Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 56

HCA/2014/3072/XC

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

SB

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Gilchrist; Paterson Bell (for Beltrami & Co, Glasgow)

Respondent: Erroch AD; the Crown Agent

21 May 2015

Introduction
[1]        On 18 June 2014, after a trial at Edinburgh Sheriff Court, the appellant was found guilty, by the unanimous verdict of the jury, of a charge which libelled that:

“on 25 [and 26] November 2012 … at Roseneath Terrace, Edinburgh …, Coventry … and elsewhere you … did abduct … AB, aged 11 years, … and did seize hold of him, struggle with him and forcibly carry him out of a common stair … and place him into a nearby vehicle, place him in a state of fear and distress, convey him by motor car … to Coventry and detain him against his will …”.

The jury deleted a libel of assault, notwithstanding their inclusion, in the verdict, of the appellant’s forcible physical contact with the complainer.  The appellant was sentenced to 2 years imprisonment.

[2]        The appeal raises an issue about whether a parent can abduct his own child in circumstances where, although his parental rights and responsibilities have not been removed, the court has made a residence order whereby the child is to live with the other parent.  In that connection, there is a complaint of defective representation.  The appeal poses an additional question about the effect of a concession, made by counsel in the course of a trial, on the court’s duty to direct the jury upon the matter conceded.  Finally, there is an appeal against sentence.

Evidence
[3]        The appellant married MB in India in 1999.  They have two children, viz AB, the complainer, who was aged 11 at the time of the events libelled, and his younger brother.  The appellant and MB separated, not for the first time, in December 2008.  At that time, they were living in Coventry.  Thereafter, there were contentious litigations in England and Scotland regarding the residence of the children and the degree of contact which they should have with the appellant.

[4]        During the hearing of the appeal the appellant referred to a judgment of HH Judge Richards, in the High Court of Justice in England, dated 23 January 2009.  This had been referred to in the trial.  It contains inter alia a finding (at para 43) that MB had:

“through her behaviour and personality, harmed the physical development, the emotional behaviour and educational development of both [children].  The evidence discloses that with the boys she has been harsh, uncompromising and arguably cruel.”

Although the judge was satisfied that the mother was attending to the children’s physical and emotional needs, he was critical of her ability to look after the children beyond that.  This was partly because of the content of extracts from audio recordings which the appellant had clandestinely made of MB’s engagement with the children.

[5]        It is not entirely clear what orders were, or were not, made at the time of Judge Richard’s initial findings.  What is known is that, just over a year later (29 January 2010), after a hearing of some 7 days, the same judge made an order whereby the children “shall each reside with their mother” MB.  MB was to “make the children … available for contact with” the appellant.  This contact was to take the form of indirect communication by way of cards, letters and presents.  By this time, the children were living with MB in Scotland.  The appellant’s application for the return of the children to England was dismissed.

[6]        On 25 September 2012, the sheriff at Edinburgh also made “a residence order in favour of [MB] … whereby the children … shall reside with [MB]”.  He too awarded the pursuer only indirect contact “by letterbox”; this being restricted to twice per year.  The appellant’s other craves, which were presumably for further contact, were dismissed.  Both residence orders were proved at the trial.

[7]        The appellant gave evidence that in October 2012, he had, unknown to MB, rented a flat above MB’s home in Roseneath Terrace.  He made further clandestine audio recordings of MB and the children.  In particular, on 15 November 2012, he made a recording which he handed to the police.  The appellant testified that, on 25 November 2012, he had heard MB screaming at the children.  She had slammed the door and left the flat.  The appellant went downstairs, having waited until MB had left the building. 

[8]        The complainer gave evidence that his mother and brother had gone to the shops.  He had remained in the close.  The appellant had suddenly appeared and chased him up the stair.  The complainer was frightened.  He pushed the buzzer of his neighbour’s flat.  He lost his slippers (later found on the stairs above his flat).  The appellant grabbed him, pulled him down the stairs, put his hand over his mouth, and put him into a car.  The complainer had been crying and begging the appellant to let him go.

[9]        MB had returned after 5 to 10 minutes, to find the complainer missing.  The appellant had taken him to Coventry.  Although the appellant maintained that the complainer had gone with him willingly, he did accept that he had carried the complainer to the car and that he had grabbed him, supposedly because he had fallen.  His account of the complainer going with him voluntarily was implausible and clearly rejected by the jury.  He had said that he had only decided to take the complainer to Coventry once he was in the car; a contention that the jury also rejected.

[10]      In the course of a somewhat prolonged and argumentative cross-examination, the appellant expressed his view that the residence orders had been based on mistakes.  He contended that, notwithstanding the terms of the court orders, he had “full parental rights and responsibilities” and had a right to protect his children.  The court orders had not said that he could not have direct contact with his children.  He did accept that he did not have the right to remove the complainer from his home, but claimed that he was entitled to make sure that he was safe.

Lawful authority
[11]      At an early stage in the trial, the sheriff raised with the appellant’s counsel the issue of whether it was being maintained that the appellant had lawful authority to take the child from his place of residence.  Counsel stated that it was not.  The sheriff raised the matter again prior to speeches and charge.  Counsel confirmed that the position remained the same.  The defence was that the child had gone willingly and had therefore not been abducted.

[12]      When he came to charge the jury, the sheriff directed them that abduction was the crime of deliberately carrying off or detaining somebody against that person’s will and without lawful authority.  He stated specifically that “In this case no issue of lawful authority arises”.  The jury’s focus on the libel of abduction was accordingly on the issue of whether the appellant had carried off and detained the child against his will.  The sheriff also directed the jury on the need for proof of evil intention on the assault element, in the sense of a deliberate act intended to cause physical injury.  This had presumably been heeded by the jury and prompted the acquittal of assault.

[13]      The Note of Appeal in its original form (lodged on 3 September 2014) raised the issue of lawful authority only in the context of an allegation of defective representation.  It was averred that, at a First Diet of 13 August 2013, the appellant’s agents had “made it plain that his defence was primarily based on the issue of lawful authority as disclosed in his defence statement”.  This was not minuted, although the statement (which was not produced in the appeal process) was lodged on that date.  It was said that, at the trial, the appellant had attempted to raise this matter, especially in cross-examination; a fact not entirely borne out by a study of the transcription (see above).  The appellant alleged that the position adopted by counsel in relation to lawful authority “was contrary to the appellant’s instructions” and “contrary to the legal position”.  The ground argued that the residence order of 25 September 2012 did not deprive the appellant of his parental rights and responsibilities (Children (Scotland) Act 1995, s 11(11)).

[14]      Leave to appeal was refused by the judge at first sift on 13 October 2014; the judge commenting that the appellant had not produced any affidavit in support of his position.  The appellant was afforded (Note by the Court, 13 November 2014) time to lodge an affidavit in advance of a decision by the court at second sift.  By that time, trial counsel had reported that, in his view, the appellant’s parental rights, upon which any lawful authority would have been founded, had been severely restricted by the English and Scottish residence and contact orders.  The appellant could only have indirect contact with the children, who were to live with their mother.  The express terms of the orders meant that the appellant’s right (1995 Act, s 2(1)(a)) to regulate their residence no longer prevailed.  Counsel stated that this was explained to the appellant, who was told that the trial would be conducted on that basis; the defence being that the complainer had gone willingly with him.  The appellant had been left in no doubt about the way in which the trial was to be conducted.  The appellant’s then agents confirmed the accuracy of this and explained that the appellant had previously had similar advice from another member of the Bar. 

[15]      The affidavit of the appellant, which was lodged subsequently, stated that he had asked his counsel many times to challenge the competency of the libel.  He had given him materials, including Orr v K 2003 SLT (Sh Ct) 70 (see infra).  It confirmed that counsel had told the appellant that the defence was to be one of consent and not that of lawful authority.  Counsel had declined to pursue a defence of lawful conduct.

[16]      Leave to appeal was given at second sift (11 December 2014).  On 27 February 2015 the appellant was allowed to amend the Note of Appeal.  This added a statement that the appellant had “acted with urgency and necessity due to the circumstances of [the complainer] having been left alone” and thus in accordance with his parental responsibilities.  Whereas the appellant was in breach of the order of the sheriff, the remedies open to the mother were civil only (cf Child Abduction Act 1984, s 6).  A new contention was raised to the effect that, notwithstanding the position of counsel, the sheriff had erred in failing to direct the jury on lawful authority.

Submissions
Appellant
[17]      The appellant maintained that a miscarriage of justice had occurred as a result of defective representation.  The appellant had had lawful authority to take the child.  His counsel had failed to argue this line, despite the appellant’s instructions.  Abduction was defined as carrying off or confining any person forcibly against his will and without lawful authority (M v HM Advocate 1980 SCCR Supp 250, Lord Kincraig’s charge approved in Brouilliard v HM Advocate 2004 JC 176).  Having parental rights and responsibilities gave the holder of those rights lawful authority.  Section 1 of the Children (Scotland) Act 1995 stated that a parent has responsibility to safeguard and promote his children’s health, development and welfare and, if the child were not living with the parent, to maintain personal relations and contact on a regular basis.

[18]      Although the appellant’s right to have his children live with him and to have contact with them had been restricted, that did not erode the nature of his rights and responsibilities which remained extant until removed by an express order of the court.  Orders in respect of the welfare of the children were not final (Sanderson v McManus 1997 SC (HL) 55, Lord Hope at p 58).  The interlocutor of 25 September 2012 had had no effect on the appellant’s rights and responsibilities.  It had curtailed the operation of his rights, but had not diminished his responsibilities.  The issue of whether the appellant had been acting in terms of his responsibilities had been a matter for the jury to decide. 

[19]      The removal or retention of children from the parent who had a residence order was not uncommon.  These matters were not normally investigated by the police, as civil remedies existed to aid recovery of the child concerned (Family Law Act 1986, s 29).  As a general policy, it was preferable that parents who had abducted their own children in defiance of a court order should be dealt with in a civil proceeding for contempt, save in exceptional cases where the parents’ conduct was so bad that an ordinary right thinking person would regard it as criminal (R v D [1984] 1 AC 778 p 806). 

[20]      The law in relation to plagium (theft of a child) was instructive.  It was no defence that the child had consented (Brouilliard v HM Advocate (supra)).  A father of an illegitimate child without a right of custody could commit the offence (Downey v HM Advocate 1984 SCCR 365).  There was sheriff court authority to the effect that a person, with parental rights and responsibilities, could not commit such an offence (Orr v K 2003 SLT (Sh Ct) 70).  That was the only case which had considered the offence of plagium against the background of the new legal landscape introduced by the Children (Scotland) Act 1995.  There was a statutory offence of removing a child furth of the United Kingdom (Child Abduction Act 1984, s 6), but no such offence of removing a child from one territory in the United Kingdom to another.  Counsel had erred in failing to advance what had been a stateable defence of lawful authority against the appellant’s express wishes. 

[21]      Even if the appellant had not had lawful authority, he had been compelled to act in the manner which he did.  His actions had been necessary.  This defence should have been argued at trial.  Necessity would have negated the necessary criminal intent involved in the offence of abduction (Dawson v Dickson 1999 JC 315).  The appellant had removed his child from a potentially harmful situation.  He had taken the complainer back to his original home in Coventry.  He had not planned to do this.  He had acted in the context of previous harm being done to the children.  He had believed his actions to be necessary.

[22]      It was not determinative of the question of lawful authority that counsel had made the concession.  The sheriff was still bound to direct the jury on that matter (Ferguson v HM Advocate 2009 SLT 67).  The sheriff had a duty to charge on all possible and relevant lines of defence and verdicts.  Lawful authority had been a live issue at trial. 

The Crown
[23]      The advocate depute submitted that, where an appellant alleged defective representation, the question was whether he had been denied a fair trial due to a complete failure to present his defence, either because his counsel had disregarded his instructions or because he had conducted the defence as no competent practitioner could reasonably have conducted it (Woodside v HM Advocate 2009 SCCR 350 at para [45]).  The appellant’s instructions in relation to lawful authority had not been ignored.  They had been considered by several counsel and the appellant had been advised that the defence was not available to him.  That advice had been accepted, albeit reluctantly.  Counsel’s instructions had continued (see Duncan v HM Advocate 2009 SCCR 293).  Counsel had reasonably exercised his discretion and had conducted the case according to his own judgment.  In that respect, he remained independent in the performance of his duties (Woodside v HM Advocate (supra) at para [76]). 

[24]      Counsel had been correct in concluding that the lawful authority defence had not been open to the appellant.  Whilst it was accepted that the appellant did retain some parental rights and responsibilities, the interlocutor dated 25 September 2012 had severely curtailed these rights and responsibilities.  In particular, they had removed the appellant’s right to have his children live with him, or otherwise to regulate their residence, as well as his right to have direct contact with them.  The fact that the appellant retained some parental rights and responsibilities did not entitle him to act in a way that was incompatible with the court’s interlocutor (1995 Act, s 3(4)). 

[25]      If counsel had been mistaken, the question became whether or not the advice given was so manifestly wrong as to amount to defective representation (Robson v HM Advocate [2014] HCJAC 8 at para [34]).  The question of lawful authority was a complex one and the conclusion that it did not apply had been a reasonable and justifiable one.  The appellant had failed to demonstrate that counsel’s conclusion had been unreasonable or outside the range of advice which might have been given by others in the profession (Gilmour v HM Advocate 2007 SCCR 417 at para [78]). 

[26]      The defence of necessity had formed no part of the appellant’s instructions at any time before or during the trial.  There could be no defective representation where the defence was not instructed, unless counsel had had a duty to advise on the availability of the defence (James v HM Advocate 2006 SCCR 170 at paras [27]-[30]). 

[27]      The way in which a case was presented to the jury by parties was not necessarily determinative of how the judge should direct the jury (Ferguson v HM Advocate (supra) at para [35]).  A judge had a duty to direct on any defences that were available on any reasonable view of the evidence.  The qualification of reasonableness was an important one.  The applicability of the defence of lawful authority could only be determined on a consideration of the terms of the court orders and the 1995 Act.  The sheriff had been entitled to rely on counsel’s concession that the defence was not being relied upon.  A judge was not under a duty to investigate all possible defences which may apply or to question counsel’s decision or the advice given by him to an accused. 

Decision
Defective representation
[28]      It is primarily a matter for an accused person to determine how he wishes to present his defence, within the permissible boundaries of the laws of evidence and procedure.  If he is wise, he will instruct a law agent and perhaps counsel to represent him.  He will have the benefit of their advice on what is, and what is not, a tenable defence in law.  Once instructed, and as long as these instructions subsist, it is a matter for counsel, as a holder of the public office of advocate, to conduct the defence according to his own discretion and judgment (Woodside v HM Advocate 2009 SCCR 350, LJC (Gill) at para [76]).  He is not obliged to obey orders from the client and to present a defence which is not tenable in law (Hughes v Dyer 2010 JC 203, Lord Wheatley at para [8] following Edwards v HM Advocate 2009 SCCR 71 and Burzala v HM Advocate 2008 SCCR 199).  Just as counsel has a duty to advise on an obvious and relevant line of defence (James v HM Advocate 2006 SCCR 170, LJC (Gill) at para [27]), he also has an obligation to advise that a defence offered by an accused is not tenable and cannot be advanced.  If he so advises, it is a matter for the client to decide whether to instruct his law agent that this advice is not acceptable and that an alternative counsel should, if possible, be found.  If the instructions of counsel continue, it remains for counsel to determine how the defence is to be presented. 

[29]      A defective representation case can only succeed where the conduct of the defence has resulted in a miscarriage of justice:

“That can only be said to have occurred if the appellant’s defence was not presented to the court and he was therefore deprived of his right to a fair trial, because counsel either disregarded his instructions or conducted the defence in a way in which no competent counsel could reasonably have conducted it” (Grant v HM Advocate 2006 JC 205, LJC (Gill) at para [21]).

The appellant’s instructions were not disregarded.  His proposed line of defence was considered by counsel, who advised that it was not tenable.  That advice was, however reluctantly, accepted by the appellant; hence perhaps his concession under cross-examination that he did not, at least as a generality, have authority to remove the complainer, as he did, from his place of residence.

[30]      Counsel’s conduct of the case cannot be regarded as outwith the range of reasonableness.  Even accepting, for the moment, that counsel’s advice was wrong in law, it cannot be regarded as unreasonable.  It was a legitimate stance to take that, standing the clear terms of the sheriff court interlocutor that the complainer was to live with MB and that the appellant was authorised to have contact by indirect means, there could be no lawful authority to abduct the complainer from the close of his flat.  The appellant’s actions flew, ex facie, in the face of a court order.  They could hardly therefore be classified as lawful.

Lawful authority (and necessity)
[31]      Abduction is the crime of carrying off or confining a person forcibly, against his will and without lawful authority (Brouilliard v HM Advocate 2004 JC 176, LJG (Cullen) at para [18]).  Although, in certain situations, a person abducting a pupil child may be charged with theft of that child (plagium), limited assistance can be derived from decisions on that crime (eg Orr v K 2003 SLT (Sh Ct) 70), given its association with rights of ownership and property.

[32]      The starting point for the appellant’s contention is that, as the complainer’s father, he had certain parental responsibilities and rights (Children (Scotland) Act 1995, ss 1 and 2).  One of these rights (s 2) is “to have the child living with him or otherwise to regulate the child’s residence”.  A court can make an order in relation to parental rights (s 11(1)).  This can have the effect of depriving a parent of a right “only in so far as the order expressly so provides and only to the extent necessary to give effect to the order” (s 11(11)).  In this case, the sheriff court interlocutor stipulated expressly that the complainer was to live with his mother.  In such circumstances, the appellant’s right to regulate the complainer’s residence was removed.  He had no other lawful authority to take the child from his home.

[33]      There may be situations where, notwithstanding a court order to the contrary, a parent may be entitled to remove a child from his home.  Necessity is one example.  However, such a defence can only arise where the parent acts in the face of an immediate danger of death or serious injury to the child (Moss v Howdle 1997 JC 123, LJG (Rodger) at 27).  If there is no immediate danger, the parent would be bound to adopt a course of action which is not otherwise criminal (Lord Advocate’s Reference No. 1 of 2000 2000 JC 143, Lord Prosser at para [37]).  There was neither immediacy nor danger on the facts here.  The child was standing in a close awaiting the return of his mother and brother from the local shops.  Necessity was not (and could not have been) run as a legitimate defence.  Furthermore, despite the single reference to the words “urgency” and “necessity” in the appellant’s Note of Appeal, there is no ground of appeal to the effect that the appellant’s counsel ought to have pursued a defence of necessity.  In the absence of such a ground, the court would not, in any event, have entertained an argument based upon such a contention.

Misdirection

[34]      The responsibility for giving correct directions on the law to a jury rests firmly with the trial judge.  Where a defence appears to be available on the evidence, it will generally be incumbent upon the judge to provide the jury with adequate directions on the nature of the defence.  A failure to do so may result in an accused person being found guilty of a greater offence, or even simply an offence, of which he should not have been convicted.  This was part of the rationale in Ferguson v HM Advocate 2009 SCCR 78 (following R v Coutts [2006] 1 WLR 2154, Lord Bingham at para 12).  The issue there was determined on the basis that it had been unfair to the appellant, who had been charged with murder, to omit directing the jury on the alternative verdict of culpable homicide, even although neither the Crown nor the appellant had raised the possibility of such a verdict. 

[35]      It is important not to extend the ratio in Ferguson beyond its parameters.  It is one thing for an accused not to refer specifically to an available defence in a jury speech.  It is quite another for the accused to state specifically to the court that a particular defence is not being advanced.  In the latter situation, there may still be occasions in which the court may nevertheless decide to leave such a defence for the jury’s consideration.  The normal position, however, will be that the court should accept the concession and direct the jury accordingly.  It will only be in quite exceptional circumstances that such a course could be regarded as resulting in an unfair trial.

[36]      For all of these reasons, the appeal against conviction is refused.  The court does, however, endorse the policy view expressed in R v D [1984] 1 AC 778, (Lord Brandon at 806).  In general it is desirable that the conduct of parents in snatching their own children in defiance of a civil court order should be dealt with as a contempt of that court, rather than in a criminal prosecution.  The latter course should only be used in exceptional cases where the conduct is so bad that it would be regarded by the ordinary right thinking person as criminal behaviour.  The assessment of that remains a matter for the respondent.

Sentence
[37]      The appellant submitted that the length of the custodial sentence was excessive.  Too much weight had been placed upon the nature of the offence and insufficient weight on the personal circumstances of the appellant.  The jury had deleted assault from the libel.  This had significantly reduced the seriousness of the charge.  The sheriff had accepted that the appellant had been acting out of a misguided but genuine concern for his children.  He had accepted the import of references which had been produced and the information on the appellant’s employment record.  The appellant was a first offender.  The sheriff had focused on the appellant’s conduct in renting the flat above that of the children.  However, there was no proven history of domestic abuse or harassment.  It was of some note that the offence of removing a child furth of the United Kingdom carried a maximum penalty of 2 years.

[38]      The sheriff had failed to consider the terms of the Criminal Justice Social Work Report, which had been favourable to the appellant.  It had recommended a community disposal.  The report had confirmed that the appellant’s concerns had at one time been shared by the Social Work Department at Edinburgh Council.

[39]      There is force in the contention that the sentence was excessive.  Although a custodial sentence may be seen as the only appropriate one where a child has been abducted in the manner found established here, the sheriff did find that, however misguided, the appellant was acting in what he perceived were the child’s interests.  The jury had deleted the element of assault from the libel.  That was an important consideration.  The appellant was a first offender in steady employment.  In these circumstances, the sentence of imprisonment will be quashed and one of 9 months substituted.