Note Of Appeal Against Conviction By James Wilson Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lady Paton,Lord Malcolm |
| Neutral Citation | [2016] HCJAC 70 |
| Published date | 23 August 2016 |
| Docket Number | HCA/2015 |
| Year | 2016 |
| Court | High Court of Justiciary |
| Date | 23 August 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 70
HCA/2015/3561/XC
Lord Justice General
Lady Paton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
JAMES WILSON
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: A Ogg, Solicitor Advocate; Martin Johnston & Socha, Dunfermline
Respondent: A Prentice QC (sol adv) AD; the Crown Agent
23 August 2016
Introduction
[1] On 17 November 2015, at the High Court in Edinburgh, the appellant was convicted of two charges of extortion and attempted extortion. The first libelled that, between January and March 2013, the appellant, along with a co-accused JC, sent an anonymous letter to WT threatening to kill members of his family unless he paid £60,000. Thereafter they made anonymous phone calls to him pretending that the letter had been sent by dangerous criminals from England. They told him where and when to deposit the money. The appellant offered to courier the money and was duly given it. The second charge was in not dissimilar terms and libelled that, between April and May 2014, they sent further letters to WT threatening him and his family with violence unless he paid £375,000. In a later call he was asked to give the letters to the appellant so that they could be examined for DNA. A further letter instructed WT where to deposit the money.
[2] The co-accused had admitted involvement in both offences at interview, having been advised that his DNA had been found on some of the letters. He said that it had been the appellant’s idea. He had written the letters. He had divided the £60,000 with the appellant. The co-accused pled guilty at the close of the Crown case. Both accused were sentenced to 5 years imprisonment.
[3] The appeal concerns the sufficiency of evidence on the first charge. At the trial, this question was analysed in terms, inter alia, of the ratio in Howden v HM Advocate 1994 SCCR 19.
The Complainer’s Testimony
[4] The complainer had known the appellant for 15 to 20 years. The appellant had worked for him periodically. The complainer considered him to be a friend. In January 2013, a matter of weeks after the complainer had moved house, a letter arrived. Only the complainer’s family and workers, including the appellant, would have been aware of his new address. The letter, which was in the traditional cut and paste format of the blackmailer, made threats to the complainer in the terms libelled. The complainer contacted the appellant, in whom he was in the habit of confiding. The appellant claimed to know a solicitor or “barrister” in Glasgow called “Davie” who might be able to find out who had sent the letter. The complainer received a phone call from Davie who told him to put the letter in a plastic bag and give it to the appellant to pass onto him for DNA analysis. Davie called him later to say that the senders had been identified as being Liverpool villains. He advised the appellant to pay the money. This was to be done by giving the appellant £60,000 for onwards transmission through Davie. He did this, having withdrawn £21,000 from his bank account and obtained the rest by borrowing from relatives. He received a further call from Davie saying that it was “all finished”.
[5] On Tuesday, 22 April 2014 a second letter arrived, this time demanding £375,000. This letter was in stencilled format, in the terms of the libel, involving threats to the complainer’s family. The complainer phoned the appellant, who arranged for Davie to call. The same DNA plan was suggested. The complainer asked the appellant to pick up the letter from him at Pizza Hut on the following day. The appellant did this, using a blue car. When the complainer arrived home, there was a hand delivered letter stating that the authors had been watching him and asking if he had enjoyed his meal with his girlfriend on the previous Friday night. The complainer had had such a meal. The complainer phoned the appellant. Davie then phoned the complainer to say that he would send two men to watch the house. Davie later said that a Liverpool mob had been identified from the DNA analysis. The next morning another letter arrived saying “How was your pizza? ...Your pig friend in the blue car won’t save you…”. The complainer confided in his son MT and the police were involved. On the following day (Saturday, 26 April) the complainer told the appellant and Davie that he had been to the police. On Sunday, 27 April, Davie texted him to say “Me and my boys are coming through to take [M] out for grassing up [the appellant]”. Only the appellant knew that MT had accompanied him to the police station. Further demanding letters arrived and were handed to the police.
Other Evidence
[6] The complainer’s son MT said that he had become aware of the first letter in 2013. He had seen the letter at the time and noted that it was threatening and demanding £60,000. It was agreed by joint minute that the complainer withdrew £21,000 from his bank at the time. MT had fallen out with his father because he had not gone to the police. He was not aware that any money had been paid. When the 2014 letters had arrived, he had again told the complainer to go to the police, which he did.
[7] The police recovered a number of the letters relative to the second charge, as they arrived at the complainer’s home. These were produced at the trial.
[8] There was evidence of telephone calls from Saturday, 26 April (when the complainer had contacted the police). This involved an exchange of some five calls between the appellant and the co-accused from 8.38 to 10.16am. There were then three calls from the appellant to the complainer from 2.56 to 4.34pm. At 5.25 the co-accused called the complainer. At 6.39 the appellant phoned the co-accused and, apparently during this call, there is a second short call from the appellant to the complainer followed at 6.48 by a 10 second call from the appellant to the co-accused. Between 8.21 and 8.25pm there were three communications between the appellant and the co-accused. At 8.31 the appellant called the complainer and, immediately, afterwards phoned the co-accused. Immediately after that, the complainer called the appellant. Finally, at 8.40pm the appellant called the co-accused.
[9] Forensic evidence demonstrated that the co-accused’s DNA was on the stamps of two of the envelopes used to send the letters in charge 2. The handwriting in four of the letters in April 2014 was “probably” that of the co-accused.
[10] At interview, the appellant admitted that he knew both the complainer and the co-accused.
Trial
[11] At the trial, there was a submission that there was insufficient evidence of identification on either charge. There was some debate about the Crown having to rely on the concept of art and part guilt, which had not been expressly libelled, coupled with the application of Howden v HM Advocate...
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