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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> CWA v. Her Majesty's Advocate [2003] ScotHC 26 (17 January 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/26.html Cite as: [2003] ScotHC 26

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CWA v. Her Majesty's Advocate [2003] ScotHC 26 (17 January 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal Nos: C397/02 XC24/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION and SENTENCE by C W A Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Crawley QC, Heaney; Ian McCarry, Glasgow

Respondent: Lord Advocate (Boyd QC); Crown Agent

 

17 January 2003

 

The conviction

1. On 27 April 2001 at Glasgow High Court the appellant was convicted on the following charges:

"(11) on various occasions between 10 March 1970 and 9 March 1974, both dates inclusive, at [locus], you C W A did repeatedly use lewd, indecent and libidinous practices towards your sister, [name], born 10 March 1962 ... induce her to handle your private member, lie on top of her and simulate sexual intercourse and fondle her private parts;

(12) on various occasions between 10 March 1974 and 14 December 1976, both dates inclusive, at [locus] and [locus], you C W A did use lewd, indecent and libidinous practices towards your sister, [name], born 10 March 1962, a girl then of or above the age of 12 years and under the age of 16 years ... and did induce her to handle your private member, lie on top of her and simulate sexual intercourse, and fondle her private parts: CONTRARY TO THE Criminal Law Amendment Act 1922, Section 4(1); ...

(16) on various occasions between 15 December 1976 and 10 March 1978, both dates inclusive, at [locus] and [locus], you C W A did use lewd, indecent and libidinous practices and behaviour towards your sister, [name], born 10 March 1962, a girl then of or above the age of 12 years and under the age of 16 years ... and did induce her to handle your private member, lie on top of her and simulate sexual intercourse, and fondle her private parts: CONTRARY to the Sexual Offences (Scotland) Act 1976, Section 5(1)."

The trial judge sentenced the appellant to imprisonment for 12 months on charge 11, 18 months on charge 12, and 18 months on charge 16, the sentences to run consecutively with effect from 27 April 2001. He also granted a certificate in terms of the Sex Offenders Act 1997.

2. Charges 12 and 16 related to a continuous course of conduct that took place from 1974 to 1978 and would have been covered by one charge but for the repeal of section 4(1) of the 1922 Act and its re-enactment by section 5(1) of the 1976 Act.
3. The appellant was tried on this indictment along with his father. His father pled guilty during the trial to two similar charges under the 1922 and 1976 Acts in respect of the same complainer and to a further charge of lewd and libidinous practices in respect of her sister. As in the appellant's case, the charges of lewd and libidinous practices in respect of the present complainer related to a continuous course of conduct that took place between 1974 and 1978. The trial judge imposed a sentence of one year's imprisonment on each of the charges and ordered that the sentences should be consecutive.

The evidence

4. The primary evidence on all three charges came from the complainer. For corroboration, the Crown relied on admissions made by the appellant to police officers in the course of a taped interview.
5. Counsel for the appellant objected to the admission of evidence of the interview on the ground that the interview had been conducted unfairly. The trial judge held a trial within a trial on that question. He repelled the objection. In his Report he says of this interview

"I did not accept from the evidence that the police officers intended to extract from the appellant admissions that he did not intend to make voluntarily, or that they conducted interview in a way calculated to break his will and to oblige him to admit what was being put to him; nor did I accept that the police officers treated him in a hostile manner. The clear impression I received from the evidence was that the police behaved in a firm but neutral way, and made it clear that they were concerned to ascertain the true position. The questioning of the appellant was therefore in my view within the permitted levels of fairness and I did not form the impression in any way that the appellant's will was overcome or that he was pressurised into making admissions which were untrue. He had been properly cautioned and charged at the outset of the interview. The police officers did inform the appellant that, on the basis of the allegations made, other agencies might be involved in examining the position within the appellant's family home. Such an indication by the police officers was, I considered, self evidently correct. The appellant was not cautioned on the resumption of the interview but as indicated above had been fully and properly cautioned at the outset. Having listened to these submissions in substance at the end of the Crown case my conclusion was that no improper pressure or unfairness had been imposed upon the appellant by the interviewing officers. I took into account the fact that the appellant was a first offender and unused to police procedure. However, I was satisfied that the appellant had no apparent difficulty in understanding or answering the questions put to him, and there was no evidence that the appellant was in any way intimidated other than by the police challenging the truthfulness of his statements. I accordingly rejected the appellant's submissions at the end of the Crown case to the effect that the interview had been unfairly and improperly conducted."

The trial judge's charge

6. The trial judge directed the jury on standard of proof and reasonable doubt as follows:

"The Crown must produce evidence before you which you think reaches a certain standard of proof before a conviction can follow and the standard of proof is this: the jury have to be satisfied beyond reasonable doubt that the evidence before it demonstrates the guilt of the accused. Now, what does that mean? Well, it is not enough for the prosecution to show that the accused is guilty on balance rather than not guilty. It is not a balancing act. The standard of proof is higher than that. Equally of course, the Crown do not have to prove the case as a matter of absolute and complete certainty. Very few things can be proved to that standard. So, how it is normally put is like this, ladies and gentlemen: firstly, if you think the accused is innocent of the charges then obviously you simply acquit him. If you think the accused is guilty but at the same time you have what is called a reasonable doubt about his guilt, then our law says you just give him the benefit of that doubt and acquit him. If you think that the accused is guilty and there is no reasonable doubt in your mind about that, in other words if you are reasonably sure about his guilt, then that entitles you to convict. So, it depends really on what a reasonable doubt is. Well, a reasonable doubt is not some trivial or fanciful doubt, it is a doubt based on a good reason. I will try and give you an example of what a reasonable doubt might be. Suppose you are about to make an important decision in your own lives like buying a car or an important item for the house. In making up your mind whether to proceed you might sit down and weigh up the advantages and the disadvantages, the pros and cons, and if you have the sort of doubt about any of these considerations that made you pause or hesitate about the wisdom of going ahead, if you felt, for example, that they might not represent value for money, that would be a reasonable doubt about a significant matter in your decision. So, if you think the accused is innocent then, as I say, you simply acquit him. If you think he is guilty but at the same time you have a real doubt about any of the important parts of the Crown case against him, you give him the benefit of that doubt and acquit him, but if you think he is guilty and have no reasonable doubt about that then, as I say, you are reasonably sure about your conclusion then it is open to you to convict him ... "

In his concluding remarks he reminded the jury of these principles as follows:

"One way of looking at the questions you have to ask yourselves is this: if you have any reasonable doubt about [the complainer's] evidence, you must acquit. If you have any reasonable doubt about the accused's admissions, about whether they are true or not or whether they were improperly obtained, if so you must acquit. If you have no reasonable doubt about either of those two sources of evidence, if you are reasonably sure about them, then it is open to you to convict."

 

 

The grounds of appeal

7. The grounds of appeal are (1) that the trial judge misdirected the jury on the question of reasonable doubt and (2) that the admission of the evidence of the taped interview caused a miscarriage of justice.

Misdirection

8. Counsel for the appellant submitted that there was a material misdirection of the jury by reason of the fact that the trial judge had equiparated the concept of being satisfied beyond reasonable doubt as to the guilt of the appellant with the concept of being "reasonably sure" of his guilt. Being reasonably sure of guilt was a standard lower than that of being satisfied beyond reasonable doubt. In introducing this less demanding standard, the trial judge deprived the appellant of the protection of the criminal standard of proof. This misdirection was particularly significant because the trial judge had repeated the expression "reasonably sure" in his concluding remarks. That was almost the last thing that the jury heard before they withdrew.
9. The Lord Advocate observed that the use of the expression "reasonably sure" was not one that he would commend; but he submitted that in the context of the directions as a whole, and in particular in the context of repeated directions that the Crown case had to be proved beyond reasonable doubt, there had been no material misdirection. Those references far outweighed any element of uncertainty that might have been caused by the expression "reasonably sure."
10. In our opinion, the trial judge's reference to the jury's being "reasonably sure" was a misdirection. We accept the submission of counsel for the appellant that being "reasonably sure" is not an accurate expression of the standard of proof. The use of those words added an unnecessary complication to the straightforward issue that the jury had to decide. To suggest that the idea of being reasonably sure was an alternative way of looking at the question of being satisfied beyond reasonable doubt was not correct.
11. But, as the court has said repeatedly, questions of misdirection have to be considered on a reading of the charge as a whole. In this case we are satisfied that, in his repeated references to the necessity of their being satisfied beyond reasonable doubt before they could convict, the trial judge adequately directed the jury as to the standard that they had to apply. In the face of these clear directions, the inaccuracy to which we have referred was not one that, in our view, could have resulted in a miscarriage of justice. In reaching this view, we have taken a similar approach to that of the court in Stillie v HM Adv (1992 SLT 279). That was a case where the trial judge had attempted to explain the meaning of reasonable doubt by saying that the test was one of "reasonable certainty" (at 281J-K). The court considered that that expression was misleading and ill-advised, but that in the circumstances it was not a misdirection of such a serious character as to have amounted to a miscarriage of justice (at p. 282B-C; G-I).
12. This case, like Stillie (supra), has led to an appeal because the trial judge gave the jury a gloss on the standard formulation of the direction on reasonable doubt. On this aspect of the general directions, a trial judge or sheriff adequately fulfils his duty if he tells the jury clearly and concisely that the standard of proof that the Crown is required to meet is that of proof beyond reasonable doubt and describes the idea of a reasonable doubt as one that would cause a juror to hesitate or pause before taking an important decision in the conduct of his own affairs (cf. MacDonald v HM Adv, 1995 SCCR 663; Buchanan v HM Adv, 1997 SCCR 441). There is no need, in our opinion, for the trial judge or sheriff to go beyond those directions.
13. He is, however, entitled to elaborate on the standard directions on reasonable doubt at his discretion. In McKenzie v HM Adv (1959 JC 32, at p. 37) Lord Justice Clerk Thomson remarked on the ways in which judges commonly did so. He said that the amount of such elaboration and emphasis was dictated by the nature of the case and the predilection of the individual judge; but he added that in the view of the court it was desirable to adhere so far as possible to the traditional formula and to avoid experiments in reformulation. That is good advice, in our view, because a re-statement of a recognised direction in other terms may complicate or modify the legal test and in that way create the risk of a misdirection.

The evidence of the police interview

14. Counsel for the appellant submitted that the transcript of the interview showed that it was conducted in unfair circumstances. The appellant had never been in a police station before. The police station was a sinister venue (Chalmers v HM Adv, 1954 JC 66, Lord Justice General Cooper at p. 79). The appellant was unaccompanied. He was in poor health. These considerations increased his vulnerability to pressure. The police were determined to secure an admission of guilt. They made continual reference to the complainer's statements against the appellant. They expressed disbelief when the appellant attempted to explain his position. The interview culminated in their hinting to the appellant that his continued responsibility for his own children might be in doubt.
15. The Lord Advocate submitted that the question of fairness was one of fact and degree. This court could overrule the trial judge's decision on the matter only if he had erred in law or if his conclusion was so unreasonable that no judge could properly have reached it (McClory v MacInnes, 1992 SCCR 319, at p. 322E-F). The submission for the appellant was merely an assertion that the trial judge had made the wrong decision. His Report showed (supra) that he had applied the correct test. Moreover, in accordance with Thompson v Crowe (2000 JC 173), the trial judge had directed the jury that if they considered that the interview had been conducted unfairly, they should disregard the evidence about it.
16. In our opinion, this ground of appeal is unfounded. Where objection is taken to the fairness of a police interview and there is a trial within a trial, the question of fairness is pre-eminently a question of fact for the trial judge. We can interfere with his decision on that matter only if he has erred in law or if his decision is manifestly unreasonable. In this case, the trial judge had the advantage of hearing the tape recording of the interview and of seeing and hearing the police officers in the witness box. In our opinion, we could not even consider the soundness of the trial judge's decision since we have been referred only to the transcript of the interview.
17. In any event, from the terms of the trial judge's Report we can see no reason to think that his judgment was unsound in any respect.

Decision

18. We therefore refuse the appeal against conviction.

Appeal against sentence

19. The co-accused appealed against the sentence that was imposed on him. A court of two judges allowed the appeal to the extent of quashing the consecutive sentences on the charges under the 1922 and 1976 Acts and imposing the same sentences with a direction that they should run concurrently (J A v HM Adv, 20 July 2001, unrepd).
20. Counsel for the appellant submitted that we should follow the reasoning of the appeal court in that case by making the sentences on charges 12 and 16 concurrent. He also submitted that, by reason of the appellant's state of health, we should reduce the overall duration of the sentences imposed. He produced recent medical certificates that show that the appellant is now seriously ill and has a short life expectancy.
21. We agree with the reasoning of the appeal court in the case of the co-accused in its decision that the consecutive sentences on the charges under the 1992 and 1976 Acts should be made concurrent. We are also of the view that the appellant's state of health justifies us in moderating the overall length of the sentences imposed. While we can see no reason to interfere with the sentence imposed on charge 11, we consider that the sentences imposed on charges 12 and 16 should be reduced.
22. We shall therefore sustain the appeal to the extent of quashing the sentences pronounced on charges 12 and 16 and substituting sentences of imprisonment for one year on each of those charges, those sentences to run concurrently but to be consecutive to the sentence imposed on charge 11.