Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 22

HCA/2015/3433/XC

Lord Justice General

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

THE REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

JOHN MILLIGAN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McCall QC; John Pryde & Co

Respondent: Erroch AD; the Crown Agent

23 February 2016

Background

[1]        On 7 May 2009, the appellant was convicted after trial at the High Court in Edinburgh of seven contraventions of the Civic Government (Scotland) Act 1982 relating to: the possession of indecent photographs of children; taking or permitting to be taken indecent photographs of children; distributing or showing indecent photographs of children; possession of a number of indecent photographs of a child or children with a view to distributing or showing them to others; and distributing or showing indecent photographs of children to his co-accused.  A variety of concurrent extended sentences were imposed in respect of each of the statutory charges.  The longest of these, relating to actual distribution (Charge 37), was 8 years, with a custodial element of 7 years. 

[2]        The appellant was also convicted of conspiring with others to commit sexual offences against a child (Charge 54).   This charge had a preamble libelling that the conspiracy was to participate in lewd, indecent and libidinous practices, indecent assault, rape, sodomy and assault against children, and in particular child F, who was aged between 1 and 3.  It originally had 17 sub-headings ((a) to (q)), of which the appellant was eventually convicted of 11 ((a), (d)-(f), (h)-(m) and (q)).  Part of the libel (sub-head (e)) involved actual lewd practices towards the child, even if it did not state that the appellant was directly involved.  Another (sub-head (q)) involved an offer to allow a person to listen to the commission of an offence against child F, although again the appellant was not said to have been directly involved.  On the whole charge, the judge imposed an extended sentence of 12 years, with a custodial element of 10 years; that sentence to run consecutive to the concurrent extended sentences on the statutory charges.  

[3]        Some of the appellant’s co-accused were also convicted of elements of Charge 54, although it is not easy to determine exactly which elements from the materials before the court.  Ross Webber and Craig Boath received extended sentences on this charge of 6 and 7 years respectively, the custodial elements being 5 and 6 years.  Neil Strachan, who was also convicted of the sodomy of an infant, was given an Order for Lifelong Restriction with a punishment part of 16 years.  James Rennie had an OLR imposed on Charge 54 with a punishment part of 13 years.  He had been convicted of a separate offence of lewd practices towards child F.  Both were convicted of sub-head (e) of Charge 54 (again lewd practices towards child F).

[4]        Originally, the appellant appealed unsuccessfully against sentence (17 June 2010, unreported, XC445/09).  The matter comes before this court on a reference from the Scottish Criminal Cases Review Commission.  The reference cites Strachan v HM Advocate [2011] HCJAC 3 and Boath v HM Advocate (unreported, 1 October 2014), in which the court set aside the verdicts relative to two of the applicant’s co-accused in respect of certain elements of the conspiracy charge.   No opinion in relation to Mr Boath has been located.  The charges in Mr Strachan’s case essentially deleted references to a conspiracy with the appellant and Mr Webber and to a number of locations.  On 19 May 2011 (Note of Reasons, XC731/09) Mr Strachan’s punishment part was reduced from 16 to 9 years.  The change was brought about only partly because of the alterations to Charge 54.  It was also prompted by the guidance on punishment parts in Petch v HM Advocate 2011 JC 210.

Submissions

[5]        The first ground of appeal proceeded upon the contentions, which reflected the submissions in Strachan, to the effect that there was insufficient evidence to entitle the jury to convict the appellant on Charge 54, in so far as it related to: his co-accused, Mr Strachan; conduct at one address in Edinburgh; conduct libelled in sub-heads (d), (e), (f) and (q); and an averment in sub-head (a) about “acting along with” a named person.

[6]        The second ground was that the trial judge had failed to direct the jury, in respect of Charge 54, that they required to restrict any verdict of guilty to those co-accused with whom the appellant was shown to have had direct contact, and to those sub-heads directly involving the appellant.

[7]        At a continued procedural hearing, the Note of Appeal was amended whereby two additional grounds were introduced.  The first was that part of the conviction on Charge 54 had been incompetent because it libelled the rape of a male child.  The second was that there had been insufficient evidence to entitle the jury to convict of a conspiracy, in so far as it related to Mr Webber and an address in North Berwick.

[8]        By letter dated 26 January 2016, the Crown accepted the validity of all four grounds of appeal, standing the judgment in Strachan.

Decision

[9]        The court accepts the correctness of the Crown concession.  It will accordingly quash the original verdict on Charge 54 and substitute one in keeping with the submissions already narrated.

[10]      That leaves the question of sentence in respect of Charge 54.  In its amended form it remains one containing a general premise of conspiracy with others, over a 3 year period, to participate, by web cam, telephone or otherwise, in the commission of sexual offences, including lewd, indecent and libidinous practices and behaviour, indecent assault, sodomy and assault, against children and, in particular a male child, aged between 1 and 4 years.  The remaining sub-heads, of which the appellant remains convicted ((a) and (h)-(m)) are still significant.  As the trial judge has reported, the appellant was a central player in the conspiracy. 

[11]      The court has attempted, with limited success, to carry out some form of comparative exercise in relation to the sentences imposed on the various accused.  In so far as the Orders for Lifelong Restriction are concerned, these are difficult to use as comparators in the circumstances.  Doing the best it can, the court will quash the custodial element of 10 years in respect of Charge 54 and substitute one of 7 years.