Miller v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Turnbull,Lord Matthews |
| Judgment Date | 06 May 2021 |
| Court | High Court of Justiciary |
| Docket Number | No 3 |
[2021] HCJAC 30
Lord Justice General (Carloway), Lord Turnbull and Lord Matthews
Fee v HM Advocate [2017] HCJAC 13; 2017 SLT 469; 2017 SCCR 166; 2017 SCL 376
Green v HM Advocate [2019] HCJAC 76; 2020 JC 90; 2020 SCCR 54; 2019 GWD 39-631
Khalid v HM Advocate 1990 JC 37
McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 471; 2015 GWD 11-184
Judicial Institute for Scotland, Jury Manual (Judicial Institute for Scotland, Edinburgh, April 2021 (Online: https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/jurymanual.pdf?sfvrsn=8c9918e4_6 (8 November 2021))
Justiciary — Evidence — Sufficiency — Concert — Evidence of two appellants acting, on different occasions, together and separately — Whether sufficient evidence of concert
Justiciary — Evidence — Sufficiency — Identification — Evidence from complainer of identification of appellant — Circumstantial evidence of identification available — Whether sufficient evidence of identification
Justiciary — Evidence — Sufficiency — Stalking — Evidence of attempts made by appellants to apologise to complainer and invite her back to family home — Whether sufficient evidence of necessary intent or knowledge of fear and alarm — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 39
Justiciary — Procedure — Charge to jury — Sheriff charging jury on stalking and concert — Directions in line with Jury Manual — Whether adequate in circumstances — Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), sec 39
Kevin MacKay Miller and Lauren Aird Miller were charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with 14 charges including, inter alia, assaults and stalking. The appellants pled not guilty and the cause came to trial in the sheriffdom of Grampian Highland and Islands at Inverness before a sheriff (E MacDonald) and a jury on 30 October 2019. At the close of the Crown case all but three charges were withdrawn by the Crown, leaving a charge of assault against the first appellant only and two charges of stalking against both appellants. The sheriff refused a submission of no case to answer in respect of the assault charge. On 14 November 2019, both appellants were convicted by the jury of the remaining charges. On 12 December 2019, the first appellant was sentenced to six months' imprisonment for the assault and 12 and 16 months' imprisonment for the two stalking charges, all to be served consecutively. The second respondent was ordered to undertake 280 hours of unpaid work in the community within nine months. The appellants appealed to the High Court of Justiciary against both conviction and sentence.
Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) provides, inter alia, that a person commits an offence if they behave in a threatening or abusive manner that would be likely to cause a reasonable person to suffer fear or alarm and that they intend by the behaviour to cause fear or alarm or are reckless as to whether the behaviour would cause such fear or alarm. Section 39 provides, inter alia, that a person commits the offence of stalking if they engage in a course of conduct which causes fear or alarm to the other person, and they intend to cause fear or alarm or know or ought to know that engaging in the course of conduct would be likely to cause the person to suffer fear or alarm.
The appellants were charged with a total of 14 charges, including assaults and charges of stalking, against the complainer who was the first appellant's estranged wife and the second appellant's mother. In respect of the first charge, an assault libelled against the first appellant only, the complainer gave evidence of returning home after a night out before being assaulted by the first appellant. A neighbour became involved. The neighbour gave evidence which did not entirely accord with the complainer's evidence and he was unable to identify the first appellant. The complainer's family spoke of seeing the complainer before and after she had gone home that evening. After she had been home she was seen to be distressed and bruised. The complainer also gave evidence in relation to two charges of stalking, the evidence of which detailed efforts made by the two appellants to have her return to the family home including phone calls, contact over social media, attending at her new addresses, leaving flowers, and sending correspondence directly and through third parties over a number of years. Some behaviour was said to involve only one or other of the appellants. At the end of the Crown case, all bar those three charges were withdrawn by the Crown and, in due course the appellants were convicted of the three charges. The first appellant was sentenced to six months' imprisonment for the assault and 12 and 16 months' imprisonment for the two stalking charges, all to be served consecutively. The second respondent was ordered to undertake 280 hours of unpaid work in the community within nine months. The appellants appealed to the High Court of Justiciary against both conviction and sentence.
It was argued on behalf of the first appellant that there had been insufficient evidence of identification on the charge of assault and that there had been insufficient evidence to establish concert between the appellants in relation to the two charges of stalking. In respect of sentence, it was submitted that a custodial sentence was excessive for a first offender and esto a custodial sentence was not excessive in and of itself, that the custodial sentence imposed was excessive.
On behalf of the second appellant, it was also submitted that the directions given by the sheriff on concert were inadequate and, in part, incorrect.
Held that: (1) in relation to the charge of assault, there had been sufficient circumstantial evidence to corroborate the complainer's evidence that the first appellant was her assailant (para 43); (2) in relation to the two charges of stalking, the basis upon which the Crown contended that the necessary intent or knowledge was established was unclear (paras 44–49); (3) there was no evidence of an antecedent plan and it was difficult to see where spontaneous concert could be founded (paras 50, 51); (4) given the manner in which parties at trial had approached sufficiency and concert, it had been crucial for the trial sheriff to provide the jury with an adequate route to verdict (paras 52–56); (5) while the sheriff accurately defined the crime and the law on concert, she gave no guidance on the evidence led, no guidance on whether either accused engaged in conduct which satisfied the necessary ingredients of the crime charged, and no guidance on how to determine the question of whether, at any stage, either appellant was acting in concert in committing criminal behaviour with the other (paras 57–61); (6) in the circumstances, the directions given by the trial sheriff to the jury on the issue of concert had been inadequate and failed to provide the jury with sufficient guidance (para 65); and convictions on the two charges of stalking quashed and appeals against conviction granted in part.
Observed that in anything other than straightforward cases it was important that the Crown give clear submissions as to the basis upon which it contended that the crimes charged had been established and as to the evidence relied upon for that purpose, and judges and sheriffs might seek submissions from the Crown, or the defence, if the relevant speech did not make it plain upon what basis the party was proceeding (para 67).
McGartland v HM Advocate 2015 SCCR 192 referred to.
The appeals called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Turnbull and Lord Matthews, for a hearing, on 6 May 2021.
Eo die the court allowed the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by Lord Turnbull—
Opinion of the Court— [1] This appeal principally concerns the circumstances in which a father and his adult daughter came to be convicted of two lengthy charges specifying breaches of sec 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), otherwise known as the crime of stalking. The complainer in both charges was the first appellant's wife and the second appellant's mother, Linda Miller, who was estranged from the family at the time.
[2] The appeal highlights the difficulties which can ensue when the parties to a case fail properly to isolate and identify the essential legal components of such a charge and when the Crown fail to set out a coherent and logical analysis of the basis upon which they invite the jury to be satisfied that the accused persons engaged in conduct which was criminal and did so while acting in concert.
[3] The appellant Kevin Miller (‘KM’), who is now aged 52 years, appeared on an indictment containing 14 charges along with his two daughters Lauren Miller (‘LM’), now aged 26 years, and Courtney Miller (‘CM’), now aged 23 years. The case went to trial in the sheriff court at Inverness, commencing on 30 October 2019 and concluding 12 court days later on14 November. Linda Miller was the complainer in each of the charges.
[4] KM appeared on six charges of assault (charges 1, 2, 3, 4, 9 and 13), one charge of abduction and assault (charge 11), one charge of attempting to pervert the course of justice (charge 7) three charges alleging breaches of sec 38(1) of the 2010 Act (charges 5, 6 and 12) and three charges of breaching sec 39(1) of the same Act (charges 8, 10 and 14).
[5] LM was charged along with KM on two of the charges of assault (charges 9 and 13) and the charge of abduction and assault (charge 11). CM was charged along with KM and LM on one charge of assault (charge 9) and both daughters were also charged along...
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