Appellant: Fyffe, Solicitor Advocate; Paterson Bell (for RF MacDonald, Kirkcaldy)

Respondent: Prentice QC (sol adv), advocate depute; Crown Agent

1 March 2013

Introduction

[1] The appellant was charged in the following terms:

"(001) on 29^th January 2012 at 12 Clark Place, Kirkcaldy, Fife you Anthony James Godden did sexually assault K H, c/o Kirkcaldy Police Station in that you repeatedly touched her on the breasts and buttocks and did rub her thigh and touch her on the vagina over her clothing;

CONTRARY to section 3 of the Sexual Offences (Scotland) Act 2009

(002) on 29^th January 2012 at 12 Clark Place, Kirkcaldy, Fife you Anthony James Godden did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did make sexually suggestive comments and did shout, swear and threaten violence;

CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010".

[2] The procurator fiscal led evidence from the complainer and her son. At the close of the Crown case, the appellant's agent submitted that there was no case to answer in respect of charge 1. Details of his submission are set out in paragraphs 24 to 26 of the stated case. Following upon that submission, the sheriff deleted certain words in the charge, all as set out in paragraph 31 of the stated case, leaving charge 1 in the following terms:

"(001) on 29^th January 2012 at 12 Clark Place, Kirkcaldy, Fife you Anthony James Godden did sexually assault K H, c/o Kirkcaldy Police Station in that you touched her on the buttocks;

CONTRARY to section 3 of the Sexual Offences (Scotland) Act 2009".

[3] When ruling on the submission of no case to answer, the sheriff made certain remarks noted in paragraphs 54 and 56 of the stated case as follows:

"[54] I said that I reached my conclusion (to delete certain parts of the charge) with little enthusiasm but that I was drawn to that conclusion by the requirement that there be corroboration of the crucial facts of the charge. I said that if this case had been heard under a different system of law, for example in England, where as I understand it, one looks to the whole of the evidence in deciding whether there was a sufficiency, untrammelled by the corroboration requirement, I would have had no difficulty in finding that there was evidence sufficient to go to the jury, as it were. But bound as I am by current rules of evidence, there was insufficient evidence on two parts of the charge.....

[56] In making those remarks, I consider in retrospect that I was unwise: because I did not need to make them and because it is evident that my remarks have been misheard and misunderstood. What I had in mind was my recent reading of the extensive discussion in Lord Carloway's recent review of various aspects of the criminal justice system, which review of course includes his recommendations on the corroboration rule. What I had intended to convey by my remarks was simply that in my view, this was a case where absent the corroboration rule, the evidence that I had heard was quite sufficient in terms of its quality, rather than quantity, to pass the threshold of sufficiency so that it might then be considered as a whole at the next stage, together with the rest of the evidence and submissions in order to determine the ultimate question of whether, all matters considered, guilt had been established to the criminal standard on the unamended charge. I did not say, nor did I mean to say, that I was satisfied of the Appellant's guilt on any matter. Neither could I have done, considering the stage of the trial. I had no concluded view on any matter as regards the Appellant's guilt on either charge at that stage. I do not accept that a reasonable informed observer ..... who had accurately heard and understood what I said could have concluded that I had reached a concluded view as to the final determination of the charges at that stage".

[4] The sheriff convicted the appellant of charge 1 as amended, and charge 2. The appellant appealed. Ultimately, the sole focus of the appeal was ground 2c which was in the following terms:

"The appellant was not seen to receive a fair trial. The learned Sheriff expressed a view on the guilt of the appellant in open court prior to the conclusion of the case and without hearing any defence evidence or submissions on behalf of the accused. The Sheriff intimated at the end of the no case to answer submission that he reached the conclusion that the majority of charge one had to be deleted, but that this conclusion had been reached 'with little enthusiasm'. The learned Sheriff also indicated that if the matter had been proceeding in England then the accused would have been convicted of all of the charge. A reasonable and impartial observer would have concluded that the learned Sheriff was expressing a view, before the conclusion of the trial, that he considered the accused guilty. A reasonable and impartial observer would therefore have concluded that the appellant did not receive a fair trial".

Submissions for the appellant

[5] Mr Fyffe referred to Bradford v McLeod 1985 SCCR 379 at page 382, and Lorimar v Normand 1997 SCCR 582, at page 584. He submitted that the test was whether the sheriff's comments were sufficient to raise a suspicion in the mind of a reasonable observer that impartial justice was not being done. It was accepted that, in paragraph 56 of his report, the sheriff explained what he had been trying to say. It was also accepted that he had not said in terms that he "believed the complainer". He had simply said that there was sufficient evidence to pass the "no case to answer" test. However the sheriff had in effect said that, but for the rule of corroboration, he would have been prepared to allow the whole charge to proceed as it stood. By inference therefore he was referring to the quality of the complainer's evidence, rather than its sufficiency. That raised a suspicion in the mind of a reasonable observer that justice was not being seen to be done. The conviction in respect of charge 1 should be quashed.

Submissions for the Crown

[6] The advocate depute agreed that the test was as defined by Mr Fyffe, but pointed out that each case depended on its facts. Lorimar could be distinguished from the present case, as what occurred there went to the heart of credibility and reliability. By contrast, the comments in the present case were made in the context of sufficiency of evidence. The comments were perhaps incautious, but they did not indicate that the sheriff had made up his mind about the appellant's guilt. The sheriff was simply observing that, had the case been heard in England, the whole of charge 1 would have proceeded to the next stage of the case. But because of the Scottish rule of corroboration, certain parts had to be deleted. Nothing the sheriff had said indicated to a reasonable observer that he had made up his mind about the guilt of the appellant.

Discussion

[7] We accept that the sheriff restricted his observations to questions of sufficiency of evidence. We also accept that he was expressing his views in the context of the current controversy about the advisability or otherwise of a rule of evidence requiring corroboration (cf The Carloway Review 17 November 2011). However a difficulty arises from the fact that a reasonable observer could not be assumed to be well-versed on the topic of corroboration or the recommendations in The Carloway Review. A reasonable observer, without that specialised knowledge, would in our opinion form the view that the sheriff had found the complainer wholly credible and reliable, and that he was therefore reluctant to delete any part of charge 1, preferring to allow the whole charge to proceed. Such an impression, given at that stage (without having heard any defence evidence or final submissions) would inevitably, in our opinion, raise the suspicion in the mind of a reasonable observer that the sheriff had already made up his mind that the complainer was telling the truth and that the appellant must (even if he were to deny her allegations) be guilty of the offence as charged. That would amount to an apparent lack of impartiality and an apparent breach of the principle of natural justice "audi alteram partem". Thus while we wholly accept the sheriff's explanation, we have nevertheless reached the conclusion that what occurred, and the impression given, satisfies the test referred to in Bradford v McLeod and Lorimar v Normand cit sup. As a result the conviction in respect of charge 1 must, in our view, be quashed.

Decision

[8] We shall quash the conviction in respect of charge 1 only. The conviction in respect of charge 2 stands.