown case. At the close of the Crown case Mr Paterson intimated that no evidence was to be given by or on behalf of the accused. I then requested that submissions be made outwith the presence of the jury as to the procedure which was to be followed thereafter.

[5] Mr Paterson referred to the procedural history of the case as outlined above. He said that, as the accused accepted his guilt of one incident at each address, there was no defence to the charge and he would be asking the jury to convict him. The jury could deliberate on whether sexual intercourse took place on two or three occasions and whether the accused knew she was only twelve years of age. I should consider whether it should be left to the jury to add a rider to their verdict on the number of incidents of intercourse and the accused's belief about the age of the complainer. So far as the former matter was concerned, he did not see that it made any practical difference whether intercourse took place on two or three occasions. So far as the latter matter was concerned, the burden of proof was on the defence and the standard of proof was balance of probabilities. His position was that these matters would have been better dealt with in a proof in mitigation (which had, of course, been sought by both the Crown and the defence at the first preliminary hearing). After a short adjournment certain authorities, which are included in the cases I discuss below, were referred to.

[6] The Advocate Depute in response stated that the difficulty lay with the terms of the statute. Belief of the accused that the complainer was thirteen or older was no defence and therefore irrelevant. All that the Crown had to establish for conviction was that the complainer was under thirteen years of age and that the accused had had sexual intercourse with her. Juries had in the past competently returned verdicts with riders recommending leniency. He recollected it having been done in that very court about two years previously. As a rider contained only a recommendation, it could be ignored by the trial judge. The question was whether the Crown or the defence or the judge should say anything to the jury about the possibility of their adding a rider recommending leniency to their verdict of guilty.

 

Procedure at the preliminary hearing on 13 July 2007

[7] I begin by considering the procedure which was followed at the preliminary hearing on 13 July 2007. At that hearing a plea of guilty as libelled was tendered on behalf of the accused and signed by him personally and by the judge. The Advocate Depute then moved for sentence and asked that a proof in mitigation be fixed, for the reasons stated in the minute, and the solicitor for the accused did not oppose that proposed course of action. The presiding judge stated that in his view this was possibly a matter for a jury at trial, that the case was about knowing what the complainer's age was and then, being satisfied that the issues mentioned were not appropriate for a proof in mitigation, directed that a plea of not guilty be recorded. I know of no power in the court to direct that a plea of not guilty be recorded after a plea of guilty as libelled has been tendered on behalf of an accused and that plea signed by him personally and by the judge. The minute of the preliminary hearing of 13 July 2007 does not mention anything about the accused having withdrawn his recorded plea of guilty as libelled or the judge having erased or annulled it, so presumably it stood along with the plea of not guilty which the judge directed should be entered. In my opinion, once the plea of guilty as libelled was tendered on behalf of the accused and the plea signed by him and by the judge, it constituted a conviction which could be removed only by being quashed on appeal: Evans, Petitioner 1991 SCCR 160. Quite apart from that, I am not aware of any power of a single judge of the High Court to direct that a plea which has not been tendered by or on behalf of the accused, and which is directly contrary to the plea tendered by the accused, should be recorded. The only power of the court to direct that a plea which has not been tendered by the accused be recorded is the power to direct the recording of a plea of not guilty where the accused has not pleaded guilty and at the same time has not formally tendered a plea of not guilty, as, for example, where he has remained silent, refused to tender a plea or made a statement which is not a direct and unambiguous admission of guilt: see Macdonald's Criminal Law (5^th Ed) at p 278. Accordingly, it seems to me that the procedure in this case at the first preliminary hearing went awry when the plea of not guilty was recorded.

 

The procedure at the trial

[8] However that may be, I was faced with a situation at trial where the accused had pleaded not guilty, the Crown had led its evidence and no defence evidence was to be led. The accused's position remained as had been indicated to the court at the first preliminary hearing. I therefore had to decide what, as a matter of law, it was open to the jury to do in the circumstances.

 

(i) The first issue

[9] The first issue which arose for determination related to the dispute between the Crown and the accused about whether intercourse between the accused and the complainer had taken place on three or only two occasions. The Crown led evidence from the complainer that intercourse had taken place on two occasions at the first address mentioned in the indictment on two succeeding days and on a third occasion at the second address mentioned on the indictment. In his police interview the accused admitted intercourse on one occasion at the first address and on one occasion at the second address. There was therefore no corroboration of the second act of intercourse alleged to have taken place at the first address. As I have mentioned above, Mr Paterson accepted in his submission that it did not make any practical difference whether intercourse took place on three or only two occasions, and I agree with that statement. Had it been necessary for me to decide this issue, I would have held that it was something which could competently have been decided by the jury. The reason why I would have done so is because the number of occasions on which intercourse took place relates to the extent of the accused's guilt of the charge, and that is a matter which is properly within the province of the jury. The problem which arose did so because the Crown, although knowing that their case was that intercourse had taken place on three separate occasions, had not libelled that in the charge, but instead chosen to make the unspecific allegation that it occurred "on a number of occasions". There is no reason why the charge could not have libelled "on three occasions", in which case the precise nature of the allegation being made against the accused would have been evident to everyone. Had that been done, it would have been open to the accused to go to the jury and ask them to delete the word "three" and substitute the word "two". The jury would have been entitled to do this as it would not have involved a substantive amendment to the charge but a conviction within the four corners of the libel for criminal conduct less than that libelled. I do not think that in principle it makes any difference that in this case the Crown libelled "on a number of occasions" instead of "on three occasions". Had the matter been pressed, it would have been open to the accused to go to the jury and invite them, if they accepted his version of events, to delete the words "a number of" and substitute "two". Fortunately, as the result of a practical view of the matter taken by Mr Paterson, it was not necessary for the jury to be asked to decide this point.

 

(ii) The second issue
[10] The second issue which arose for determination related to the question whether it would have been open to the jury to add a rider to their verdict either recommending leniency in general terms or making a finding on the accused's belief about the complainer's age at the material times. This involves consideration of the rarely discussed topic of riders to jury verdicts. Macdonald (supra) states at p 348:

"When a jury convict, they are entitled to make a recommendation to the leniency of the court, or in capital cases to the mercy of the Crown, and to state the grounds of their recommendation."

No authority is given to vouch the above proposition.

[11] In Renton & Brown's Criminal Procedure (6^th Ed) the following statement appears at para 14-26.1:

"Neither diminished responsibility nor provocation nor any other plea in mitigation is a special defence, and evidence may be led in the course of the trial of provocation, diminished responsibility, mental weakness, or any other mitigating circumstance, without prior notice."

[12] Two cases are cited in support of the above statement. The first is Clark v HM Advocate 1968 JC 53, in which the two accused were charged with wilfully neglecting their child contrary to the Children and Young Persons (Scotland) Act 1937, section 12(1). The defence, for the purpose of showing that the neglect was not wilful, proposed to call a doctor to give evidence that the accused were so mentally irresponsible that they did not appreciate the effect of their conduct on the child. The sheriff-substitute refused to allow the doctor to be called as a witness. It was held by the Appeal Court, applying HM Advocate v Cunningham 1963 JC 80, that the proposed line of evidence was not relevant to the question of guilt but at the same time observed by them that the witness ought to have been admitted, since his evidence might have been relevant to mitigation and the jury were entitled to hear it and, if so advised, to make a recommendation for leniency. Lord Justice Clerk Grant stated at p 55:

"Even assuming that the proposed evidence was not relevant to guilt or innocence, it would, I think, have been preferable to allow Dr Parry to give evidence, so far as relevant to mitigation, before the jury retired, in order that, if they thought fit and as they were entitled to do, they might add a recommendation to leniency when returning their verdict."

Lord Walker stated at p 58:

"Before us the learned Advocate Depute maintained that the sheriff had followed the correct procedure. Although neither applicant is seeking to appeal against sentence, so that the question of mitigation of guilt does not now arise, I should not like it to be thought that by passing over the matter in silence I was giving tacit approval to the view that competent evidence relevant to mitigate guilt can, when tendered by an accused, lawfully be withheld from the jury. When, in the time-honoured phrase, the accused is remitted to the knowledge of an assize, the interlocutor invariably allows him a proof in alleviation as well as in exculpation, and that was done in this case. An allowance of proof in alleviation is not a meaningless phrase, for it is within the province of the jury to commend the guilty to the leniency of the court, and such a commendation forms a factor to be taken into account in measuring punishment. In my view an accused person is entitled as of right to lay before the jury all evidence which might properly induce them to commend him to leniency in the event of his being held guilty."

 

The third member of the court, Lord Milligan, did not discuss riders to verdicts or recommendations of leniency by the jury, but pointed out at p 60:

"I think that it is important to note that in the present case the purpose for which the evidence of the psychiatrist was to be led was to attempt to obtain an acquittal and not merely to obtain a modified sentence."

[13] The second case cited is HM Advocate v Murray 1969 SLT (Notes) 85, in which the accused was charged with causing the deaths of three people by dangerous driving. His counsel sought to lead evidence that on the night in question he had been working in a dry-cleaning establishment and that as a result at the time of the accident he was under the influence of tetraclorethylene, a chemical used in dry-cleaning. Lord Justice Clerk Grant repelled a Crown objection to the admissibility of such evidence and said in his charge to the jury (at p 86 of the report):

"In considering whether the accused was guilty of dangerous or reckless driving the question whether he was under the influence of tetraclorethylene at the time is of no moment and must be left out of account altogether. If it is established to your satisfaction, even on a balance of probability, that he was so under the influence of that substance that may be relevant and indeed would be relevant to the question of sentence and of mitigation of punishment. And I should add that it is always open to a jury to make a recommendation of leniency if they think so fit, but these factors have no bearing on the question of the accused's guilt under charge 1. The evidence I have referred to may go to mitigation if the accused is found guilty, but it has no bearing on his guilt."

[14] In the more recent case of HM Advocate v McIntyre (30 October 1997, unreported) the accused was a solicitor charged with a contravention of the Firearms Act 1968, section 1(1)(a) and (b). The account given by the accused in evidence at the trial was to the effect that a criminal client (and childhood friend) had handed him two handguns and some bullets, asking him to hand these in to the police, which in evidence the accused said he intended to do the day after the guns and bullets were found by the police in his garage. Lord Marnoch charged the jury as follows:

"It is always possible for a jury to add a rider to its verdict recommending leniency and, if you were to accept that the accused was genuinely intending to hand over the guns to the police on the same day on which they were discovered or very shortly afterwards perhaps, then it would be appropriate and helpful that you add that rider to any guilty verdict which you return. Now, it would be sufficient for you simply to say 'and the jury recommend leniency'. You don't have to say anything else. If you did that, your verdict would be construed as meaning that, although in possession of the guns, the accused did intend that day or very shortly afterwards to hand them in to the police."

[15] It was held in England in the days of capital punishment that neither counsel nor the judge was entitled to invite a jury to add a recommendation for mercy. In R v Larkin [1943] 1 KB 174 Humphreys J, delivering the judgment of the Court of Criminal Appeal, said at p 176:

"There is another matter to which the court wishes to refer. Twice in the course of his direction to the jury Oliver J reminded them that, in the event of their finding the appellant guilty of murder, it was within their province to recommend him to mercy. Although the matter could not affect an appeal against either conviction or sentence, the court desires to say that it strongly deprecates any reference by a judge, when trying a capital case, to the privilege of the jury to make a recommendation of any kind. A jury frequently asks a judge whether they may add a rider to their verdict, and on the judge being satisfied that the rider is a proper one, leave is given. When such a rider takes the form of a recommendation to mercy in a capital case it may be of great value to the authorities who have the duty of advising His Majesty whether or not the sentence should be carried out, but if that recommendation comes, not as the spontaneous act of the jury, but because they are asked by the judge whether they would like to recommend the prisoner to mercy, it loses its whole force and probably has no effect on the mind of any person who considers the case. It ceases to be the act of the jury, since it would indeed be a strange jury which, on being asked in a murder case if they would like to make a recommendation to mercy, refused to add to their verdict those words which express the desire common to every human being, that mercy should be shown. Another great objection to the practice, if it be a practice, with which I have been dealing is that it has always been impressed on juries by judges, particularly when trying a capital case, that they are not concerned with the consequences of their verdict and judges have frequently reprimanded counsel who have referred to such a matter as a recommendation to mercy. If, however, judges are to make a practice of referring to the consequences of a verdict of guilty in a capital case, it is difficult to see why counsel for the defence should not have the same right, and if counsel for the defence, then counsel for the prosecution, and so a trial for murder might resolve itself into an undignified and undesirable squabble whether or not, in the opinion of the jury, the capital sentence ought to be carried out. The court hopes that the practice with which I have been dealing will not be followed in the future."

The above passage was reiterated and applied by the Court of Criminal Appeal in the later case of R v Black [1963] 1 WLR 1311, also a case of capital murder.

 

 

[16] In R v McGlade (Times Law Reports, 14 March 1990) the appellant had been tried for and convicted of buggery. Although invited by the trial judge to do so, the jury had not indicated by way of a rider to their verdict their finding as to consent. The Court of Appeal stated that there was clear authority that if the verdict of a jury led inexorably to only one version of the facts being found, the trial judge was bound to sentence upon that basis, but, if the verdict left open some important issue which might affect sentence, the judge, having heard the evidence himself in the course of the trial, was free, and indeed it was his duty, to come to a conclusion, if he could, as to where the truth lay. They held that, in the circumstances of that case, if the judge had been unable upon the evidence to be sure that there had been no consent to the act of buggery, he would have had to deal with the matter on the basis that there was consent, but he had made it clear that on the evidence he had heard he had come to the conclusion that there had been no consent and in all the circumstances the sentence of five years imprisonment could not be faulted. In R v Vincent John Young (1990) Cr App R (S) 279 the Court of Appeal held that in a charge of buggery of a female the issue of consent was not one for the jury to determine: if it required resolution, it was a matter for the judge. In R v Ronald Thomas Cranston (1993) 14 Cr App R (S) 103 it was held by the Court of Appeal that in a case of buggery of a woman it was not necessarily wrong to invite the jury to add a rider dealing with the question of consent.

[17] In R v Paul Raymond Mills [2004] 1 Cr App R (S) 57 (reported at p 332 of the volume) the appellant was convicted on four counts of being knowingly concerned in fraudulently evading the prohibition on the importation of certain class A and class B drugs. He was the driver of a lorry which was stopped by customs officers at Dover and in which the drugs were found in boxes sandwiched between pallets of fruit. He stated in interview that he was bringing a load of fruit into the country and agreed to transport boxes which he believed to contain pornographic video tapes in return for a payment of £2,500. He admitted that he knew it was illegal to import pornographic video tapes. At his trial he claimed that he believed that the boxes contained pornographic video tapes of a kind which were not subject to a prohibition on importation. Before the trial began the judge raised the question whether the jury should be asked to determine whether the appellant knew or believed he was importing controlled drugs as opposed to pornographic material subject to a prohibition. Having heard submissions he concluded that the only issue for the jury was whether the appellant was knowingly concerned in the fraudulent evasion of the prohibition. In giving his decision he said this:

"Mitigation is not a proper subject for the jury to determine. It is not for the jury to determine whether or not his mitigation is to be believed. If he is guilty, if the jury find him guilty and are sure that he knew that he was bringing in something that was prohibited, then the weight to be given to the mitigation is a matter for the judge."

At the trial he left to the jury the question whether they were sure that the appellant knew or believed that he was fraudulently bringing into the country something which he knew to be prohibited. In sentencing he stated to the appellant that it was clear that the jury had disbelieved his evidence that he thought that what he was importing was non-prohibited pornography and that he had concluded that the appellant knew very well that what he was importing was drugs with a high value and imposed a sentence of 16 years imprisonment. Following the imposition of sentence the jury submitted a note signed by 11 jurors which indicated that their verdict of guilty was based on the view that the appellant genuinely believed the goods were not drugs but were prohibited. Having heard submissions, the judge ruled that he did not consider himself bound by the jury's note, declined to vary the sentence and indicated that he was sure that the appellant knew that he was involved in a drug smuggling operation. The Court of Appeal, in refusing the appeal against sentence, found no fault with what the judge had done and said (per Judge Beaumont QC) at p 340:

 

"...... this court is driven to the conclusion that the judge was not bound by the information that the jury disclosed to him for these reasons. What that note disclosed was not a finding that they the jury were asked to make by way of decision in reaching their verdicts on the indictment. What they were asked to do was to say whether they were sure that the appellant was fraudulently engaged in the importation into this country of what he knew to be prohibited substances. Whether those prohibited substances were drugs or some other prohibited substance clearly has a relevance for the purpose of sentence. It was, in the context of the evidence heard in the course of the trial, an issue raised by the appellant's defence. But in this case it was not a question that had to be answered by the jury, having regard to the issue correctly left to them by the learned judge in his summing-up as being the only issue in the case."

[18] It seemed to me that the second issue which I had to determine involved a consideration of the fundamental distinction between the function of the judge and the function of the jury in a criminal trial. It seems to me that the function of the jury is exclusively to determine whether the Crown have proved the charge, either in whole or in part. I agree with the view of the trial judge in R v Paul Raymond Mills (supra) that mitigation is not a proper subject for the jury to determine, that it is not for them to determine whether or not the mitigation can be believed and that the weight to be given to the mitigation is a matter for the judge. Nowadays when a jury is balloted the minute records simply that the accused was remitted to the knowledge of an assize. It has for long been the practice for a judge in Scotland when charging the jury to direct them that they must have no regard to the consequences of any verdict which they may return. It follows from that that if the jury consider an issue of mitigation they are considering a matter relating to sentence, which is a consequence of their guilty verdict. It appears that for some time now there has been a practice both in Scotland and England of a jury adding a rider to its verdict recommending mercy or leniency or even making some other finding in fact which is capable of going to mitigation. The first mention of such a practice in Scotland which I have been able to discover is the statement in Macdonald at p 348. No similar statement is to be found in Hume or Alison. In England, at least in capital murder cases, there was a prohibition on counsel or the judge mentioning to the jury that they could add a rider recommending mercy, but there is no statement in the textbooks or cases about the existence of a similar prohibition in Scotland. It seems to me to be self-evident that in adding a rider to their verdict recommending mercy or leniency or making some other finding in fact going to mitigation the jury are venturing outwith their proper province and trespassing on the function of the judge. Findings of diminished responsibility or provocation by a jury are, I think, in a different category and must be regarded as sui generis since they are part of the verdict and based on legal principles on which the jury have been directed by the judge.

[19] There are obvious objections to a jury being permitted to add such a rider or make such a finding in fact. First, it is likely to complicate their task. Had the jury in this case been allowed to consider the question of the accused's belief in the complainer's age I would have had to charge them that they were not concerned with the consequences of their verdict, that his belief in her age was wholly irrelevant so far as guilt of the crime charged was concerned, but that it could be relevant for another purpose and for that other purpose they should consider whether the accused had established on the balance of probabilities his claimed belief about the complainer's age. In my view such a series of directions would be confusing and self-contradictory. Secondly, it could be to the prejudice of an accused where he was asserting his innocence of the crime charged since a juror reluctant to concur in a guilty verdict may be persuaded to do so by the prospect of a recommendation of mercy or leniency. Thirdly, any rider added by the jury is only a recommendation, which the judge is free to ignore if he takes a different view of the facts. The potential for such a disagreement is obviously undesirable. Fourthly, it is no part of the function of the jury to seek to influence sentence. A jury does not have an open mandate to express in their verdict their view on matters other than whether the Crown have proved the guilt of the accused. Fifthly, any recommendation for mercy or leniency by the jury would be made in ignorance of other factors relevant to the sentencing process. For example, a jury recommending leniency or mercy would not know the criminal history of the accused and could well end up making such a recommendation when they would not have made it had they known of his criminal history. In the present case it was known to the jury that the accused was on bail at the material time as that fact was libelled on the indictment and not challenged, but prior to the motion for sentence they were unaware (as was I) that the accused had previous convictions for violence and was subject to a probation order and a deferred sentence. The question of mitigation of sentence must be considered in the round in light of a whole series of factors and it does not make sense to permit a tribunal which may be ignorant of relevant factors to have an input, even by way of recommendation, into the sentencing process.

[20] It seems from what I have been able to discover that the practice of juries adding a rider to their verdict making a recommendation to mercy arose in capital murder cases where the jury were well aware of the inevitable consequence of a conviction. The practice then seems to have extended to other types of case in which a rider recommending leniency was added to the guilty verdict. It is not a practice which appears to have been subjected to any close analysis and it is one on which no authoritative guidance has been given. For the reasons given above I think it is a practice which is inconsistent with principle in that it trespasses upon the function of the judge, although clearly a different view has been taken by others. I am well aware that it is a practice which appears to have received the approval of the authors of the fifth edition of Macdonald's Criminal Law and of Lord Justice Clerk Grant and Lord Walker. The unvouched statement in Macdonald is not binding on me. The statements by the two judges in HM Advocate v Clark (supra) were made in the Appeal Court but as they were made obiter they are not binding on me. In HM Advocate v Murray (supra) Lord Justice Clerk Grant was sitting as a trial judge, as was Lord Marnoch in HM Advocate v McIntyre, and their decisions are therefore not binding upon me.

[21] As I took the view that the question of the accused's belief in the complainer's age was an issue going to mitigation of sentence I concluded that it was a matter for me, and not for the jury, to determine. Upon my announcing my decision Mr Paterson then tendered a plea of guilty as libelled, the Advocate Depute moved for sentence and produced to the court a schedule of previous convictions and I adjourned the diet for sentence for the purpose of obtaining a social enquiry report. When I come to consider sentence at the adjourned diet I shall, in light of the evidence which I heard in the course of the trial and any submissions made on behalf of the accused, reach a conclusion on his belief in the complainer's age at the material time and take that into account, along with all other relevant factors, in deciding what the appropriate sentence is.