C.w.a. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Kirkwood,Lord MacLean,Lord Justice Clerk |
| Court | High Court of Justiciary |
| Date | 17 January 2003 |
| Docket Number | C397/02 |
| Published date | 31 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...
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