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No hope at age 16?

14 October 19

Latest criminal cases, including sentencing children; amendment; Moorov rule; defective representation appeals

by Frank Crowe

Sentencing a child for a heinous murder

The appeal in Campbell v HM Advocate [2019] HCJAC 58 (10 September 2019) considered the 27 year punishment part of a life sentence for the abduction, murder and brutal sexual offences committed against a six year old girl who had been asleep in her own room at her grandparents’ flat. The appellant was aged 16 with no previous convictions but previous involvement with social work following a fireraising incident. He explained in the social work report that the offences resulted from his alcohol misuse and his curiosity and desire to experience “how it would feel to kill someone”.

In speaking to the psychologist he appeared irritated by evidence that the child was alive at the time of the sexual assault, as this would not have fulfilled his desire for necrophilia. The psychologist was pessimistic about the appellant’s ability to change.

It was argued that the punishment part was too long for a child offender: an appropriate figure would be in the high teens or perhaps close to the 20 year periods imposed in Mitchell 2012 JC 13 and on the appellant in R v Cornik [2015] EWCA (Crim) 110, who pleaded guilty to killing a teacher when he was just under 16.

The Appeal Court considered the appellant’s antisocial, narcissistic, psychopathic and sadistic personality, but set that against the best interests of the child as a primary factor and the hope that the punishment part might rehabilitate the appellant for eventual reintegration into society. It concluded the punishment part had to be in excess of 20 years but reduced the term to 24 years.

As I indicated in my last article, the jury of public opinion is still out on the presumption against short prison sentences, but in various quarters pressure is mounting for life to mean life in the most serious cases. Among other things that poses difficult considerations for the Prison Service in terms of discipline and rehabilitation, and ultimately a financially unsustainable penal regime. The Management of Offenders (Scotland) Act 2019, which received Royal Assent in July, will put the Parole Board on a proper statutory footing and presumably bring its members within the ambit of the Judicial Institute for training purposes. They will need to be at the top of their game for some of the decisions they will have to take in the future.

This appeal was discussed at a recent training seminar for solicitors. For what it is worth, a straw poll was taken and the meeting was unanimous: the appellant as a 16 year old offender should not have been named. Recent press articles about the cricketer Ben Stokes’ family concerning incidents in New Zealand before he was born suggest that the media will always consider this case, and the appellant, topical news.

Amendment as to place

The case of McCormick v HM Advocate [2019] HCJAC 54 (11 July 2019) inter alia considered this knotty problem. The appellant was charged with having the alleged offensive item, a sword, at a private address in Cambuslang. At the conclusion of the Crown case the depute fiscal moved to amend the charge by deleting “at” and inserting “in the wooded area near to”. This motion was opposed but was granted by the sheriff. The defence led no evidence and made a no case to answer submission that evidence of the crime being committed in a public place was not corroborated. This was refused; the accused was found guilty by the jury and sentenced to three and a half years’ imprisonment, a term which was not appealed.

While a police officer saw the appellant in the woods discard a bag from which the sword was recovered (although he described it as being a machete), the only other witness saw the appellant at some point in the witness’s private garden with something shiny, possibly a machete but not a sword, before he climbed a wall into the woods. The police were alerted less than half an hour afterwards and the witness was shown the recovered item the same day. Another police office saw the appellant nearby; the appellant was irate and abusive when arrested.

The Appeal Court said it was within the sheriff’s discretion to allow the amendment. No challenge had been made to the relevancy of the charge as originally framed, as the defence maintained it was “entitled to keep its powder dry”. The Appeal Court noted that no adjournment was sought to consider any prejudice at the time and was satisfied there was a sufficiency of evidence.

Schedule 3, para 4(2) to the Criminal Procedure (Scotland) Act 1995 indicates that “at” implies “or near”, or “in the near neighbourhood”. The woods were adjacent to the private address and the appellant was seen in those woods which were about 100m deep behind the houses. Obviously on the face of it the libel looked defective and should have been objected to at the outset. However, as the evidence turned out the Appeal Court had no difficulty in refusing the appeal.

Not that Moorov man again!

I am afraid so. Given the largely sexual and historical nature of most High Court indictments, never a month seems to pass without a significant opinion in this context.

RBA v HM Advocate [2019] HCJAC 56 (27 August 2019) does break the flow perhaps, as the case was heard by a trio of senior judges without either the Lord Justice General or the Lord Justice Clerk, who have sat on most of these appeals in recent years.

The appellant had been convicted after trial of five charges involving sexual offences perpetrated against two complainers, the first being targeted between 1978 and 1981, and the second between 1993 and 1997. The complainers were related as aunt and niece and the appellant had access to them in a position of trust as a babysitter when they were aged between nine and 12. The trial judge repelled a submission of no case to answer despite the near 13 year gap involved. He highlighted the similarities in the conduct, threats to the complainers not to disclose what had occurred, and the close extended family; and considered that the gap in time could be due to the specific opportunities which arose and the lesser likelihood of matters coming to light.

Their Lordships highlighted that in fact-sensitive cases the Moorov doctrine can be difficult to apply. Defence counsel submitted that due to the large size of the extended family there had been a “continual flow” of young female relatives who would have been in similar circumstances and at risk of abuse; consequently there was no explanation for the long gap in what was said to be an underlying course of conduct. Lord Brodie noted the absence of other charges or a docket covering other incidents and said:

“There is no room for speculation as to what an accused might have done during any... period of time when the accused must be taken to have abstained completely from the sort of behaviour libelled”. The onus rests on the Crown to establish that the individual incidents are component parts of one course of conduct persistently pursued, notwithstanding a time gap which would point in the other direction.

Lord Brodie reiterated the words of Lord Sands in Moorov v HM Advocate 1930 JC 68 at 89: “[Time] is an important and, in some aspects, a vital consideration. This results from the quality of the acts as evidence of a ‘course of conduct’. A ‘course’ involves some continuity. Acts isolated by a long period of time do not make a course of conduct.”

Lord Glennie pointed out that the Scottish Law Commission in its 2012 Report on Similar Fact Evidence and the Moorov Doctrine (SLC no 229) had been concerned that the time limit in Moorov cases had been stretched beyond its natural breaking point, and recent cases had simply confirmed the problem. Lord Malcolm agreed that since the inception of the doctrine “the time characteristic has become somewhat attenuated”.

This is a significant case in this context. Where long gaps appear between charges and complainers it is up to the Crown to explain, notwithstanding, why this represents an underlying course of conduct. The circumstances of the charges may converge but evidence of what happened in the gap may be vital if the doctrine is to be applied.

Anderson appeals RIP?

The case of Anderson v HM Advocate 1996 JC 29 launched a series of defective representation appeals, much to the discomfiture of solicitors and counsel involved in the earlier proceedings, despite warnings by Lord Rodger of Earlsferry that Anderson did not provide an opportunity to play one’s second 11 at trial and come out with a whole new ball game and new grounds of challenge at appeal. Anderson was flavour of the month for about a decade, and it gave an opportunity for those incarcerated for long periods to consider what seemed to go wrong at their trials and how fresh evidence/defective representation might offer a new appeal route.

Lord Justice Clerk Gill (as he then was) tried to restrict the proliferation of such appeals by limiting the territory in Grant v HM Advocate 2006 JC 205. Scott v HM Advocate [2019] HCJAC 59 (26 July 2019) seems to drive a Dr Van Helsing stake into what remains of the Anderson corpus.

The appellant’s previous note of appeal, regarding his conviction in May 2018 for a murder in November 2016, was rejected in March 2019 as lacking in specification. The main evidence against the appellant had been a mixed DNA sample attributed to the appellant and his girlfriend recovered from a Nike hoodie top, a fragment of which had been found in an Audi Q5 used in the commission of the crime and later found burnt out. A joint minute had been agreed at trial regarding a hoodie seen in CCTV footage possibly being a Nike one. New appeal grounds averred it had been wrong to agree this and there had been a failure to present an alibi that the appellant had been at home with his mother. It was suggested a Nike hoodie would be a different length from the garment seen on CCTV. A further ground was advanced that defence counsel in adducing evidence from family witnesses did not take care to avoid replies indicating the appellant had previously been in prison.

In refusing leave to amend grounds of appeal, the Appeal Court referred to Singh v HM Advocate 2013 SCCR 337 at para 6, that cause had to be shown for allowing the amendments and why they had not been advanced timeously. Lord Gill’s test in Grant at para 21 said that the “appellant must establish that the conduct of the defence resulted in a miscarriage of justice... [in that] the appellant’s defence was not presented to the court, and he was therefore deprived of his right to a fair trial, because counsel either disregarded his instructions or conducted the defence in a way in which no counsel could reasonably have conducted it”.

Senior counsel who had conducted the trial explained that he made it clear he would only consult if there was something to be discussed. He would not discuss all the details of the case; that was the function of the accused’s law agent. He would take instructions only on matters of importance and in respect of which the accused’s input was required. The defence instructed had been a reactive one to the Crown case and no positive line of inquiry was instructed. The appellant had made it clear he did not want to give evidence and did not think he would come across well. He did not wish his mother to be involved. At various stages of the trial the reactive line was confirmed. In those circumstances, given the lack of instructions and information, it could not be said counsel had failed to present the appellant’s defence. The court concluded the assertions of failures on the part of the defence team were without practical merit and hence substance.

Instructing solicitors should not need reminding that counsel’s client is the solicitor and the accused is the client of the agent. Anderson appeals are unlikely to progress if the failure to present a positive line of defence or give evidence in that regard was due to lack of coherent instructions from the client.

Frank Crowe, sheriff at Edinburgh

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