Scottish High Court of Justiciary Decisons

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Cite as: [2017] HCJAC 64, 2017 GWD 29-462, 2017 SCL 947, [2017] ScotHC HCJAC_64

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Menzies

Lord Brodie

[2017] HCJAC 64

HCA/2017/75/XC

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

IVAN KEITH DAVID MAXWELL

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Macintosh; John Pryde & Co

Respondent: K Harper, AD; the Crown Agent

17 August 2017

Introduction

[1] On 13 December 2016, at the Sheriff Court in Dumfries, the appellant, who was aged

44 at the time of the trial, was convicted of two charges which libelled that:

“(1) on an occasion between 8 November 2012 and 7 November 2013, at ... Castle

Douglas you… did sexually assault [AW], ... push her onto a bed and lie on top of

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her body, produce a condom, and ... intentionally direct a sexual verbal

communication at her in that you did utter sexual remarks; CONTRARY to

Sections 3 and 7(1) of the Sexual Offences (Scotland) Act 2009;

…

(4) on various occasions between 15 June 2013 and 14 June 2014, ... at various

locations within the Dumfries and Galloway area you … having on at least one

earlier occasion met or communicated with [KJ], aged 15 … did, ... travel with the

intention of meeting said person and intend to engage, ... in unlawful sexual activity

involving said person ...; CONTRARY to the Protection of Children and Prevention

of Sexual Offences (Scotland) Act 2005, Section 1;”

The appellant was acquitted of a further charge which libelled that:

“(5) on various occasions between 15 June 2013 and 14 June 2014, ... at the Royal

Bank of Scotland … Kirkcudbright, the Royal Bank of Scotland …Dalbeattie, and the

Royal Bank of Scotland … Castle Douglas you … did penetrate sexually with your

penis the vagina of [KJ], aged 15 …; CONTRARY to Section 28 of the Sexual Offences

(Scotland) Act 2009.”

The appellant was also acquitted of a further sexual assault on AW (charge (2)) occurring

around the same time as charge (1) by pressing and rubbing her thigh.

[2] On 17 January 2017, the appellant was sentenced to 4 months imprisonment in

respect of charge (1), and 12 months consecutive in respect of charge (4).

[3] The grounds in the Note of Appeal against conviction challenged: (1) the admission

of evidence of internet contact between AW and the appellant around the time of the events

libelled in charge (1); (2) the verdict to find the appellant guilty of charge (4) yet acquitting

him of charge (5); and (3) the basis on which the jury could use charge (4) to corroborate

charge (1). Ground (3) was not insisted upon at the appeal hearing.

The evidence

[4] The first complainer, AW, was 19 years old at the time of the trial. She had been a

friend of the appellant’s daughter and visited the appellant’s home. The incident in

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charge (1) occurred when she was 15. She was in the bedroom of the appellant’s daughter.

They were getting ready to go out for the evening. AW was sitting on the bed when the

appellant came in and sat beside her. He took hold of her arms and pressed her down onto

the bed. He had a condom in one hand, which he waved at her and said words to the effect

that “You’ll be needing this tonight”. AW was angered and scared by this behaviour.

[5] AW spoke to the incident libelled in charge (2), when the appellant sat down beside

AW in the living room of the house, placed his hand on her thigh and pressed it whilst

inviting her to stay over after what had been an evening of babysitting. She had

immediately left the house.

[6] The Crown attempted to lead evidence of Facebook messages received by AW from

the appellant. The first message (undated) was sent one night after midnight. It read “U

should be sleeping lol xx”. The second message, which was dated 15 August (no year) and

sent at about 9.00am, read “Is that u just getting home tut tut lol”. The appellant objected to

this evidence on the basis that the messages: (a) were not the subject of any charge; (b) were

irrelevant to the proof of the sexual assaults on AW; and (c) amounted to an attack on the

appellant’s character, which was not permissible without an application under section 270 of

the Criminal Procedure (Scotland) Act 1995.

[7] The Sheriff repelled the objection on the basis that the messages, whilst not per se of a

sexual nature, were capable of demonstrating the appellant’s interest in AW and shedding

light on the appellant’s interaction with her at the relevant time. The messages could be

relevant to the determination of whether any assault by the appellant on AW had been

sexual, and to whether the jury should draw the inference that the appellant’s behaviour

had been intentional or reckless.

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[8] The second complainer, KJ, who was 18 years old at the time of the trial, was also a

friend of the appellant’s daughter and went to school with her. The appellant had contacted

her by text after she had attended the christening of his youngest daughter. At that time she

was aged 14. He had complimented her on her dress. The appellant and KJ began to

exchange texts and Facebook communications. The appellant created a Facebook account

using a false name and date of birth (that of the complainer) to do this. According to KJ, the

appellant began a sexual relationship with her within a few weeks of the initial message.

The first occasion on which they had sexual intercourse was at the appellant’s home. This

did not form part of the libel, but no objection was taken to this. Thereafter, the appellant

asked her to accompany him to the bank branches which he cleaned. He drove her to

branches in Dalbeattie and surrounding towns, where they would have sexual intercourse.

The relationship lasted for about two years. It ended when KJ began a relationship with

someone else in early 2015. She was then about 16½.

[9] During cross-examination of KJ, it was suggested that the sexual relationship

between the appellant and KJ had not begun until KJ was 16. Despite her earlier testimony,

KJ accepted that this might be so. She was not sure of the exact dates.

[10] The Crown relied upon messages to KJ from the appellant’s Facebook account.

Many were intimate, and contained terms such as “babes” and “sexy”. A limited number

were specific as to date (May 2014), at which time KJ was 15. KJ could not say if the

remainder of the messages were sent before or after she had attained the age of 16. One

message from the appellant, which was dated 26 July (no year), depicted an image of a

snake followed by the word “missing” and an image of pebbles. This appeared to have been

sent after the break-up of the relationship. According to one witness, Mrs S, this message

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was a reference to the appellant’s penis and the complainer’s vagina. It might be taken as an

admission that sexual intercourse had taken place between them.

[11] The complainer’s mother, DJ, had been a friend of the appellant and his wife. In

2015, she had become aware that her daughter had been in a sexual relationship with the

appellant, who was in his forties at that time. She had noticed that, when her daughter was

15, she often accepted lifts from the appellant in his car. She had a suspicion that something

was going on, but she had dismissed the idea, as she was close friends with the appellant’s

wife. The appellant’s wife, PM, gave evidence that the christening of her youngest daughter

took place on 23 June 2013.

[12] The appellant did not give evidence.

Speeches

[13] In her speech to the jury, the Procurator Fiscal Depute made a general reference to

the need for corroboration. Specifically in relation to charge (5), she said:

“... what we’re looking for here is corroboration that the accused had a sexual

relationship with [KJ], which started when she was 15 years old ...

... we can also look for corroboration in ... the various Facebook messages

both dated and undated.

... you may come to the view that these dated messages ... when she was 15

were intimate messages and indicative of a sexual relationship.

... some ... were sent in 2015 after [KJ] was 16 ... Mrs [S] gave evidence that

[the image of the snake etc] was known to her to be a reference to his private parts

missing her private parts and of a sexual nature ...

So what you have to decide ... is whether the evidence and surrounding facts

and circumstances corroborate the allegation that the accused had a sexual

relationship with [KJ] which started when she was 15 years of age”.

[14] The appellant’s address acknowledged that there was “clear evidence” that the

appellant engaged in sexual activity with KJ. It too referred to the need for corroboration,

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although not specifically with reference to charge (5). It tackled the significance of the image

messages which had been sent after KJ was 16. In relation to the messages before she was

16, the contention was that they did not establish a sexual relationship at that time; ie that

the Facebook images did not corroborate underage intercourse.

The charge

[15] The sheriff gave the jury standard general directions on corroboration and mutual

corroboration. He gave them specific directions on each of the charges. In relation to

charge (4), the jury were directed that the offence was “to do with sexual grooming” of

someone under the age of 16. It was an offence of, having met or communicated with the

child at least once before, intentionally meeting or communicating with a child under the

age of 16, with the intention of engaging in unlawful sexual activity. Prior communication

may have been by any method, but, on the subsequent occasions involving the travelling,

the sheriff stressed that the accused must have intended to engage in unlawful sexual

activity involving the child.

[16] The sheriff continued:

“the dispute is whether the Crown has proved that any such sexual activity took

place when the girl concerned, [KJ], was under 16, and rather than anything, that’s

what’s at issue. Is there corroborated proof that sexual activity took place and

charge 4, the travelling to these locations, took place when she was 16?

So, for the Crown to prove the charge, you would need to be satisfied that the victim

was under 16; the accused had previously met or communicated with her; and that

subsequently he met, travelled to meet, or arranged for her to travel to meet with

him for the purpose of engaging in sexual activity at a time when she was (inaudible-

coughing) age.”

[17] The sheriff directed the jury that charge (4) was “linked” to charge (5). The sheriff

gave the jury directions on charge (5), with which no issue is taken, which stressed the need

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for the Crown to prove, by corroborated evidence, the intentional or reckless penile

penetration of the complainer, when she was under 16.

Submissions

Appellant

[18] The appellant advanced two grounds of appeal against conviction. First, although

charges (4) and (5) were separate, they both required the conduct to take place when the

complainer was a child. The only live issue was the age of the complainer. No reasonable

jury could have acquitted of one charge and convicted of the other (Mitchell v HM Advocate

2008 SCCR 469 at para [111]). Penetration had not been raised as a topic for the jury’s

consideration. It was a step too far to surmise that the jury had themselves identified

corroboration of this element as a problem. Secondly, the evidence of the inappropriate or

indecent communication between the appellant and AW, other than as libelled in charges (1)

and (2), was either irrelevant, relating to character under section 270 of the 1995 Act, or

unfair as evidence of a crime not charged (indecent communication with a child; 2009 Act,

s 34; HM Advocate v Mair 2014 JC 137 at para [9]).

Decision

[19] The test for a successful appeal based upon an unreasonable verdict is a high one. It

involves demonstrating that no reasonable jury could have returned that verdict. The jury

found the appellant guilty of sexual “grooming” at various unspecified locations in

Dumfries and Galloway whilst she was under 16, yet acquitted him, by the verdict of not

proven, of unlawful sexual intercourse in the various banks where he worked as a cleaner.

The contention that these verdicts are inconsistent is not made out. It is correct to say that, if

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the only issue at trial had been the complainer’s age at the time of any sexual intimacy, there

would have been force in the view that the verdicts were inconsistent. However, that is not

the case.

[20] Although it is said that the defence position was simply that any sexual intimacy

took place after the complainer was 16, at no point was it agreed, or conceded by the

appellant, that sexual intercourse had taken place. The need for corroboration was raised in

the Crown speech, in relation not only to age but also to the act of intercourse. The charge to

the jury covered the need for corroboration not only of age, but also of sexual intercourse. In

these circumstances, the obvious explanation for the jury’s verdicts is not irrationality, but

that the jury perceived, not unreasonably, that the evidence of the Facebook message,

notably that depicting the snake, was not sufficient to support the complainer’s initial

testimony that sexual intercourse had occurred before the complainer had reached the age of

16. There was, on the other hand, ample evidence from the complainer KJ and the

surrounding facts and circumstances, including the Facebook material and KJ’s mother, that

the appellant had travelled to the various banks with the intention of engaging in sexual

activity with the complainer when she was under 16. This ground must accordingly be

rejected.

[21] The charges involving the complainer AW were that the appellant had sexually

assaulted her by, first, in late 2012 or 2013, lying on top of her, producing a condom and

making a sexual remark about her need for such a condom (charge (1)) and, secondly, in

2015 by pressing and rubbing her thigh (charge (2)). The evidence which was objected to

was that the appellant had sent Facebook messages to her, at or about the relevant time,

including “U should be sleeping lol xx” and “Is that u just getting home tut tut lol”. These

may have conveyed a flirtatious tone on the part of the appellant; inappropriate perhaps but

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not per se illegal. Section 270, upon which the original objection was based, relates to

defence evidence or defence questions, and has no application. It is going too far to

categorise the messages as evidence of bad character, such as material demonstrating

criminality. The question is whether the evidence was relevant to the establishment of one

or other of the charges; that is whether it made the commission of the offences, or one or

other of them, more or less likely. In the sense that they demonstrated a flirtatious interest

on the part of the appellant, and thus that any action on his part involving the complainer,

may have had a deliberate sexual element, the test of relevancy is met. This ground also

falls to be rejected, with the consequence that the appeal against conviction must fail.

Sentence

[22] The cumulative sentence of imprisonment of 16 months was said to be excessive. At

the time of the appeal hearing, the appellant had already served seven months. He had

never previously received a custodial sentence. The Criminal Justice Social Work Report

had said that he was eligible and suitable for the Moving Forward: Making Changes

programme. The appellant would be subject to the notification requirements under the

Sexual Offences Act 2003 for a period of 10 years. During any release on licence, he would

not be able to return to live with his wife because there was a 5 year old child in the

household. The appellant would require to seek homeless accommodation.

[23] It was submitted that the sheriff’s reasoning, while expressly noting the acquittals on

charges (2) and (5), appeared to condemn the appellant for his behaviour in engaging in a

sexual relationship with KJ after her 16th birthday. A non-custodial sentence could be

appropriate where no sexual intimacy took place (Kilgallon v HM Advocate, unreported, High

Court of Justiciary, 7 May 2010). A Community Payback Order with a programme

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requirement, unpaid work, and a restriction of liberty order would have met the

requirements for punishment, deterrent and denunciation. Alternatively, the sentence of

imprisonment was excessive, where no sexual activity with the complainer, KJ, was proved

to have taken place before her 16th birthday.

[24] The sheriff considered that the charges involved predatory behaviour by a man in his

forties towards teenagers. He referred to the planned, manipulative and controlling conduct

of the appellant. He disagreed with the assessment of a “low risk” of further offending in

the CJSWR. In 2013, the appellant had been convicted of an assault on a child. He had

already been the subject of a CPO for benefit fraud with a significant number of hours of

unpaid work. Because of his denial of the offences, participation in a sex offender’s

programme was unlikely to be successful. The sheriff therefore considered that a custodial

sentence was merited.

[25] Had charge (1) stood alone, a custodial sentence could not have been regarded as

appropriate. On the other hand, as distinct from Kilgallon (supra), the appellant was not a

first offender and the conduct in charge (4) was repeated and the offences involved two

complainers. In these circumstances, it is not possible to fault the sheriff’s reasoning that

only a custodial sentence was appropriate to reflect the gravity of the combined offending,

especially that in charge (4). Having regard to the court’s view that, had charge (1) stood

alone it would not have attracted a custodial sentence, a consecutive disposal cannot be

regarded as appropriate. The sentences will be quashed and a cumulative sentence of

12 months substituted.