Ahmed v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Malcolm,Lord Turnbull |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] HCJAC 37 |
| Date | 18 September 2020 |
| Court | High Court of Justiciary |
| Docket Number | No 3 |
[2020] HCJAC 37
Lord Justice General (Carloway), Lord Malcolm and Lord Turnbull
Angus v Nisbet [2010] HCJAC 76; 2011 JC 69; 2011 SLT 98; 2010 SCCR 873; 2011 SCL 33
Carberry v HM Advocate [2013] HCJAC 101; 2014 JC 56; 2013 SCCR 587; 2013 SCL 934; 2013 GWD 30-593
Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39-631
H v HM Advocate [2015] HCJAC 42; 2015 SLT 380; 2015 SCCR 242; 2015 SCL 674
MR v HM Advocate [2013] HCJAC 8; 2013 JC 212; 2013 SCCR 190; 2013 SCL 338; 2013 GWD 4-115
McConachie v Shanks sub nom McConachie v Procurator Fiscal, Aberdeen [2018] SAC (Crim) 10; 2019 SC (SAC) 1; 2018 SLT (Sh Ct) 319; 2018 SCCR 294
Mitchell v HM Advocate [2008] HCJAC 28; 2008 SCCR 469; 2008 GWD 18-315
Paterson v Harvie sub nom Paterson v Procurator Fiscal, Airdrie [2014] HCJAC 87; 2015 JC 118; 2014 SLT 857; 2014 SCCR 521; 2014 SCL 606
Rooney v Brown [2013] HCJAC 57; 2013 SCCR 334; 2013 SCL 615; 2013 GWD 17-354
SG v HM Advocate [2019] HCJAC 68; 2020 SLT 63; 2020 SCCR 79
Smith v Donnelly 2002 JC 65; 2001 SLT 1007; 2001 SCCR 800
Thomson (George) HCA/2019/000010/XJ, unreported
Judicial Institute for Scotland, Jury Manual (Judicial Institute for Scotland, Edinburgh, June 2020), p 15.4/117 (Online: www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/export_jury_manual_2020-06-12_1429.pdf?sfvrsn=8c9918e4_2 (28 September 2020))
Justiciary — Procedure — Judicial intervention — Sheriff conducting questioning of accused — Whether such questioning amounted to cross-examination — Whether informed and impartial observer would conclude sheriff had formed adverse view on credibility of evidence of accused — Whether miscarriage of justice
Justiciary — Statutory offences — Threatening or abusive behaviour likely to cause fear or alarm to reasonable person — Appellant paid compliments to and engaged complainers in unwelcome and uninvited conversation in public places — Whether threatening or abusive behaviour likely to cause fear or alarm to reasonable person — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 38(1)
Adnan Munir Ahmed was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate in the sheriff court at Glasgow the libel of which set forth, inter alia, a number of charges contrary to sec 38 of the Criminal Justice and Licensing (Scotland) Act 2010. The appellant pled not guilty and the cause came to trial before the sheriff (L Wood) and a jury on 17 September 2019. At the close of the Crown case, some charges were withdrawn by the Crown and the sheriff upheld a submission of no case to answer in respect of certain other charges. The sheriff rejected the submission in so far as it related to five of the charges of threatening or abusive behaviour. On 25 September 2019, the appellant was convicted by the jury of those five charges. On 22 October 2019, the appellant was sentenced to two years' imprisonment and made subject to the notification requirements of the Sexual Offences Act 2003 (cap 42) for ten years. The appellant appealed against both conviction and sentence to their Lordships in the High Court of Justiciary.
Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) provides, inter alia, that a person commits an offence if they behave in a threatening or abusive manner that would be likely to cause a reasonable person to suffer fear or alarm and that they intend by the behaviour to cause fear or alarm or are reckless as to whether the behaviour would cause fear or alarm.
The appellant was indicted in the sheriff court on 18 charges arising from his having approached and made comments to young females who were strangers to him. He variously asked the names of the complainers, told them his name, complimented their appearance and requested their contact details or to meet them. Two of the complainers were schoolgirls who were in uniform. In July 2016, the appellant touched and attempted to kiss one of the complainers. After having spoken to one complainer, in November 2018, he sent her a message in which he called her a racist. All of his approaches to the various complainers were unwelcome and uninvited and the complainers variously described themselves as overwhelmed, uncomfortable, shaken up, intimidated, and stressed by the appellant's actions. At the end of the Crown case, some charges were withdrawn and a submission of no case to answer was upheld in respect of other charges but was rejected in so far as it related to five of the charges of threatening or abusive behaviour. The Crown relied upon the doctrine of mutual corroboration to prove each of those five charges. The appellant gave evidence on his own behalf. After cross-examination by the Crown, the sheriff questioned the appellant and contrasted the appellant's evidence with the evidence given by the complainers. In the course of that questioning, the sheriff misstated some of the evidence. At one stage, defence counsel sought to object to the sheriff's questioning but the sheriff, without fully hearing the objection, told defence counsel to sit down. When directing the jury on the doctrine of mutual corroboration, the sheriff omitted to direct the jury that the course of criminal conduct required to be systematically or persistently pursued and also failed to direct the jury that a general disposition to commit a particular sort of crime was not sufficient for the application of the doctrine. The appellant was convicted of the five remaining charges and sentenced to two years' imprisonment. He appealed.
The appellant argued that: (1) the content and manner of the sheriff's questions had constituted improper cross-examination, such as would have led an independent observer to reach the view that the sheriff had formed an adverse view of the appellant's credibility, augmented by the manner in which the sheriff had dealt with the objection by counsel, and that, as a consequence, the appellant had been denied a fair and impartial hearing; (2) the directions given by the sheriff in relation to the doctrine of mutual corroboration had been inadequate and had represented a material misdirection by omission; and (3) the sheriff had erred in repelling the submission of no case to answer in respect of the five charges as the evidence relative to three of the charges did not disclose threatening or abusive behaviour and the remaining two charges were not habile to the application of the doctrine of mutual corroboration.
The Crown accepted that the sheriff had entered into an exercise of cross-examination which he had not been entitled to do and that he should have heard counsel on the objection raised.
Held that: (1) the sheriff's questioning bore all the hallmarks of cross-examination designed to undermine the testimony of the witness from which an informed and impartial observer would readily have concluded that the sheriff had formed an adverse view of the credibility of the appellant's evidence. The result had been a miscarriage of justice and the appeal against conviction on each charge required to be upheld as a consequence (paras 20–29); (2) while the totality of the directions given by the sheriff had adequately conveyed the essential elements of the doctrine of mutual corroboration, despite the absence of the generally used terms, there was a straightforward style direction on the application of the doctrine available in the Jury Manual, adoption of which would save the time and expense incurred by appeals from a failure to follow it (para 35); (3) a polite conversational request or compliment could not be construed as threatening merely because it was uninvited or unwelcome and there had been nothing in the appellant's behaviour in the three charges which had been overtly threatening or which could reasonably have been construed as threatening and the remaining two charges did not mutually corroborate (paras 45–52); and appeal against conviction allowed.
Observed that: (1) it was objectionable to ask a witness whether another witness was mistaken or lying where the evidence of those witnesses differed, and such evidence would be inadmissible (paras 22, 24); (2) it was part of the professional responsibility of any representative acting on behalf of an accused person to state an objection to the eliciting of inadmissible evidence, or to any other questioning which appeared to contravene the law of evidence and procedure, should it be considered that it was in the interests of the accused person to do so, and the presiding judge or sheriff was required to hear any such objection unless it was patently misconceived (para 30); and (3) it was unacceptable for a judicial office-holder to address a responsible practitioner by telling them to sit down and such behaviour carried the risk of demeaning the standing of the judiciary in the eyes of both the legal profession and of the public (para 31).
Smith v Donnelly 2002 JC 65, Angus v Nisbet2011 JC 69 and Green v HM Advocate2020 JC 90considered.
The appeals called before the High Court of Justiciary, comprising Lord Justice General (Carloway), Lord Malcolm and Lord Turnbull, for a hearing, on 3 September 2020.
At advising, on 18 September 2020, the opinion of the Court was delivered by Lord Turnbull—
Opinion of the Court—
[1] In September 2019 the appellant went to trial in the sheriff court at Glasgow on an indictment libelling 18 charges. The offences were said to have taken place between May 2016 and January 2019. All of the charges concerned conduct directed towards young women. Two of the offences were said to have taken place in Uddingston and the remainder in Glasgow city centre. Three of the charges alleged sexual assault of a relatively minor nature and one concerned a minor non-sexual assault. The remaining charges all libelled contraventions...
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