Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 112

HCA/2014/3199/XC

Lord Justice Clerk

Lady Paton

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

DUNCAN BROWN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: CM Mitchell; Gilfedder & McInnes (for Swinburne & Co, Glasgow)

Respondent: Erroch, AD;  the Crown Agent

1 July 2015

Introduction
[1]        On 23 May 2014, the appellant stood trial at Glasgow High Court on an indictment which comprised, at that time, of 21 charges of mixed physical and sexual violence against five different female partners over a 20 year period.  Charges 1-4 related to KK (charges 2 and 3 being common law rape).  Charges 5-9 and 11 related to TS (charge 7 being common law rape).  Charges 13-17 related to NM (charges 13 and 15 being rape in terms of section 1 of the Sexual Offences (Scotland) Act 2009).  Charges 18 to 20 related to LS (charge 18 being rape under section 1).  Charges 21 and 22 related to JH.  Charge 10 was a separate matter involving an assault on a boy, aged 12.  During the course of the trial the Crown withdrew the libel in respect of nine of the charges (3, 4, 9, 15-17, 19, 21 and 22).  The appellant was ultimately convicted of three charges of rape – two at common law (charges 2 and 7) and one under section 1 of the 2009 Act (charge 18).  He was also convicted of five other charges of physical and indecent assault (charges 1, 5, 6, 10 and 11).

[2]        On 9 July 2014 the judge imposed an extended sentence of 14 years, comprising a custodial element of 10 years and an extension period of 4 years.

[3]        The appellant appealed against his conviction for rape at common law on charges 2 and 7 on the basis that the trial judge had misdirected the jury in relation to what constituted consent at common law, as distinct from under the statute.  In due course, he was also permitted to challenge the statutory rape conviction (charge 18).  This was on the basis that the trial judge had directed the jury that they were entitled to take into account the appellant’s behaviour relative to the common law rape charges when deciding whether the appellant had a reasonable belief on the statutory charge.

[4]        At the hearing of the appeal against conviction, before a differently constituted bench, the Crown conceded the appeal in respect of all three charges (2, 7 and 18).  Unfortunately, there is no written record of the nature of the concession or the basis for the court’s decision thereafter to quash the convictions.  It is the court’s understanding, however, that the Crown conceded both the misdirection points. 

[5]        The first matter for decision is the application by the Crown to be granted authority to bring a new prosecution in respect of charges 2, 7 and 18.  The advocate depute argued that the quashing of these convictions was not because of any fault on the part of the Crown.  Although the motion was opposed, there were no special features pleaded as to why such authority should not be granted.  In these circumstances, where the court has also heard that all three complainers want to give evidence again in relation to the rapes, the Crown will be granted authority to bring a new prosecution (Criminal Procedure (Scotland) Act 1995, s 118(1)(c)).

[6]        The second matter is the issue of sentence in respect of the remaining convictions (1995 Act, s 118(3)).  Sentence was not dealt with at the hearing of the appeal, apparently because of a desire of the court to obtain further information from the trial judge.  The trial judge has prepared a report on the remaining charges (1, 5, 6, 10 and 11), in which he describes the appellant as a man who habitually and regularly beat his partners, usually in the context of being drunk. 

[7]        Charge 1 involved repeated assaults on KK, often by punching and kicking, over a four year period some 15 years ago.  On one occasion the complainer’s jaw was broken.  The complainer described the assaults as occurring several times per week.  Her treatment at the hands of the appellant is said to have had a significant effect on her health and wellbeing.  It was, as the trial judge describes it, a sad and depressing catalogue of maltreatment which continued until the appellant moved on to his next victim. 

[8]        Charge 5 related essentially to indecent assaults on the appellant’s second partner, TS, including digital penetration.  One incident involved the appellant forcibly removing a contraceptive device from the complainer’s vagina, which was carried out with the stated intention of ensuring that she became pregnant.  There was a repeat of this conduct on a subsequent occasion.   The assaults included biting the complainer’s neck and breasts.  Charge 6 involved very similar circumstances to charge 1.  It dealt with a five year period between 2000 and 2005 when there were repeated assaults on TS, usually involving punching and kicking to the face.  On one occasion there was a prolonged assault which led to the complainer thinking that she was going to be killed.  Charge 11 was a single act of assault, involving the appellant kicking bleach at TS.  The bleach went into the face and eyes of the complainer, with a nasty but temporary effect.

[9]        On an occasion (charge 10) when the appellant was drunk and angry, he punched a boy, namely D, knocking him to the ground.  D was injured.

[10]      The appellant is now aged 50.  He has had a deprived upbringing with periods in care as a child and alcohol dependency thereafter.  He met the female complainers in homeless accommodation.  He has never been employed and is described as functionally illiterate. 

[11]      The court must proceed to sentence on the basis of the convictions which remain.  These involve a catalogue of physical, and some sexual, abuse against two former partners and one assault on a boy.  The Criminal Justice Social Work Report indicates a lack of both insight and remorse.  The appellant has a significant list of summary convictions for assault and public disorder, often related to domestic abuse, as well as breaches of bail conditions.  Some convictions have attracted short custodial sentences. 

[12]      Having regard to all the circumstances, the court regards the convictions which remain as of considerable significance.  What it will do is quash the existing sentence and substitute instead one of five years imprisonment.  As the judge reports that he would have imposed only a determinate sentence, rather than an extended one, in the event of the convictions for rape being quashed, there will be no extended element.