APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord MacLean	2012 HCJAC 79 XC741/11 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION AND SENTENCE by DAVID KELTIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Paterson, Solicitor advocate; Paterson Bell

Respondent: A Stewart, QC; Crown Agent

8 May 2012

[1] The appellant was convicted of a breach of section 12(1) of the Children and Young Persons (Scotland) Act 1937, committed by dangling his sister's 13 month old child outside the window of a twelfth storey flat in a high-rise tenement and threatening to throw the child out of the window if the police put in the door in execution of a warrant. Had the child fallen he would have been killed.

[2] At trial, evidence was given by, among others, two police officers who had witnessed the events. Other police officers subsequently attended at the locus but they had not seen the incident. No evidence was led from any other bystander, despite one of the eyewitness officers mentioning workmen engaged in painting outside being so concerned that they moved their van. The other eyewitness police officer referred to workmen being at Baltic Street, and returning to their cars. There was also evidence that members of the public were asked to move on by police officers, but no member of the public was led as a witness. The appellant, whose position was that he had not dangled the child outside the window, gave evidence in his defence, and spoke of seeing a van with television equipment, but no film evidence had been led by the Crown. We note that the second police officer confirmed that he too had seen such a van.

[3] In his defence speech the appellant's agent emphasised the lack of eye witness evidence independent of the police evidence. He invited the jury to ask themselves why no such evidence had been led before them. The relevant parts of his speech are recorded in the sheriff's report at paragraph 11. As a result of that part of the defence speech, the sheriff considered it necessary to give the jury additional guidance as recorded at pages 21 - 23 of his charge. The appellant was subsequently convicted and sentenced to 41/2 years detention. He appeals against conviction and sentence contending that the sheriff erred in his directions to the jury, noted above, and that the sentence was excessive.

[4] Before us, Mr Paterson's main argument was that while the sheriff was entitled to make the points he did about the agent's comments about the lack of CCTV evidence, the position was different in relation to the agent's comments about the absence of the workmen. We note from paragraph 13 of the sheriff's report that it appears that the defence agent made no such distinction in the course of the trial. For the reasons given by the sheriff there was, in our view, no such distinction to be made between the two categories. Each invited speculation, and indeed speculation with possible sinister connotations. In that situation the sheriff was correct, in our view, to give the directions he did in respect of both aspects. The appeal against conviction is therefore refused.

[5] So far as sentence is concerned, Mr Paterson emphasised the appellant's youth. He is aged 20. Mr Paterson also emphasised his need for supervision in the community when he is released. Bearing in mind the nature of the offence, the appellant's record, and the fact that the offence was committed while he was on bail, we are persuaded that there is some force in Mr Paterson's argument. We are therefore prepared to quash the sentence of 41/2 years and substitute therefor 3 years detention followed by 1 years supervised release order. To that extent the appeal against sentence is allowed.

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