Appellant: Ogg, solicitor-advocate; Paterson Bell, Edinburgh

Respondent: Ogg QC AD; Crown Agent

31 May 2011

Introduction

[1] On 9 July 2009, the appellant appeared for trial in the High Court at Paisley on an indictment which contained five charges. Charges 1, 2 and 4 alleged extended lewd and libidinous conduct of a serious kind against much younger siblings DM (aged 7-11), SJM (aged 11-13) and LM (aged 7); charge 3 alleged repeated assault and sodomy against SJM; and charge 5 alleged a single incident of assault and rape involving the complainer LM. At the conclusion of the Crown case the Advocate Depute, apparently recognising a lack of evidence, sought leave to amend charge 3 so as to delete all reference therein to assault. This was opposed by the defence on the ground that it would materially alter the nature of the charge, and after hearing argument the trial judge refused to allow the proposed amendment to be made. The Crown's reaction was to withdraw the libel on that charge altogether, and the trial judge then formally acquitted the appellant of charge 3 pursuant to section 95(1) of the Criminal Procedure (Scotland) Act 1995.

[2] This left four live charges to go before the jury, and in counsel's speeches (after the appellant and one other defence witness had given evidence) an issue arose as to whether, and if so in respect of which charges, the Crown could satisfy the fundamental requirement of corroboration. In respect of charges 1, 2 and 4 (all charges of lewd and libidinous conduct), the Crown sought to rely on the Moorov doctrine whereby a course of criminal conduct might be established through the evidence of individual victims of constituent offences. As regards charge 5 (the rape charge), on the other hand, the only source of corroboration was said to be certain evidence which had been led in support of the withdrawn charge 3. Again the Moorov doctrine was prayed in aid, but under concession that this would have to be an entirely separate exercise from that relating to charges 1, 2 and 4.

[3] When the trial judge came to give directions to the jury, he approached these matters along similar lines, dividing the various charges for Moorov purposes into two separate groups. The general nature of the doctrine was explained, and the jury were left to determine whether it could or should apply for the purposes of proving all or any of the remaining charges. In due course the jury returned with majority verdicts finding charge 1 not proven, but convicting the appellant of charges 2, 4 and 5. Thereafter, on 3 September 2009, the trial judge imposed on the appellant extended sentences of 6, 5 and 7 years respectively. These sentences were ordered to run concurrently, and to commence with effect from 6 August 2009.

[4] For present purposes, no issue arises as to the soundness of the appellant's conviction of lewd and libidinous conduct in terms of charges 2 and 4. On charge 5, however, the appellant maintains that the jury were materially misdirected in two principal respects, and that a miscarriage of justice plainly resulted. In particular, it is said that the trial judge erred in law (a) by directing the jury that for Moorov purposes they could properly take account of evidence pertaining to the alleged offence in charge 3 of which the appellant had formally been acquitted; and (b) by leaving that aspect of the Moorov issue before the jury without further guidance where the evidence on charge 3 (in sharp contrast to that on charge 5) was acknowledged by the Crown to involve no hint of force or assault.

[5] As regards the extended sentences imposed on 3 September 2009, the appellant's position is that these were incompetent by virtue of section 210A(9) of the 1995 Act, and that some lesser sentence should now be substituted.

The appeal hearing

[6] Under current procedures we had the considerable advantage, in advance of this case calling in court, of being able to consider and digest fairly full written submissions which had been lodged on each party's behalf. Although generally familiar with the Moorov doctrine, the court also had the benefit of an extensive citation of relevant authorities. Among these authorities was the recent decision in Cannell v HM Advocate 2009 SCCR 207, to the effect that even if a jury acquitted an accused person of particular charges the evidence relating to such charges remained available to them, for Moorov purposes, in determining whether other charges had been satisfactorily proved. This ground of decision was stated in broad terms, although a highly special feature of that case was that the accused may well have been acquitted of key charges, not because the jury had any doubt as to the criminality of his behaviour, but because, in the absence of clear evidence as to the age of the complainer, it could not be said whether a crime had been committed at common law or under the Criminal Law (Consolidation) (Scotland) Act 1995.

[7] At the commencement of the hearing, this court acknowledged having had the benefit of considering the parties' written submissions (and relative authorities) in advance, and for their assistance went on to indicate that, on the strength of these written materials, it had formed the preliminary impression - no more than that - that there might be potential difficulties with the conviction appealed against. To illustrate the principal areas of potential concern, the court formulated three questions on which submissions would be particularly welcome. These were as follows:

"1. Can Moorov apply where, following formal withdrawal of a charge and consequent acquittal of the accused, there is no longer any course of criminal conduct libelled on the indictment but only a single live charge standing by itself?

2. Where a charge has been formally withdrawn and followed by acquittal, can the jury nevertheless be invited to use any related evidence in order to find that the accused actually committed the crime of which he has been acquitted?

3. Were the jury in this case adequately directed on the Moorov exercise where

(a) the trial judge did not mention, far less define, the concept of assault in his charge relative to charges 3 and 5;

(b) there was no mention of the (apparent) absence of any evidence of assault on the former charge 3; and

(c) charge 3 was (briefly) described (at p. 24) as "a charge of sodomy" when the libel was one of assault, and when the trial judge had just given a ruling which prevented the Crown from turning that charge (by amendment) into one of sodomy alone?"

In response, Miss Ogg for the appellant immediately indicated that in her submission all three questions fell to be answered in the negative. For his part the Advocate Depute, while advancing a contrary view on Questions 1 and 2, acknowledged that Question 3 raised obvious difficulties for the Crown in line with existing concerns, and sought an adjournment to consider his position.

[8] When in due course the court reconvened, the Advocate Depute announced that after careful and anxious consideration the Crown could not properly support the appellant's conviction on charge 5. This was perhaps the most serious of all the charges, and in such a complex and difficult area it was essential that the jury should have received clear and accurate directions and guidance before embarking on their task. Questions 1 and 2 were not conceded, but even so the jury had been left with a wholly inadequate basis on which to consider the application of the Moorov doctrine as between charges 3 and 5. Charge 3 was sometimes referred to as a "charge", as if a verdict might be returned on it, and sometimes as a "former charge" which was "out of the equation"; it was repeatedly described as a charge of sodomy when ex facie it was one of assault; the trial judge's directions contained no mention of assault at all, nor any guidance as to how an acknowledged absence of evidence regarding assault quoad charge 3 might affect the comparative exercise which the Moorov doctrine required; the definition of sodomy was moreover inaccurate and incomplete, omitting for example any reference to consent; although the jury had been present when the Crown first moved their ill-fated amendment, the Crown's final position on charge 3 was not disclosed or discussed; and no worthwhile guidance was given as to what the evidence relating to the former charge 3 would have to amount to before having corroborative value for charge 5.

[9] In a critical area of the trial these were, it was said, deficiencies so obvious and significant as to amount to material misdirections. The jury's verdict on charge 5 had been reached by a majority, and it could not be said that, if they had received full and proper directions on the Moorov exercise, there was no real possibility of a different verdict being returned. A miscarriage of justice thus had to be conceded, and the conviction on charge 5 would have to fall.

[10] In light of the Crown's very fair concession, with which we had considerable sympathy, the appeal was formally sustained to the extent of quashing the appellant's conviction quoad charge 5 alone. This left only the appeal against sentence on charges 2 and 4 to be determined.

[11] In that connection Miss Ogg, while acknowledging that the matter of sentence was now at large for this court, contended that we should simply substitute sentences of 4 years and 3 years respectively, being equivalent to the custodial terms of the extended sentences which had been incompetently imposed. A supervised release order could also be added to any sentence below 4 years so as to afford some degree of supervision to the appellant on release. The appellant was only 18 when the offences began; all of his previous convictions were at summary level, with no analogous offending; and he had tried to make good use of his time in custody so far. In our view, however, charges 2 and 4 libelled grave offences in their own right. They involved the serious, repeated abuse of young children, and the periods involved extended to approximately 3 years and 9 months respectively. Even taking all mitigating factors into account, we took the view that the custodial parts of the incompetent sentences would not represent a sufficient penalty for such offending. The trial judge clearly did not regard them as sufficient for that purpose; nor did we. In our judgment, justice would be done by taking charges 2 and 4 together, and imposing thereon a cumulo sentence of 5 years imprisonment, backdated as before. Having quashed the incompetent extended sentences, therefore, we proceeded to substitute that cumulo alternative disposal.

Postscript

[12] By way of postscript, we should perhaps say something to explain the potential concerns which led us to pose Questions 1 and 2 at the commencement of the appeal hearing. Obviously the Crown's concession prompted by Question 3 made it unnecessary for us to hear oral argument on these other matters, and so it would not be right to go into undue detail at this stage. Suffice it to say, however, that in considering the various authorities to which the parties made reference in their written submissions, we noted inter alia (i) that in Moorov v HM Advocate 1930 JC 68 the court's discussion concerned live charges only; (ii) that in Ogg v HM Advocate 1938 JC 152, where four out of eleven charges were withdrawn by the Crown, and three more rejected by the jury, the Lord Justice Clerk (Aitchison) at p. 157, with whom the other judges agreed, said "...The evidence of the offences of which the appellant was acquitted must be left out of account"; (iii) that an observation to similar effect was more recently made at para [13] of the court's opinion in Danskin v HM Advocate 2002 SLT 889; and (iv) that in Thomson v HM Advocate 1998 SCCR 657, the Lord Justice General (Rodger) at p.658 said this:

"In our opinion it was necessary for the sheriff to direct the jury that, in considering the various elements of similarity between the accounts of the two complainers, they had to consider whether they were satisfied beyond a reasonable doubt that they were instances of a single course of criminal conduct being carried on by the appellant. It was only if they were so satisfied that the jury would be entitled to treat the statements of the two complainers as providing sufficient evidence to convict the appellant of both charges. If they were not so satisfied, they would require to acquit him of both."

These authorities are all arguably at variance with the recent decision in Cannell, referred to at para [6] above, yet unfortunately none of them would appear to have been drawn to the court's attention in that case.

[13] Similarly, we noted that in Dudgeon v HM Advocate 1988 SLT 476 the court's decision was strongly adverse to the notion that once a charge has been formally withdrawn, and the accused duly acquitted, the Crown can still invite the jury to hold, on such evidence as has been led, that the accused nevertheless committed the relevant crime. The court in Cannell was not apparently referred to that case either, nor indeed to any authority vouching the contrary position.

[14] It may be, of course, that Cannell could for present purposes have been distinguished, either by reference to the highly special feature discussed at para [6] above, or on the ground that the decision dealt only with charges which went to the jury and not with charges of which an accused had previously been acquitted. Failing that, however, our preliminary inclination would have been to follow the consistent, and logically attractive, line of authority in Moorov, Ogg, Danskin, Thomson and Dudgeon rather than the more recent decision in Cannell where these earlier cases do not appear to have been considered.