APPEAL COURT, HIGH COURT OF JUSTICIARY
VERSION 3	[2013] HCJAC 143
Lady Smith Lord Brodie Lord Philip	Appeal No: XC71/13 and XC84/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEALS AGAINST CONVICTION   by   (1) ALAN GLOVER and (2) FIONA VANBECK   Appellants;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

First Appellant: Ogg, Solicitor Advocate; Paterson Bell, Edinburgh

Second Appellant: B Gilfedder Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: A Prentice QC AD (sol ad); Crown Agent

 

8 November 2013

 

INTRODUCTION

[1] The first appellant was convicted by the jury, at Kirkcaldy Sheriff Court, of the two charges on the indictment subject to the deletions within the square brackets marked below:

"(001) between 1 July 2009 and 13 August 2009 at 2 Burnlea Terrace, Kinglassie Lochgelly, Fife, you ALAN GLOVER ..did use lewd, indecent, and libidinous practices and behaviour towards NMR born 6 July 1996, a girl then of or over the age of 12 years and under the age of 16 years, and did attempt to engage her in sexual contact with you, [instruct her to perform oral sex] and have sexual intercourse with you [and threaten her with violence];

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6.

 

(002) between 1 July 2009 and 14 August 2009 at 2 Burnlea Terrace, Kinglassie, Lochgelly, Fife you ALAN GLOVER....did use lewd, indecent and libidinous practices and behaviour towards KAA born 15 August 1993, a girl then of or over the age of 12 years and under the age of 16 years, and did attempt to engage her in sexual contact with you, (and) handle her breast over her clothing [and engage in sexual contact with one another in her presence];

 

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

 

[2] The second appellant was convicted of the same charges but, in the first charge, the only deletion was "and threaten her with violence; the words "instruct her to perform oral sex" were not deleted. In the second charge, the words "and engage in sexual contact with one another in her presence" were not deleted either.

 

BACKGROUND

[3] The Crown relied on the evidence of the two complainers.

[4] NMR gave evidence that over the period of her 14^th birthday, she was staying at the house of the second appellant. One evening, both appellants were in the house and the second appellant asked for "a threesome". NMR did not know what that meant; she thought it had something to do with sex. The second appellant did not tell her what it meant. The first appellant "pulled a dildo thing" and told her to "go for it, go for it". The second appellant also sought to encourage her. They both told her to "do it, do it, do it" and not to be a "scaredy cat". She went outside for air. Later she went into their bedroom. The second appellant again asked her for a threesome but she told them she did not want to, and left.

[5] NMR was referred, in cross examination, to a statement she had given to the police. The sheriff advises, in his report, that it was evident that her testimony in court differed from it in a number of respects. One of those differences was that it was written in the statement that she had been asked to give the first appellant "a blow job". However, NMR was very clear in her evidence that that did not happen.

[6] KAA gave evidence that, shortly before her 16^th birthday, she went to stay overnight at the house of the second appellant. She met the first appellant there. She said that she "went out" with him for a period of two days thereafter. She gave an account of lying on the second appellant's bed when both appellants were there and that the first appellant had put his hand on her breast over her pyjamas. She did not object. After that, the second appellant had, she said, put her hand down the first appellant's trousers and started rubbing his penis; the first appellant was just lying there with his eyes open and his mood seemed alright. The second appellant told her to rub his penis too but she did not want to do so. She got up and went downstairs.

[7] The Crown led no other witnesses in evidence. There was a joint minute in which, amongst other matters, it was agreed that NMR had taken part in two joint - i.e. police and social work - interviews on 25 and 26 August 2009, excerpts of which were attached. In those excerpts, it is not written that NMR made any suggestion of violence having been used towards her but it is written that she was asked to give the first appellant "a BJ".

[8] There being only one witness in relation to each charge, the Crown required to and did rely on the doctrine of mutual corroboration (Moorov v HMA 1930 JC 68). Neither charge could stand alone.

 

Sheriff's Charge to the Jury

[9] The following parts of the sheriff's charge are material:

"You will remember that the witnesses, KAA and NMR were asked if they had previously made statements to the police which differed in some way from what they said in court. And you've heard about what they said on the earlier occasions. Evidence about the earlier statements is allowed for a limited purpose only. It's relevant as to your decision on the witness' credibility and reliability. It's not evidence of the truth of the statements themselves, and it's not evidence against the accused. It doesn't corroborate the witness' evidence in court, and you can't replace what that witness said in court with the earlier statements. If the witness gave an earlier account that differed substantially from her later evidence in court, that could point to inconsistency and you might doubt her credibility and reliability as a witness in this trial. What you cannot do is replace that evidence with a statement that the witness made earlier." (pages 21-22)

 

"Now, as I've already mentioned, there are two joint minutes of agreement in this case and you've been given copies of them. The first one states that NMR can identify both the accused. The second joint minute sets out some of what KAA, NMR, MR and John Wright said to the police and states that both Alan Glover and Fiona Vanbeck denied all allegations that were put to them.

 

All of these are facts that are not in dispute and, accordingly, you must accept them and should not consider whether to accept or reject this evidence in this case. These are facts that you can rely on." (pages 23- 24)

 

"If your verdict is guilty, you could delete any part of the charge which has not been proved to your satisfaction. For example, if you decided that NMR was not instructed to perform oral sex, you could delete those words from the charge. That's not a hint I'm giving you. It's only an illustration of what you can do. But whatever is left must define the crime and describe how it was carried out." (pages 26 - 27).

 

Sheriff's Report

[10] The sheriff deals with the jury's verdict on charge one at paragraph 9 of his report:

"The deletions made by the jury from charge 1 in relation to Mr Glover reflect the absence of evidence from Ms R about being instructed to perform oral sex. The jury's decision not to delete that part of the charge in relation to Ms Vanbeck does not reflect the evidence before the court. Accordingly in my view no reasonable jury properly directed could have reached that decision. However, based upon the description given by Ms R, it was open to the jury, if it accepted her evidence, to conclude that the other aspects libelled in charge 1 had been established in relation to Ms Vanbeck and that, on the basis of those other aspects libelled, she had been guilty of using lewd, indecent and libidinous practices and behaviour towards Ms R in contravention of Section 6 of the Criminal Law ( Consolidation) (Scotland) Act 1995."

 

The sheriff does not explain why he did not take any action at the time by, for instance, querying the verdict with the jury and inviting submissions from parties. Nor, we would add, does he explain why he thought it appropriate to have the jury consider the allegations about oral sex and threats of violence at all, given the lack of any evidence to support them. Nor, it seems, did he take the matter up with the Crown, as he could have done, before charging the jury. Had he done so, some of the confusions that arose may have been avoided.

[11] The sheriff deals with their verdicts on charge two at paragraph 12:

"It was for the jury to determine what they made of Ms A's evidence. Based upon her description of the incident, it was open to the jury, if they accepted her evidence, to conclude that Ms Vanbeck was the instigator of and the active participant in masturbating Mr Glover, and that Mr Glover's role in that was essentially a passive, non- participatory one. The jury's deletion to charge 2 in relation to Mr Glover but not Ms Vanbeck indicates that they took that view. In my opinion the approach taken by the jury cannot be characterised as being without any basis."

 

The Jury's Verdict

[12] The transcript of the charge and verdict includes what passed when the jury returned to court to deliver their verdicts:

"(Jury return to court)

 

CLERK OF COURT: Members of the jury, who speaks for you?

 

FOREMAN OF THE JURY: I do.

 

CLERK OF COURT: Have you agreed upon a verdict?

 

FOREMAN OF THE JURY: Yes.

 

CLERK OF COURT: What is your verdict in respect of the accused, Alan Glover, on the first charge?

 

FOREMAN OF THE JURY: Guilty, subject to admissions.

 

CLERK OF COURT: Sorry?

 

FOREMAN OF THE JURY: Guilty, subject to admissions on the indictment.

 

SHERIFF THORNTON: Do you mean deletions?

 

CLERK OF COURT: Deletions?

 

FOREMAN OF THE JURY: Deletions, sorry, yes.

 

CLERK OF COURT: What's your deletions?

 

FOREMAN OF THE JURY: We have deleted, "instruct her to perform oral sex", "and threaten her with violence".

 

CLERK OF COURT: Is that by a...unanimous or majority?

 

FOREMAN OF THE JURY: Majority.

 

CLERK OF COURT: And what's your verdict in respect of charge 2?

 

FOREMAN OF THE JURY: Guilty, subject to deletions.

 

CLERK OF COURT: And those are?

 

FOREMAN OF THE JURY: "...and engage in sexual contact with one another in her presence."

 

CLERK OF COURT: And what's your verdict in respect of the accused, Fiona Vanbeck, in respect of the first charge?

 

FOREMAN OF THE JURY: Guilty, subject to deletions.

 

CLERK OF COURT: The same. And what's your verdict in respect of the second charge?

 

FOREMAN OF THE JURY: Guilty.

 

CLERK OF COURT: Just the same...is that under the same deletions?

 

FOREMAN OF THE JURY: Ehm, no; no deletions.

 

CLERK OF COURT: No. Just...

 

FOREMAN OF THE JURY: (inaudible 03.05)

 

CLERK OF COURT: ...guilty as libelled in both charges?

 

FOREMAN OF THE JURY: In the first charge, eh, we've deleted, "and threaten her with violence".

 

CLERK OF COURT: "...and threaten her with violence." And is that by...unanimous or by a majority?

 

FOREMAN OF THE JURY: Majority.

 

CLERK OF COURT: Majority. Members of the jury, is your verdict correctly recorded as follows? The jury finds Alan Glover guilty in respect of charge 1 under deletion of the words, "instruct her to perform oral sex", "and threaten her with violence". In respect of charge 2, guilty under deletion of the words, "engage in sexual contact with one another in her presence". And find the accused, Kelly Vanbeck guilty as libelled in respect of charge...no, sorry, under deletion of the words, "threaten her with violence...

 

SHERIFF THORNTON: You used the wrong name there.

 

CLERK OF COURT: Sorry?

 

SHERIFF THORNTON: Fiona Vanbeck. You used the wrong name.

 

CLERK OF COURT: Oh, sorry. Fiona Vanbeck, sorry. I had Kelly Vanbeck in my head for some reason. Sorry. Find the accused, Fiona Vanbeck, guilty under deletion of the words, "threaten her with violence" in respect of charge 1, and guilty as libelled in respect of charge 2. Is that correct?

 

THE JURY: Yes."

 

Grounds of Appeal for First Appellant

[13] There were two grounds of appeal for the first appellant but both grounds relate to the overall proposition that the jury's verdict was one which no reasonable jury, properly directed, could have reached. That was because there was such inconsistency in the verdicts returned in relation to each appellant, particularly when there was no evidence that NMR had been instructed to perform oral sex and that, on the evidence, if they were satisfied that the second appellant had engaged in sexual contact in the presence of KAA , it followed that they were bound also to be satisfied that the first appellant had done so. The verdicts were perverse. They showed that the jury had not followed the sheriff's directions and raised serious concerns about how they had approached their task.

[14] In oral submission, Ms Ogg elaborated on these grounds as follows. Charge one lacked content once the deletions were made. Even if it was possible to rely on NMR's evidence about the "threesome", she did not understand what it was so insofar as it was indecent conduct, it had no effect. Regarding the two verdicts on charge one, they were inconsistent. That had occurred in circumstances where they were properly directed by the sheriff and gave rise to these questions: did the jury understand the sheriff's directions? Did the jury comply with the sheriff's directions? Did they understand and follow the evidence? No reasonable jury properly directed could have returned the verdict in relation to Ms Vanbeck, on charge one. The verdict ought to be quashed.

[15] Regarding charge two, if charge one fell, given the Crown's reliance on Moorov, it would inevitably fall. However, there were problems with the verdict on charge two as well. Despite having deleted "engage in sexual contact with one another in her presence" in relation to the first appellant, they did not delete it in relation to the second appellant. That did not make sense. The charge related to a consensual act. The first appellant could not be ignored on the basis that his role was passive, as the sheriff suggested in his report. Rather, the verdict of the jury showed that they were muddled or confused.

[16] Ms Ogg submitted that this was not a case where the verdicts could be reformed or reconstructed by the court : Hamilton v HMA 1938 JC 134; Ainsworth v HMA 1996 SCCR 631. They were inconsistent to too great a degree for that to be possible.

[17] The sheriff should have refused to accept these verdicts or, at least, invite parties to make submissions.

 

Grounds of Appeal for the Second Appellant

[18] The grounds of appeal for the second appellant were not materially different from those lodged on behalf of the first appellant. In oral submission, Mr Gilfedder stressed that it was plain that the jury's approach ran very much in the face of the sheriff's directions. There was no evidence on which they could have found that the second appellant directed NMR to perform oral sex. Their conclusion could only have been drawn from the extract from her police statement. But they had specifically been told that that was not evidence on which they could rely. Their verdict was perverse.

[19] Regarding charge two, it also appeared that the jury had not approached the evidence properly. The sexual contact relied on was such as would involve the male inevitably being passive but it was, equally, consensual contact.

[20] Mr Gilfedder submitted that the outcome raised serious concerns about the soundness of the jury's verdicts and about what was going through their minds.

[21] Our attention was also drawn to the transcript of what occurred when the jury returned their verdict. It raised a real doubt as to whether the verdicts were accurately returned.

[22] Overall, it was clear, Mr Gilfedder submitted, that a miscarriage of justice had occurred and the conviction of the second appellant should be quashed.

 

Submissions for the Crown

[23] Regarding what remained of charge one in relation to the first appellant, the advocate depute referred to the evidence of NMR. That was evidence of the appellants seeking to engage her in sexual contact and it did not matter that the charge did not specify that they had encouraged her to masturbate with a sex toy. The evidence was competent evidence which had been led without objection and the jury were, accordingly, obliged to consider it: Angus v Speirs 2006 SCCR 604. The result was that the charge did not lack specification, despite the deletions.

[24] The advocate depute did, however, accept that there was a possibility that the taking of the verdict from the foreman of the jury was defective, given what was in the transcript. He also accepted that they were not entitled to convict the second appellant of having directed NMR to perform oral sex.

[25] The advocate depute submitted, accordingly, that the court should alter the verdict in relation to the second appellant by deleting the words "instruct her to perform oral sex". For the courts power to make deletions to a charge on appeal, he referred to the case of George v HMA 2011 HCJAC 33 and to the Criminal Procedure (Scotland) Act 1995 sec 118(1)(b). When asked whether a difficulty arose from the fact that ",......and have sexual intercourse with you", whilst it would then be detached from the former specification that the allegation was that NMR was "instructed.. to... have sexual intercourse" ( our emphasis) would remain as part of the charge, he submitted - though somewhat faintly - that it would not; the charge would "become" that the appellants attempted to have sexual intercourse with NMR. That said, the advocate depute also accepted that the procurator - fiscal depute should have sought to delete the specifications "instruct her to perform oral sex" and "threaten her with violence" and should then have addressed the question of whether the reference to "and have sexual intercourse" could properly remain part of the charge. No such motion was, however, made and that was unfortunate.

[26] Regarding charge two, the advocate depute submitted that the jury's verdicts did not necessarily demonstrate that they had adopted an inconsistent approach to the evidence. He accepted that the sheriff's approach to the jury's verdicts on charge two, as explained at paragraph 12 of his report, was surprising but it was not, he submitted, wholly irrational.

 

Discussion and Decision

Charge One

[27] It is appropriate that we begin with some observations regarding the terms of charge one. As the sheriff rightly stated in his jury directions, it is not enough that a charge alleges that a particular crime has been committed. It must also specify how the crime was committed. It must describe what it is that the accused are said to have done in such a way that gives fair and proper notice of the allegation that they are facing and, in the case of a verdict, explains what it is that the jury are satisfied that the accused did. The principle is as is important when considering what is left in a charge after deletions have been made from it as when considering, at the outset, whether the charge is a relevant one. It is an aspect of an accused's right to a fair trial and is, thus, a matter of fundamental importance. As was observed by Lord Eassie in the case of RMM v HMA 2013 SCCR 79:

"[29] ....it should be appreciated that the precise terms of a libel, both as originally drafted and ultimately presented to the jury, are an important part of the structural framework within which a jury trial in Scotland may satisfy the article 6 requirements for a reasoned judgment.

 

[30] ........................it is appropriate that we draw attention to the need for the prosecutor properly to recognise and satisfy the important structural role which the indictment fulfils in our system of jury trial, if it is to satisfy the article 6 requirements for a reasoned judgment."

 

[28] We are satisfied that the only sensible construction that can be placed on the terms of charge one, prior to the deletions that were made, is that the indecent behaviour committed by the appellants was that they attempted to have NMR engage in sexual contact with them by instructing her (a) to perform oral sex, and (b) to have sexual intercourse with them and that, in doing so, they threatened her with violence. None of that gave notice of any case that they had sought to encourage NMR to masturbate by using a "dildo".

[29] The effect of the deletions in relation to the first appellant was that he was convicted of attempting to engage NMR in sexual contact but, contrary to the clear directions that had been given to the jury in the sheriff's charge, without any specification of how he was said to have done so. We do not accept that the survival of the words "and have sexual intercourse" amounted to such specification; those words were divorced from any verb once the deletion was made. The jury's verdict can only be interpreted as saying that they were not satisfied that she had been instructed to have sexual intercourse with the appellants. Nor do we accept that the fact that evidence of NMR being encouraged to engage in masturbation was led without objection disposes of this difficulty for the Crown, at least where no amendment was made to the indictment. The case of Angus v Speirs does not persuade us to the contrary. It related to a summary prosecution where there was some specification in the charge of what the appellant was said to have done - failed to obey a red signal at a pedestrian crossing - and insofar as the sheriff had taken account of evidence of speed and other aspects of bad driving, the court had the benefit, it being a summary case, of the sheriff's clearly and cogently explained reasons for her verdict. In fairness to the advocate depute, he did recognise that a distinction fell to be drawn where, as here, the problem related to a jury's verdict.

[30] As for the case of George v HMA , it is not in point. The charge in question had alleged assault by seizing the complainer by her clothing and striking her on the head with an open hand to her injury. On appeal, this court was satisfied that there was no evidence of her being struck on the head with an open hand and deleted that allegation. However, some specification of how the assault that was alleged to have occurred remained intact; the conviction was of assaulting the complainer by seizing her by the clothing to her injury.

[31] Turning to the inconsistency as between the two verdicts on charge one, we accept that no reasonable jury properly directed - as they were - could have convicted the second appellant of having instructed NMR to perform oral sex. Indeed, the appellants, the Crown and the trial sheriff are all agreed that that must be so. It is impossible to identify what went wrong. The jury may have ignored the sheriff's directions or misunderstood them or misremembered the evidence. Another possibility is that they intended to return a different verdict but matters became confused in court. It is fair to say that what appears in the transcript shows, at the very least, uncertainties and, as the advocate depute very properly accepted, raises a question as to whether or not the verdicts were accurately recorded by the clerk.

[32] Turning to charge two, we accept that the jury's verdicts again cause concern. It does not make sense to suggest that the first appellant was not engaged in sexual contact when he was - apparently consensually - being masturbated by the second appellant. The conviction on that part of charge two required, in the circumstances, to be of both of the appellants or neither. We do not accept that it was open to the jury to convict only the second appellant in relation to that matter.

[33] The advocate depute invited us to deal with the problem in relation to charge one by making the same deletion to the verdict in relation to the second appellant as was made in the case of the first appellant and convicting the second appellant of that amended charge. That, however, would not dispose of the difficulty which we have identified in relation to the reference to "and have sexual intercourse" that would subsist. Nor, more importantly, would it take proper account of the grounds for real apprehension that the jury's whole approach to the evidence and their verdicts in this case was flawed. Those grounds are (a) the inconsistency in the verdicts returned on charge one; (b) the difficulty with the subsistence of the words "and have sexual intercourse" after the deletion of the verb "instruct"; (c ) the inconsistency as between the verdicts on charge two in relation to the allegation about engaging in sexual contact in KAA's presence; and (d) the confusion that arose in court when the verdicts were returned. In all these circumstances, we are not satisfied that we could conclude other than that the jury's failures in this case went beyond the inconsistency in charge one in relation to the oral sex allegation. They would appear to be more systemic than that. We do not, accordingly, accept that it would be appropriate for us to amend the verdict on charge one in relation to the second appellant and uphold the convictions. The advocate depute accepted - as, plainly, he had to do - that in its present terms, the conviction of the second appellant on charge one could not stand. He was right to do so. We conclude that we must quash the conviction on charge one. Since the conviction on charge two depends on the survival of that conviction it must also fall.

[34] We will, accordingly, uphold these appeals and quash the convictions.