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Moorov: bridging the gap

15 August 16

Latest criminal cases, including sentencing; Moorov rule; assessment of witnesses; drink driving; plus a tribute to Sheriff Andrew Lothian

by Frank Crowe

Petronius: a tribute

I cannot let the recent sudden death of my former colleague Sheriff Andrew Lothian pass without reference to his columns on criminal law which appeared in the Journal for many years. Older readers will also recall his other welcome, witty contributions under the pseudonym Petronius.

An example from the former column in June 2000, dealing with successful Crown appeals against sentence, warns when pleading in mitigation: “You should not do so persuasive a job that you succeed in obtaining a sentence lenient enough to open the door to the sterner precincts of the High Court”! He went on to say that in the days of Lord Justice General Clyde, “the Appeal Court, it was alleged, increased sentences appealed against ex proprio motu quite early in the day’s proceedings pour encourager les autres”.

Discount in s 76 cases

In recent times, the only case I can recollect where sentence was raised by the High Court on a defence appeal was Murray v HM Advocate [2013] HCJAC 3, where seven years’ imprisonment at first instance was increased to nine-and-a-half, and the full discount for a s 76 plea was denied as the letter had not been tendered until the 55th day after full committal.

This strict approach generally has not been followed in the sheriff court, and it was reassuring that in HM Advocate v McKeever [2016] HCJAC 43 (1 April 2016), a discount of one third, in a death by dangerous driving case, was upheld in a Crown appeal where good reason was shown why the plea was not tendered until nine months after appearance on petition as the Crown had wished to add further aggravations. Given the history of the s 76 procedure, the court was unable to say the judge had erred or that the level of discount resulted in an unduly lenient sentence.

More Moorov

The Moorov doctrine continues to be a regular topic, no doubt fuelled by the large numbers of historical sexual abuse cases being dealt with in the High Court.

In RF v HM Advocate [2016] HCJAC 52 (6 May 2016), convictions in three out of 11 charges in such a case were quashed. At the outset, the appellant faced 13 charges alleging acts committed against family members between 1976 and 2004. The charges under appeal covered periods between February and March 1991, May 2001 and 2003, and May 2002 and 2004. The latter two charges concerned the same complainer.

The appellant had been acquitted of a related charge alleging conduct between July 2000 and 2001. The Crown case required the jury to find corroboration, relying on Moorov, between the first charge and the second and third, or to use the 2000-01 charge. The appeal grounds highlighted the time gap.

Although there were similarities in the circumstances, there were significant differences in age between the complainers and no suggestion that the gap could be explained by intervening lack of opportunity. The Crown suggested that only extreme cases should not be left to the jury.

The Appeal Court highlighted concerns expressed over the years about long lapses of time between charges relying on the doctrine. It considered there were no special or extraordinary features common to the charges compelling enough for the jury to have been entitled to infer the necessary underlying unity of intent, Moorov could not apply and the judge ought to have upheld the submission of no case to answer.

On 15 July 2016, a different bench quashed convictions in one case, RG v HM Advocate [2016] HCJAC 60, and refused the appeal in another, JL v HM Advocate [2016] HCJAC 61.

RG had been convicted of lewd practices towards two pre-pubescent girls. One had been aged nine or 10 years between January 1977 and May 1978, and the other had been aged between four and seven between March 1988 and 1990. RG had been acquitted of two other charges on the indictment. A no case to answer submission had been repelled by the sheriff.

The defence alleged that there were no special features that made the similarities compelling despite the time gap. The Appeal Court regarded the similarities between the charges as superficial and the differences substantial. The Crown case had been that the offences were opportunistic and not suggestive of a course of conduct systematically pursued. The convictions were quashed.

By contrast, in JL, the appellant had been convicted of sexual abuse of his daughter, younger cousin and stepdaughter between October 2006 and April 2014. The Appeal Court summarised the principles, namely that there is no maximum interval of time fixed by law beyond which Moorov cannot apply.

The search is always for an underlying unity of intent so as to indicate a course of conduct on the part of the accused. The more similar the conduct is in terms of character, the less important a significant time gap may be. Even where there has been a substantial interval, compelling similarities will merit consideration of the whole circumstances for the jury. The court listed nine important areas of similarity that presented a compelling picture indicative of a systematic course of conduct.

The function of the judge is to assess whether there is a sufficiency of evidence, and that of the jury to decide whether they find the evidence sufficiently compelling to conclude the incidents were part of a single course of conduct.

These cases are helpful for practitioners to determine whether a no case to answer submission requires to be made, or whether the circumstances are such that the jury must consider whether they match the Moorov doctrine.

Summary appeals: witness assessment

A fact often overlooked is that the vast majority of criminal trials are decided by a single judge – sheriff, summary sheriff or justice of the peace – and most are determined on the court’s assessment of credibility and reliability.

Appeals challenging the trial judge’s assessment are rarely successful, although they may highlight the contested nature of the evidence and criticise the reasoning given for being satisfied of guilt beyond reasonable doubt.

Two recent cases highlight the courts’ approach where an appeal is taken on this basis – ultimately, as in all such appeals, a miscarriage of justice has to be shown.

On 31 May 2016, the Sheriff Appeal Court quashed convictions in Aien v Procurator Fiscal, Livingston [2016] SAC (Crim) 18, while on 15 July the Appeal Court in Dick v Procurator Fiscal, Dumfries [2016] HCJAC 62 upheld the conviction, albeit on a majority.

Aien had been convicted under s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and of possession of an offensive weapon (a metal bar). The complainer was collecting his daughter from the child’s mother, the appellant’s sister, for contact. Relations between the families were strained and when the appellant turned up, trouble broke out. The appeal court had copies of the various statements made at the time, including by the child’s grandmother, who had since died.

The sheriff found that the appellant had shouted, sworn and threatened the complainer, who was sitting in his car with his girlfriend, and repeatedly struck the car windscreen with the bar, terrifying the occupants. There was no evidence or finding of damage to the vehicle; in the application for the stated case it was said that no reasonable sheriff, properly directed, could have returned a verdict of guilty in the absence of damage – implying that the two occupants could not be regarded as credible and reliable.

The sheriff founded on the fact that the girlfriend did not know the appellant, nor was involved in any dispute with his family; she was critical of the appellant’s evidence and how it did not sit well with his mother’s statement. The sheriff suggested the appellant had gone to “sort out” the complainer. The mother denied the presence of a metal bar, but the sheriff found, despite no evidence of damage, that the windscreen had been struck with force.

The Appeal Court concluded there was an insufficient explanation for the sheriff accepting the complainer’s and his girlfriend’s evidence as credible and reliable. Quashing the convictions, it reiterated the importance of judges at first instance giving a full account of the evidence led, making discrete findings in fact to cover the relevant evidence on which the decision was based, and the reasons for making these.

Dick was accused of killing and removing a buzzard, contrary to the Wildlife and Countryside Act 1981. A couple who lived nearby had spotted the accused, whom they knew as the local gamekeeper, killing the bird, wrapping it up and taking it away in his vehicle. They reported the matter and buzzard feathers were recovered at the locus.

A week later, police accompanied the couple to the estate, where they saw and identified the accused as the culprit. When detained and charged, he made no comment. Subsequently, evidence was led of an alibi that the accused had been at a wildlife training course and could not have been present at the time of the offences.

The sheriff accepted the couple’s evidence, explaining that they both knew him, bore no ill will towards him and recognised his vehicle. Their evidence was thoughtful and careful. He rejected the alibi as it was possible to have attended the course, left earlier than stated and been at the locus at the relevant time. The appellant conceded he had been in the vicinity later that day. He also had a motive, since he was involved in rearing pheasant chicks.

Dissenting, Lord Menzies was critical of the reasons given for rejecting the alibi evidence as inadequate and insufficient to support the decision to convict. The other judges were satisfied with the reasoning given and that there were legitimate bases to reject the alibi evidence.

Drink driving

There are few Scottish sentencing guidelines, and in the past, many – although helpful – were often no more than asides in cases which were not thought important to place on the Scotcourts website.
Such a fate almost befell Russell v Troup 2003 SCCR 753. Fortunately, it was reported, as it contained the simple rule of thumb that if an accused’s alcohol reading was well over the permitted amount, the minimum period of disqualification was inappropriate.

In that case, the accused had driven 17 miles before being caught with a breath alcohol reading almost four times the then limit. His disqualification was increased to three years.

Since then, the Scottish limit has been reduced from 35 to 22 micrograms. In Jenkins v Procurator Fiscal, Stranraer [2016] SAC (Crim) 14 (6 April 2016), the appellant had pled guilty at the trial diet to a drink driving charge after being intercepted by the police, swerving about the road at 10pm. He had a breath alcohol level of 87 micrograms, almost four times the new limit.

The sheriff disqualified him for 34 months, reduced from three years, and imposed a fine of £1,400, reduced from £1,500. He followed the magistrates’ sentencing guidelines for England & Wales, applying a multiplier to account for the different prescribed limits, which resulted in a disqualification based on a reading of 138 micrograms in England & Wales.

The Sheriff Appeal Court held he was correct to consider an enhanced disqualification due to the
relatively high reading, but misdirected himself by applying this formulaic calculation. The disqualification was reduced to 22 months and would be further reduced by five months if a drink-driving rehabilitation course was completed within the next year. The fine was also excessive given the culpability and risk presented, and reduced to £900 from a starting point of £1,000.

Where the court is sentencing with public safety and protection in mind, it is necessary to consider the risk posed by the offender; the level of the alcohol reading together with the offender’s antecedent behaviour, especially for drink driving offences, form two important factors in assessing risk. That is why the minimum period for a second drink driving offence within 10 years is three years.

This is a useful case which sets out the approach to be adopted and which may be expected in cases of this type.

Frank Crowe, sheriff at Edinburgh

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