H.d. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Bracadale,Lady Dorrian |
| Neutral Citation | [2013] HCJAC 128 |
| Docket Number | XC526/12 |
| Published date | 18 October 2013 |
| Date | 18 October 2013 |
| Court | High Court of Justiciary |
| Year | 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 128 | |
| Lord Eassie Lady Dorrian Lord Bracadale | Appeal No: XC526/12 OPINION OF THE COURT delivered by LORD BRACADALE in NOTE OF APPEAL by HD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: McKenzie; Drummond Miller LLP
Respondent: Brodie QC, AD; Crown Agent
18 October 2013
Introduction
[1] On 2 April 2012 at a continued preliminary hearing at the High Court at Edinburgh the appellant pled guilty to a charge in the following terms:
"(1) On two occasions between 22 April 2008 and 28 February 2009, both dates inclusive, at [various places in Perthshire] you did assault CH, born 16 April 1997, care of Tayside Police, Perth, penetrate her vagina with your penis and did rape her."
As originally libelled the charge included reference to "various occasions" and a number of further loci. Pleas of not guilty to the remaining charges were accepted by the Crown.
[2] The appellant, who was born on 1 November 1994, was aged 13 and 14 years when he was alleged to have committed the offences and 17 years at the time of sentence. One previous conviction was libelled: on 17 March 2011 at Forfar Sheriff Court the appellant was convicted on summary complaint of three contraventions of the Criminal Law (Consolidation) (Scotland) Act 1995 section 52(1). Sentence on the charge of rape was initially deferred until 21 April 2011 and thereafter until 29 August 2012 when the sentencing judge, Lord Uist, having considered a number of reports on the appellant, made a probation order for three years.
Note of Appeal
[3] In this appeal the appellant seeks to withdraw his plea of guilty to charge (1). In the note of appeal, in a series of numbered paragraphs, the procedural history of the case is set out and paragraph 7 concludes:
"It is submitted that in the whole circumstances as narrated above, that particularly having regard to the appellant's limited level of intellectual functioning, that the plea of guilty was tendered under real error and misunderstanding and that a miscarriage of justice has occurred."
The law
[4] There was no dispute as to the applicable law. Parties recognised that a plea of guilty can be withdrawn only in exceptional circumstances. In Reedie v HMA 2005 SCCR 407 the Lord Justice Clerk (Gill), delivering the opinion of the court, stated:
"[11] A plea of guilty constitutes a full admission of the libel in all of its particulars (Healy v HM Adv, supra). It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court (Dirom v Howdle, supra); nor, in our view, in the light of a subsequent verdict in the trial of another party on the same charge. In view of the conclusive nature of such a plea, it can be withdrawn only in exceptional circumstances (Dirom v Howdle, supra): for example, where it is tendered by mistake (MacGregor v MacNeill, 1975 JC 57) or without the authority of the accused (Crossan v HM Adv, supra). There is little scope, if any, for the withdrawal of a plea that has been tendered on legal advice and with the admitted authority of the accused (Rimmer, Petr, supra)."
Reference was also made in submissions to the following passage from the opinion of Lord Osborne in McMillan v HMA [2011] JC 138:
"It is well recognised that a conviction following upon a plea of guilty tendered with legal advice can only be quashed in limited circumstances. These are, first, where it has been tendered without the authority of the accused person, second, if tendered under some real error or misconception, or third, if tendered in circumstances which were clearly prejudicial to the accused...".
The contention before us was that the appellant's plea of guilty was tendered under some real error or misconception.
Evidence
[5] In the light of an earlier hearing of the case at which it was decided that it would be necessary to hear evidence before disposing of the appeal, we heard evidence on behalf of the appellant from the appellant himself and his father, SD, and on behalf of the Crown from Susan Duff, advocate, Robert Bruce, solicitor, and Michael Ferrie, solicitor. Mr Bruce was the senior partner of Bruce & Company and Mr Ferrie was employed by the firm.
[6] In order to examine the conflict of evidence at the heart of the case it is necessary to set out in some detail the history, much of which was not in dispute. On 15 April 2011 the appellant appeared on petition at Perth Sheriff Court; the petition included the charge relating to CH. The appellant made no plea or declaration; the case was continued for further examination and the appellant was granted bail. The appellant instructed Mr Bruce to represent him. Mr Bruce had previously represented him on summary matters and was familiar with the appellant.
[7] The case being one likely to be prosecuted in the High Court, at an early stage Mr Bruce instructed counsel, Mrs Duff. In November 2012, in response to being given notice of this appeal, Mrs Duff prepared a note of her involvement. The note was based partly on contemporaneous notes made by her and partly from memory. She referred to the note in the course of her evidence. Mrs Duff consulted with the appellant for the first time on 29 June 2011. On this occasion, and indeed on all occasions on which he consulted with his solicitor or with his solicitor and counsel, the appellant was accompanied by his father, SD. At the consultation on 29 June 2011 Mr Bruce was the instructing solicitor. It was recognised by each of the legal representatives who had dealings with him that the appellant had learning difficulties. Because she wondered whether the appellant had a mental age much younger than his physical age Mrs Duff instructed agents to obtain a report from a clinical psychologist to address the question of the appellant's mental capacity. In due course Dr John Marshall was instructed and produced a report.
[8] Mrs Duff's evidence was that at the consultation on 29 June 2011 the appellant's position was that he had not had sexual intercourse with CH and that CH was lying. In the course of being interviewed by the police the appellant had made what could be construed as admissions. He told Mrs Duff that he had done so because he had been told that if he did not admit it, he would not get his medication. Mrs Duff considered that there was a strong case against the appellant. In addition to what had been said by the appellant in the interview there were statements from other children who claimed to have been present during sexual activity between the appellant and CH. Mrs Duff's concerns at that stage were to know whether the appellant, because of his learning difficulties, had understood the caution given by the police at the beginning of the interview and whether he could understand the proceedings. At this meeting she advised him of the terms of section 196 of the Criminal Procedure (Scotland) Act 1995. She told the appellant that he would have to make the decisions about the case; while she would be able to advise him, he must make the decisions himself. Mrs Duff was satisfied that the appellant understood what she was saying. In addition, she had been told by Mr Bruce that when he had acted for the appellant on previous occasions, there had been no difficulty in his understanding. Furthermore, throughout the consultation the appellant had been accompanied by his father.
[9] The appellant and his father had a meeting with Mr Bruce on 30 November 2011 when the transcripts of the police interview were reviewed. In early January 2012 an indictment was served on the accused citing him to a preliminary hearing at the High Court at Glasgow on 14 February 2012. Charge 1 on the indictment (which contained five charges) libelled the rape of CH. On 25 January 2012 the appellant and his father had a meeting with Mr Bruce at which the terms of the indictment were discussed and disclosed statements were gone over.
[10] On 10 February 2012 Mrs Duff had another consultation with the appellant who was again accompanied by his father. It was necessary for Mrs Duff to consult with the appellant at this stage in order that she could prepare and submit the joint written record prior to the preliminary hearing. She wanted instructions as to how the case should proceed. On this occasion Mr Ferrie, to whom responsibility for the case had been given by Mr Bruce, was present as instructing solicitor.
[11] Mrs Duff's evidence was that in the course of this consultation, the appellant told her that he did have sexual intercourse with CH but was adamant that she had consented. Mrs Duff explained to the appellant that a girl under 12 years of age was, in law, incapable of giving consent. His belief with respect to consent did not constitute a defence. She considered that he understood that explanation; she got no sense from him that he did not understand it. Both he and his father nodded in response to it. The appellant did not accept any of the other allegations on the indictment. In the light of the appellant's position, Mrs Duff indicted that, at this stage, she did not want instructions from him, but wanted his permission to speak to the advocate depute in order to find out what the Crown's "bottom line" would be. The appellant gave permission. Mr Ferrie prepared a file note of this meeting. Mr Ferrie accepted that his file notes were sometimes not of the highest quality. He did not record that the appellant admitted that he had had sexual intercourse with CH. In his evidence he recalled that the appellant had said that he had had sexual intercourse with CH, but had not forced himself on her. In the file note he recorded:
"Noting however that the evidence does appear that he did have sex with a person under the age of 12 and in that event it is rape as far as the statue (sic) is concerned. [The appellant], seeming to understand this and noting that basically all he is...
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