Appellant (Lauchlan): Jackson QC, Considine, Solicitor Advocate; Capital Defence (for Fitzpatrick & Co, Glasgow)

Appellant (O’Neill): J Carroll, Solicitor Advocate; McClure Collins, Glasgow

Respondent: Bain QC AD; the Crown Agent

19 June 2014

General
[1]        On 12 May 2010, at the High Court of Justiciary in Glasgow, Mr O’Neill was found guilty of the sodomy of IY, aged 14, in June 2003 at an address in Irvine (charge 5).  Both appellants were found guilty of two other charges.  The first (charge 7) was a sexual assault on DW, aged 14, in a motor home Spain in April 2004; contrary to section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995.  The second (charge 10) was of meeting a person under 16, namely SA, at various addresses in Scotland and England between December 2007 and March 2008, with the intention of engaging in unlawful sexual activity involving, or in the presence of a child; contrary to section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.

[2]        On 10 June 2010, at the conclusion of a separate trial for murder (charge 2) and attempting to defeat the ends of justice (charge 3), each appellant was sentenced to 10 years imprisonment for the sexual offences, concurrent with life sentences imposed in respect of the murder (see sentence, infra).

[3]        Mr Lauchlan lodged a Note of Appeal, containing five grounds of appeal in respect of the sexual offences, on 27 August 2010.  Leave to appeal was refused by the judge at first sift but granted by the court at second sift in respect of all grounds.  Mr O’Neill lodged his Note, containing very many grounds and sub-grounds on a wide range of issues regarding all the charges, on 2 September 2010.  Leave in respect of the sexual offences was refused at first sift but granted by the court in respect of charge 7 only (ie not 10).  This prompted a lengthy application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 to re-instate other grounds, including many relating to the murder conviction.  A hearing was held on 8 November 2011.  The application was granted in part on 8 February 2012 ([2012] HCJAC 51) in respect of charge 10 but otherwise, in relation to the murder, refused.  An appeal to United Kingdom Supreme Court, for which leave had been granted, was rejected ([2013] UKSC 36).  A date for a final appeal hearing was fixed for 6 February 2014.  However, on that date, only an appeal against the murder conviction was heard, with submissions on the sexual offences and on the murder sentences to be heard later.  On 27 March 2014, the appeals against conviction in respect of the murder were refused ([2014] HCJAC 22).  The remaining elements in the appeal proceeded to a hearing on 22 April 2014.

[4]        At the commencement of the hearing, the court received a request from G4S that Mr O’Neill be handcuffed because of information that he presented a risk of absconding.  Having heard his protestations against this, the court acceded to the request.  The court was then asked to excuse his attendance on the basis that he did not want to be present if he was to be handcuffed to one of the custody officers.  It was not suggested that Mr O’Neill would be in any way prejudiced by being handcuffed.  The court did not consider that there was any substantial reason to excuse his attendance, given that he had already been brought from prison to the court in terms of section 117 of the 1995 Act.  The appeal did raise matters affecting his future and there were apparent advantages to him in being able to give appropriate instructions, if required, to his legal representative.  This decision was met with a violent protest from Mr O’Neill, which in itself suggested that the decision to handcuff him had been the correct one.  The court adjourned temporarily.  On resuming, the court acceded to the motion to excuse Mr O’Neill’s attendance given his disruptive conduct.  The appellant was entitled to be present, if he wished, at his appeal hearing (1995 Act, s 117(3)) but there is no requirement that he be so if, as in this case, he did not wish to attend (Manuel v HM Advocate 1958 JC 41).  His legal representative informed the court that he was fully instructed to present the appeal.

Evidence
Charge 5
[5]        The complainer IY lived with his mother, a chaotic drug addict, in Irvine.  He was nearly 15 at the time of the offence and had ADHD, a hearing impairment and learning difficulties.  He was of low average intelligence.  Mr O’Neill, who had taken to visiting the complainer’s home in 2003, drugged the complainer, followed him to his bedroom, pulled down his lower clothing and sodomised him as libelled.  This had been painful to the complainer.  He had fallen asleep and did not see the appellant again.  The complainer’s mother recalled an occasion when she had heard her son scream.  She had gone up to his bedroom and found the appellant emerging from it, explaining that he had got the rooms mixed up.  She found her son “a bit upset”.  It was not suggested that the mother’s evidence was itself sufficient to provide corroboration of the facts libelled and, in due course, the Crown relied on the principle of mutual corroboration in connection with charge 7, and a further charge (8) of which the appellants had been acquitted, to supply the necessary sufficiency.

Charge 7
[6]        The appellants had been living in a camper van in Benidorm, Spain, in 2004, when they met the complainer DW, aged 14, and his older brother in a bar.  The complainer’s parents appeared to exercise little control over him.  The brothers visited the appellants in the van, where they were given alcohol and offered drugs.  After his brother had left, the appellants detained the complainer in the van for several days during which he was sexually assaulted as libelled.  This included attempting to pull his trousers down with a view to sodomising him.  He was eventually rescued by the police.  The complainer’s brother spoke to the visit to the van, being propositioned by Mr Lauchlan and the highly distressed state of the complainer upon his return home with the police.  However, it was again not suggested that this evidence was sufficient of itself.  Mutual corroboration by comparison with another offence was required.

Charge 8
[7]        Both appellants had been charged that, between 10 December 2007 and 27 January 2008, at an hotel in Polmont and one in Blackpool, England, the appellants had assaulted JG, aged 17, a young man of limited intelligence, by various indecent means and sodomised him.  This was libelled as a single crime taking place at two quite separate locations many miles apart.  It was explained that the libel had been based upon the account given by JG to the police whereby between these dates he had, on various occasions, been subjected to the acts libelled.  It was not suggested that there was a continuing crime occurring.  However, following the model in Laird v HM Advocate 1985 JC 37, the Crown had libelled events in Scotland and England as if the offences had consisted of a single crime of “sexual abuse”.

[8]        No plea was taken to the competency of that part of the charge relating to the occasions in Blackpool.  However, contrary to the Crown’s expectations, JG did not speak to any criminal activity occurring in Scotland.  The only criminal conduct, which he did testify about, had happened in Blackpool.  It was not disputed that it would not have been competent for the jury to try a libel which related only to events in England.  No motion was made by the Crown to delete that part of the libel (ie Polmont) about which no evidence had been adduced.  No plea of “no jurisdiction” was advanced.  Rather the appellant made a “no case to answer” submission in terms of section 97(1) of the 1995 Act.  This was not opposed by the Crown.  In terms of section 97(2), the judge held that there was insufficient evidence to prove the charge and accordingly formally acquitted the appellants of this charge.

Charge 10
[9]        JG had been in a relationship with PR, who was the mother of SA, aged 6.  SA and PR lived with PR’s parents in Falkirk.  The appellants took JG, PR and SA on a holiday trip to Peterhead, where they began indulging the child.  They contrived to sleep in the same room as the child.  Mr O’Neill, who was in a state of undress, cuddled the child, who was only in his underpants.  Intensive telephone contact between the appellants and PR followed.  The appellants gave SA a phone and paid for credit on it.  The appellants later travelled from Blackpool and, having dropped PR at her place of work, planned to spend the night with JG and SA at the hotel in Polmont.  This was prevented by PR’s mother, but the next day the appellants took SA, PR and JG to visit Glasgow.  Many photographs of SA were taken and retained by the appellants.

[10]      The appellants managed to rearrange the stay at the Polmont hotel.  By the morning, Mr O’Neill was in a bunk bed with SA.  The appellants later took PR and SA on a trip in a camper van to the Lake District, during which the appellants shared a bed with SA.  Many more photographs of SA were taken.  There was a proposal for the four to go to Spain in the van.  A subsequent search of a room shared by the appellants at a hotel in Blackpool discovered a pair of SA’s underpants with Mr O’Neill’s semen on them.  There were toys and sweets and published accounts by the victims of child abuse also found.

Grounds of Appeal and Submissions
Lauchlan
[11]      (Ground 1) The trial judge had erred in directing the jury that they could use the evidence of JG in respect of the assault and sodomy in Blackpool on charge 8, of which the appellants had been acquitted, to corroborate the evidence of DW on charge 7.  Having been acquitted of charge 8, the evidence relating to it could not be used to bolster the evidence on the other charges.  It was not suggested that the Crown could never rely on evidence in respect of a charge of which an accused had been formally acquitted.  That was done day and daily in respect of charges libelled for “evidential” reasons; that is to say not for the purposes of obtaining a conviction on the particular charge but to give fair notice of evidence to be led in support of another charge (see eg McIntosh v HM Advocate 1986 SCCR 496; Danskin v HM Advocate 2002 SLT 889; Mair v HM Advocate [2013] HCJAC 89).  However, evidence on one charge could not be used for the purpose of providing mutual corroboration of another charge if the accused had been acquitted of the first charge (Danskin (supra), Lord Carloway at 893; cf Urquhart v HM Advocate 1987 SCCR 31; Dudgeon v HM Advocate 1988 SLT 476; Moorov v HM Advocate 1930 JC 68; Ogg v HM Advocate 1938 JC 152;  Ainsworth v HM Advocate 1997 SLT 56; Walsh v HM Advocate 1960 JC 51; Thomson v H M Advocate 1998 SCCR 657; and Reid v H M Advocate 1999 SCCR 769).  Cannell v HM Advocate 2009 SCCR 207 had been wrongly decided in so far as Lady Paton, delivering the Opinion of the Court, had stated (at para [37]) that evidence in respect of a charge of which an accused had been acquitted could be used as mutual corroboration and (at para [34] obiter) that evidence of an offence over which there was no jurisdiction could be so used (M v HM Advocate 2011 SCCR 500).

[12]      (Ground 2) There was insufficient similarity in time, place and circumstances for mutual corroboration to apply.  There had been a considerable lapse in time between the offences in charges 7 and 8 (Dodds v HM Advocate 2002 SLT 1058; and Sinder v HM Advocate 2003 SCCR 271).  The loci were quite different.  The abduction of a person under 16 followed by non consensual sexual conduct was entirely different from conduct with an adult (sic) who was able to consent to such conduct.  Only one of the offences involved penetration.  Only one had necessitated police intervention.  It was not enough that both charges involved sexual conduct.  

[13]      (Ground 3) No jury properly directed could have convicted in these circumstances.  This followed from the previous 2 grounds.

[14]      (Ground 4) If the jury were entitled to consider the evidence pointing to the guilt of the appellant on charge 8, they ought to have been directed on the issue of consent, in terms of the appellant’s special defence to that charge.  The trial judge had directed the jury that there was no issue of consent.  That may have been true regarding charge 7, where the complainer was under 16, but it was not true in respect of charge 8.  The trial judge had erred in telling the jury that “strictly speaking the special defence was no longer an issue”.  He ought to have directed the jury to consider the evidence on charge 8 as potentially mutually corroborative only if they held that the complainer had not consented.

[15]      (Ground 5) The appeal concerning charge 10 was not insisted upon.

O’Neill
[16]      The submission of Mr Lauchlan in relation to the mutual corroboration of charge 7 by the evidence on charge 8 was adopted and expanded to encompass charge 5.  In addition, evidence of a charge in Scotland could not be corroborated by evidence of similar acts in England or elsewhere in the United Kingdom, since such acts were not triable in Scotland.

[17]      Furthermore, where an accused had been acquitted of a charge, it was contrary to Article 6(2) of the European Convention for the Crown to continue to maintain that the appellants were guilty of a charge in circumstances where they had been acquitted.  Such an act ran contrary to the presumption of innocence, no matter what the reason for the acquittal might have been (Sekanina v Austria (1994) 17 EHRR 221; Asan Rushiti v Austria, (2001) 33 EHRR 56; Lamanna v Austria, 10 July 2001 (no 28923/95); Allen de Ribemont v France (1995) 20 EHRR 557; and Geerings v Netherlands (2008) 46 EHRR 49).

[18]      That part of the ground of appeal directed against the conviction on charge 10 was not insisted upon.

Crown
[19]      Evidence in relation to a crime which did not form part of a substantive charge, because the crime was not within the jurisdiction of the Scottish courts to try, could be used as corroboration of a crime within that jurisdiction if there were the requisite conventional similarities in time, place and circumstances (Dumoulin v HM Advocate 1974 SLT (notes) 42; HM Advocate v Joseph 1929 JC 55; and Cannell v HM Advocate 2009 SCCR 207 at paras 34-35; cf the Crown Office response to the Scottish Law Commission: Report on Similar Fact Evidence and the Moorov Doctrine (SLC No 229) para 6.59).  Furthermore, evidence adduced on a charge of which an accused has been acquitted does remain available in the jury’s consideration of other charges (McIntosh v HM Advocate 1986 SCCR 496; Urquhart v HM Advocate 1987 SCCR 31; Cannell (supra); and HM Advocate v Mair [2013] HCJAC 89).  Cannell was correct in stating that an offence furth of Scotland may be narrated in an indictment.  The court in M v HM Advocate (supra) had not been fully addressed on the authorities.

[20]      There was sufficient similarity between the charges for the jury to hold that mutual corroboration applied (Reynolds v HM Advocate 1959 JC 142; W v HM Advocate 1997 SLT 51).  Longer periods have been held sufficient (Cannell; Hussain v HM Advocate 2010 SCCR 124; AK v HM Advocate 2011 SCCR 495).

[21]      The European cases did not prohibit the use of evidence on one charge being used in the manner adopted.  They prohibited the Crown suggesting that the person was guilty of a crime of which he had been acquitted.  That is not what had occurred here.

[22]      The judge had made it clear that the charge 8 evidence was only available for the purposes of corroborating the evidence on charge 7.  The complainer in charge 8 did not accept that he had consented to the sodomy.  The direction on the special defence was therefore correct.

Decision
[23]      The problem, which arose in relation to the use of the evidence on charge 8 to corroborate charge 7, stems partly from the form of the libel and partly from the manner in which it was ultimately dealt with.  Put shortly, a court cannot acquit a person of a charge over which it has no jurisdiction.

[24]      It is, of course, competent to libel events, including criminal acts, occurring in a foreign jurisdiction in a Scottish indictment.  That is apparent from Macdonald: Criminal Law (5^th ed), where it is said (p 222):

“Where a crimen continuum is committed partly in Scotland and partly in another country, it is not a good objection to the indictment that the locus of some of the acts done in carrying out the offence is set forth as being in the other country (John Mackay (1866) 5 Irv 329; Will E Bradbury (1872) 2 Couper 311), and evidence may be led in support of such acts as bearing on the substantive crime charged (Ernest Joseph 1929 JC 55).”

HM Advocate v Joseph (supra) is a classic example of a continuing crime; being a fraudulent scheme for obtaining money from the public in Scotland by various steps, some taking place in Scotland but others in London and Brussels.  Laird v HM Advocate 1985 JC 37 involved a scheme to obtain money from a company in London by various material acts committed in Scotland.  This too is competent, but these are both examples of a crimen continuum.

[25]      Similar considerations applied in Dumoulin v HM Advocate 1974 SLT (notes) 42 where, although different elements were made the subject of separate numbered paragraphs, the indictment was framed under an umbrella narrative libelling a scheme to obtain insurance monies by fraud; the method being by carrying out certain transactions in Germany which resulted in the deposit of funds in Edinburgh, taking out a life insurance policy and murdering the person insured.  It so transpired that the Crown failed to prove that the events in Germany were linked to the crimes in Scotland, but the Lord Justice General (Emslie) set out (at 42) the relevant principles as follows:

“It is not in dispute that it is incompetent to charge, and to lead evidence about a criminal offence committed in a foreign jurisdiction unless that criminal offence forms an integral part of the crime which is libelled as having taken place in Scotland or unless the nexus between the offence abroad and the crime in Scotland is sufficiently close, ex facie of the indictment, as to make it relevant to prove the offence abroad in course of proof of the crime in Scotland.  In short, the competency of libelling and admitting evidence about the fraudulent transactions in Germany depends essentially on whether, considering the indictment as a whole, these transactions are prima facie relevant to proof of the crimes which, according to the indictment, were committed in Scotland.”

[26]      The Lord Justice General is not to be taken as stating that every crime committed abroad can be tried through to a verdict in Scotland just because the evidence about it might provide corroboration of evidence of a crime in Scotland.  Rather, he is restating the principle outlined in Macdonald (supra) about a continuing crime.  This is not the same as a course of conduct involving quite separate crimes; hence the emphasis on the form of indictment rather than the evidential basis for the charges.  That having been said, if evidence of a crime committed outwith Scotland is capable of corroborating evidence of a crime committed in Scotland (see infra) the Crown would require to give notice of that extra-territorial event, either by including it as a charge in the libel (as here) or by narrative in a separate docquet (see Nelson v HM Advocate 1994 SCCR 192, LJG (Hope) at 203; HM Advocate v Cairns 1967 JC 37). 

[27]      If the Crown maintain that evidence of facts, which could constitute a separate crime, is relevant to prove another, usually more serious, crime, then they can libel that subsidiary crime for evidential reasons (Griffen v HM Advocate 1940 JC 1, LJC (Aitchison) at 5, following HM Advocate v Monson (1893) 21 R (J) 5, LJC (Macdonald) at 8).  That is so even if the charge is actually incompetent for some reason (McIntosh v HM Advocate 1986 SCCR 496, LJC (Ross) at 501-502).  Evidence can be adduced in respect of the subsidiary charge, even if the Crown cannot seek a conviction in respect of it (McIntosh (supra)) or decide not to do so for reasons of pragmatism (Danskin v HM Advocate 2002 SLT 889, Lord Carloway, delivering the Opinion of the Court, at 893).  Such evidence will remain for the jury’s consideration on the principal charge (Mair v HM Advocate [2013] HCJAC 89, LJC (Carloway) delivering the Opinion of the Court at para [9]). 

[28]      It is correct to say that, if charges are remitted to the jury for consideration and they acquit of one charge because, it appears, they have rejected the evidence upon it as incredible or unreliable, it will often be inconsistent for the jury to return a verdict of guilty in respect of another charge which depends, for a sufficiency, on the evidence of the first being held to be credible and reliable (Ogg v HM Advocate 1938 JC 152, LJC (Aitchison) at 157; Ainsworth v HM Advocate 1997 SLT 56, LJG (Hope) at 57; Danskin (supra)).  However, there is no such inconsistency in this case.

[29]      The libel is intended to provide fair notice to an accused of the evidence to be led against him.  Once that evidence has been put before the jury, it is available as proof of fact so far as that is competent, and irrespective of whether the libel, whose notice permitted the admission of the testimony, remains before the jury when it retires to consider its verdicts and (excepting the case of inconsistency) whether or not an acquittal on that charge follows.  That is clear from the ratio in Cannell v HM Advocate 2009 SCCR 207, in which the jury were directed (probably erroneously) to acquit of both alternatives in a particular charge, because of a failure to prove the precise age of the complainer, yet were permitted (correctly) to use the evidence on that charge to provide mutual corroboration of another charge.  The court’s obiter dictum to the effect that evidence of a crime committed in England, as part of a course of conduct, could be adduced (subject to fair notice being given) to prove crimes committed in Scotland as part of that same course is correct and is directly applicable to the present case.  The court does not share the doubts expressed in M v HM Advocate 2011 SCCR 500.

[30]      If an accused person maintains that a court has no jurisdiction to try a charge, or part of a charge, it is incumbent upon him to tender such a plea by lodging the appropriate notice in advance of the preliminary hearing or first diet (1995 Act, ss 71(2); 72(3); 79(2)(a)(i)) or alternatively to seek the leave of the court to raise the matter late (s 79(1)).  This was not done here and, in the circumstances, unless the court wished to raise the matter ex proprio motu, it ought to have been assumed that the court did have jurisdiction to try the whole libel in charge 8, albeit that the only locus came to be that of Blackpool.  If a lack of jurisdiction point is taken, the correct remedy (if the point is sound) is for the Crown or the court to desert the diet pro loco et tempore as regards that charge, or part of it; thus leaving the matter upon for competent prosecution in the correct jurisdiction.  Ideally, the Crown ought to have amended the charge at the close of their case so as to leave only loci about which evidence had been led.  What is not competent is for the court to rule on the merits of a charge, or part of a charge, over which it has accepted it has no jurisdiction.  In particular, section 97 of the 1995 Act is not a vehicle within which to raise a “no jurisdiction” point.  That section is purely concerned about the sufficiency of evidence to support a charge, wherever it is libelled to have taken place, and not the competency of that charge.

[31]      The acquittal on charge 8 was thus, so far as the events in Blackpool are concerned, an error.  Nevertheless, the evidence of indecent assaults and sodomy in England, which could properly have been libelled in any event, whether as a charge or otherwise, remained available to provide corroboration of a crime libelled as being committed in Scotland.  The appeal on this ground (Mr Lauchlan’s ground 1) must therefore be refused.

[32]      In MR v HM Advocate 2013 JC 212, the Full Bench (LJC (Carloway) at para [19]) followed the dictum in McMahon v HM Advocate 1996 SLT 1139 (LJG (Hope) at 1142) that, in deciding whether mutual corroboration can apply as between two or more charges, the court requires to look not at the labels attached to the individual acts in the indictment but to the “underlying similarity in the conduct described in the evidence”.  The court looks to see whether the “conventional similarities in time, place and circumstances in the behaviour proved [are] such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused” (MR v HM Advocate (supra) at para [19]).  Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury (ibid).

[33]      Distilling the submissions of the parties, the appellants found upon what are said to be potentially significant differences between the facts as potentially established in the evidence on the 3 (O’Neill) or 2 (Lauchlan) charges, whereas the Crown found upon the similarities.  At one end of the spectrum, it is correct to say that the fact that there is sexual conduct in each charge is not enough.  At the other, the fact that some of the charges involve penetrative sex and others do not cannot be regarded as decisive.

[34]      The significant features of similarity in the crimes start first with the fact that, in respect of charges 7 and 8, two persons were involved as perpetrators of sexual acts on a single individual.  This is unusual, although by no means unknown.  Secondly, in all of the charges (5, 7 and 8), the acts are homosexual in nature and are perpetrated against young vulnerable males.  In that regard the range of the complainers’ ages, between 14 and 17, is a narrow one.  Thirdly, in each charge there is either actual or attempted sodomy.  Fourthly, in charges 5 and 7 there is the involvement of drugs.  There are other similarities and, especially in time and place, dissimilarities, but the reality is that the jury were entitled to hold that the necessary underlying similarity was present and to rely on each episode, involving one of the appellants, as corroborating the other episode, involving the same appellant.  This ground of appeal (Lauchlan ground 2 and O’Neill ground 4) must accordingly fail.  It follows also that the contention that no reasonable jury could have convicted on the basis of the evidence in respect of the 2 charges (Lauchlan ground 3) must be rejected.

[35]      There is no breach of Article 6(2) by reason of the evidence on charge 8 being advanced by the Crown in the one single criminal process as proof of charge 7.  As already narrated, on any view, the acquittal on charge 8 in respect of the Blackpool events was itself an error; being incompetent standing the lack of jurisdiction.  As was said in HM Advocate v Mair [2013] HCJAC 89 (LJC (Carloway), delivering the Opinion of the Court at para [9]), at the point of seeking a conviction on charge 7, all that the Crown were asserting was that the appellants had committed what the appellants had had notice of in charge 8, albeit that, by the time the Crown addressed the jury, a conviction could not follow upon that charge for technical reasons.  The Crown contention had been consistent throughout the proceedings and no party could reasonably have thought that the section 97 acquittal, or indeed an acquittal following upon a pragmatic withdrawal of that charge, could have had the effect of barring the Crown from relying on the evidence on charge 8 as mutual corroboration  of a charge awaiting judicial determination.

[36]      As the European Court said in Sekanina v Austria (1993) 17 EHRR 221 (at paras 28 and 30), there is a distinction to be drawn between cases where there has been a decision on the merits of an allegation and one where there has not.  In the former, it is not open to the state to assert the guilt of a person whose innocence has been established.  That is not what, in reality, occurred in this case.  The appellants were not acquitted of the Blackpool element in charge 8 as a result of a decision on its merits but because the court considered that it had no jurisdiction to try the matter.  The situation (Sekanina v Austria (supra); Asan Rushiti v Austria (2011) 33 EHRR 56; Lamanna v Austria, 10 July 2001 (no 28923195); Allen de Ribermont v France (1995) 20 EHRR 557; Geerings v Netherlands (2008) 46 EHRR 49) where there is an assertion of guilt in a separate process in circumstances in which that guilt has not been properly established, or has even been rejected, in a criminal court is not in any event analogous.  This separate argument advanced by Mr O’Neill must be rejected.

[37]      The trial judge’s directions on charge 8 cannot be faulted.  By the time he came to his charge, the jury were not going to be asked to return a verdict on charge 8.  The special defence therefore ceased to have any bearing on the issue and re-iterating the standard directions on the effect of a special defence could have served only to confuse.  What the judge did do was direct the jury clearly on the need to believe a particular complainer before they could use his evidence as mutually corroborative of the testimony of another complainer in respect of the actings of the same accused.  He directed the jury with equal clarity on the need for them to find the necessary similarities in, as he put it, the character, circumstances and time of each offence.  In particular, in respect of Mr Lauchlan, he said that he could only be convicted if the jury accepted, as credible and reliable, the evidence of both DW and JG.  He gave a similar direction in respect of Mr O’Neill and the evidence of IY and DW.  He reminded the jury in particular of the speech made on Mr Lauchlan’s behalf, which had focused on the absence of similarity between what had happened to DW and what had occurred with JG given the elements in JG’s evidence which described some consensual sexual acts.  These were sufficient directions in the circumstances.  It follows from the jury’s verdict that they must have accepted JG’s account of non consensual acts and found them sufficiently similar to those libelled in charge 7.  Seen in that light, the reasoning of the jury is clear.  The appeals against conviction are refused.

Sentence
Circumstances
[38]      As already observed, the appellants were convicted of two further offences, including murder.  These were, as follows:

“(2)      on 21 June 1997 at 16A Waterside Street, Largs or elsewhere … you … having … engaged in criminal activity with RMcG … then aged between 9 and 13 years, and knowing that [Mrs McG], his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities, did detain her against her will within said house … and thereafter assault [Mrs McG] seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill-will towards [her];

(3)        … having committed the crime libelled in charge (2) … and being conscious of your guilt … you … did (a) remove the body of [Mrs McG], …; (b) transport said body to Largs beach and conceal same under rocks there; (c) thereafter recover said body and deposit same in a bin or similar container and transport same onto a boat; and (d) deposit said bin or similar container and the body of [Mrs McG] into the sea, and this you did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice.”

[39]      The trial judge reports that the background to the murder lay in the breakdown of Mrs McG’s marriage in or about 1994.  Mrs McG had thereafter lived in Rothesay along with two of the children, including RMcG.  In his early teens, RMcG became involved in criminal activities and was taken into care for some time.  By 1997 RMcG was living with his father in Glasgow, but visiting his mother on Saturdays.  Mrs McG was a highly vulnerable woman, of low intelligence, with longstanding and persistent lifestyle difficulties.  She tended to exist from week to week, but she nevertheless cared deeply for her children.

[40]      RMcG was also vulnerable.  He had become unruly after the breakdown of his parents’ marriage.  Whilst he was staying with his mother in Rothesay, RMcG came into contact with the appellants.  He began to spend most of his time with them.  They allowed him considerable freedom and indulged him with money, drink and presents.  RMcG regarded them as his heroes.  He had effectively been groomed by the appellants and then sexually abused by them.  This abuse extended to repeated sodomy, which RMcG regarded as normal at the time.  In June 1997 RMcG persuaded his mother that they should move into the appellants’ flat in Largs, rather than RMcG returning to his father’s home in Glasgow. 

[41]      In due course, Mrs McG found out about the sexual abuse of her son.  The appellants became increasingly concerned that she might report them to the police.  They discussed “getting rid of her”.  In particular, RMcG referred to an incident when Mr O’Neill had told him this. 

[42]      During the evening of 20 June 1997 an argument broke out in the flat.  Mrs McG wanted to leave, but was prevented from doing so by one of the appellants.  A visitor to the flat overheard Mrs McG shouting to the appellants words to the effect that they were “a f…g pair of poofters; I know what yous are up to; I’ll see you get what’s coming to you”.  After Mrs McG had gone to bed, RMcG overheard the appellants discussing getting rid of her. 

[43]      Between 1.00am and 1.30am the landline in the flat was used to call one of the appellants’ mobile phones.  The inference from this was that one of them had left the flat in the early hours of the morning and was in contact with the other.  By the morning, Mrs McG had disappeared.  The visitor had called again and found neither appellant at the flat.  Their car was also missing.  When they returned, the visitor asked them what had happened to Mrs McG.  They had replied that they had woken up at 5.00am and found the door wide open and Mrs McG gone.  That same morning, RMcG had noticed that the appellants’ car had been moved from its usual position and that the appellants were up and dressed, in the kitchen, mumbling to one another.  They had told him that his mother had “f…d off” and that they did not know where she had gone.  The appellants gave him different stories about her going to either Rothesay or to Jersey. 

[44]      During the course of the many years which passed after Mrs McG’s disappearance, the appellants made certain remarks to others which suggested that they had killed Mrs McG and dumped her at sea.  One witness said that Mr O’Neill had actually admitted on many occasions that he had killed Mrs McG and that she was now “feeding the fishes” in the Firth of Clyde.  The motive for this had been that she was a “grassing bastard”.  Mr Lauchlan had been present when these remarks were made.  Another witness said that, whilst in Benidorm, Mr Lauchlan had told him that a woman, who had been going to be a witness against them, had been taken out in a boat and fed to the fish. 

[45]      Each appellant had previous convictions.  They had both been convicted in 1998 of the abuse of RMcG.  Mr O’Neill had been sentenced to 8 years imprisonment and Mr Lauchlan to 6 years.  Having been released from these sentences, they had both breached the restrictions under which they were being supervised and were sentenced, in 2003 and 2005 and after an appeal, to 18 months imprisonment. 

[46]      The trial judge took the view that, based on the evidence led at the two trials, both appellants were “dangerous and determined predatory paedophiles” and that they represented a “high risk to the safety of the public, particularly young men and boys (especially those suffering from some form of vulnerability)”.  He took into account, in particular, the apparent motive for the murder and its callous and depraved nature.  He referred to the lengths, which the appellants must have gone to, to cover up the deed.  The trial judge proceeded to sentence them on the footing that they were “highly ruthless and unrepentant individuals with no respect for the law or the values of a civilised society”.  Having been unable to identify any mitigating circumstances, he imposed a punishment part of 26 years in respect of Mr Lauchlan and 30 years in respect of Mr O’Neill.  The greater sentence in Mr O’Neill’s case was because he had been convicted of the additional charge (charge 5) and was regarded as the more dominant personality.

Submissions
[47]      It was submitted by Mr Lauchlan that the level of the punishment part was excessive for the less dominant of the participants.  It was accepted that the trial judge had heard all the evidence, including extensive testimony from both appellants.  He had been entitled to form a view based upon his impressions of their actions and character.  Nevertheless, the period selected was too long.

[48]      Mr O’Neill’s submission focused first on the statutory provisions prevailing at the time of the murder, which occurred prior to the coming into force of the amendments to section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 applicable to non-discretionary life sentences.  This argument, which was not a ground of appeal, appeared to be suggesting (although the matter was not fully developed) that a different sentencing regime existed from that now in force.  Section 2 of the 1993 Act referred to a punishment part being fixed only having regard to the seriousness of the offence, combined with any other offence associated with it, and the person’s previous convictions.  The current form of the legislation referred to a combination with other offences of which the person was convicted on the same indictment (see Cameron v HM Advocate [2011] HCJAC 29; cf Chalmers v HM Advocate [2014] HCJAC 24).

[49]      It was significant that there was no known cause of death.  The sentences were excessive having regard to the punishment parts in Walker v HM Advocate 2002 SCCR 1036; HM Advocate v Boyle 2010 SCCR 103; Smith v HM Advocate 2011 SCCR 134 and Jakolev v HM Advocate 2011 SCCR 608.

[50]      Although delay between the murder and the sentences had featured in both appellants’ Notes of Appeal, this was not advanced at the appeal hearing, presumably because of the trial judge’s explanation in his reports.

Decision
[51]      The requirement for fixing punishment parts for non-discretionary life sentences was introduced by the Convention Rights Compliance (Scotland) Act 2001 by way of amendment to section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.  The statutory formula in respect of such sentences has always been that the punishment part must be such as satisfies the requirements for retribution and deterrence, taking into account:

“(a)      the seriousness of the offence, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence;

(b)        any previous convictions of the life prisoner”.

These provisions applied in practical terms to mandatory life prisoners, whether the murder was committed before or after the 2001 Act came into force (see sch, Part 1).

[52]      Immediately after the 2001 Act, there was a requirement on the courts to fix punishment parts for a large number of persons convicted of murder.  Many of these persons had already served sentences in excess of the punishment periods subsequently fixed.  Some of the cases involved the most heinous of crimes committed in Scotland over the last two generations.  In Walker v HM Advocate 2002 SCCR 1036, a punishment part of 30 years was initially selected in respect of the pre-meditated murder of 3 soldiers by a person who had himself been an soldier.  In a not dissimilar case involving a former policeman killing two officers in the course of a bank robbery, 25 years was imposed at first instance (HM Advocate v Wilson, see Walker (supra)).  The same level was selected for one of the Carstairs murderers (HM Advocate v Mone, see Walker (supra)). 

[53]      Walker’s sentence was reduced to 27 years on appeal and the then Lord Justice General (Cullen) expressed the view (para [8]) that, in cases which he described as of “such gravity”, including the murder of a child or a policeman in the execution of his duty, a punishment part of 20 years might be selected, although there might be a “relatively few” cases requiring a level “substantially in excess” of that figure.  On the basis of that dictum, 30 years was seen as a maximum, even for the most grave of cases.  This was reflected in the selection of 27 years for the Lockerbie bomber (HM Advocate v Megrahi, unreported, 24 November 2003) whose actions had killed 270 people.  It may also be seen as influential on the reduction from 30 to 20 years of the punishment part in McMurray v HM Advocate (No 2) 2004 SCCR 702, in which the appellant had committed a premeditated triple murder.

[54]      However, as was explained in Smith v HM Advocate 2010 SCCR 134 (Lord Carloway at para [15]) that sentencing regime was effectively disapproved in Boyle v HM Advocate 2010 SCCR 103, in which the then Lord Justice General (Hamilton) expressed the view (para [13]) that punishment parts of more than 30 years may be appropriate in cases of mass murder.  Although it was said that 20 years might still be seen as appropriate for the grave examples given in Walker, the starting points for the punishment parts actually selected in Boyle were in the range of 18 to 22 years, the latter for the murder of a 64 year old woman.  Smith itself involved a punishment part of 35 years, as a starting point, for the murder of a mother and young child against an immediate background of sadistic and sexual depravity.  This was not reduced upon appeal.  Similar observations on the limitations of using Walker as authority in the modern era were made in Jakovlev v HM Advocate 2011 SCCR 608 (Lord Hardie at para [10]).

[55]      Each case must be determined upon its own facts.  However, there are several circumstances in this case that take it well outside the norm, if there be a norm in murder cases.  The first is that the appellants were previously convicted of significant predatory sexual assaults on the vulnerable young son of Mrs McG for which they received substantial periods of incarceration both upon conviction and upon breaching their terms of supervision.  Secondly, they were also convicted on this indictment of a range of further predatory sexual assaults on vulnerable boys or young men and of planning to involve a child aged only 6 in their nefarious activities.  Thirdly, looking at the murder itself, the libel of which established the cause of death as some form of strangulation, the motive was to avoid criminal prosecution.  Fourthly, the victim was yet another vulnerable person.  Fifthly, the appellants took significant and successful steps to dispose of the body, by depositing it in the waters of the Firth of Clyde from where it will probably never be recovered.  Against that background, the court is quite unable to classify the punishment parts selected by the trial judge as excessive and the appeals against sentence are accordingly also refused.