McNeil v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 19 October 2005 |
| Neutral Citation | [2005] HCJAC 113 |
| Date | 19 October 2005 |
| Docket Number | No 14 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Hamilton, Lord Wheatley, Lord Macphail
Justiciary - Time-limits - Act allowing conviction of statutory offence subject to one-year time-bar in rape trial not subject to time-limit - Whether intention of parliament that jury should be able to convict of lesser statutory offence where not convicting of rape - Sexual Offences (Scotland) Act 1976 (cap 67), secs 4(1), 15 - Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39), secs 5, 14
The Sexual Offences (Scotland) Act 1976 provided in sec 4(1) that any person who had or attempted to have unlawful sexual intercourse with any girl of or aged between 13 and 16 years shall be liable upon conviction on indictment to up to two years' imprisonment provided no prosecution on indictment be commenced more than one year after commission thereof. Section 15 of the 1976 Act provided that upon trial of any indictment for rape or any offence under sec 3(1) (intercourse with a girl under 13) if the jury were satisfied the accused was guilty of an offence under secs 2, 3 or 4(1) of the Act of an indecent assault but not of the charge or attempt thereof in the indictment, the jury might acquit the accused of such charge and convict instead of such offence or of an indecent assault, and the accused was liable to like punishment as he would have been for the offence.
The Criminal Law (Consolidation) (Scotland) Act 1995 provides in sec 5 (as originally enacted and applicable to the appellant) that any person: having unlawful sexual intercourse with any girl under 13 shall be liable on conviction on indictment to life imprisonment. Where an attempt to do so is made or an attempt made or the act committed with any girl of or between the age of 13 and 16, the term of imprisonment is up to two years. No prosecution is to be commenced more than one year after the commission of the offence. A prosecution is deemed to commence on the date on which a warrant to apprehend or cite the accused is granted if done so without delay. Section 14 provides that if on trial on indictment for rape or an offence under sec 5(1) the jury are not satisfied that the accused is guilty of the charge or attempt they may acquit of that charge and convict of an offence under sec 5(2) or (3) or 7(2) or (3) of the Act, or of an indecent assault, the liability to punishment being the same as if convicted on indictment for such offence or for indecent assault.
The appellant was convicted after trial in the High Court of Justiciary of a number of sexual offences perpetrated between 1977 and 1997 against the children and step-children, both male and female, of his mistress. The charges were of shameless indecency and rape. He was charged with five counts of shameless indecency (charges 1, 4, 6, 8 and 9) and three of rape. The Advocate-depute invited the jury instead of rape to convict in relation to the rape charges of statutory offences, namely in relation to charge 5 sec 4 of the 1976 Act (the victim then being aged 15); in relation to charge 7 secs 3 and 4 of the 1976 Act (the victim being between the ages of 10 and 14); and in relation to charge 10 of secs 3 and 4 of the 1976 Act and sec 5(3) of the 1995 Act. The jury returned verdicts of guilty on the charges of shameless indecency under certain deletions and of the statutory offences as sought by the Advocate-depute, except in relation to charge 10 where no conviction was made under sec 3 of the 1976 Act. The appellant appealed against conviction on charges 4, 5, 7 and 10 and sought restrictions on the convictions under charges 1, 6, 8 and 9. In relation to the latter restriction was sought to the periods when the children were under the age of puberty and the substitution of a conviction for lewd and libidinous practices for those of shameless indecency. The restrictions sought were not opposed by the Crown.
Counsel for the appellant argued that sec 14 of the 1995 Act required to be read along with the time-bar contained in sec 5(4). The intention of Parliament in relation to the one-year time-bar would be thwarted if the Crown could at any time indict for rape, when there was no prospect of a conviction on such a charge, and then secure an alternative conviction of a statutory offence when it could not have proceeded on a libel of contravention of the statutory offence.
Held that: (1) in circumstances where a prosecution for rape was brought, the effect of sec 14 of the 1995 Act was not to place a time-bar on the jury's ability to convict of the lesser statutory offences as appropriate set out in the Act, and the challenge to conviction under charges 5, 7 and 10 fell to be refused (para 13); (2) in relation to the charge of shameless indecency in relation to a victim over the age of puberty (charge 4) a substitution of a conviction for lewd and libidinous practices could not be substituted nor was there any evidence of assault and accordingly the conviction should be quashed (paras 14, 15); (3) (of consent of the Crown) in relation to the other convictions of shameless indecency alternative verdicts of lewd and libidinous practices restricted to the period during which the victim had not attained puberty should be substituted (para. 16); and quoad ultra the appeal against conviction refused.
Neil Ferguson McNeil was charged on indictment at the instance of the Right Honourable Colin David Boyd, Her Majesty's Advocate, with charges of shameless indecency and rape. Following trial in the High Court of Justiciary, at Glasgow, the appellant was convicted of the charges of shameless indecency under deletions and of certain statutory offences in lieu of the charges of rape.
The appellant appealed to the High Court of Justiciary against convictions on certain of the charges and sought restrictions recorded in relation to others.
Cases referred to:
Advocate (HM) v Philp (1890) 2 White 525
Advocate (HM) v RooseUNK 1999 SCCR 259
Advocate's (Lord) Reference (No 1 of 2001), ReUNK 2002 SLT 466; 2002 SCCR 435
Creighton v HM Advocate (1904) 4 Adam 356; (1904) 12 SLT 36
P v HM AdvocateSCUNK [2005] HCJAC 41; 2006 JC 23; 2005 SLT 651; 2005 SCCR 367
R v Cotton (1896) 60 JP 824
R v JUNKELRWLRUNK [2004] UKHL 42; [2005] 1 AC 562; [2004] 3 WLR 1019; [2005] 1 All ER 1
Sneddon v HM AdvocateSCUNK [2005] HCJAC 41; 2006 JC 23; 2005 SLT 651; 2005 SCCR 367
Textbooks etc. referred to:
Bennion, FAR, Statutory Interpretation: A Code (4th ed, Butterworths, London, 2002), p 1072
Renton, RW, and Brown, HH, Criminal Procedure According to the Law of Scotland (6th GH Gordon ed, W Green, Edinburgh, 1996), para 8.79
At advising, on 19 October 2005, the opinion of the Court was delivered by Lord Hamilton-
Opinion of the Court-
[1] On 26 October 2001 the appellant was convicted after trial in the High Court at Glasgow of a number of sexual offences perpetrated between 1977 and 1997. The victims were the children and stepchildren, both male and female, of the appellant's mistress. Certain of the charges on the indictment (charges 1, 4, 6, 8 and 9) were framed under reference to the nomen juris of shameless indecency - at the date of the trial understood to...
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Neil Ferguson Mcneil V. Her Majesty's Advocate
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