Appeal Against Conviction By Mark William Patrick Maclennan Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Drummond Young,Lord Justice Clerk |
| Judgment Date | 23 December 2015 |
| Neutral Citation | [2015] HCJAC 128 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
| Published date | 23 December 2015 |
| Date | 23 December 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 128
HCA/2015/818/XC
Lord Justice Clerk
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
MARK WILLIAM PATRICK MACLENNAN
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Alonzi, D Hughes; John Pryde & Co (for Jim Friel, Glasgow)
Respondent: KM Harper AD; the Crown Agent
23 December 2015
Background
[1] On 23 May 2013 a boy, namely RO, aged just 3, reported certain matters of concern to his parents. These involved the appellant, whom he knew as “Mark” and who was a manager at the Nevis Nursery, Fort William. The police were informed and a joint investigative interview (JII) took place on the following day. This was described as a “negative” interview by the advocate depute. The appellant was detained and interviewed on the same day.
[2] On 29 May, a questionnaire was sent out to other parents of children attending the nursery. As a result, a JII was conducted with a girl, ML, aged 5. She spoke to an occasion when the appellant had tickled her between her legs using what the trial judge describes as a fleeting touch. On 31 May, the appellant was interviewed about this. He was then arrested. The matter was reported to the procurator fiscal. The appellant appeared on petition on 4 June 2013. He was charged only with a sexual assault on ML, contrary to section 20 of the Sexual Offences (Scotland) Act 2009.
[3] On 11 June, RO was re-interviewed. He was asked certain pointed questions, such as “you don’t like Mark, what does he do that you don’t like” and repeatedly “what does Mark do that’s scary”. He was able to say that he and his father had “willies” but that he hadn’t seen anyone else’s. However, he went on to say that he had told his parents that Mark had put his willie in his mouth and hurt his teeth. He placed his fingers in his own mouth and made choking noises to demonstrate what had happened. It is fair to say that the interviewers had considerable difficulty in focusing RO’s attention. His conversation naturally wandered into other areas more immediately relevant to him.
[4] Following a degree of publicity, AG, then aged 17, came forward. She gave an account of being involved with a youth music theatre group for which the appellant did voluntary work as a “chaperone” for some of the children, including AG. When she was 12, in 2007, the appellant had persuaded her to remove all her lower clothing to assist in measurements for her pantomime costume. He had touched her in the area of the vagina. A similar incident of a more lasting duration occurred during the following year and yet more episodes happened at various locations subsequently. The final one was in 2010.
[5] Another boy from the nursery, namely CK, was interviewed on 9 July 2013. The trial judge reports that this JII was not well conducted. The child asked on 9 occasions whether he could go and see his mother in the next room. He was then questioned after having been wrongly told that he would only be kept for another minute or so. The questioning was “leading in the extreme”. The judge describes it as of “dubious evidential value”. He was, for example, asked if the appellant had “touched his bum”. He had agreed with this.
[6] All the JIIs were sent to a psychologist, who was asked to report on their quality and to recommend how best to take the young children’s evidence. On 21 October 2013, the psychologist reported that the interviews were of reasonably high quality. The best way of taking their evidence would be on commission.
[7] It was only on 18 February 2014 that the case was reported to Crown Office. The report did not advise on the state of the young children’s memories by this time; now at least 9 months after the alleged incidents. On 26 February, Crown counsel instructed an indictment in respect of all 4 complainers, with the JIIs being used as part of the examination-in-chief. Transcripts of the JIIs had all been disclosed to the appellant on 14 August 2013, notwithstanding that he had still only appeared on a petition regarding the incident with ML.
[8] An indictment was served on the appellant on 17 March 2014. It contained 6 charges, the first 4 being statutory sexual offences (Criminal Law (Consolidation) Act 1995 s 6, 2009 Act ss 20, 18 and 19) involving respectively the complainers AG, ML, RO and CK. The remaining charges concerned the appellant’s collection of child pornography (Civic Government (Scotland) Act 1982, s 52A(1) and 52(1)(a)).
[9] On 4 April 2014, the Crown lodged applications in respect of each of the young child complainers ML, RO and CK for non-standard special measures; in particular for their respective JIIs to be taken as their evidence-in-chief (Criminal Procedure (Scotland) Act 1995, s 271M), with their cross-examination and re-examination to take place on commission (s 271I). These applications were continued to the Preliminary Hearing set for 24 April. The defence had by then instructed their own psychologist and a report on the methodology used at the JIIs was anticipated. It was minuted that the defence might lodge a preliminary issue minute challenging the admissibility of the JIIs, but this was never done. At a PH on 10 June, the court granted the Crown’s applications for special measures. There had been no objection to this.
[10] The commissions were fixed for 1 and 2 July 2014 at Inverness. They took an interesting, if predictable, course. They were being held over a year after the children’s first reports. ML was cross-examined by senior counsel. He began by asking a series of questions about ML’s family, friends and school. ML confirmed that she had been at nursery, but said that the teachers had all been female. She had only been at one nursery. She did not know what it was called. It was not in Fort William, but in Upper Achintore (which is in Fort William). No men had worked at the nursery. Although asked a number of other questions in cross and re-examination, ML was not asked about the incident involving “Mark”, which she had spoken about in her JII.
[11] RO’s commission involved a prolonged exchange with other persons, with the judge only managing to get a look in on page 14 of the transcript and counsel asking his first question thereafter. After sundry pleasantries, RO was asked about his, and his father’s, “willies”. Eventually (p 32), there is this passage:
“Q … Do you remember going to nursery in Fort William?
A Ding! Eh, eh.
Q Don’t remember going to nursery in Fort William.
A No.
…
Q … Do you remember anything about Fort William?
A Nope …”.
Once again there was no direct questioning by either party about the facts in the libel.
[12] CK’s commission was not very different. He did remember going to nursery, but a different one from that in the libel. He recalled a teacher called “Jack”. Again the alleged incident was not mentioned.
[13] On 18 August 2014, the defence lodged a minute raising a compatibility issue under section 288ZA(2), of the 1995 Act. This complained that the appellant had “not had an adequate and proper opportunity to challenge the key witnesses against him in breach of the [appellant’s] Convention rights under Article 6, Article 6(3) …”. It was said that the appellant had had no opportunity to question the children “shortly” after the JIIs. He was thus deprived of an opportunity “to effectively participate in the cross-examination process”. He did not have an equality of access to the witnesses. The judge who heard the initial argument rejected these contentions. She did not consider that it was inevitable that any trial would be unfair in a Convention sense.
[14] The trial commenced on 26 January and concluded on 30 January 2015. The Crown withdrew charge (4), involving CK. The appellant’s guilt on the child pornography charges (5 and 6) was not disputed. The jury found the appellant guilty of charges (1) and (3), relating to AG and RO. They found charge (2), involving ML, not proven.
Submissions
Appellant
[15] The appellant contended that there had been unjustified delay in initiating the commission process. Though the appellant had been given the opportunity to cross-examine the witnesses at the commission, the process had been inherently unfair. The Crown had chosen not to refer to the JIIs at the Commission. The practical result of that was that the defence had been faced with the prospect of reminding the children of what they had said at their JII in order to conduct any meaningful cross-examination. The defence would have had to have reminded the children of their incriminating statements before seeking to challenge them.
[16] The appellant had a Convention right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him (Art 6(3)(d)). It was clear that the children’s memories had been severely affected by the passage of time. Either the children had not understood the questions put to them at the commission or they had had no recollection of any of the matters they had previously spoken about at the JIIs. The attempts to cross-examine the children had been futile. A comparison was made with the test for the competence of a child witness in England (R v Powell [2006] 1 Cr App R 468; R v B [2010] EWCA Crim at 38; R v M [2008] EWCA Crim 2751; R v Maliki [2009] EWCA Crim 365).
[17] The evidence upon which the appellant had been convicted had been based solely or decisively on the statements of the young child complainers. Charge (1), in respect of AG, required mutual corroboration from the evidence on either charges (2) or (3) in respect of ML or RO. The jury had heard, and would have been entitled to take into account, the testimony of CK on Charge (4), even although it had been withdrawn by the Crown.
[18] There was no equality of arms, in terms of the Crown’s...
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