From dockets to defences
Latest criminal cases, including Moorov doctrine; sentencing: bail curfew; withdrawal of guilty plea; dockets; non-harassment orders; sex offender registration; sentencing: firearms; consent defence
Moorov: a structured approach
As the High Court continues to deal with large numbers of serious sexual offences cases, many of the subsequent appeals centre on whether the Moorov doctrine of mutual corroboration applies.
The otherwise unremarkable case of AD v HM Advocate  HCJAC 84 (9 November 2017) is a good example of the structured approach used by the Appeal Court in determining such questions.
The 17-year-old appellant was convicted of rape committed on various occasions during 2014 on a boy aged nine or 10, when the appellant was 14, and a sexual assault on a 12-year-old girl on an occasion between June and December 2013 when the appellant was 13. Supporting the conviction, the Crown set out eight points of similarity as evidence of an underlying unity of intent and disclosing incidents in a course of criminal conduct driven thereby, despite the differences in the types of charge and the gender of the victims (McMahon v HM Advocate 1996 SLT 1139). There was no rule of law whereby what might be perceived as less serious sexual criminal conduct could not provide corroboration of what is libelled as a more serious crime.
Their Lordships had no difficulty holding that the two charges were closely linked in time, place, character and circumstances and the appeal was refused.
Bail curfew and sentence
While the appeal against sentence in Stewart v HM Advocate  HCJAC 86 (22 November 2017) was successful on other grounds, the fact that the appellant had already been on an 8pm-8am bail curfew for 15 months was also founded on. This was in the face of McGill and Harrison v Procurator Fiscal, Perth  HCJAC 150, which rejected the notion that lengthy spells on bail curfew should be taken into account unless there was something of “exceptional nature” in the circumstances. That attitude may have to change when electronic monitoring of bail becomes available in the near future.
In Stewart the appellant was sentenced to 12 months for possession of a kitchen knife contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, s 49(1). His uncontradicted explanation was that the knife was part of his work equipment as a scaffolder; it had fallen from his tool belt, he had placed it out of sight in his car and then forgotten to retrieve it. The sheriff had doubted this explanation, but it was accepted on appeal that it was not “so manifestly absurd that it can be disregarded” (McCartney 1998 SLT 160). Their Lordships indicated that a period on curfew did not require to be reflected by a sentence reduction. The appellant’s article 8 family rights were more relevant, and despite a bad previous record including an analogous offence, he was a single parent with a 16-year-old daughter due to sit her Highers. He had spent eight days on remand and eight weeks in custody subsequent to conviction. The sentence was quashed and a community payback order of 100 hours substituted.
Withdrawal of guilty plea
It is by no means unusual when an agent seeks to withdraw a plea of guilty previously tendered in a summary case. This invariably occurs prior to sentence when the accused has tendered a plea by letter without the benefit of legal advice and is ordered to appear personally for sentence. Ultimately it is a matter for the discretion of the court (MacNeill v McGregor 1975 JC 55; McGregor v MacNeill 1975 JC 57).
By contrast, in solemn procedure by its very nature pleas are tendered in the presence of the accused, almost always by their legal representative, and until recently they had to “sign the book” containing the specific plea.
In Stewart  HCJAC 90 (6 December 2017), an appeal following a reference from the SCCRC, the appellant had pleaded guilty to causing the death of a motorcyclist when driving while disqualified and uninsured in May 2012. He had applied for the return of his licence which would have entitled him to drive from 3 June 2012. He had obtained insurance which would have covered him at the time but for the fact that he had no licence. The fatal collision had been caused by the motorcyclist’s actions, but the appellant had been advised that by driving when he should not have, he was deemed to have caused the death by his presence on the road and the charge was a strict liability one. Some months later the Supreme Court overturned this view in R v Hughes  UKSC 56. The Crown did not resist the appeal as, since Hughes, no charges would be brought for death by driving. The court was satisfied this was an exceptional case and set aside the conviction.
A late amendment to the Criminal Justice and Licensing (Scotland) Act 2010 inserted s 288BA of the Criminal Procedure (Scotland) Act 1995, entitling the Crown to add acts or omissions connected to the sexual offences contained in the indictment or complaint by way of a docket. There was no debate about this provision or its scope, and confusion has reigned about whether such dockets should be read to the jury (they should be).
In HM Advocate v AD  HCJAC 2 (9 January 2018) the Crown had sought to include sexual offences allegedly committed between 1973 and 1974 in a docket to an indictment containing other sexual offences allegedly committed between 1973 and 1996 involving four other complainers.
A judge had earlier refused the Crown a retrospective extension of the 12 month period by 18 years, where the Crown had failed to explain the nature of the error necessitating such an extension. At a later hearing before a different judge evidence from these charges had been ruled inadmissible. A motion to include these charges in a docket was refused by a third judge; however on appeal authority was given to the Crown to proceed with an indictment containing the other charges and including the matters involving this complainer in a docket. The court was not persuaded a fair trial could not take place.
Non-harassment orders are invariably moved for by the Crown immediately following conviction. Often the court may require to continue the case for reports. If the accused is on bail the position can be preserved by simply continuing bail if the special conditions mirror the terms of the NHO sought.
In Donnelly v Procurator Fiscal, Glasgow  SAC (Crim) 1 (17 January 2018) the Sheriff Appeal Court refused an appeal where a NHO had been made while deferring sentence for the accused to be of good behaviour and meet other conditions. An argument that the sheriff had passed sentence and was functus was rejected. It does mean that a NHO can immediately be put in place after conviction, and avoids failing to make one when sentence takes place at a later date.
Sex offender registration
Most sexual offences committed by adults under the Sexual Offences (Scotland) Act 2009 and other common law charges deemed to contain a significant sexual element require the accused to register under the Sexual Offences Act 2003. This is an onerous condition requiring the offender to complete and submit to the police a lengthy form, and provide immediate updates when changing address. The intent is, of course, to enable police to trace and interview or eliminate from enquiries likely suspects when a serious sexual offence has been committed. For higher-risk offenders a sexual offences prevention order will be sought, either by the Crown on conviction, or by the police in consultation with the local MAPPA committee.
The relevant registration periods are set out in s 82 of the 2003 Act and range from 5-10 years and in the most serious cases indefinitely.
Against that backcloth Cooper v Procurator Fiscal, Aberdeen  SAC (Crim) 19 (12 December 2017) is a helpful case when dealing with less serious offences. The appellant had no previous convictions and was in employment. The sheriff did not consider the offence serious enough to warrant a community payback order and imposed a fine of £300. This had the effect of requiring the offender to register for five years (as indeed an admonition would have). It was argued that given the nature of the present case the requirement was disproportionate and contravened the appellant’s Convention rights; however it was pointed out that the Appeal Court had found the provisions Convention-compliant (Hay v HM Advocate 2014 JC 19). The Sheriff Appeal Court said that whether a fine was a greater or lesser punishment than a CPO was a subjective matter. It quashed the sentence and imposed a six month CPO with supervision. If the order is successfully carried out, registration is only required for the duration of the order. This course does necessitate obtaining a criminal justice social work report, as a level 1 CPO work order which does not require a report would result in a five year registration requirement.
I mentioned recently the perils that can occur when stun guns are bought when abroad on holiday or online from an offshore source: Morton v HM Advocate  HCJAC 21; 2017 SCCR 297 (Journal, June 2017, 28 at 29). They are classed as firearms and if, as in Turnbull v HM Advocate  HCJAC 85 (1 December 2017), they are disguised to look like a torch, mobile phone or the like, in terms of s 5(1A)(a) of the Firearms Act 1968 a minimum sentence of five years applies unless there are exceptional circumstances.
In Turnbull the item was recovered during a drugs search in a rucksack in the appellant’s bedroom. He had purchased it around two years earlier over the internet for about £12. He had tested it on himself then put it away. These circumstances were not deemed exceptional. The Appeal Court highlighted the deterrent nature of this legislation; the mere possession of such weapons can create dangers to the public (R v Zakir Rehman  1 Cr App R (S) 77 at para 12).
Defence of consent
With the advent of DNA evidence in the late 1980s the main line of defence in rape cases is consent: see McGlennan v Kelly 1989 SCCR 352 and DNA flaws set to clear officer jailed for rape (Scotsman.com), whereas previously it was difficult to corroborate intercourse with the accused.
In Bakhjam v HM Advocate  HCJAC 11 (23 January 2018) the court was critical of a special defence of consent in a rape case where it was alleged the complainer had been administered drugs or alcohol whereby she had been intoxicated, unconscious or asleep and thus unable to give her consent. The complainer had reported the matter the following day; in her urine sample were traces of a psychoactive substance known as “Ivory Wave”. The forensic report suggested this could have been administered in water or alcohol. The complainer said she never had taken recreational drugs. She and her partner had been out for a meal with the appellant and all had consumed alcohol before going to a club. The complainer according to her partner became “really, really drunk” and had a row with him in the street. He decided to put her in a taxi and asked the appellant to take her home. The complainer had no recollection of leaving the club but woke up in the appellant’s flat at various times and found she was naked in bed with the appellant who performed sex acts on her. She woke up much later and found that she had been sick. She managed to leave the house and went to her sister’s where she exhibited distress. The appellant made no comment when interviewed by the police and did not give evidence.
At the conclusion of evidence the Crown withdrew that part of the libel relating to administering substances; the advocate depute’s speech recognised the defence position that the intercourse had been consensual. The Appeal Court rejected that the trial judge had acted unfairly in dealing with the consent aspect. It noted that in his charge the judge had said that although a defence of consent had been lodged, there was no contrary account of the events described by the complainer. In the defence speech it was said that the special defence was giving advance notice of “what he’s saying happened”. This was improper; the Appeal Court also regretted that the trial judge and advocate depute had “fallen into the same error” that the appellant’s position was one of consent or reasonable belief without evidence to support this line.
Frank Crowe, sheriff at Edinburgh