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Cite as: [2024] ScotHC HCJAC_29, [2024] HCJAC 29

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2024] HCJAC 29

HCA/2023/000427/XC

Lord Justice Clerk

Lord Matthews

Lady Wise

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION AND SENTENCE

Appellant

against

HIS MAJESTY'S ADVOCATE

Respondent

Appellant: Culross; Faculty Services Limited for JBM Law Ltd, Larkhall

Respondent: The Lord Advocate (Bain KC); the Crown Agent

____________________

17 July 2024

Introduction

[1]

This is an appeal against conviction and sentence following the appellant's

conviction after trial on two charges. Charge 1 libelled the sexual assault, sexual assault by

penetration and rape of a young child M, on various occasions between 1 August 2011 and

19 December 2014, when M was 5-8 years of age. Charge 2 libelled sexual assault by

penetration of a young child E, on various occasions between 1 June 2011 and 19 December

2014, when E was 5-9 years of age. The appellant was, at the time of the offences, between

13 and 16 years old. In due course, on 18 August 2023, he was sentenced to 6 years'

imprisonment.

[2]

The appeal against conviction is based on an alleged misdirection by the trial judge

on what use could be made of evidence of the complainers' distress at the time of making

certain disclosures in 2020 and 2021. The sentence is argued to be excessive on the basis that

the trial judge failed to give sufficient weight to a variety of mitigating factors.

The appeal against conviction

[3]

The offences were said to have occurred during periods when the appellant's

mother, who operated a child minding business at her home, looked after M and E as young

children. M's evidence was taken in the form of three Joint Investigative Interviews, the

recordings of which were played to the jury (who also had transcripts) as prior statements in

terms of s 271M of the Criminal Procedure (Scotland) Act 1995 Act. E gave evidence at a

commission and the recording of her evidence, where she was cross-examined, was played

to the jury.

Evidence of distress

[4]

M's mother spoke to M's various cognitive and mental health difficulties. M made

disclosures to C in the second half of 2020 to the effect that the appellant sexually abused

her. At the time of doing so she was extremely upset and "talking on and off". M initially

did not want to go to the police, but wanted to do so by March 2021.

[5]

In about June 2021 E's mother received a phone call from a police officer,

DC Jamieson, who wanted to speak to E. E's mother was not present during the call, but

when she got home she saw that E was distressed. She was shaking and crying and looked

very anxious. She spoke a little but was not ready to talk and only disclosed minor details.

DC Jamieson said when she had spoken to her, E made an allegation of abuse. She was

upset over the phone and was crying.

The case as presented at trial

[6]

The Crown case was based on a traditional application of the rule of mutual

corroboration. Prior to speeches the Advocate Depute confirmed that this was the basis

upon which the Crown sought a conviction. In addressing the jury it was clarified that the

offences against M in charge 1 depended for proof on the evidence of E in charge 2 and vice

versa, which the Advocate Depute maintained amounted, by reason of similarity of time,

circumstances and conduct, to a single course of conduct by the accused. The defence

speech took no issue with the proposition that the circumstances of the offences, if true, were

sufficiently similar to permit in theory the application of the rule of mutual corroboration.

However, counsel emphasised that it was "essential for the Crown case" that the jury

accepted the evidence of the complainers as credible and reliable, adding reasons why they

should not so conclude.

[7]

There was limited reference to the distress evidence in the speeches. The Advocate

Depute simply asked the jury if they believed that M and E were upset at the time of making

the disclosures. The value of this evidence was not addressed.

The trial judge's charge

[8]

The trial judge explained to the jury that in the second part of his charge he would

deal with certain matters in relation to evidence; and then direct them on where

corroboration could be found. He explained that before the jury could convict the accused

they would have to regard the evidence of the two complainers as credible and reliable in its

essentials. He then gave the challenged directions on distress:

"... evidence of their distress is simply a piece of circumstantial evidence; you can

accept or reject it.

If you do accept it, it cannot of itself corroborate their evidence about what they say

happened to them during these alleged incidents, but, if accepted, it could confirm

that the complainers suffered from a distressing event; it could corroborate their

evidence about their state of mind at the time of the incident; it can also support the

credibility of their evidence.

Before you could regard that evidence of distress as a source of corroboration, you

would need to be satisfied that the distress was genuine, and that it was due wholly

or partly to M and E reacting to what the accused did, and not wholly to some other

reason. ..."

This passage is not contained in the part of the charge in which the trial judge was directing

the jury on the corroboration requirement. It is followed immediately by his discussion of

the rule against hearsay. The judge then gave directions about the status of a Joint Minute,

hearsay and how to treat inconsistencies. He explained that the JIIs were an exception to the

hearsay objection, but drew attention to the fact that M's evidence therein was not given on

oath and not tested by cross-examination.

[9]

After a lunch break he turned to the issue of corroboration and gave directions on

mutual corroboration which are unexceptional and unchallenged. He directed the jury

specifically:

"In this case, if you accept a complainer's evidence in a charge, then you would have

to find corroboration from the other complainer whose evidence you accept as

credible and reliable who speaks to the other charge.

...

if you accepted E as credible

and reliable but you either did not believe M or you had a reasonable doubt about

her evidence, ... then that would be the end of the case, and you would require to

acquit the accused, because the only positive source of corroboration for E comes

from the evidence of M if believed and if reliable.

The same would apply if you accepted the evidence of M but rejected the evidence of

E, or had a reasonable doubt about its truth. In both those situations, you would be

left with one source of evidence against the accused, and that by law is insufficient to

convict, and, in that circumstance, if it arose in your judgement of the case, you must

acquit the accused. "

[10]

Later he said

"What you make of the Crown case is for you to decide, but on this indictment in

relation to these two charges you cannot convict of one charge and acquit of the

other. That is because of the need for corroboration on each charge, and the way that

the special rule relating to corroboration operates."

Submissions for the appellant

[11]

Counsel for the appellant submitted that the trial judge had misdirected the jury on

the use that could be made of the distress evidence. The effect was to make it available as

corroborative evidence. The distress was not de recenti and too far removed from the events

to provide corroboration. The directions might have confused the jury into believing that

there was an alternative route to conviction other than mutual corroboration.

Submissions for the Crown

[12]

The Lord Advocate submitted that on the facts of the present case the direction

served no purpose given it was not necessary for the crown to prove that the victims, young

children, did not consent. Had the directions related to an adult they would have been

accurate, but had no application in the case of children. It would be wrong to describe it as a

misdirection. In any event, if it were a misdirection it was of no materiality and was not

productive of a miscarriage of justice.

Analysis and decision

[13]

It is clear that the judge erred in giving the direction he did, since the issue was not

germane to the matters which the jury had to decide. In the particular circumstances of this

case it is difficult to see that such distress as might have been exhibited, so far removed from

the events, had any part to play. The complainers were children at the time of the offences,

so no issue of consent, the primary purpose of consideration of state of mind, could arise.

The directions were not only unnecessary, they were wrong, since state of mind is not a

relevant consideration in offences against children and further in seeming to equiparate non-

corroborative distress with the effect of a de recenti statement. That the direction was a

misdirection is accordingly established. Accordingly, it is not necessary to discuss any

implications from the lapse of time between the events and the distress.

[14]

However, this is a case in which it was made abundantly clear to the jury that the

only route to verdict was though the acceptance of both complainers as credible and reliable

witnesses. The directions on this matter were clear, and correct. This accorded with the

terms of both speeches which proceeded on the basis that the case was one which depended

for proof entirely on the application of the doctrine of mutual corroboration. It is trite that

jury directions ought to be looked at in context and not scrutinised in isolation or as if they

were part of a conveyancing document (Sim v HM Advocate 2016 JC 174 at para 32). The

charge should not be scrutinised as if the jury has not heard the evidence and the speeches

(ibid).

[15]

By the time the jury came to deliberate it must have been abundantly clear to them

that in order to convict they had to be satisfied that both complainers were credible and

reliable. In light of the whole context of the trial, the issue presented to the jury by counsel,

and the details of the charge quoted above plainly identifying the only route to verdict as

one dependent on mutual corroboration, it is fanciful to suggest that the jury might have

gained the impression that the distress evidence was another source of evidence from which

the they could find corroboration as a basis upon which they could convict. The

misdirection had no materiality and could not be said to have been productive of a

miscarriage of justice. The appeal against conviction will therefore be refused.

The appeal against sentence

Circumstances of the case

[16]

Both complainers spoke to the terms of the relevant charges which libelled as

follows:

"(001) on various occasions between 1 August 2011 and 19 December 2014, ... did

assault M ... pull down her lower clothing, touch and kiss her vagina over her

underwear, place your hand over her mouth, sexually penetrate her vagina with

your fingers and on one occasion you did pull down her lower clothing and

underwear, pull her by the body, place your hand over her mouth, and did penetrate

her vagina with your penis and thus rape her and you did instruct her not to disclose

your conduct towards her: CONTRARY to Sections 18, 19 and 20 of the Sexual

Offences (Scotland) Act 2009;

and

(002) on various occasions between 1 June 2011 and 19 December 2014, ... did

assault E, seize her by the body, place your hand over her mouth, place her on your

lap and sexually penetrate her vagina with your fingers and penis: CONTRARY to

Section 19 of the Sexual Offences (Scotland) Act 2009."

[17]

During the period libelled the appellant was aged between 13 and 16 years. His

mother, owned and operated a child minder business in her 3 bedroom mid-terraced home

which was attended by the complainers. Each complainer spoke to incidents happening

when they went upstairs to use the bathroom, or to get changed there for swimming lessons.

The accused would take them into his bedroom and assault them. They both spoke to

digital penetration on repeated occasions. E spoke of thinking that penetration was

sometimes with the appellant's penis, because of how she was sitting on his lap, and the

degree of pain, but was somewhat uncertain of this. M spoke of one incident of penile

penetration. M's Victim Impact Statement spoke to the detrimental effect of these offences

on her mental and physical health.

[18]

The trial judge imposed a sentence of 6 years' imprisonment. He concluded, having

regard to the nature of the offences, their duration, and all the circumstances of the case,

including the personal circumstances of the appellant, that only a custodial sentence would

be appropriate. That decision is not subject to challenge in this appeal. As to the length of

sentence, the judge reached the figure by (a) assessing that the sentence for an adult

committing these offences might have been one of 12 years custody; and (b) applying a fifty

per-cent discount for the appellant's youth.

Submissions for the appellant

[19]

The submission which underpins the appeal against sentence is that the trial judge

failed to give sufficient weight to a number of factors.

(1)

The appellant's age at the time of committing the offences (13-16), at the time of

conviction (24). The Sentencing Young People Guideline applied. Had he come before the

court when the offences were committed, when he lacked intellectual and emotional

maturity, his culpability would have had a lower assessment and the prospects of

rehabilitation would have been significant.

(2)

The absence of further offending since the offences, attributed in the CJSWR to the

"natural maturation process", confirms that belief in rehabilitation would have been

justified.

(3)

The appellant's personal circumstances: his mental health which had deteriorated

and for which he had sought therapeutic support; his role in caring for his mother, suffering

from a serious illness.

Analysis and decision

[20]

The appellant was convicted of serious offences against young children over an

extended period. Whilst there were mitigatory factors available, in terms of his youth, the

lack of subsequent offending, and his personal circumstances, the nature of the offending

and the harm caused meant that a custodial sentence was inevitable. The grounds of appeal

focus on a submission that the trial judge failed to give proper consideration to the factors

available in mitigation. There is however, an anterior issue, which relates to the process by

which the trial judge arrived at the length of the sentence imposed. It is clear that he erred

in starting with what he considered to be the appropriate sentence for an adult and

thereafter reducing it to take account of the appellant's youth. See Hay v HM Advocate 2020

JC 325 in which the court stated:

"[17] It is because the exercise of sentencing a child or young person is different

from that of sentencing an adult, that an approach which simply addressed the

sentence which would be imposed on an adult and then applied a discount to reflect

the fact that the accused is a child or young person would be inadequate. This is a

point which has been addressed several times. In Hibbard (para 15) the court noted

that while it was not illegitimate to have regard to adult sentencing levels to provide

a background understanding of the general sentencing range for the offences in

question, nevertheless `any sentence imposed on a child, with his welfare as a

primary consideration, ought normally to be significantly below those levels'. The

court observed that: `[T]he sentencing process should not simply involve an exercise

of looking at past cases involving adult offenders committing similar crimes and

then deducting a percentage'.

...

[21]

It appears, therefore, that the appropriate punishment part was selected by

considering that which would be appropriate for an adult and reducing it to take

account of the youth of the appellant. As the authorities show, the problem with this

approach is that it is unlikely truly to reflect the fact that the exercise of sentencing a

child or young person is different from that of an adult. Such an approach is

unlikely to result in a full and careful evaluation of the factors which make the

exercise different of the type which was conducted in Campbell v HM Advocate having

regard to the issues identified by Lady Hale in R (Smith) v Secretary of State for the

Home Department."

[21]

That sentencing a young person is a different exercise from that of sentencing an

adult is specifically recognised in para 3 of the Sentencing Young People Guideline issued

by the Scottish Sentencing Council. This is particularly because a young person will

generally have a lower level of maturity, and a greater capacity for change and

rehabilitation, than an older person. In sentencing a young person, particular regard should

be had to the maturity of the young person; and rehabilitation (para 9). In addition, the best

interests of the young person should be considered in every case, and must be a primary

consideration when the young person is under the age of 18 (para 8). The trial judge having

adopted an incorrect approach to sentencing by commencing with the appropriate sentence

for a mature adult rather than as a separate exercise for sentencing a young person, the

matter is at large for this court.

[22]

As already noted, the appellant is someone to whom the Sentencing of Young People

Guideline applied at the time of sentencing. Furthermore, the court was obliged, by normal

sentencing principles, to have regard to his age and maturity at the time the offences were

considered when assessing culpability. This is provided in the Sentencing Process Guideline

at para 10, consistent with the case of Greig v HMA 2012 JC 115.

[23]

The CJSWR disclosed that

"The emotional care that Mr A experienced is likely to have been problematic and he

suffered the effects of childhood adversity. His mother had her own difficulties, and

this is likely to have appears to have impacted on her ability to manage the demands

of parenthood (sic). As a young person Mr A experienced the impact of domestic

violence, parental absence, parental mental health difficulties and family breakdown.

Secrecy deliberate or otherwise is also something that has continued to be a factor

in family life. It is likely that all these factors were relevant to his harmful sexual

behaviours and continue to impact on his mental and emotional wellbeing."

[24]

The CJSWR contained a risk assessment, although this was noted to be a much less

in-depth one than would have been carried out had he been convicted at the time of the

offences. On a statistical assessment he was assessed as medium risk for both sexual

violence and non-sexual violence. This seems essentially to have been based on the

commission of the present offences. A further assessment suggested he presented a

minimum risk. The social worker notes that there have never been concerns about harmful

sexual behaviour before or after the dates outlined in the index offence, but that denial of the

offences prevented further exploration of the circumstances of the offending behaviour. The

social worker herself seems to have considered that the likelihood of repetition of a similar

type of offending behaviour is low, and suggested that it is possible that his natural

maturation process has been a factor that has enabled him to desist. Moreover she

considered it is likely that he will not require risk management to desist in future. He

appears to have been in full time employment since leaving school.

[25]

Essentially almost 10 years have passed since the offences were committed. The

appellant appears to have matured during that time, has been a useful and productive

member of society and taken on the role of caring for his mother. The information available

seems to indicate that it would be reasonable to consider him to present a low risk of

reoffending. Reflecting the seriousness of the offences, but also acknowledging the lower

culpability resulting from his youth at the time of the offences, the lack of repetition, the low

risk, and the process of maturation we consider that an appropriate sentence is one of

4 years. We will therefore quash the sentence imposed and substitute one of 4 years

imprisonment.