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Cite as: [2018] HCJAC 1, [2018] ScotHC HCJAC_1

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Menzies

Lord Turnbull

[2018] HCJAC 1

HCA/2017/000202/XC

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: L Kennedy; Capital Defence Lawyers, Edinburgh for E Thornton & Co, Oban

Respondent: McSporran, QC, Sol Adv, AD; Crown Agent

9 January 2018

[1] The appellant appeared on an indictment which alleged that whilst aged between 12

and 15 he engaged in sexual abuse, of various forms, against 3 other young males and

supplied them with cannabis and other stimulants. The charge in relation to one of the

complainers (JG) was withdrawn at the end of the Crown case.

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[2] It is asserted in the grounds of appeal that the reason for this was that the evidence of

this complainer related to conduct occurring before the appellant reached the age of 12. The

grounds of appeal maintain that the advocate depute in his speech specifically told the jury

that the evidence of JG remained available to the jury in considering the application of the

Moorov doctrine; that this was contradicted during the defence speech; and that the trial

judge in his charge did not correct the point made by the depute. It is contended that the

evidence was not available since the charge was withdrawn for reasons which had rendered

it fundamentally null. The trial judge’s directions were not sufficient to cure the crown

misstatement on a central aspect of the case. Further, it is maintained that a compatibility

issue arises, on the basis that it was contrary to Article 6 for the Crown to continue to

maintain that the appellant was factually guilty of a charge which had been withdrawn.

Evidence of JG

[3] JG gave evidence of three instances of sexual behaviour between himself and the

appellant when they were children. He had great difficulty in remembering detail. He did

however repeatedly state that the first incident (of three) occurred when he was 11 or 12-ish.

The appellant is eight and a half months older than JG so would have been approaching 12

or 13 at the time. JG was cross-examined in respect of police statements which were alleged

to be inconsistent with his evidence in court. This enabled the advocate depute to re-

examine on another matter in the statement, namely the extent to which he had been bullied

by the appellant.

[4] In the sift decision the court asked the Crown whether it would be willing to disclose

the advocate depute’s reasons for withdrawing the charge. The explanation is that JG did

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not speak with sufficient clarity about the items in the libel, his evidence being “extremely

vague”. The charge was not withdrawn for the reason contended for by the appellant.

Advocate Depute’s speech

[5] In the first 15 pages of this speech, the advocate depute made no mention of JG, and

concentrated on the evidence of the two remaining complainers. At page 16 he mentioned

JG’s evidence of having been bullied by the appellant, as supportive of his contention,

derived from the evidence of the remaining two complainers, that the appellant had been a

dominant figure amongst the children at the time. It was in that context that he made the

remark that the evidence of JG was available for them “for whatever use you want to make

of it”. Later he made two further references to JG. The first, in the context of a submission

that memory can be selective, referred to JG’s recollection of seeing graffiti in a disused

building. The second was in relation to the names of the children who had been friendly

together in the village at the time. He made no other reference to JG, and in particular at no

stage in his speech did the advocate depute refer to any of the evidence which JG gave about

sexual matters.

[6] The advocate depute proceeded to address the issue of mutual corroboration at

pages 25-30. It is clear that he did so entirely on the basis that mutual corroboration could

be applied as between the evidence of the two remaining complainers. He did not suggest

that the evidence of JG could be used in this way.

Defence speech

[7] At the outset of his speech, counsel said that he wished to adopt a large part of what

the advocate depute had said. Apart from the obvious fact of seeking an acquittal, he did

not take issue with anything which the advocate depute had said. He did point out to the

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jury that the evidence of JG could not be used for mutual corroboration in respect of the

charges remaining before the jury, but the advocate depute had not suggested otherwise and

counsel did not assert that he had done.

Trial Judge

[8] In his report the trial judge states that at the conclusion of the crown case, the

advocate depute sought to withdraw the charges from the indictment for his own purposes

and did not indicate what they were in court. In his speech the advocate depute made

reference to all the evidence, and to the potential for mutual corroboration in respect of the

evidence relating to charges 1 and 2. Defence counsel did not suggest any impropriety in

the crown speech, or assert that the law had been misstated.

[9] In due course, the trial judge gave the jury directions that matters of law were

entirely matters for him, and that they required to take their directions in law from him and

no-one else. He indicated to the jury that they would have to convict on both charges or

acquit on both charges, adding:

"So it would not be open to you as a jury to convict, as I say I am just giving you an

illustration here, on charge 1 and not guilty on charge 2. You would have to find that

both of these witnesses credible and reliable and capable of corroborating each other.

If they cannot corroborate each other, then the Crown has not been able to make this

case out to you. So as I said to you, I am putting it quite clearly to you, ladies and

gentlemen, this is an all or nothing situation. You either convict on both charges or

acquit on both charges."

Analysis and decision

[10] The grounds of appeal make several assertions of fact. These are:

(i) that the advocate depute “specifically told the jury that they could take into account

of the evidence of JG – and that it was available for the purposes of corroborating the

evidence of GR and SR.”,

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(ii) that this was “directly contradicted” by defence counsel,

(iii) that the trial judge misdirected the jury because he failed to resolve this

inconsistency,

(iv) that the charge relating to JG was withdrawn because the evidence related only to a

period when the appellant was below the age of 12, and thus exempt from

prosecution, and

(v) that the Crown “continued to maintain – without judicial demur – that the appellant

was factually guilty” of the charge relating to JG.

[11] These assertions of fact are repeated in similarly strong terms in the case and

argument and constitute the entire basis for the appeal. In the case and argument, it is

stated that the advocate depute’s speech contained a “blatant and material… misstatement

on an issue which had a critical bearing on the jury’s operation of the Moorov doctrine”.

There is absolutely no foundation in fact for any of these assertions. It is a matter of grave

concern to the court that such statements should have been made. In our view, it was

abundantly clear that the advocate depute did not suggest to the jury that the evidence of JG

was available to corroborate the evidence of the remaining complainers, and it is a complete

misrepresentation of his speech as a whole to suggest otherwise. It is equally clear that his

evidence remained available to the jury in respect of any other relevant issue arising in the

trial. Defence counsel in his speech did not “directly contradict” anything said by the

advocate depute. There was no “inconsistency” for the trial judge to resolve. The evidence

of JG did not suggest that the appellant must have been under the age of 12 at the time of all

the events to which he spoke; he was not challenged on this, the only challenge being to

suggest that none of what he said had in fact happened. There was no basis at all for

asserting that the charge had been withdrawn for the reasons suggested in the grounds of

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appeal (leaving aside entirely the question of whether there was any validity in the

argument on the merits associated with this point, which we need not address but which

appeared to turn on an alleged difference evidentially between an acquittal for “technical”

reasons and one for “substantive” reasons).

[12] After leave to appeal had been refused at first sift, counsel submitted an opinion in

support of a grant of leave at second sift, in which the factual assertions were repeated.

They were again repeated in the case and argument. In each of these documents, it was

stated that defence counsel “specifically put this prosecutorial misstatement in issue in his

speech to the jury”. Reference is made to the judge’s report, with the assertion that the judge

has failed entirely to recognise or grapple with the clear contradiction between the Crown

and defence speech, with the words “the trial judge is hardly behaving professionally -

seemingly ignoring this thorny issue altogether – as if it might go away”. In respect of the

trial judge’s remark that the advocate depute did not state his reasons for withdrawing the

charge concerning JG, it was asserted that the reasons were “palpably obvious” and asked,

in respect of the judge, “why did he not see what everyone else saw? He heard the same

evidence from JG.” It was stated that “It should have been clear to him that the…

withdrawal of charge (3) was on fundamental grounds”. It is added that the trial judge’s

observation that the defence made no reference to any improper remarks is “classically, an

attempt at deflection or projection of blame onto the defence”.

[13] Leave was granted at second sift, and, as a consequence of the robust assertions

made at this stage, transcripts of the evidence of JG and of both speeches were ordered.

Neither of these should have been necessary, and were only required because of the

unfounded allegations so strongly asserted by counsel for the appellant.

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[14] It is a considerable irony in this case that the case and argument contains the

statement “Reviewing and discussing the law and suggesting to the jury how it applies to

the facts in a case is sometimes unavoidable …but in doing so lawyers must be accurate”.

The requirement for accuracy applies equally in presenting an appeal, yet appears to have

been ignored by counsel. In presenting grounds of appeal for the consideration of the court

counsel have a responsibility not to make assertions of fact which cannot be supported or

justified. This appeal proceeds on allegations of (a) impropriety against the advocate

depute; and (b) failure of the trial judge to provide directions necessary to a fair trial. These

are serious allegations to make and should not be advanced on such a fanciful basis as in the

present case. That is all the more so when the criticism of the judge had been expressed in

such vehement, not to say florid, terms as here. In HMA v Bagan, unreported 6 June 1996,

grounds 1(a) and (b) were based on allegations of incorrect and improper statements in the

Crown speech on matters upon which the advocate depute had not cross examined the

appellant, and for which there was thus no evidence. These arguments were not supported

at the appeal, it being clear that the advocate depute was fully entitled to say what he did.

In dealing with this matter, the Lord Justice Clerk (Ross) expressed surprise and concern at

the fact that these grounds remained live until the hearing of the appeal, despite the fact that

it must have been known long beforehand that they were based on incorrect assertions of

fact. Since counsel in the appeal had also appeared at the trial (as in the present case)

“he must have known that the advocate depute had put but both these matters to the

appellant in cross examination, and it is accordingly surprising that ground of

appeal 1 in both its branches was ever put forward at all.”

[15] The court referred to McAvoy v HMA 1982 SCCR 263 where the court made certain

observations regarding the professional responsibility of practitioners in relation to grounds

of appeal containing criticisms of a judge’s charge, namely that:

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“...practitioners have a professional responsibility to see that criticisms of a judge’s

Charge can be read out of the charge and do not stem from recollections which can

be imperfect and unjustified. Whatever advantages unchecked and erroneous

criticisms of a judge’s Charge may have for the defence, they constitute an

unwarranted public criticism of the judge’s professional competence and result in a

waste of time and money”.

The court added that

“these observations also apply to grounds of appeal which turn out to contain

erroneous criticisms of the conduct of the prosecutor… it appears plain to us that

these grounds of appeal should never have been put forward in the first place… As

in McAvoy v HM Advocate there has been a waste of time and money because

unchecked and erroneous criticism was made of the advocate depute’s address to the

jury. It should not have been necessary, so far as ground 1 of appeal 1 is concerned,

for the transcript of the advocate depute’s address to the jury to be produced. Those

who draft or support grounds of appeal have a professional responsibility to ensure

that grounds of appeal are not formulated which have no sound basis in fact.”

Exactly the same can be said in the present case. It should never have been necessary to

have the Crown and defence speeches, or the evidence of JG, extended in this case. In fact,

the matter is worse than Bagan where there remained a ground of appeal for consideration.

In the present case, the whole factual basis for the appeal is unfounded, and the appeal

should never have been stated in these terms in the first place. Counsel for the appellant

should have known that the grounds of appeal either substantially misrepresented the

factual situation, or were plainly incorrect. The appeal will be refused.