Alexander Paterson V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Osborne,Lord Justice General |
| Neutral Citation | [2008] HCJAC 18 |
| Year | 2008 |
| Docket Number | XC193/06 |
| Date | 25 April 2008 |
| Court | High Court of Justiciary |
| Published date | 25 April 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Osborne Lord Nimmo Smith | [2008] HCJAC 18 Appeal No: XC193/06 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by ALEXANDER PATERSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead, Thomson; McClure Collins, Edinburgh
Alt: Mackay, A.D.; Crown Agent
25 April 2008
The procedure
[1] The appellant was indicted in the Sheriff Court at Hamilton on seven charges. These were in the following terms:
"(1) on 1 May 2004 [at an address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SR], born 28 June 1991 ... and did place your hand around her waist, pull her towards you, touch her bottom, squeeze her bottom with your hand and press your private parts against her:
CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1965, section 6;
(2) on 25 July 2004 [at another address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards the said [SR], born 28 June 1991, a girl then of or over the age 12 years and under the age of 16 years, and induce her to sit on your knee, place your hands under her clothing, touch her back, touch her stomach and repeatedly attempt to touch her breasts:
CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;
(3) on 25 July 2004 [at the last mentioned address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [RR], born 13 June 1995 ... and did place your hands around her waist, and pull her towards you and press your body against her;
(4) between 1 February 2004 and 31 March 2004, both dates inclusive, [at a further address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SL], born 22 April 1994 ... and did place your hands beneath the bed clothes touch her leg and expose your naked private member;
(5) on 1 April 2004 at Netherton Industrial Estate, Wishaw, you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [NR], born 30 January 1987 ... and did induce her to sit on your knee causing your private member to become erect and hold her hands tightly:
CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;
(6) between 1 May 2004 and 31 August 2004, both dates inclusive, [at the first-mentioned address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [NR], born 30 January 1987 ... and did place your hand around her waist, did squeeze her tightly, pull her towards you and press your private parts against her:
CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;
(7) on various occasions between 1 February 2004 and 12 September 2004, both dates inclusive, [at the second-mentioned address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [JD], born 1 December 1992 ... and did lift her up, rub your body repeatedly against her, place your hands under her clothing and touch her body;".
[2] At a first diet held on 29 November 2005 the sheriff, on the motion of the defence, discharged the previously fixed diet of trial for the sitting commencing on 12 December 2005 and adjourned the diet of trial to the sitting commencing on 23 January 2006. He also assigned 11 January 2006 as a continued first diet. The case called at that diet when certain procedural matters were dealt with. Neither at the first diet nor at its continuation was any objection to the charges, on the grounds of relevancy or otherwise, taken.
[3] The case was called on 24 January 2006 within the sitting to which it had been assigned. By that stage it had become apparent to the prosecutor and the defence that there was something untoward about charges (5) and (6). Each bore to be a charge of contravention of section 6 of the Criminal Law (Consolidation)(Scotland) Act 1995 which renders criminal certain indecent behaviour towards a girl aged between 12 and 16. On the face of each of charges (5) and (6) at the dates libelled the complainer was, according to the date of birth libelled, over the age of 16. That date of birth was accurate.
[4] The prosecutor sought to deal with this difficulty by moving the court to allow charges (5) and (6) to be amended. The effect of the amendment, if allowed, would have been, while leaving the averments of particular conduct unaltered, to translate the charges from contraventions of the statute to allegations of breach of the peace. Opposition to such amendment was made on behalf of the appellant. It was contended that the amendment proposed was not within the scope of the court's powers under section 96 of the Criminal Procedure (Scotland) Act 1995 and in any event should not be allowed. Notwithstanding that opposition, the sheriff (Sheriff Welsh) allowed the indictment to be amended as proposed. He then continued the case to the following day. After sundry further procedure, including a reassignment of the trial diet to the sitting commencing on 30 January, the case called for trial on that day. After trial, during the course of which the prosecutor made certain further amendments to the libel and withdrew charge (3), the appellant was convicted on the remaining charges. The terms of the charges upon which he was so convicted were:
"(1) on 29 or 30 June 2004 [at an address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SR], born 28 June 1991 ... and did place your hands around her waist, pull her towards you, touch her bottom, squeeze her bottom with your hand:
CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6
(2) on 6 August 2004 [at another address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards the said [SR], born 28 June 1991, a girl then of or over the age of 12 years and under the age of 16 years, and induce her to sit on your knee, place your hand under her clothing, touch her back, touch her stomach and repeatedly attempt to touch her breasts:
CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6;
(4) between 1 February 2004 and 28 February 2004, both dates inclusive, [at a further address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [SL], born 22 April 1994 ... and did place your hands beneath the bedclothes touch her leg and expose your naked private member;
(5) on 1 April 2004 at Netherton Industrial Estate, Wishaw, you ALEXANDER PATERSON did induce [NR], born 30 January 1987 ... to sit on your knee causing your private member to become erect and did conduct yourself in a disorderly manner and did commit a breach of the peace;
(6) between 1 May 2004 and 31 August 2004, both dates inclusive, [at the first-mentioned address in Wishaw] you ALEXANDER PATERSON did place your hands around [NR's], born 30 January 1987 ... waist, did squeeze her tightly, pull her towards you and did conduct yourself in a disorderly manner and did commit a breach of the peace;
(7) on two occasions between 1 July 2004 and 30 September 2004, both dates inclusive, [at the second-named address in Wishaw] you ALEXANDER PATERSON did use lewd, indecent and libidinous practices and behaviour towards [JD], born 1 December 1992 ... and did lift her up, rub your body repeatedly against her, place your hands under her clothing and touch her body;".
[5] The appellant sought leave to appeal, initially upon two grounds. These in summary were (1) that the amendments made changed the character of the offences (and so were not within the scope of the amending power) and that, in any event, the sheriff had erroneously exercised his discretion in allowing the amendments and (2) that the erroneous allowance of evidence in relation to charges (5) and (6) had led to a miscarriage of justice also in relation to the remaining charges. Leave to appeal was granted on these grounds.
[6] The appellant subsequently sought and obtained leave to add three further grounds (grounds 3, 4 and 5). Argument has already been heard on ground 3 and that ground rejected. It remains to deal with grounds 1, 2, 4 and 5. Ground 4 (directed only against conviction on charges (5) and (6)) is that the evidence on these charges was insufficient in law to establish a breach of the peace. Ground 5 is that the sheriff misdirected the jury in relation to what constituted a breach of the peace.
[7] Section 96 of the Criminal Procedure (Scotland) Act 1995 provides:
" ...
(2) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to -
(a) cure any error or defect in it;
(b) meet any objection to it; or
(c) cure any discrepancy or variance between the indictment and the
evidence.
(3) Nothing in this section shall authorise an amendment which changes the character of the offence charged ... ".
Submissions for the appellant
[8] Mr. Shead, in developing his submissions on the first ground of appeal, argued that there were two situations in which amendment was not empowered under section 96: first, where the proposed amendment changed the character of the offence charged (and so was excluded by section 96(3)) and, secondly, where the original charge was fundamentally defective (it not being possible to amend a charge which was itself null). On the latter aspect reference was made to Stevenson v McLevy (1879) 4 Coup. 196. Charges (5) and (6) as libelled were, it was submitted, fundamentally null and could not be amended. Dyce v Aitchison 1985 SLT 512 was distinguishable. Shaw v Smith 1979 JC 51 was more in point. Reference was also made to Aitkenhead v ...
To continue reading
Request your trial
- Douglas Miller Harris V. Her Majesty's Advocate
-
Alexander Allan Bowes V. Procurator Fiscal, Aberdeen
...624; 1992 SCCR 531 MacGregor v MacNeillSC 1975 JC 57; 1975 SLT (Notes) 54 Mathieson v MacLeod 1996 SLT 660 Paterson v HM AdvocateSCUNK [2008] HCJAC 18; 2008 JC 327; 2008 SLT 465; 2008 SCCR 605; 2008 SCL 691 Pickett v HM AdvocateUNK [2007] HCJAC 47; 2008 SLT 319; 2007 SCCR 389; 2007 SCL 28 P......
-
Edith Jane King V. Procurator Fiscal, Dunoon
...in which the true nature of breach of the peace has been clarified, in particular Smith v Donnelly 2002 JC 65, Paterson v HM Advocate [2008] HCJAC 18, 2008 JC 327, 2008 SCCR 645, Harris (No. 1) v HM Advocate [2009] HCJAC 80, 2009 SCCR 15, 2009 SLT 1078, and Harris (No. 2) v HMA Advocate [20......
-
W.m. V. Her Majesty's Advocate
...disturbance in the community (Harris v HM Advocate 2010 SCCR 15, per Lord Justice General Hamilton at para [16]; Paterson v HM Advocate 2008 JC 327; cf Young v Heatly 1959 JC 66). The conduct took place exclusively in private and the averments of "disorderly conduct" were empty of any real ......