Notes Of Appeal Against Conviction And Sentence By William Hugh Lauchlan And Charles Bernard O'neill Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Brodie,Lord Justice Clerk |
| Judgment Date | 19 June 2014 |
| Neutral Citation | [2014] HCJAC 62 |
| Published date | 19 June 2014 |
| Docket Number | XC435/10, |
| Court | High Court of Justiciary |
| Date | 19 June 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lord Menzies Lord Brodie
| [2014] HCJAC 62 XC435/10, XC424/10,
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
NOTES OF APPEAL AGAINST CONVICTION AND SENTENCE
by
WILLIAM HUGH LAUCHLAN and CHARLES BERNARD O’NEILL Appellants;
against
HER MAJESTY’S ADVOCATE Respondent:
_____________ |
Appellant (Lauchlan): Jackson QC, Considine, Solicitor Advocate; Capital Defence (for Fitzpatrick & Co, Glasgow)
Appellant (O’Neill): J Carroll, Solicitor Advocate; McClure Collins, Glasgow
Respondent: Bain QC AD; the Crown Agent
19 June 2014
General
[1] On 12 May 2010, at the High Court of Justiciary in Glasgow, Mr O’Neill was found guilty of the sodomy of IY, aged 14, in June 2003 at an address in Irvine (charge 5). Both appellants were found guilty of two other charges. The first (charge 7) was a sexual assault on DW, aged 14, in a motor home Spain in April 2004; contrary to section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995. The second (charge 10) was of meeting a person under 16, namely SA, at various addresses in Scotland and England between December 2007 and March 2008, with the intention of engaging in unlawful sexual activity involving, or in the presence of a child; contrary to section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
[2] On 10 June 2010, at the conclusion of a separate trial for murder (charge 2) and attempting to defeat the ends of justice (charge 3), each appellant was sentenced to 10 years imprisonment for the sexual offences, concurrent with life sentences imposed in respect of the murder (see sentence, infra).
[3] Mr Lauchlan lodged a Note of Appeal, containing five grounds of appeal in respect of the sexual offences, on 27 August 2010. Leave to appeal was refused by the judge at first sift but granted by the court at second sift in respect of all grounds. Mr O’Neill lodged his Note, containing very many grounds and sub-grounds on a wide range of issues regarding all the charges, on 2 September 2010. Leave in respect of the sexual offences was refused at first sift but granted by the court in respect of charge 7 only (ie not 10). This prompted a lengthy application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 to re-instate other grounds, including many relating to the murder conviction. A hearing was held on 8 November 2011. The application was granted in part on 8 February 2012 ([2012] HCJAC 51) in respect of charge 10 but otherwise, in relation to the murder, refused. An appeal to United Kingdom Supreme Court, for which leave had been granted, was rejected ([2013] UKSC 36). A date for a final appeal hearing was fixed for 6 February 2014. However, on that date, only an appeal against the murder conviction was heard, with submissions on the sexual offences and on the murder sentences to be heard later. On 27 March 2014, the appeals against conviction in respect of the murder were refused ([2014] HCJAC 22). The remaining elements in the appeal proceeded to a hearing on 22 April 2014.
[4] At the commencement of the hearing, the court received a request from G4S that Mr O’Neill be handcuffed because of information that he presented a risk of absconding. Having heard his protestations against this, the court acceded to the request. The court was then asked to excuse his attendance on the basis that he did not want to be present if he was to be handcuffed to one of the custody officers. It was not suggested that Mr O’Neill would be in any way prejudiced by being handcuffed. The court did not consider that there was any substantial reason to excuse his attendance, given that he had already been brought from prison to the court in terms of section 117 of the 1995 Act. The appeal did raise matters affecting his future and there were apparent advantages to him in being able to give appropriate instructions, if required, to his legal representative. This decision was met with a violent protest from Mr O’Neill, which in itself suggested that the decision to handcuff him had been the correct one. The court adjourned temporarily. On resuming, the court acceded to the motion to excuse Mr O’Neill’s attendance given his disruptive conduct. The appellant was entitled to be present, if he wished, at his appeal hearing (1995 Act, s 117(3)) but there is no requirement that he be so if, as in this case, he did not wish to attend (Manuel v HM Advocate 1958 JC 41). His legal representative informed the court that he was fully instructed to present the appeal.
Evidence
Charge 5
[5] The complainer IY lived with his mother, a chaotic drug addict, in Irvine. He was nearly 15 at the time of the offence and had ADHD, a hearing impairment and learning difficulties. He was of low average intelligence. Mr O’Neill, who had taken to visiting the complainer’s home in 2003, drugged the complainer, followed him to his bedroom, pulled down his lower clothing and sodomised him as libelled. This had been painful to the complainer. He had fallen asleep and did not see the appellant again. The complainer’s mother recalled an occasion when she had heard her son scream. She had gone up to his bedroom and found the appellant emerging from it, explaining that he had got the rooms mixed up. She found her son “a bit upset”. It was not suggested that the mother’s evidence was itself sufficient to provide corroboration of the facts libelled and, in due course, the Crown relied on the principle of mutual corroboration in connection with charge 7, and a further charge (8) of which the appellants had been acquitted, to supply the necessary sufficiency.
Charge 7
[6] The appellants had been living in a camper van in Benidorm, Spain, in 2004, when they met the complainer DW, aged 14, and his older brother in a bar. The complainer’s parents appeared to exercise little control over him. The brothers visited the appellants in the van, where they were given alcohol and offered drugs. After his brother had left, the appellants detained the complainer in the van for several days during which he was sexually assaulted as libelled. This included attempting to pull his trousers down with a view to sodomising him. He was eventually rescued by the police. The complainer’s brother spoke to the visit to the van, being propositioned by Mr Lauchlan and the highly distressed state of the complainer upon his return home with the police. However, it was again not suggested that this evidence was sufficient of itself. Mutual corroboration by comparison with another offence was required.
Charge 8
[7] Both appellants had been charged that, between 10 December 2007 and 27 January 2008, at an hotel in Polmont and one in Blackpool, England, the appellants had assaulted JG, aged 17, a young man of limited intelligence, by various indecent means and sodomised him. This was libelled as a single crime taking place at two quite separate locations many miles apart. It was explained that the libel had been based upon the account given by JG to the police whereby between these dates he had, on various occasions, been subjected to the acts libelled. It was not suggested that there was a continuing crime occurring. However, following the model in Laird v HM Advocate 1985 JC 37, the Crown had libelled events in Scotland and England as if the offences had consisted of a single crime of “sexual abuse”.
[8] No plea was taken to the competency of that part of the charge relating to the occasions in Blackpool. However, contrary to the Crown’s expectations, JG did not speak to any criminal activity occurring in Scotland. The only criminal conduct, which he did testify about, had happened in Blackpool. It was not disputed that it would not have been competent for the jury to try a libel which related only to events in England. No motion was made by the Crown to delete that part of the libel (ie Polmont) about which no evidence had been adduced. No plea of “no jurisdiction” was advanced. Rather the appellant made a “no case to answer” submission in terms of section 97(1) of the 1995 Act. This was not opposed by the Crown. In terms of section 97(2), the judge held that there was insufficient evidence to prove the charge and accordingly formally acquitted the appellants of this charge.
Charge 10
[9] JG had been in a relationship with PR, who was the mother of SA, aged 6. SA and PR lived with PR’s parents in Falkirk. The appellants took JG, PR and SA on a holiday trip to Peterhead, where they began indulging the child. They contrived to sleep in the same room as the child. Mr O’Neill, who was in a state of undress, cuddled the child, who was only in his underpants. Intensive telephone contact between the appellants and PR followed. The appellants gave SA a phone and paid for credit on it. The appellants later travelled from Blackpool and, having dropped PR at her place of work, planned to spend the night with JG and SA at the hotel in Polmont. This was prevented by PR’s mother, but the next day the appellants took SA, PR and JG to visit Glasgow. Many photographs of SA were taken and retained by the appellants.
[10] The appellants managed to rearrange the stay at the Polmont hotel. By the morning, Mr O’Neill was in a bunk bed with SA. The appellants later took PR and SA on a trip in a camper van to the Lake District, during which the appellants shared a bed with SA. Many more photographs of SA were taken. There was a proposal for the four to go to Spain in the van. A subsequent search of a room shared by the appellants at a hotel in Blackpool discovered a pair of SA’s underpants with Mr O’Neill’s semen on them. There were toys and sweets and published accounts by the victims of child abuse also found.
Grounds of Appeal and Submissions
Lauchlan
[11] (Ground 1) The trial judge had erred in directing the jury that they could use the evidence of JG...
To continue reading
Request your trial
-
Appeal By Jamie Fisher Against Hma
...when there had been an acquittal on a charge, the evidence may remain available in aid of other charges (Lauchlan and O’Neill v HM Advocate 2015 JC 75). The presumption of innocence had no bearing on any matter contained in the docket, whether relating to a conviction or otherwise (AD at pa......
-
Appeal Against Sentence By John Leathem Against Her Majesty's Advocate
...for a contract killing by shooting and an associated attempted murder was reduced to a period of 27 years; Lauchlan & O’Neill v HM Advocate 2015 JC 75, in which punishment parts of 26 years and 30 years respectively were imposed after conviction on charges of sexual misconduct involving you......
-
HM Advocate v AD
...DMcL v HM Advocate [2015] HCJAC 97; 2016 JC 25; 2015 SCCR 391; 2016 SCL 15; 2015 GWD 36–575 Lauchlan and O'Neill v HM Advocate (No 2) [2014] HCJAC 62; 2015 JC 75; 2014 SLT 813; 2014 SCL 570 McFadyen v Annan 1992 JC 53; 1992 SLT 163; 1992 SCCR 186 McIntosh v HM Advocate 1986 JC 169; 1987 SLT......
-
Appeal Against Conviction And Sentence By Alain Climent Against Her Majesty's Advocate
...v HM Advocate 1930 JC 68; Ogg v HM Advocate 1938 JC 152 at 157; Ainsworth v HM Advocate 1997 SLT 56 at 57; Lauchlan v HM Advocate (No.2) 2015 JC 75, at para [28]; Cannell v HM Advocate 2009 SCCR 207; and Danskin v HM Advocate 2002 SLT 889 at para [13]). The verdicts in respect of the charge......