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SHERIFF APPEAL COURT
[2024] SAC (Crim) 11
SAC/2024349/AP
Sheriff Principal D C W Pyle
Appeal Sheriff R D M Fife
Appeal Sheriff C M Shead
OPINION OF THE COURT
delivered by APPEAL SHERIFF C M SHEAD
in
Appeal against conviction by stated case
by
WASEEM AKRAM
Appellant
against
PROCURATOR FISCAL, GLASGOW
Respondent
Appellant: Ogg, sol adv; Paterson Bell (for John Kilcoyne & Co, Glasgow)
Respondent: Keenan KC, sol adv, AD; Crown Agent
24 December 2024
[1]
On 18 June 2024 at Glasgow Sheriff Court the appellant was found guilty of three
contraventions of section 7(1) of the Sexual Offences (Scotland) Act 2009, which formed
charges 1, 3 and 4 on the complaint. He was acquitted of the remaining charges. At trial
there was no dispute that the offences had been committed. Apart from one instance when
the appellant was identified as having attended the premises in charge 3 and asked for a
2
massage the crimes consisted of phone calls made to employees in the three workplaces.
The central issue was whether the Crown had proved that the appellant was the perpetrator.
The appellant elected to give evidence and denied that he had made the calls or was the
person who asked for a massage. The sheriff rejected that evidence.
[2]
The charges were in the following terms:
"(001) on various occasions between 1 May 2016 and 31 August 2017, both dates
inclusive at MDP, Glasgow you did intentionally and for the purposes of obtaining
sexual gratification or of humiliating, distressing or alarming SD, EP and LD all care
of Police Service of Scotland did direct a sexual verbal communication at said SD, EP
and L D without their consent in that you telephoned said MDP and utter remarks
which suggested you were monitoring said SD's movements, make enquiries in
order to attempt to find out the names of the employees there, utter remarks about
the appearance and clothing of employees there and utter sexual remarks;
CONTRARY to Section 7(1) of the Sexual Offences (Scotland) Act 2009
[and] you did commit this offence while subject to a Sex Offender Order imposed on
you on 25 August 2017 at Glasgow Sheriff Court
(003) on various occasions between 17 July 2016 and 31 August 2016, both dates
inclusive, at HG, Glasgow you did intentionally and for the purposes of obtaining
sexual gratification or of humiliating, distressing or alarming LD, AF and GL, all
employees there care of the Police Service of Scotland did direct sexual verbal
communications at, direct a verbal communication to them without their consent in
that you did telephone said HG and utter remarks which suggested you were
monitoring said LD and AF's movements, make enquiries in order to attempt to find
out the names of the employees there, utter remarks about said LD, AF and EM
clothing and appearance and utter sexual remarks and attend at HG and ask LD for a
massage.
CONTRARY to Section 7(1) of the Sexual Offences.(Scotland) Act 2009
(004) on various occasions between 1 June 2017 and 30 September 2017 both dates
inclusive at BH ,Glasgow you did intentionally and for the purposes of obtaining
sexual gratification or of humiliating, distressing or alarming TL, RM, AW and MC,
all employees there all care of the Police Service of Scotland did direct sexual verbal
communications at, did direct a verbal communication to them without their consent
in that you did telephone said BH and utter remarks which suggested you were
monitoring said TL, RM, AW and MC's movements, make enquiries in attempt to
find the names of the employees there, utter remarks about said TL, RM, AW and
MC's clothing and appearance and utter sexual remarks;
3
CONTRARY to Section 7(1) of the Sexual Offences (Scotland) Act 2009
[and] you did commit this offence while subject to a Sex Offender Order imposed on
you on 25 August 2017 at Glasgow Sheriff Court"
[3]
The Crown led evidence from a number of employees who had worked at each of the
three premises mentioned in the charges. In essence they spoke to receiving telephone calls
in the course of which the caller had made sexual remarks. A common theme was the caller
talking about the size of his penis. In some instances it was clear that the caller was looking
into the premises in question and describing the clothing and appearance of some of the
women who worked there.
[4]
Some of those who gave evidence identified the appellant as the caller by reference
to a short excerpt of his voice taken from the recording of a police interview. The defence
objected timeously to this line of evidence. Unfortunately neither party drew the sheriff's
attention to the Lord Advocate's guidelines
or the relevant authorities and surprisingly
neither suggested that the evidence be heard under reservation. The latter course would
have been the obvious one to take. At the very least it would have provided the parties with
the opportunity to address the sheriff thoroughly at the conclusion of the Crown case. In the
result the sheriff repelled the objection without hearing proper argument. The sheriff
accepted the evidence of the disputed identification and that she relied upon that evidence
in convicting the appellant.
1
Lord Advocate's guidelines: visual identification procedures, Appendix G-voice identification
first published 1 February 2007
4
The appellant's submissions
[5]
Ms Ogg invited us to conclude that the evidence of voice identification given by
reference to the short excerpt of the tape recording was inadmissible and that the sheriff had
erred in repelling that submission.
[6]
Excerpts from the interview itself were not played to the witnesses. Rather, they
were utterances made by the appellant in response to him being cautioned and asked to
explain his understanding of the caution. Ms Ogg characterised the questions asked by the
police as administrative steps and accepted such steps are commonly taken by the police at
interview. However it was clear that the appellant had not been alerted to the possibility of
the use to which his answers might be put in the event of a trial.
[7]
The circumstances of the case were to be distinguished from McIntyre v HMA 2009
SCCR 380 and the court was not bound to reach the same conclusion on the question of
admissibility. Borrowing the language from para [15] of the opinion of the court, the
question was whether the evidence had been legitimately obtained. It was submitted that it
had not been because, while the caution would alert a suspect to the possibility that his
answers to questions in the interview may be used as evidence against him, the same could
not sensibly be said of a circumstance where a suspect was responding only to questions
about his understanding of the caution and in circumstances where he could be expected to
respond without fear that his responses would be used against him.
[8]
In any event it was submitted that the court should look at all the circumstances
including the absence of a proper identification procedure, the passage of time between the
alleged offences and the trial at which the witnesses were invited to make an identification
by voice and the shortness of the sample played to the witnesses. The sample did not
include any of the utterances said to have been made by the caller in the course of the phone
5
calls spoken to by the witnesses. This could be usefully contrasted with the procedure
followed in McFadden v HMA 2009 SCCR 902. The Crown should have instructed that the
necessary identification procedure be carried out in accordance with the Lord Advocate's
guidelines. These factors combined to produce the conclusion that the sheriff should have
sustained the objection. The question for the court was one of fairness. If it was unfair to
allow the evidence to be led then it should have been ruled inadmissible.
[9]
If that argument was rejected it was submitted that the sheriff had, on a fair reading
of the stated case, accepted the evidence as reliable and as part of the evidence on which she
relied for conviction. That too pointed to a miscarriage of justice having occurred again
taking into account the same accumulation of circumstances. This submission was not
further developed.
[10]
If the court accepted the first argument and the relevant evidence fell to be left out of
account it was submitted that there was insufficient evidence to entitle the sheriff to convict
of the charges of which the appellant was ultimately found guilty.
The Crown submissions
[11]
The advocate depute adopted the Crown's written submissions.
[12]
In respect of the use of the particular part of the recording the advocate depute drew
our attention to the decision in McIntyre at paras [14] - [16]. He submitted that the decision
governed the resolution of the first argument made on the appellant's behalf. The present
case was indistinguishable from the situation in McIntyre.
[13]
It was accepted that there had been a failure to follow the Lord Advocate's
guidelines. It seemed that there had been a lack of understanding on the part of those
conducting the case that an identification procedure should have been instructed. We were
6
informed that local practice was being reviewed in light of this case. The advocate depute
took no issue with the underlying rationale for holding such a procedure. The concerns
about the reliability of this kind of evidence were well understood and accepted. It was to
be noted that the sheriff had been conscious of the possible limitations of the evidence.
[14]
The failure on the part of the Crown to follow this fundamental step had not
produced unfairness at least to the extent which rendered the evidence inadmissible.
[15]
The advocate depute accepted that fairness was the test and whether what had
transpired was unfair had to be decided according to the circumstances of the particular case
under consideration.
[16]
If the court resolved the issue of admissibility in favour of the appellant we were
invited to conclude that there had been no miscarriage of justice having regard to the other
evidence which implicated the appellant in the commission of the offences.
Decision
The admissibility of the impugned evidence
[17]
In our opinion, the sheriff erred in repelling the defence objection. The
circumstances of this case are highly unusual and unlikely, it is to be hoped, to be repeated.
There was a very marked gap in time between the offences of which the appellant was
convicted and the trial itself. Despite the existence of the Lord Advocate's guidelines
prescribing the appropriate identification procedure no such procedure was instructed by
the Crown. The advocate depute accepted that there was no basis on which that failure
could be justified and he did not take issue with the positive advantages that the use of such
a procedure would have brought to the sheriff's assessment of the evidence relating to
identification.
7
[18]
It is important to spell out what that failure led to. The Crown asked the relevant
witnesses to listen to a very short excerpt of a police interview with a view to comparing it
to their recollection of phone calls which were made to their place of employment many
years before. The appellant was not known to any of the witnesses and the excerpt played
did not contain any of the offensive language used by the caller. It appears that there had
been a recording of one of the telephone calls but that it had been lost. As a consequence,
the sheriff was left to try to make a meaningful assessment of that evidence without the
benefit of the controlled conditions of an identification procedure which had been expressly
provided for in the guidelines. In our view this omission was not some minor technical
breach but a significant failure which led to the use of the evidence in circumstances where
the well understood risks of a wrongful identification were obviously present and not
counterbalanced by the use of the prescribed identification procedure. There was no
explanation for why the guidelines were not followed. The opportunity was lost to test the
reliability of the evidence led at trial. This was to be contrasted with the use of the VIPER
parade in respect of two of the complainers one of whom identified the appellant and the
other a stand in. The use of the identification made at the parade provided support for the
reliability of the positive identification made in court.
[19]
While the sheriff's attention was not drawn to the existence of the guidelines before
she made her ruling, all she says on the point is that it may well have been preferable for a
voice identification parade to have been held without considering the full implications of the
failure to do so. We note that the sheriff had reservations about the quality of that evidence.
Although there was other evidence which pointed to the appellant, to which we shall turn, it
appears to us clear that the sheriff accepted the voice identification as reliable
notwithstanding those reservations.
8
[20]
Given our conclusion on the admissibility of the evidence we do not consider it
necessary to express a view on Ms Ogg's first submission that the circumstances of the
present case are capable of being distinguished from those under consideration in McIntyre.
The sufficiency of the remaining evidence
[21]
In the event that we were prepared to hold that the evidence was inadmissible it was
submitted on the appellant's behalf that there was insufficient remaining evidence to justify
conviction on the three charges.
[22]
The sheriff makes reference to other adminicles of evidence which might be said to
implicate the appellant. In summary these are as follows:
Charge 1: the call logs which show a mobile phone given to the appellant by his
former partner was used to call MDP on 15, 17 and 18 May 2017. The dates match
the complainers' recollection of when they received calls.
Charge 3: the evidence of the witness LD who identified the appellant as the person
who had come into HG 17 July 2016 and asked for a massage. This request was
capable of being interpreted as a request for a sexual service. The calls which form
the subject matter of the charge began shortly afterwards. The witness was able to
say in relation to a call which she answered that the caller's voice sounded very
similar to the person who had asked for a massage and that she believed it was the
same man.
Charge 4: the evidence that BH had been called four times on 20 September and
twice on 26 September both 2017 and each time from a landline number which was
registered to the family home at which the appellant had been living at the relevant
time. The only other male living there at the time was the appellant's father who did
9
not speak good English. The timing of the calls corresponded, broadly speaking, to
the recollection of the two complainers who gave evidence.
[23]
The sheriff considers the approach which she would have taken in the event that
there had been no evidence of voice identification by reference to the application of the
principle set out in Howden v HMA 1994 SCCR 19. The sheriff draws attention to the
following considerations:
The targeting of locations staffed predominantly by females; the nature of the
comments made in the calls and their similarity; the majority of the witnesses
describing some Scottish Asian, Glaswegian male voice as the caller; and the fact
that the calls took place over a relatively short period of time.
[24]
The sheriff says she would have concluded the person who made the calls in
charge 3 was the same as the person who made the calls in charges 1 and 4.
[25]
In our opinion there is merit in first considering whether the principle in Moorov v
HMA 1938 JC 68 might be capable of being applied to the evidence in the present case. In
Lindsay v HMA 1993 SCCR 868 the issue was whether it was necessary for the application of
the principle in Moorov that there be eyewitness identification in respect of each charge.
Having referred to the opinion of the Lord Justice General (Clyde) in Moorov, the
Lord Justice General (Hope) made the following observations:
"The point which emerges from that statement of principle is that what matters as far
as the Moorov doctrine is concerned is the underlying unity as regards the separate
acts established by the evidence of the various witnesses. We cannot find anything
in any of the statements of principle which makes it necessary that the evidence of
identification of the accused in each case must be that of a single eyewitness to the
crime. There must of course be evidence in the case of each charge that the accused
was the perpetrator of it and, since the Moorov doctrine is concerned with the
problem of corroboration where only one witness can speak to this, it is a feature
common to all these cases that this depends on the evidence of a single witness as to
each act. But we cannot see any sound reason in principle why the evidence which
identifies the accused as the perpetrator has to be the evidence of an eyewitness. In
10
our opinion it is not an extension of the Moorov doctrine to say that the evidence of
identification may come from a single witness from whose evidence, together with
other evidence, it can be inferred that the accused was the perpetrator."
[26]
With those observations in mind we refer to the summary of the evidence given by
the sheriff in respect of each of the charges. In relation to charge 3 there is a source of
evidence from LD who identified the appellant as the person who came into the premises
and asked for a massage. In addition she gave evidence that the voice on the telephone call
which she took sounded very similar to the man who had asked for a massage and that she
believed that the man on the phone was the same man who had asked for the massage. That
identification was made independently of the comparison with the recording of the police
interview.
[27]
In relation to charge 4 there was evidence that the landline number registered to the
house at which the appellant was then living was used to call the premises four times on
20 September and twice on 26 September and that the times and dates corresponded with
the evidence of when the witnesses say that some of the calls were made. We agree with the
sheriff that this was a strong piece of evidence pointing to the appellant as the maker of
those calls.
[28]
In respect of the remaining charge the evidence showed that a mobile number
registered to Ms A was used to phone the premises on 15, 17 and 18 May 2017 and she gave
evidence that she had given that mobile phone to the appellant at the end of 2016 or the
beginning of 2017. Other evidence showed that some of the calls in which the caller made
sexual remarks were made on those days. In our view these pieces of evidence would allow
a reasonable inference to be drawn that the appellant was the maker of those calls.
[29]
There was no dispute that the crimes themselves were committed and the same
person made all the calls and asked for a massage. In our view there are a number of
11
important similarities in the conduct complained of such that it would have been open to the
sheriff to have applied the Moorov principle to the three charges under consideration
provided she was also prepared to accept the adminicles of evidence to which we have
referred as providing one source of identification of the appellant in respect of each charge
as having made the calls in question.
[30]
On that basis we have reached the view that the appellant's submission in respect of
the sufficiency of the evidence should be rejected.
[31]
In Wilson v HMA 2019 SCCR 273 the Lord Justice General (Carloway) observed at
para [37] in relation to the Howden principle:
"However, if one incident involving one complainer is proved by corroborated
evidence to have been committed by the accused, then other incidents, which are
themselves proved to have happened by corroborated evidence, will also be proved
to have been perpetrated by the accused if the evidence yields an inference that they
must have been committed by the same person...."
[32]
Had it been necessary to determine this point and having regard to the sources of
evidence referred to by the sheriff we would not have been persuaded that it would have
been open to convict the appellant by the application of this principle. The short point is
that in none of the three charges, according to her note and leaving out of account the
impugned evidence, was there corroborated evidence to establish that the accused was the
perpetrator of one of the offences. That is the essential starting point for the application of
the principle and it is not present in the evidence which remained to be considered.
[33]
Having resolved the issue of admissibility in the appellant's favour the second
ground of appeal becomes academic. The effect of our decision means that the impugned
evidence should not have been before the sheriff for her consideration. The question of
whether she erred in relying on it is no longer of any practical significance.
12
[34]
However it needs to be recognised that this was not the basis on which the sheriff
proceeded to convict the appellant. In the circumstances it remains to be decided whether it
can be affirmed that the sheriff would have convicted on the basis of the evidence which we
have identified had she left the impugned evidence out of account.
[35]
The findings in fact made by the sheriff have, for the most part, not been challenged.
Those which have relate to the sheriff's conclusion that the appellant was the perpetrator
(findings in fact 9, 18, 29, 32-34). On the unchallenged findings in fact and having regard to
the sheriff's assessment of the evidence would she have reached the same conclusion that
the appellant had been proved to be the perpetrator?
[36]
We have come to the conclusion that the sheriff would still have convicted on the
basis of the evidence which she did accept and the inferences open to her from those
adminicles of evidence. In particular, the sheriff commented on the strength of the evidence
that the appellant had made the calls from the landline in his parent's house on two separate
days in September 2017 and that he had used the mobile number to call MDP on 15, 17 and
18 May 2017. Once that evidence is accepted it is a short step to conclude that the appellant
made all the calls and the same applies in respect of the remaining charge and the evidence
given by LD. The implausibility of someone else having made the other calls is obvious
given the content of those calls. The remaining question is whether the sheriff would have
applied the Moorov principle to the three charges. Standing the sheriff's view of the
similarities between the offences and the link in time in our view it is clear that had the
sheriff approached the matter from this perspective she would have applied the principle
and convicted the appellant.
[37]
Accordingly we are not satisfied that the appellant has demonstrated that there has
been a miscarriage of justice.
13
[38]
In the circumstances we need not answer question 2 for the reasons given and we
would answer the remaining questions posed in the stated case as follows: 1 and 3 in the
affirmative; 4 and 5 in the negative. In the result the appeal is refused.
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