Alan Glover+fiona Vanbeck V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Brodie,Lord Philip |
| Neutral Citation | [2013] HCJAC 143 |
| Published date | 08 November 2013 |
| Year | 2013 |
| Date | 08 November 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC71/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| VERSION 3 | [2013] HCJAC 143 |
| Lady Smith Lord Brodie Lord Philip | Appeal No: XC71/13 and XC84/13 OPINION OF THE COURT delivered by LADY SMITH in APPEALS AGAINST CONVICTION by (1) ALAN GLOVER and (2) FIONA VANBECK Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
First Appellant: Ogg, Solicitor Advocate; Paterson Bell, Edinburgh
Second Appellant: B Gilfedder Solicitor Advocate; Paterson Bell, Edinburgh
Respondent: A Prentice QC AD (sol ad); Crown Agent
8 November 2013
INTRODUCTION
[1] The first appellant was convicted by the jury, at Kirkcaldy Sheriff Court, of the two charges on the indictment subject to the deletions within the square brackets marked below:
"(001) between 1 July 2009 and 13 August 2009 at 2 Burnlea Terrace, Kinglassie Lochgelly, Fife, you ALAN GLOVER ..did use lewd, indecent, and libidinous practices and behaviour towards NMR born 6 July 1996, a girl then of or over the age of 12 years and under the age of 16 years, and did attempt to engage her in sexual contact with you, [instruct her to perform oral sex] and have sexual intercourse with you [and threaten her with violence];
CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6.
(002) between 1 July 2009 and 14 August 2009 at 2 Burnlea Terrace, Kinglassie, Lochgelly, Fife you ALAN GLOVER....did use lewd, indecent and libidinous practices and behaviour towards KAA born 15 August 1993, a girl then of or over the age of 12 years and under the age of 16 years, and did attempt to engage her in sexual contact with you, (and) handle her breast over her clothing [and engage in sexual contact with one another in her presence];
CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6."
[2] The second appellant was convicted of the same charges but, in the first charge, the only deletion was "and threaten her with violence; the words "instruct her to perform oral sex" were not deleted. In the second charge, the words "and engage in sexual contact with one another in her presence" were not deleted either.
BACKGROUND
[3] The Crown relied on the evidence of the two complainers.
[4] NMR gave evidence that over the period of her 14th birthday, she was staying at the house of the second appellant. One evening, both appellants were in the house and the second appellant asked for "a threesome". NMR did not know what that meant; she thought it had something to do with sex. The second appellant did not tell her what it meant. The first appellant "pulled a dildo thing" and told her to "go for it, go for it". The second appellant also sought to encourage her. They both told her to "do it, do it, do it" and not to be a "scaredy cat". She went outside for air. Later she went into their bedroom. The second appellant again asked her for a threesome but she told them she did not want to, and left.
[5] NMR was referred, in cross examination, to a statement she had given to the police. The sheriff advises, in his report, that it was evident that her testimony in court differed from it in a number of respects. One of those differences was that it was written in the statement that she had been asked to give the first appellant "a blow job". However, NMR was very clear in her evidence that that did not happen.
[6] KAA gave evidence that, shortly before her 16th birthday, she went to stay overnight at the house of the second appellant. She met the first appellant there. She said that she "went out" with him for a period of two days thereafter. She gave an account of lying on the second appellant's bed when both appellants were there and that the first appellant had put his hand on her breast over her pyjamas. She did not object. After that, the second appellant had, she said, put her hand down the first appellant's trousers and started rubbing his penis; the first appellant was just lying there with his eyes open and his mood seemed alright. The second appellant told her to rub his penis too but she did not want to do so. She got up and went downstairs.
[7] The Crown led no other witnesses in evidence. There was a joint minute in which, amongst other matters, it was agreed that NMR had taken part in two joint - i.e. police and social work - interviews on 25 and 26 August 2009, excerpts of which were attached. In those excerpts, it is not written that NMR made any suggestion of violence having been used towards her but it is written that she was asked to give the first appellant "a BJ".
[8] There being only one witness in relation to each charge, the Crown required to and did rely on the doctrine of mutual corroboration (Moorov v HMA 1930 JC 68). Neither charge could stand alone.
Sheriff's Charge to the Jury
[9] The following parts of the sheriff's charge are material:
"You will remember that the witnesses, KAA and NMR were asked if they had previously made statements to the police which differed in some way from what they said in court. And you've heard about what they said on the earlier occasions. Evidence about the earlier statements is allowed for a limited purpose only. It's relevant as to your decision on the witness' credibility and reliability. It's not evidence of the truth of the statements themselves, and it's not evidence against the accused. It doesn't corroborate the witness' evidence in court, and you can't replace what that witness said in court with the earlier statements. If the witness gave an earlier account that differed substantially from her later evidence in court, that could point to inconsistency and you might doubt her credibility and reliability as a witness in this trial. What you cannot do is replace that evidence with a statement that the witness made earlier." (pages 21-22)
"Now, as I've already mentioned, there are two joint minutes of agreement in this case and you've been given copies of them. The first one states that NMR can identify both the accused. The second joint minute sets out some of what KAA, NMR, MR and John Wright said to the police and states that both Alan Glover and Fiona Vanbeck denied all allegations that were put to them.
All of these are facts that are not in dispute and, accordingly, you must accept them and should not consider whether to accept or reject this evidence in this case. These are facts that you can rely on." (pages 23- 24)
"If your verdict is guilty, you could delete any part of the charge which has not been proved to your satisfaction. For example, if you decided that NMR was not instructed to perform oral sex, you could delete those words from the charge. That's not a hint I'm giving you. It's only an illustration of what you can do. But whatever is left must define the crime and describe how it was carried out." (pages 26 - 27).
Sheriff's Report
[10] The sheriff deals with the jury's verdict on charge one at paragraph 9 of his report:
"The deletions made by the jury from charge 1 in relation to Mr Glover reflect the absence of evidence from Ms R about being instructed to perform oral sex. The jury's decision not to delete that part of the charge in relation to Ms Vanbeck does not reflect the evidence before the court. Accordingly in my view no reasonable jury properly directed could have reached that decision. However, based upon the description given by Ms R, it was open to the jury, if it accepted her evidence, to conclude that the other aspects libelled in charge 1 had been established in relation to Ms Vanbeck and that, on the basis of those other aspects libelled, she had been guilty of using lewd, indecent and libidinous practices and behaviour towards Ms R in contravention of Section 6 of the Criminal Law ( Consolidation) (Scotland) Act 1995."
The sheriff does not explain why he did not take any action at the time by, for instance, querying the verdict with the jury and inviting submissions from parties. Nor, we would add, does he explain why he thought it appropriate to have the jury consider the allegations about oral sex and threats of violence at all, given the lack of any evidence to support them. Nor, it seems, did he take the matter up with the Crown, as he could have done, before charging the jury. Had he done so, some of the confusions that arose may have been avoided.
[11] The sheriff deals with their verdicts on charge two at paragraph 12:
"It was for the jury to determine what they made of Ms A's evidence. Based upon her description of the incident, it was open to the jury, if they accepted her evidence, to conclude that Ms Vanbeck was the instigator of and the active participant in masturbating Mr Glover, and that Mr Glover's role in that was essentially a passive, non- participatory one. The jury's deletion to charge 2 in relation to Mr Glover but not Ms Vanbeck indicates that they took that view. In my opinion the approach taken by the jury cannot be characterised as being without any basis."
The Jury's Verdict
[12] The transcript of the charge and verdict includes what passed when the jury returned to court to deliver their verdicts:
"(Jury return to court)
CLERK OF COURT: Members of the jury, who speaks for you?
FOREMAN OF THE JURY: I do.
CLERK OF COURT: Have you agreed upon a verdict?
FOREMAN OF THE JURY: Yes.
CLERK OF COURT: What is your verdict in respect of the accused, Alan Glover, on the first charge?
FOREMAN OF THE JURY: Guilty, subject to admissions.
CLERK OF COURT: Sorry?
FOREMAN OF THE JURY: Guilty, subject to admissions on the indictment.
SHERIFF THORNTON: Do you mean deletions?
CLERK OF COURT: Deletions?
FOREMAN OF THE JURY: Deletions, sorry, yes.
CLERK OF COURT: What's your deletions?
FOREMAN OF THE JURY: We have deleted, "instruct her to perform oral sex", "and threaten her with violence".
CLERK OF COURT: Is that by a...unanimous or majority?
FOREMAN OF THE JURY: Majority.
CLERK OF COURT: And what's your verdict in respect of charge 2?
FOREMAN OF THE JURY: Guilty, subject to deletions.
CLERK OF COURT: And those are?
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