Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 42

HCA/2015/002193/XC

 

Lord Brodie

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

MATTHEW MARTIN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  M MacKenzie; Faculty Criminal Appeals Service

Respondent:  Edwards AD; Crown Agent

29 April 2016

Introduction

[1]        The appellant was indicted at the Sheriff Court at Perth on seven charges.  On 6 May 2015, after trial, he was convicted of each of charges 2 -7 and acquitted of charge 1.  Charge 2 libelled a breach of the peace: the charge narrated that on 14 August 2013 at a layby on the A85 Perth to Oban road near St Fillans the appellant set fire to a caravan belonging to him.  Charge 3 libelled a breach of the peace: the charge narrated that on 22 October 2013 at the same layby on the A85 road the appellant set fire to a caravan belonging to him.  Charge 4 libelled wilful fire raising: the charge narrated that on 3 November 2013 the appellant set fire to an armchair in the common close of the building at 1 Cornton Place, Crieff and the fire spread to the fabric of the building causing serious damage and endangering the lives of the occupants.  Charge 5 libelled wilful fire raising: the charge narrated that on 24 April 2014 at the same layby on the A85 as libelled in charges 2 and 3 the appellant set fire to a caravan.  Charge 6 libelled theft from a lock-fast caravan of a jacket and kettle at a different layby on the A85 on 25 June 2014.  Charge 7 libelled wilful fire raising: the charge narrated that on 15 July 2014 at the layby on the A85 which was the locus in charge 6 the appellant set fire to a caravan.  The caravan in each of charges 6 and charge 7 was the same caravan.  The appellant was acquitted of charge 1 which libelled wilful fire raising: it narrated that on 26 March 2013 in premises in Glasgow the appellant set fire to a door frame causing damage.  

[2]        The appellant had convictions for domestic assault in 2008 and 2012.  The sheriff imposed a sentence of four years imprisonment.  The appellant has appealed against conviction and sentence.

 

Ground of appeal against conviction

[3]        The ground of appeal against conviction is that the sheriff erred in rejecting the appellant’s submission of no case to answer in respect of charges 2 to 7.  In particular, it is averred that there was insufficient evidence of identification of the appellant as the perpetrator of the offences.  At the stage when the no case to answer submission was made charge 1 was still before the court. 

 

Evidence

[4]        Certain evidence was agreed by joint minute and a number of witnesses gave evidence.  With the exception of charge 5, to which we shall return later, the following is a summary, taken from the Sheriff’s report (not verbatim), of the evidence in relation to each of the charges.

Charge 1:

On 26 March 2013 at the flat occupied by the appellant at 7 Longstone Place, Glasgow there was a fire which was extinguished by fire officers. Police officers also attended. The appellant was alone in the flat when the police attended. The frame of the front door had been set on fire. Police found between ten and twenty tins of accelerant within the appellant’s flat.

Charge 2:

Between 1 May 2013 and 30 June 2013 the appellant purchased two caravans which he parked in a layby on the A85 Perth to Oban road near St Fillans. On 14 August 2013 one of the caravans caught fire and the appellant called the Scottish Fire and Rescue Service. Between 9 am and 10 am a fire crew attended and extinguished the fire. The appellant was at the scene and no one else was present. The crew manager assumed that the fire had been started deliberately because it did not have a power supply and had been unoccupied.

 

Charge 3:

On 22 October 2013 the other caravan owned by the appellant caught fire. An unknown person reported the fire from a mobile telephone. Fire officers attended at about 10:30 pm and found within the caravan two separate fires which they subsequently determined had been started deliberately. The fire was attended by the same crew manager who had attended the earlier fire. When the crew attended the appellant was present with a generator and a light. The appellant was the only person in the vicinity.

 

Charge 4:

On 23 October 2013 the appellant was rehoused and provided with accommodation at flat E, 1 Cornton Place, Crieff. This was a three-storey block of flats with a half landing between the first and second floors. Flat E was on the second (top) floor. Flat F, the other flat on the second floor, was occupied by Lorna Henderson. Prior to 3 November 2013 she had placed an armchair on the half landing in order that her mother could collect it along with other rubbish and take it to the skip. The half landing was a few steps down from the second floor.  On 3 November 2013 the armchair was deliberately set on fire by the direct application of a naked flame. The fire took effect and spread to the fabric of the building. The flats were occupied and at least one was occupied by a family with children. Fire officers attended and extinguished the fire. The appellant was in his flat when the fire brigade attended. A tin of lighter fuel was found on a table in the living room in the appellant’s flat.

 

Charges 6 and 7:

On 15 July 2014 a caravan belonging to Andrew Cooper, which was parked in another layby on the A85, about a mile from the layby which featured in the earlier charges, was set on fire. It was likely that the fire had been started deliberately by the ignition of combustible materials. At about 1 am on 16 July 2014 a police tracker dog tracked a scent from the burnt caravan to the door of the caravan belonging to the appellant in the other layby. The caravan which went on fire had been parked in the layby for 4 to 6 weeks. The door had been locked. Two or three weeks before the fire someone had forced open the door just above the lock and stolen a number of items. When the owner of the caravan told the appellant that the caravan had been broken into the appellant had put his head down and walked away.  When the appellant’s caravan was searched articles from the burnt out caravan were recovered.

 

 

The submission of no case to answer

[5]        The sheriff repelled a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. He states that he applied the principle in Howden v HM Advocate 1994 SCCR 19 and when he did so it was clear that “there was an adequate weight of circumstantial evidence to implicate the appellant in respect of all the charges”.  He noted the evidence of the fire fighters regarding the presence of the appellant at each of the fires and their observations that they had not been called previously to any fires in that area.  They had also spoken to the appellant’s apparent lack of concern in relation to the fires.  The presence of multiple tins of accelerant, together with evidence that the fires in charges 3 and 4 had been started deliberately, would also permit an inference to be drawn by the jury in relation to charge 1.  The appellant was found in possession of property identified as stolen from the caravan that was set on fire on 15 July 2014.  The sheriff took the view that these were “all properly matters for the jury properly directed and applying their common sense”. 

 

Submissions

Defence

[6]        Under reference to the summary of evidence set out in the Sheriff’s report, counsel submitted that the evidence did not provide a sufficient basis to conclude that the appellant was the perpetrator of each charge.  There was no direct eyewitness evidence that the appellant had started any of the fires. There was no forensic evidence. Presence at the scene was not enough. There was nothing unusual about his presence at each of the loci; no evidential significance attached to his actions. There was no thread in the evidence pointing to each of the offences having been committed by the same perpetrator. The offences had been committed at different times of day. The events described in each of charges 1 and 4 contained a different narrative from the other charges. The subject matter of the other charges did not in themselves point to the guilt of the appellant. There was no basis for applying the approach in Howden v HM Advocate in this case. That approach required there to be at least one charge which was independently proved by corroborated evidence. Only then would it be open to a jury to be satisfied that a second and subsequent offences must have been committed by the person who committed the first offence. It was accepted that on that basis an accused could be convicted of all the charges irrespective of the lack of corroboration in respect of the second and remaining charges. This approach had no application to the facts here. The necessary single corroborated charge was not present. In any event, even if there was proof of identification in relation to one charge, the necessary close nexus in terms of similar facts was wholly lacking in the other charges.

 

Crown
[7]        The advocate depute submitted that there was sufficient independent evidence to find each of charges 5 and 7 corroborated as a stand-alone charge.  Thereafter the approach in Howden v HM Advocate (supra) could be applied in relation to the other charges.  All the charges with the exception of charge 6 involved fire-raising. All except charge 4 involved unoccupied caravans. All, with the exception of charge 4, had occurred in lay-bys on the A85. The charges reflected what amounted to a series of fires in a short period of time. None of the offences had any apparent motive such as the making of an insurance claim. All featured the presence of the appellant as occupier (charges 2, 3 and 4), caretaker (charge 5) or neighbour (charge 7). The offence in charge 4 involved the flat to which the appellant had been moved after the fire libelled in charge 3. It would be open to the jury on the circumstantial evidence in relation to each of the other charges to be satisfied that the perpetrator of the offence in charge 5 (and/ or charge 7) had committed each of the other offences.

 

Discussion and decision

[8]        In the light of the approach urged on the court by the Crown it is necessary to examine in more detail the evidence in relation to charge 5.  Charge 5 was in the following terms: 

“On 24 April 2014 at a layby situated on the A85 Perth to Oban road outside St Fillans, Perthshire, you did wilfully set fire to a caravan and the fire took effect thereon and destroyed said caravan.” 

 

The evidence in support of charge 5 was wholly circumstantial. We remind ourselves of the requirements of proof in a circumstantial case. It is necessary to look at the evidence as a whole. Each piece of circumstantial evidence does not need to be incriminating in itself; what matters is the concurrence of testimony.  Corroboration is found in the totality of the evidence from at least two sources. The nature of circumstantial evidence is such that it may be open to more than one interpretation, and it is precisely the role of the jury to decide which interpretation to adopt.  The jury is entitled to reject evidence which is inconsistent with the guilt of the appellant precisely because it is inconsistent with circumstantial evidence pointing to his guilt which it has decided to accept. (Megrahi v HM Advocate 2002 J.C. 99 at pp 111-113)

[9]        The starting point in considering the evidence in relation to this charge is paragraph 13 of the joint minute of agreement which was entered into at the trial.  It is in the following terms: 

“On 24 April 2014 at a layby situated on the A85 Perth to Oban road outside St Fillans, Perthshire a caravan owned by Lief Stephen Yospa was set on fire.  The said fire took effect thereon and destroyed the caravan.  At this time the said Lief Stephen Yospa was in Wales, the accused was in possession of the keys for the said caravan and it was parked approximately two metres away from the accused’s own caravan.  A fire investigator concluded that it is likely that said fire was started deliberately by the ignition of combustible materials in or near the said caravan.”  

 

Paragraph 14 of the joint minute agreed that Crown production 27 was a book of photographs taken on 25 April 2014 which included photographs of the debris of the caravan referred to in paragraph 13 and the surrounding area. 

[10]      Paragraph 22 of the joint minute agreed that Crown production 31 was a true and accurate transcript of the interview of the appellant in relation to charge 5 which was conducted at 14.40 hours on 25 April 2014 at Perth Police Office.  At page 19 of the interview the following exchange takes place: 

“DC2:  See nearby Lief’s caravan went on fire, there was, was there a barbecue nearby?

 

Suspect:  Aye. 

 

DC2:  On the barbecue there was a blue, blue glove. 

 

Suspect:  Aye. 

 

DC2:  Did you ever see that blue glove before?

 

Suspect:  Aye.  It was me and my mate put it and it was full of grease from the caravan.  The handles, you know the hand, the winding legs, right, been greasing them, put it in there.  That’s my barbecue. 

 

DC2:  So, why was it at Lief’s caravan then? 

 

Suspect:  Eh when it was, it was blowing that day and my mate put it aside.  That caravan cause it was blowing all over him, the ashes from the the barbecue. 

 

DC2:  Right.  And I understand when you came into custody you had a blue glove in your pocket as well. 

 

Suspect:  Aha. 

 

DC2:  Yeah.  Do you think that’s a bit of a coincidence, that?  There’s a blue glove at the door or near to where the caravan was set on fire and you’ve got a blue glove in your property or in your possession.

 

Suspect:  That’s for my winding legs on my caravan. 

 

DC2:  Hmm. 

 

Suspect:  Put grease on the legs. 

 

DC2:  But do you know what I am trying to say to you here? 

 

Suspect:  Aha. 

 

DC2:  Is that where your car the caravans went on fire, there’s a barbecue sitting at the front door. 

 

Suspect:  Aha. 

 

DC2:  Or where the front door was. 

 

Suspect:  Aha. 

 

DC2:  And there’s a blue glove that is not fire damaged or not heat damaged at all. 

 

Suspect:  No. 

 

DC2:  It’s still fully intact.  Understand what I’m saying? 

 

Suspect:  Aye. 

 

DC2:  And it’s lying next to the caravan.  It was fully alight. 

 

Suspect:  Aye. 

 

DC2:  But it’s not touched. 

 

Suspect:  It was in the barbecue.  Cause my mate put it in the …

 

DC2:  And you’ve got a blue glove in your possession. 

 

Suspect:  Aye, cause I’ve still got to do the other leg. 

 

DC2:  Mmhmm. 

 

Suspect:  And I’ve forgot that was in my pocket cause my mate sticks stuff in my pocket all the time.  It’s a carry on, you know, with rubbish and bits and bobs he says ‘stick that in your pocket’ and then I stick it in my pocket.  So, sometimes we stick sweet wrappers in my pockets.” 

 

[11]      In his report the Sheriff summarises the evidence of the witnesses who gave evidence. Andrew Crumley was a friend of Mr Yospa, the owner of the caravan. Mr Crumley had stayed in it from time to time. In April 2014 there had been two other caravans and a camper van in the layby. The appellant’s caravan was parked at the end of the layby about 10 feet from Mr Yospa’s. Mr Yospa had returned to Wales. Sometime in April 2014 Mr Crumley gave the only key for the caravan to the appellant. Outside the appellant’s caravan there had been “all sorts of things” such as gas bottles, bicycles and barbecue equipment.

[12]      Robert Fletcher owned the camper van. On 24 April 2014 his camper van was parked about 500 yards away from Mr Yospa’s caravan. Mr Fletcher knew the appellant and had spoken to him earlier on the day of the fire. After the conversation the appellant had returned to his own caravan at the end of the layby. Later that night the appellant came to Mr Fletcher and asked to use his telephone in order to call the fire service. He told Mr Fletcher that Mr Yospa’s caravan was on fire and that the appellant’s own telephone was not working. He also told Mr Fletcher that somebody had set fire to Mr Yospa’s caravan

[13]      The appellant told Mr Liversedge, the crew manager of the fire service who attended the scene, that there were no hazards or power supplies in the caravan. George Ferguson was a firefighter who saw the appellant. He was the only person whom Mr Ferguson had seen.

[14]      Police Inspector McKinley attended and noted the round metal barbecue which was close to the damaged caravan and had in it a burnt branch, some ash and an undamaged blue latex glove. Christopher Williams, a watch manager of the fire service, noted that there was a tin of lighter fuel in the barbecue which had been about 2 feet away from the fire. He noted that the blue latex glove had not been damaged.

[15]      From these various sources the circumstantial evidence may be analysed as follows. The caravan in charge 5 was owned by Lief Stephen Yospa.  It was parked in a layby on the A85.  The layby extended along the side of the loch.  Mr Yospa’s caravan was parked approximately two metres away from the appellant’s caravan.  Mr Yospa returned to Wales leaving the only key for the caravan with his friend Andrew Crumley who stayed in Mr Yospa’s caravan from time to time.  Sometime in April 2014 Mr Crumley gave the only key for the caravan to the appellant.  Mr Crumley stated that outside the appellant’s caravan there had been a number of items including barbecue equipment and a propane cylinder.  Some of these items can be seen in photographs 1 and 2. Prior to the fire the barbecue had been moved to a point beside where the door of the burnt out caravan would have been. The photographs show the barbecue close to the debris. Although it was described as a barbecue by witnesses it might be more accurately referred to as a fire pit. It would be open to the jury to reject the explanation given by the appellant as to why the barbecue had been moved.  In the barbecue there was a charred branch on top of ashes and a somewhat burnt tin of lighter fuel.  A fire investigator concluded that it was likely that the fire had been started deliberately by the ignition of combustible materials in or near the said caravan.  Close to the end of the burnt branch in the barbecue was a blue latex glove.  When he was detained the appellant had a blue latex glove in his pocket.

[16]      The evidence of Robert Fletcher demonstrates that the appellant was in the vicinity on the day of the fire. He had spoken to the appellant earlier in the day on 24 April and the appellant had returned in the direction of his own caravan.  Later that night the appellant came to Mr Fletcher’s camper van and asked to use Mr Fletcher’s telephone in order to call the fire service.  Significantly, the appellant told Mr Fletcher that somebody had set fire to Mr Yosba’s caravan, thus demonstrating knowledge that the fire had been started deliberately.  The appellant told Mr Liversedge that there were no hazards or power supplies in the caravan. 

[17]      The advocate depute submitted that when all these strands of circumstantial evidence were taken together they provided a corroborated case identifying the appellant as having set fire to the caravan in charge 5.  In our opinion, that submission is well founded. It would be open to the jury to infer from that body of circumstantial evidence that the appellant did set fire to the neighbouring caravan.  When the evidence in relation to charge 5 is looked at as a whole, the concurrence of the testimony allows that inference to be drawn. Corroboration is found in the totality of the evidence.

[18]      We accept the submissions of counsel on behalf of the appellant that in respect of each of the remaining charges, when looked at individually, there was insufficient evidence to allow it to go to the jury. It is necessary to consider whether the approach in Howden v HM Advocate is available in relation to the other charges. Where one offence is proved by corroborated evidence it is open to the jury to look to the circumstantial evidence to examine the question whether it is proved beyond reasonable doubt that it was the same person who committed the proved offence and one or more other offences in respect of which there is insufficient evidence. (Howden v HM Advocate (supra) LJG (Hope) at p 24). The approach in Howden was approved in Gillan v HM Advocate 2002 SCCR 502, LJC (Gill) at paragraph 20:

"It [identification] comes from circumstantial evidence to the effect that the perpetrator on one charge was the same person who was identified as having been the perpetrator on the other."

 

In our opinion it was open to the jury to take this approach in relation to charges 2, 3, 4 and 7. Each of charges 2, 3 and 7 involved the catching fire of caravans in two laybys on the A85 within a mile of each other. The events libelled in charges 2 – 7 occurred over a period between August 2013 and July 2014. None of the offences had any apparent motive.  All featured the presence of the appellant.  While the fire in charge 4 occurred in a building, it happened very soon after the offence in charge 3. It occurred in the same general vicinity, namely, an area of Perthshire. It occurred very soon after the appellant had been rehoused in the building.  In addition, in relation to charge 4 there was some circumstantial evidence capable of pointing towards the appellant as being the perpetrator.

[19]      In relation to charge 6, at the stage of the submission under section 97 of the 1995 Act, there was at least sufficient evidence to found a charge of reset of the stolen property.  That would be sufficient to allow the sheriff to repel the submission.

[20]      For the above reasons we are satisfied that the sheriff did not err in repelling the submission of no case to answer in relation to each charge and the appeal against conviction must be refused.

 

Appeal against sentence
[21]      In the ground of appeal it is averred that the appellant had not previously served a custodial sentence. He had longstanding mental health issues. It would have been appropriate for the court to have made further inquiries into the possibility of the imposition of a community payback order with a mental health requirement. In any event, if a custodial sentence was appropriate it was of excessive length.

[22]      Counsel submitted that the appellant had found it difficult to engage and had initially refused to speak to the social worker to assist in the preparation of the criminal justice social work report. With encouragement and support he was able to engage and without intervention his mental health problems would not be addressed. The Sheriff should have deferred sentence in order to obtain information as to whether the appellant would be a suitable candidate for a mental health treatment plan as a condition of the community payback order. While it was accepted that the appellant had failed to cooperate when a forensic psychologist had sought to carry out an assessment the appellant had subsequently agreed to do so after he had discussed the matter with his legal representative. Given the whole background circumstances and the information available to the Sheriff, he should have given the appellant a further opportunity to assist in having a report prepared to determine if a community payback order was a sentencing option that would reasonably have been available to the court. In any event, if a custodial sentence was the only appropriate disposal, the period of four years imprisonment was excessive. The Sheriff had failed to attach appropriate weight to the mental health problems of the appellant.

[23]      The Sheriff noted the history set out in the criminal justice social work report of mental health difficulties that the appellant had experienced between 2010 and 2014. After his arrest he had been remanded in custody on 17 July 2014 and fully committed on 24 July 2014. He remained in custody until 1 September 2014 when he was made the subject of an assessment order which continued until 3 November 2014. The Sheriff had before him a report dated 6 November 2014 prepared by Dr Andrea Macaulay, the psychiatrist who had responsibility for the appellant’s care during the assessment period. She concluded that there was no clear evidence that the appellant had ever suffered from a psychotic illness.  She could find no evidence that he was suffering from a mental illness at the time of the alleged offences. She stated that while the appellant continued to display some traits of schizoid personality disorder there were not enough symptoms present to reach a definitive diagnosis.  From the in-patient period of assessment it was clear that he did not currently have a mental disorder. She did not recommend any further psychiatric follow-up as there was no requirement for this. In addition, the Sheriff had a psychiatric report prepared by Dr Nick Hughes dated 6 January 2015 in which the opinion was expressed that there was no evidence of mental disorder.

[24]      Having reviewed the available information, the Sheriff concluded:

“However, as the appellant had been assessed by more than one psychiatrist as not suffering from any mental illness that requires hospital treatment, taking into account his past failures to engage with community support that was offered to him, his failure to cooperate with the psychologist instructed to prepare a report for the court and the fact that significant psychiatric or psychology support would nevertheless be available in prison, I was satisfied that only a custodial sentence would be appropriate in respect of these serious charges.”

 

We are satisfied that for the reasons given by him the Sheriff was fully entitled to come to that conclusion. As to the length of the sentence, the appellant was convicted of a course of conduct involving setting fire to caravans and the premises at 1 Cornton Place, Crieff. Charge 4 was a particularly serious charge given that the lives of other persons in the building, including a family, were endangered. In these circumstances it cannot be said that the length of the sentence was excessive. The appeal against sentence must be refused.