Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 1

HCA/2015-2191/SC and HCA/2015-2254/XC

Lady Dorian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEAL AGAINST SENTENCE

by

VG and CY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  1. Jones, 2. Keane; Faculty Services

Respondent:  Hughes AD; Crown Agent

17 December 2015

[1]        The appellants VG and CY were convicted after trial of forming a fraudulent scheme to have Mr Y obtain parental responsibilities and rights as the father of baby B, born 15 February 2011, of whom Ms G was the mother.  The charge narrated that in furtherance of the scheme the appellants made a number of pretences. They pretended to Mr N, the true father of baby B, and others, that Ms G had terminated the pregnancy of baby B.  They created and used a profile on Facebook in the name of Claire Green; they pretended to various people that a female by the name of Claire Green was pregnant and was acting as the surrogate mother of a child for Mr Y; that she had gone on to give birth to a female child; and that Mr Y had taken full custody of the child.  They pretended to the registrar for the relevant district that Mr Y was the father of baby B.  They pretended to officials of the local authority that Ms G had terminated the pregnancy of the child of which Mr N was the father.  The charge went on to aver that the truth was that Ms G continued with the pregnancy and gave birth to baby B; Mr Y was not the father of baby B; and Mr N was the true father.  The appellants did thereby induce Mr N to believe that he was not father of baby B and induce the registrar to register Mr Y as the father of baby B in terms of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 and thereby Mr Y obtained parental responsibilities and rights in relation to baby B.

[2]        The sheriff sentenced each of the appellants to imprisonment for three years.  Against that sentence each of the appellants was granted leave to appeal.

[3]        The circumstances as they emerged in the evidence were as follows. In the course of 2010 Ms G and Mr N entered into a sexual relationship as result of which baby B was conceived.  The relationship came to an end during the pregnancy and Ms G advised Mr N that she intended to have a termination. 

[4]        Mr Y knew Mr N and was a close friend of Ms G.  Mr Y was homosexual and, according to the witnesses at the trial who knew him, had never been in a heterosexual relationship.  Mr Y wished to bring up a child.  Together, the appellants hatched a scheme whereby Ms G would pretend to have had a termination but would not in fact do so.  They created a fictional individual called Claire Green, a lesbian lawyer from Edinburgh.  They went as far as to create a Facebook page for Ms Green.  The story was that Ms Green was to act as surrogate mother for Mr Y.  The appellants even identified the method to be used for insemination at home.  The appellants told Mr N that Ms G had terminated the pregnancy and that Mr Y had accompanied her when the procedure was carried out.  They told Mr N the story about Claire Green.  The appellants told a number of friends about the termination and the arrangement with Ms Green.  Thereafter, whenever Mr N saw Ms G she was wearing a loose fitting pink coat which she did not remove.  On 15 February 2011 Ms G gave birth to baby B. On 21 February 2011 both appellants attended at the registry office where they signed the Register of Births registering Ms G as mother and Mr Y as father.

[5]        In the course of February 2011 Mr N became aware that Mr Y had been seen with a baby girl.  He also saw a picture of baby B on Ms G’s Facebook page and thought that the baby resembled himself. Being suspicious that the baby might in fact be his own daughter, he challenged Ms G about the child.  Ms G told him that child was the baby conceived by Mr Y and the surrogate mother Claire Green. 

[6]        Things moved on, and in June 2011, the social work department of the local authority, having discovered that Ms G had indeed given birth to a child, so advised Mr N.  Mr N then pursued a civil case to establish the paternity of the child.  In this respect Mr Y consistently refused for more than two and a half years to cooperate with DNA testing.  It was only in the summer of 2013, as a result of a court order, that DNA samples were obtained from the appellants which proved that Mr N was the baby’s biological father.  Mr N described the experience as having been “four years of a nightmare”.

[7]        In his report the sheriff noted what he described as the “necessary artful and persistent deceit” required in the commission of the offence.  He considered it to be a callous and selfish scheme designed to provide Mr Y with a child, regardless of the cost to, or impact on, others. No consideration had been given to the potential impact on the child.  Both appellants had been wickedly indifferent to the consequences of their actions.  Even when civil proceedings had been raised, they determined to continue their deceit and obstruct the investigations that eventually exposed it.  The sheriff was satisfied that a custodial sentence was the only appropriate disposal.  The Sheriff recognised that the case was highly unusual and that guidance on sentence in respect of any directly analogous case was unavailable.  He considered that some assistance could be found in cases of child abduction under the Child Abduction Act 1984.  He noted R v Kayani and R v  Solliman [2011] EWCA Crim 2871 in which sentences of imprisonment respectively of five years and three years were upheld.  Taking into account the complexity, persistence and wide spread nature of the fraud involving a child, the sheriff considered that the appropriate sentence was one of three years imprisonment in respect of each appellant. 

 [8]       Mr Jones, who appeared on behalf of Ms G, departed from the ground of appeal which had asserted that a custodial disposal was not appropriate.  He accepted that it was.  Ms G was a woman of 29 years of age who had a limited record of previous convictions, albeit these were for matters of dishonesty including deceit.  The criminal justice social work report had indicated that there was unlikely to be any repeat of the offence; there was no serious risk of harm: no public protection concerns were identified.  Ms G had had a troubled life.  Her first child had died as a result of a cot death.  She had developed depression and a drink problem and it was only after these offences were committed that she obtained counselling.  This would be her first custodial sentence. the sheriff had misdirected himself by relying on Kayani and Solliman. These cases could be distinguished from the present case.  These were cases of abduction.  It was clear from the judgment that there were concerns about the prevalence of cases of that nature in England: deterrent sentences had been required.  There was little information given on the personal circumstances of the accused persons and it was difficult to draw a comparison with the case of the appellants.   Mr Jones submitted that taking all these considerations into account the length of sentence selected by the sheriff was excessive.

[9]        Ms Keane, who appeared on behalf of Mr Y, said that he was a 35 year old man who had no previous convictions.  The charge was an unusual one.  According to the criminal justice social work report the appellant was not considered to pose a risk of serious harm to the community.  He was assessed as suitable for a community payback order.  There was a clear alternative to custody available.  The circumstances of the offence were not sufficiently serious to justify the imposition of a custodial sentence on a first offender.  In this respect she contrasted the position of Mr Y to that of Ms G.  Mr Y had no previous convictions.  In any event, if a sentence of imprisonment was appropriate, the length of the sentence was excessive and was unnecessarily severe.  Ms Keane adopted the submissions of Mr Jones in relation to the cases on child abduction.

[10]      On any view this offence comprised a carefully planned scheme which involved a web of deceit and the telling of many lies, not only to the father of baby B, but also to acquaintances of the appellants as well as the authorities.  The deceit was sustained over a period of years and it was only in the face of court orders that Mr Y agreed to provide a DNA sample.  The impact of the offence on Mr N and the potential impact on baby B were significant.  In our view the sheriff was entitled to characterise the offence in the way that he did (see para [7] above) and to conclude that a sentence of imprisonment in respect of both appellants was the only appropriate disposal.  He clearly carefully addressed his mind to the appropriate length of the sentence.  He recognised that there were no cases in point.  While he found some “parallels” in the child abduction cases, he recognised that they were of limited assistance and it is clear that he considered this unusual case on its own merits.  We consider that having regard to the callous, complex and sustained nature of the fraudulent scheme of which the appellants were convicted the sentence selected by the sheriff was appropriate and cannot be said to be excessive.  The appeals must be refused.