Scottish High Court of Justiciary Decisons

Appellant: C Mitchell; Capital Defence, Edinburgh

Respondent: Niven Smith, Advocate depute; Crown Agent

17 October 2013

[1] The appellant was prosecuted in the sheriff court on an indictment which contained five charges of indecent assault alleged to have been committed upon adult females. Following trial, the jury found the appellant not guilty of charges 1 and 2; found charge 5 not proven; but convicted the appellant on charges 3 and 4. The appellant appealed against conviction on those two charges and also against sentence.

[2] Having heard counsel and the advocate depute on the appeal against conviction we intimated our decision that the grounds of appeal were not well founded but that we would give our reasons for that decision in writing at a later date. This we now do. It may be added that following the hearing of the appeal against conviction we proceeded to consider and decide the appeal against sentence, in respect of which reasons were given orally.

[3] Although there are three grounds of appeal against conviction, counsel for the appellant accepted that the third ground was dependent upon the first being successful. The first ground of appeal stems from the terms of the charge to the jury given by the sheriff who presided at the trial. The particular complaint about the terms in which the sheriff charged the jury is that at several points the sheriff employed the noun "victim" (either singularly or in the plural) to describe, it is said, the complainer or complainers.

[4] Put very shortly the contention for the appellant was that in doing so the presiding sheriff conveyed to the jury an acceptance that the crimes had been committed. It was not suggested that the sheriff had any intention to act in an impartial way; but his choice of the language introduced a subliminal or apparent bias in the tribunal, which, it was argued, also infringed the appellant's rights under article 6 of the European Convention on Human Rights to trial before an independent and impartial tribunal.

[5] The first reference to which exception is taken by the appellant occurs at an early point in the sheriff's charge when giving general directions to the jury about their need to approach matters judicially:

"My next point is the need to avoid irrelevant influences. It's very important that you reach a verdict on the basis of evidence and reasonable inferences from that evidence. Do not speculate or guess. Don't be swayed by emotional considerations or any prejudices. Put sympathy aside for the victims of the crimes that are alleged. Your function is now a judicial one. Your verdict, whatever it is, will have consequences for others; these will be for others to deal with, so you should put them out of your mind".

The second use of the term comes at a point at which the sheriff was giving directions more tailored to the particular circumstances of the case. It arose in the context of his giving directions respecting the evidence given of a de recenti statement made by the complainer (DW) on charge 2. Having explained to the jury that evidence of that statement was allowed for the limited purpose of assessing DW as a witness and that it was not evidence which could corroborate DW's evidence in court, the sheriff said:

"So, remember, if the victim gives an account around the time of the incident that differs substantially from her later evidence in court, you might doubt her credibility and reliability as a witness. But if that earlier account is substantially similar to the evidence given later in court, that could point to consistency and reflect favourably on her credibility and reliability".

The third reference occurred in a very similar context where the jury were given essentially similarly structured directions respecting evidence of a de recenti statement by the complainer in charge 4 (CH). Having given essentially the same directions as were given respecting DW but substituting CH, (and the names of the witnesses to whom the statement had been made) the sheriff said:

"So, I remind you, if the victim gives an account around the time of the incident that differs substantially from her later evidence in court, you might doubt her credibility and reliability. But if that earlier account is substantially similar to the evidence given later in court, that could point to consistency and reflect favourably on credibility and reliability".

[6] In delivering the Opinion of the Court in Hogan v HM Advocate [2012] HCJAC 12; 2012 JC 307; 2012 SCCR 404, the Lord Justice General (Hamilton) stated in paragraph [34]:

""We should add that the sheriff at one point in his charge told the jury to put 'sympathy aside for the victims of these crimes or for the accused'. The use of 'victims' was, of course, inappropriate where the issue at the trial was whether or not the complainers were victims of the alleged conduct. But, while this slip was unfortunate, we are not persuaded that it resulted in a miscarriage of justice".

[7] By way of elaboration on those observations we would remark that while we are conscious of a seemingly increasing, indiscriminate and often inappropriate use of the term "victim" in the media and elsewhere, the word "victim" nonetheless still unquestionably conveys that the person to whom it is applied has, as a matter of fact, suffered both the injury, insult or disadvantage relevant to the particular context and that such was caused by the actings of the person or persons responsible for the event in question. There will of course be many situations in which it is entirely appropriate and proper to refer to a person as being a victim. But in the context of criminal proceedings it will generally be the case that until guilt is admitted or proved it will not be appropriate to refer to a complainer as being a "victim". The very purpose of the criminal process is, of course, first to establish whether the alleged crime has been committed and secondly whether the accused was the perpetrator. In general it is only once the first of these purposes has been achieved positively to the prosecutor that it may properly be said there is a victim of the crime charged. It is therefore important that in most aspects of the criminal process care is taken to avoid referring to a person making an allegation of criminal conduct towards him or her as a "victim" other than in a context in which guilt is proved or is assumed for valid reasons. A particularly important part of the criminal process is, of course, the giving of instructions to the jury in cases prosecuted under solemn procedure, where correspondingly particular care should be taken. In that respect, users of the "jury manual" should bear in mind the important note issued with the last amendment drawing attention to the observations in Hogan v HM Advocate.

[8] With those general observations, we revert to the particulars of the present appeal and whether in the event the references to victim in the sheriff's charge created the appearance of partiality. While the first reference made by the sheriff to victims might have been better avoided, it is qualified by the phrase "of the alleged crimes". That qualification - which was not contained in the charge to the jury under consideration in Hogan - may be seen as placing the reference to victims on the hypothetical basis that the crimes alleged are proved. In our view that, to a material extent, goes towards redressing the balance. Turning to the second and third references to "victim" we note that these are essentially similarly structured and in their context the use of the word "victims" - while unquestionably better avoided - would not have openly conveyed to the jury any impression that the sheriff was favourably disposed towards the credibility and reliability of the respective complainers. We note that in the event the jury found the appellant not guilty of charge 2, in which the complainer was DW. That does provide something of an indication that such infelicity as was encompassed in the second and third references did not dissuade the jury from its proper task. Moreover, those three references apart, the sheriff otherwise always referred to the complainer or complainers as such; and there were many occasions on which he did so. Additionally, at many points the sheriff, as one expects, made plain that assessment of the credibility and reliability of the evidence of the respective complainers was entirely a matter for the jury.

[9] In these circumstances, having adjourned to consider counsel's submissions (and those of the advocate depute, who acknowledged the infelicitous use of the term), we were satisfied that in the event an informed observer would not detect any partiality in the sheriff's charge and that no miscarriage of justice had occurred. We therefore concluded that the first ground of appeal was not well founded. Since, as already indicated, counsel accepted that the third ground of appeal was dependent upon the success of our first ground, the third ground also fell.

[10] We turn to the second ground of appeal. This related to the refusal of the sheriff to uphold an objection to the admissibility of the evidence of two witnesses - JW and CMcK - respecting statements made to them by the complainer in charge 4 (CH) shortly after the alleged incident involving that complainer on the basis that the statements were not made spontaneously, but in response to questions.

[11] As the sheriff explained in his report and is perhaps more clear from the transcript of the evidence of JW, which is before us, JW testified that she initially became aware of the presence of the complainer, CH, in the early hours of the morning on the date of the alleged offence when she noticed the complainer in her car outside the witness's house. JW put on her dressing gown, went outside and found the complainer, CH, weeping and alleging indecent assault by the appellant. JW thereupon invited the complainer to come into her house. She woke her cohabitant, CMcK, who put on some clothes and came down from the bedroom, and thereupon one or other of them simply asked of the complainer what had happened. The complainer thereupon gave a certain account in elaboration of the initial remarks. At the trial it was accepted that the evidence of JW of the initial statement made by the complainer outside the house was admissible as a de recenti statement. The objection related to what was said inside the house.

[12] In essence, in advancing this ground of appeal counsel for the appellant reiterated in her submission the contention advanced to the sheriff that what was said in the house was deprived of the spontaneity requisite of the admission of evidence of a de recenti statement in that it was preceded by the question as to "what happened".

13] We took the view that this submission had no merit. A natural reaction of a confidant (and it is not suggested that JW or CMcK were other than confidants) to observed distress is to ask of the distressed person what has happened. The asking of that question plainly does not render the response other than spontaneous. And in the circumstances disclosed in the evidence we saw no materiality in the fact that evidence of what the complainer said de recenti began with what was initially said outside the house but continued thereafter once she had been invited inside the house, the making of that invitation being a wholly natural and understandable response on the part of JW.

[14] For these reasons we decided that the appeal against conviction required to be refused.