Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 125

HCA/2015-1087/XC

 

Lady Paton

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION

by

JEROME GAY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  N Allan, Sol Adv;  Harley & Co

Respondent:  Brown QC, Advocate Depute;  Crown Agent

15 December 2015

Introduction
[1]       The appellant faced the following charge:

            “(001) Between 03 November 2012 and 04 November 2012, both dates inclusive, at Army Cadet Centre… you… whilst acting with two juveniles, did assault LT born 17/06/2000… being a child who had not attained the age of 13 years, and did lift him from his bed whilst sleeping, remove his clothing, instruct said juveniles to rape him and insert a finger into his anus, record the whole incident on your mobile telephone and show same to another or others and did thereby cause one of said juveniles to sexually penetrate the said LT’s anus with their finger; 

 

            CONTRARY to Sections 19 and 20 of the Sexual Offences (Scotland) Act 2009.”

On 2 to 6 February 2015, a five day trial took place before Sheriff Craig in Livingston Sheriff Court.  The procurator fiscal depute led nine witnesses on behalf of the Crown.  No evidence was led on behalf of the defence. 

 

The evidence
[2]       The evidence is summarised in the sheriff’s report as follows: 

“[8]      In November 2012 the appellant, who was 16 at the time and a member of the Sea Cadets, attended a training camp held at an Army Cadet Centre… He held the rank of Able Seaman.  Along with seven other cadets from his unit the appellant was accommodated in a dormitory with bunk beds.  He was the senior cadet and in charge of the other boys in the dormitory who were predominantly 12 or 13 years old;  one of them was his brother. 

 

[9]        It was the birthday of two of the cadets in the dorm (they were twins) and the cadets had been celebrating with cake and soft drinks.  One of the twins – G – had special education needs, was vulnerable and easily led.  The appellant was aware of his vulnerabilities.

 

[10]      By around 10pm the boys had gone to bed.  At least one of them, the complainer, LT, had fallen asleep.  He was 12 years old.  He was not particularly popular with some of the cadets and had been snoring loudly. 

 

[11]      The appellant remained awake and, initially at least, lay on his bunk.  He was playing on his mobile phone. 

 

[12]      There was an exchange between some of the boys about LT.  The appellant got out of his bed, roused his brother and G and got them out of their beds.  Together they lifted LT from his bed and placed him on the floor in the middle of the dorm, undressed him and took away his pyjamas.  He was naked but still asleep.  The accused, his brother and G were all giggling as they undressed LT.  They carried on laughing as the assault progressed. 

 

[13]      While standing over LT the appellant still had his phone out, with the torch on to light the scene, and was filming what was happening at the same time.

 

[14]      The appellant continued to film as G started touching LT, caressing his body and rubbing himself against his body. He simulated sexual activity with LT.  He put his finger into LT’s anus. 

 

[15]      The appellant – who, along with his brother and G, had stripped LT naked – had a clear view of what G was doing.  He took no steps to intervene;  instead he carried on filming as LT was being sexually assaulted.  The appellant knew he was in charge, that G was vulnerable and easily led but did not step in to prevent the incident as it unfolded, or to intervene up to and including the act of penetration. 

 

[16]      Instead, the appellant was giggling and filming while G assaulted LT.  That he was doing so was obvious to G.  They were next to each other.  G knew the appellant was in charge.  The tenor of the evidence was that G took that as active encouragement by the appellant of his actions. 

 

[17]      LT slept through the assault.  When it finished the boys went back to their bunks leaving LT lying, still naked, in the middle of the room. 

 

[18]      Very shortly afterwards LT woke up.  He was distressed and upset to find himself in the middle of the room, naked.  He was crying and his distress was obvious.  He asked the appellant what had happened.  The appellant did not tell him.  Instead he said to LT that he was being ‘a little bitch’;  that he should ‘grow a pair’ and go back to bed. 

 

[19]      LT asked where his pyjamas were.  The appellant told him that they were ‘over there’, and gestured to the back of the dorm.  He did not assist LT in any way.

 

[20]      LT got up off the floor, found his pyjamas, went to the bathroom where he washed his face and then got back into bed.

 

[21]      At a point thereafter there was contact between the appellant and his line of command, a petty officer, to say that there had been a disturbance in the dorm.  The appellant reported that LT had been causing trouble ‘shouting’ that he had been ‘raped.’  The appellant did not tell his petty officer what had in fact happened or that he had been with G when he penetrated LT with his finger. 

 

[22]      The petty officer took no action that night and did not enter the dorm or speak with LT. 

 

[23]      The following day the appellant had discussions with his senior officers in which he reported that LT was accusing him of pulling him out of bed and taking his clothes off.  He lied to the officers, telling them that allegations were untrue. 

 

[24]      Two days later, at the Sea Cadet’s own unit, the appellant asked another cadet if he ‘wanted to see something’.  The appellant took out his phone and played him a film of the assault.  It showed G simulating sexual activity on LT while he (LT) was naked. 

 

[25]      When senior officers investigated the allegations other cadets confirmed that they had seen the appellant and others lift LT out of bed and strip him naked.  They confirmed that they had seen G touch LT in a sexual manner and penetrate his anus, all while the appellant filmed the assault on his phone. 

 

[26]      When interviewed by the police about the incident the accused denied any involvement.  He denied any knowledge of the assault.  He denied filming the assault or showing the film to others. 

 

[27]      Both G and the appellant’s brother were dealt with through the Children’s Panel. 

 

[28]      Following the investigations, the appellant’s father, who was one of the most senior ranking officers within the Unit, was asked to remove the appellant.  The appellant later resigned from the Cadets. 

 

Observations on the evidence

 

[29]      Although obviously a matter for the jury I make the following observations about the evidence led for such assistance as that might provide to your Lordships. 

 

[30]      The complainer was an impressive witness.  It was clear that he had not been a popular member of the Cadets before the incident and that since he had been subjected to criticism and derision for having reported it.  He had had a difficult time at school (all the cadets, bar the appellant who had left school aged 16, were at school together) and that had caused considerable tension.  It appeared that much of the blame for the incident was being placed at the door of the complainer and that the derogatory comments made by the appellant that LT should ‘grow a pair’ echoed a view commonly held about him. 

 

[31]      A number of other witnesses - all children – gave evidence, speaking to the assault on LT and to the appellant’s active participation, and indeed, instigation, in that assault.  In my view they were credible and the jury would have been entitled to place reliance on their evidence. 

 

[32]      The jury also heard from a number of adults, including the Head Teacher at the school all the cadets had attended.  He spoke to the significant vulnerabilities experienced by G and to his being easily led and manipulated.  Evidence was led from the officer who investigated the incident – once it was brought to his attention – and from the petty officer who was told of the allegations on the night of the incident but who made no enquiries at all.  It would be fair to record that he appeared embarrassed, and perhaps a little ashamed, of his lack of action at the time. 

 

[33]      The evidence suggested a troubling thread of bullying behaviour running through the Unit and the minimisation of such behaviour by at least one of the more senior officers (i.e. the Petty Officer);  that what had happened was regarded by others as ‘just a prank’ and that it was the complainer who was at fault for reporting the assault in the first place. 

 

[34]      It was against that background that the jury required to consider the evidence and which set the scene for consideration of the appellant’s own actions and culpability vis a vis, concert. 

 

[35]      The significant elements of that evidence were

 

• that the actings of the appellant, his brother and G were spontaneous and unplanned

   

• that LT was unpopular

   

• that the appellant was by far the oldest as well as the most senior member of the group

   

• that the appellant was in charge of the dorm and was supposed to keep order

   

• it was the appellant who encouraged the other two to join him in lifting LT out of bed, laying him on the floor and stripping him naked,

   

• that the appellant was giggling and laughing as he filmed the incident involving G touching LT in a sexual fashion up to and including the anal penetration,

   

• that the appellant was using his phone as a camera and as well as using it as a torch to light the scene

   

• that the appellant did not intervene or tell G to stop albeit that he had a clear view of what was happening

   

• that the appellant left LT lying naked on the floor

   

• that when LT asked the appellant for help he gave none but was contemptuous and critical of him

   

• that the appellant still had the film of the assault on his phone two days later
• that he showed it to one of the other cadets

 

Amendment of the charge during speeches

[3]        On 5 February 2015, the procurator fiscal interrupted his speech to the jury and sought leave to address the sheriff in relation to a legal matter.  The jury were taken out.  As is noted in the minutes of proceedings:

“ … There being no objection from Mr Harley [the defence solicitor advocate] the indictment was amended in line 19 of the charge by the replacement of the word ‘said’ with the word ‘a’;  and the amendment of the word ‘juveniles’ in line 19 to now read ‘juvenile’ …”

 

[4]        The jury were brought back, instructed to amend their copies of the indictment, and the prosecutor resumed his address to the jury.

 

The sheriff’s charge

[5]        Later on 5 February 2015 the sheriff charged the jury.  At page 28 line 7 et seq of her charge, the sheriff directed the jury on concert.  She gave standard directions, including examples of a planned bank robbery, a spontaneous street fight, a situation where a participant did not know and could not reasonably have anticipated that another participant would use a knife in a spontaneous assault, and an explanation that a participant in a spontaneous assault might nevertheless be held responsible for the knife if he continued to participate in the assault after he was aware that a knife was being used.  As the sheriff put it: 

            “… Where [the crime] is spontaneous, the acts done that are known, or must have been known to the others involved, who then continue with their participation in the crime, become the responsibility of everyone concerned, but acts outwith their knowledge aren’t…”[pages 32 lines 13 to 19]

 

Later in her charge, the sheriff directed the jury about their power to delete parts of the charge, as follows: 

 

“If your verdict is guilty you could delete any part of the charge that has not been proven to your satisfaction.  But what is left must define a crime and describe how it has been carried out.  I can tell you that if you are not satisfied on the evidence that there was a sexual attack, assault but you are satisfied that an assault took place it is open to you to delete the sexual element from the charge and bring back a verdict of common law assault, but you must be satisfied that what is left amounts to the crime of assault. 

 

Now, if that is the course that you are going to take, that is to say a deletion, when the clerk asks you for your verdict you should say our verdict is guilty subject to deletions.  The clerk will then ask you what those deletions are.” 

 

 

The jury’s question
[6]        After the charge, the jury were sent out to consider their verdict.  In the course of their deliberations, they put the following question to the court:

“Does the initial deletion impact on the statement ‘cause’ in line 8?”

 

[7]        After some discussion in the absence of the jury, involving the procurator fiscal depute and the defence solicitor advocate, the jury were brought back to court.  The sheriff answered their question as follows:

“… the question that I have been given to answer is, and I will read it back to you.  Does the initial deletion impact on the statement ‘cause’ in line 8?  Now, my answer to that as a matter of law is no.  And it’s my job to give you direction on the  law, and as a matter of law the charge, even after the initial deletion, is still a competent charge and therefore no is the correct answer to that. 

 

However, I am not sure that fully addresses the question that you are proposing of me.  So I can give you the following comment, which is, that if what is troubling you is the question of causation then that is a matter for you.  You have to decide that point on the evidence.  So the question of does A cause B that is a question of fact for you to decide. 

 

Now, with that answer in mind I am going to discharge you for the day…”

 

[8]        The jury were then sent home for the night. 

 

[9]        The following day, 6 February 2015, the jury returned to court, and were further directed as follows:

“… what I’m going to do is simply repeat what I said yesterday just so it’s then fresh in your minds, and you’ll forgive me if I just go back to my notebook and take your, the question that you had posed, you will remember is ‘Does the initial deletion impact on the statement ‘cause’ in line 8’, and I think I highlighted for you that I was understanding that to mean the deletion that the fiscal had made in the course of his speech, and my direction to you was, as a matter of law, because it’s for me to direct you on the law, that, no, it doesn’t have an impact on that, but if the matter that was, that you were asking about was one of causation, then it’s for you to decide on the evidence and, in particular, if what you were asking is, ‘Does A cause B?’ then that is a matter for you on the facts.

 

So, with that in mind, I’m going to discharge you back to the jury room to continue with your deliberations.” 

 

The verdict

[10]     The jury ultimately returned a verdict of guilty under deletion of the words “instruct a juvenile to rape him and insert a finger into his anus”.  The sheriff imposed a community payback order with two years supervision and 300 hours unpaid work.  The appellant was made subject to the sexual offenders notification requirement for a period of two years. 

 

The appeal

[11]      The appellant appealed against conviction and sentence.  The grounds of appeal argued were in the following terms:

“2.  The sheriff erred in the direction given to the jury after they returned to the court with a question (see transcript ‘Jury Question’ in preference to the transcript of the charge, where the number 8 appears to be omitted).  The jury appear to have asked (page 5, lines 22 - 23) ‘Does the initial deletion (thought to be a minor amendment made by the Procurator Fiscal Depute) impact on the statement cause in line 8?’  The sheriff, having answered that question in the negative, then gave a direction on causation (‘Question’ transcript, page 6, lines 7 – 13, charge transcript page 44, lines 10 - 19) which was entirely misguided.  Although the crown had chosen to use the word ‘cause’ the question for the jury was not one of causation but of concert.  The direction ‘the question of does A cause B that is a question of fact for you to decide’ left it open for the jury to convict the appellant art and part if they were satisfied that his encouragement emboldened one of the juveniles to commit the act of penetration even if such an act was not and had never been in the contemplation of the appellant.

 

3.    The sheriff’s errors resulted in a miscarriage of justice.”

 

Submissions for the appellant
[12]     At the outset, the solicitor advocate for the appellant accepted that the sheriff’s directions in relation to spontaneous concert were accurate and adequate.  The focus of the appeal was therefore the sheriff’s handling of the jury’s question. 

[13]      It was submitted that the additional guidance given by the sheriff in answer to the jury’s question was so wrong that reading the charge as a whole would not neutralise the crucial misdirection.  As a result, the conviction of penetration in terms of section 19 could not stand.  In answering the jury’s question, the sheriff had misdirected herself by focusing on causation rather than concert.  Her answer focused the jury’s attention in the wrong direction, and in so doing completely negatived the previous adequate directions on spontaneous concert.  The jury retired with the words “Did A cause B” at the forefront of their minds.  That left them in a position whereby they could reason back and look at the incident from the standpoint of the juvenile who was carrying out the various physical acts.  They could conclude that the juvenile’s perception was such as to drive him on to do something which was not in the appellant’s contemplation.  They were left with nothing from the concert instructions (for example, about how acts outwith the knowledge of other participants in the concert were the responsibility only of the participant who committed the acts). 

[14]     The act of penetration was the most serious part of the libel.  The only sensible interpretation of the jury’s question and their later deletion was that the jury were contemplating deleting these words, and were in doubt about what “caused” the juvenile to penetrate the victim with his finger.

[15]      In answering the jury’s question, the sheriff should have re-visited her directions concerning spontaneous concert;  emphasised that acts outwith the knowledge of one participant were the sole responsibility of the person carrying out the acts;  told the jury again that they could only convict the appellant of the act of penetration if they concluded that penetration was part of the common criminal purpose, or alternatively that the appellant’s continuing conduct once penetration was initiated demonstrated that he actively associated himself with the escalated, more serious, sexual assault.  The jury had been sent off with a substantial misdirection.  The conviction should be quashed so far as relating to penetration by deleting the words “and did thereby cause one of said juveniles to sexually penetrate the said LT’s anus with their finger” and also the reference to section 19 of the 2009 Act (leaving the reference to section 20 of the 2009 Act).

 

Submissions for the Crown

[16]      The charge was an amalgamation of sections 19 and 20 of the 2009 Act, with the filming of events properly characterised as an aggravation.  The libel was based on the active participation of the appellant in the assault (including subsequently showing the video to someone).  There had been proper and accurate directions about concert, including spontaneous concert.  While the indictment alleged that the appellant had “instructed” a juvenile to rape the complainer and insert a finger into his anus, that was simply one allegation within the generality of concert.  If the jury were not satisfied that such an instruction was proved (and the sheriff had described the evidence about that matter as “rather thin”:  paragraph [58] of her report) they were entitled to consider the remaining evidence and to assess whether the appellant’s behaviour “caused” one of the boys to carry out that sexual penetration.  The sheriff set out the significant elements of that evidence at paragraph [35] of her report.  The sheriff’s answer to the jury’s question was not a misdirection.

[17]     Even if it was thought that the sheriff’s answer might be criticised, there was no miscarriage of justice as there was ample evidence of active participation by the appellant in the spontaneous concert during which the sexual assault took place. 

 

Discussion

[18]      In our opinion, the sheriff’s answer to the jury’s question cannot be criticised.  While we accept that it is likely that the Crown framed the indictment on the basis that, inter  alia, an express instruction had been given to a juvenile to penetrate the complainer’s anus with a finger, that was simply one element in a case which was properly categorised as spontaneous concert.  Such concert can, depending on the circumstances proved, comprise not only words uttered but also acts carried out and attitudes adopted by those involved.  The sheriff’s charge clearly warned the jury that a participant who had not known what another participant was about to do in escalation of an assault would not be responsible unless he continued with his involvement in the knowledge of the escalation, thus demonstrating that the escalation of the crime was indeed part of the joint criminal purpose. 

[19]      The evidence at the trial established that the participants in the spontaneous concert behaved in the way outlined in the sheriff’s report, particularly paragraph [35].  On the basis of that evidence, and armed with the sheriff’s accurate directions about inter alia concert and the ability to delete parts of the charge, we consider that the jury were entitled to conclude that they were not satisfied on the evidence that any express instruction was given (and therefore to delete that part of the charge), but nevertheless to form the view that the evidence established an atmosphere of encouragement, hilarity, and approbation, on the part of the participants including the appellant, together with an absence of any instruction to cease assaulting the complainer or any threat of disciplinary measures if the assault continued.  Further the jury were entitled to conclude that the evidence established that the atmosphere had caused or induced one of the juveniles to escalate his activities and to carry out the act of sexual penetration which he did.  The jury were entitled to conclude that the evidence demonstrated that the appellant was the senior participant and in effect the leader of the group, all as described in the sheriff’s report.  The jury were a fortiori entitled, in our opinion, to view his behaviour as causing or inducing a more junior member of the group to carry out the acts he did.  They were further entitled to conclude that the appellant’s failure to prevent the more serious assault, together with his giggling and laughing as he filmed the incident involving G touching LT in a sexual fashion up to and including the anal penetration (paragraph [35] sixth bullet point in the sheriff’s report), his behaviour and words towards the complainer after the incident, and his subsequent showing of the video to another person, amounted to his active association with the escalated level of criminality of the spontaneous common criminal purpose of the group.

[20]      We are not therefore persuaded that the sheriff misdirected the jury.  But even if it were thought that there had been a misdirection in answering the jury’s question (which we do not accept), there was ample evidence of words and behaviour on the part of the appellant, the senior member and in effect the leader of the group, to entitle the jury to reach the verdict they did.

[21]      The appeal against conviction is therefore refused.