Neil Ferguson Mcneil V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hamilton,Lord Macphail,Lord Wheatley |
| Court | High Court of Justiciary |
| Date | 19 October 2005 |
| Docket Number | XC116/04 |
| Published date | 19 October 2005 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Hamilton Lord Wheatley Lord Macphail
| Appeal No: XC116/04 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL AGAINST CONVICTION by NEIL FERGUSON McNEIL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: W.G. Jackson, Q.C., J. MacDonald; McClure Collins, Edinburgh
Respondent: A. Turnbull, Q.C., A.D.; Crown Agent
19 October 2005
The background
[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 step-children, 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 iuris of shameless indecency - at the date of the trial understood to constitute a crime under the law of Scotland. Certain other charges on the indictment (charges (5), (7) and (10)) were of rape. The remaining charges (charges (2) and (3)) were directed against a co-accused only. In the course of the trial various amendments were made to the particulars of charges (1), (4), (6), (8) and (9). In his address to the jury the Advocate depute invited them not to convict the appellant of rape on charges (5), (7) and (10) but, in each case, of certain statutory offences. These were, in respect of charge (5), of section 4 of the Sexual Offences (Scotland) Act 1976 (the offences being alleged to have been committed on various occasions in 1979 when the victim was aged 15), in respect of charge (7), of sections 3 and 4 of the 1976 Act (the offences being alleged to have been committed on various occasions between 1988 and 1992 when the victim was between the ages of 10 and 14) and, in respect of charge (10), of sections 3 and 4 of the 1976 Act and of section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995 (the offences being alleged to have been committed on various occasions between 1993 and 1997 when the victim was between the ages of 12 and 15). The Advocate depute's intimated intention to adopt that course of action had earlier been the subject of objection by counsel for the appellant. The trial judge repelled that objection. In the event the jury returned in respect of each of charges (1), (4), (6), (8) and (9) a verdict of guilty under certain deletions. In respect of charges (5), (7) and (10) they returned verdicts of guilty of the statutory offences referred to, except in respect of charge (10) where the verdict of guilty was in respect only of section 4 of the 1976 Act and of section 5(3) of the 1995 Act.
[2]The appellant has appealed against his conviction on charges (4), (5), (7) and (10). He also seeks restrictions on the convictions recorded under charges (1), (6), (8) and (9) to the periods when the children were respectively under the ages of puberty, with a substitution of a conviction for lewd and libidinous practices for that of shameless indecency (see Sneddon v H.M. Advocate 2005 S.C.C.R. 367). These restrictions are not opposed by the Crown. The conviction on charge (4) is challenged on the basis that, throughout the period in question, the female complainer was above the age of puberty. The convictions on charges (5), (7) (in part) and (10) are challenged on the basis that, the prosecution having commenced more than a year after the commission, in any case, of the relative statutory offence, the trial judge erred in ruling that it was open to the jury to return a conviction of such an offence and for the jury to return such convictions. In relation to the conviction on charge (7), it is accepted that, so far as that relates to section 3 of the 1976 Act, the conviction is unchallengeable.
The principal issue
[3]Mr. Jackson, for the appellant, presented as his principal contention that directed against the convictions of contravention of section 4 of the 1976 Act and section 5(3) of the 1995 Act. It is convenient to deal with that contention first.
The statutory provisions
[4]The statutory provisions which are of primary relevance are as follows. The 1976 Act (now consolidated in and replaced by the 1995 Act) provided by section 4(1) -
"Any person who has, or attempts to have, unlawful sexual intercourse with any girl of or above the age of 13 years and under the age of 16 years shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding three months:
Provided that no prosecution on indictment shall be commenced for an offence under this subsection more than one year after the commission of the offence".
Section 15 of the 1976 Act provided:
"If, upon the trial of any indictment for rape or any offence under section 3(1) of this Act [intercourse with girl under 13], the jury are satisfied the accused is guilty of an offence under section 2, 3 or 4(1) of this Act, or of an indecent assault, but are not satisfied that the accused is guilty of the charge in such indictment or of an attempt to commit the same, then and in every such case the jury may acquit the accused of such a charge, and find him guilty of
such offence as aforesaid, or of an indecent assault, and thereupon the
accused shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such an offence as aforesaid, or for indecent assault".
[Section 2 of the 1976 Act is concerned with procuring sexual intercourse by threats etc.; its statutory equivalent in the 1995 Act is discussed later].
Section 5 of the 1995 Act, as originally enacted, provided, in so far as material:
"(1)Any person who has unlawful sexual intercourse with any girl under the age of 13 years shall be liable on conviction on indictment to imprisonment for life.
(2)Any person who attempts to have unlawful sexual intercourse with any girl under the age of 13 years shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding three months.
(3) ... any person who has, or attempts to have, unlawful sexual intercourse with any girl of or over the age of 13 years and under the age of 16 years shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding three months.
(4)No prosecution shall be commenced for an offence under subsection (3) above more than one year after the commission of the offence.
...
(7)For the purposes of subsection (4) above, a prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay".
[In 1997 the maximum penalty on conviction on indictment under section 5(2) or 5(3) was increased to ten years imprisonment but with effect from a date subsequent to the expiry of the period to which the conviction on charge (10) related].
Section 14 of the 1995 Act provides:
"If, on the trial of an indictment for rape or an offence under section 5(1) of this Act, the jury -
(a)are not satisfied that the accused is guilty of the charge or of an attempt
to commit the charge; but
(b)are satisfied that the accused is guilty of an offence under section 5(2)
or (3) or 7(2) or (3) of this Act, or of an indecent assault,
the jury may acquit the accused of the charge mentioned in paragraph (a) above, and find him guilty of such offence as is mentioned in paragraph (b) or of an indecent assault, and the accused shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such offence or for indecent assault".
[Subsection 5(2) and subsections 7(2) and (3) of the 1995 Act are respectively re-enactments of subsection 3(2) and subsections 2(1) and (2) of the 1976 Act].
Submissions on the principal issue
[5]Mr. Jackson submitted that, as a matter of statutory interpretation, section 14 of the 1995 Act (which was that operative at the time of the trial) had to be read along with the time-bar contained in section 5(4) (and the equivalent proviso in section 4(1) of the 1976 Act). There was no Scottish authority directly in point. The trial judge had been referred to H.M. Advocate v Philp (1890) 2 White 525, Creighton v H.M. Advocate (1904) 4 Adam 356 and H.M. Advocate v Roose 1999 S.C.C.R. 259; the last supported the proposition that it was illegitimate to seek to circumvent a statutory time-bar by libelling a common law offence. Of more assistance for present purposes was the approach adopted by the House of Lords in Regina v J [2004] U.K.H.L. 42; [2005] 1 A.C. 562. Although the issue there for decision was not the same as here, the approach adopted to statutory construction supported that contended for - in particular the principle identified in the last sentence of paragraph 18 and the assistance which the House of Lords indicated was to be gained from R. v Cotton (1896) 60 J.P. 824. Reference was made in particular to the speeches of Lord Bingham of Cornhill at paras. 5, 14-20 and 24-5, of Lord Steyn at paras. 30 and 32-7 and of Lord Rodger of Earlsferry at paras. 53-64. The intention of Parliament,...
To continue reading
Request your trial