Penrice v HM Advocate

JurisdictionScotland
JudgeLord Justice General (Carloway),Lord Brodie,Lord Turnbull
Judgment Date04 August 2020
Neutral Citation[2020] HCJAC 32
Date04 August 2020
CourtHigh Court of Justiciary
Docket NumberNo 2

[2020] HCJAC 32

Lord Justice General (Carloway), Lord Brodie and Lord Turnbull

No 2
Penrice
and
HM Advocate
Cases referred to:

Advocate (HM) v Moynihan [2018] HCJAC 43; 2019 SLT 370; 2019 SCCR 61

Textbooks etc referred to:

Law Society of Scotland, Practice Rules 2011 (Law Society of Scotland, Edinburgh, 27 May 2011), r B1.13 (Online: www.lawscot.org.uk/members/rules-and-guidance/rules-and-guidance/section-b/rule-b1/rules/b1-13-relations-with-the-courts/ (26 August 2020))

Justiciary — Procedure — Charge to jury — Misdirection — No cross-examination of witness who gave evidence about matters on a docket — Jury directed that they could, in the absence of challenge to that witness, find her evidence to be true — Whether material misdirection

James Penrice was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate in the sheriff court at Glasgow with three charges of historical lewd, indecent, and libidinous practices and behaviour against two complainers. A docket was attached to the indictment which specified further lewd, indecent, and libidinous practices and behaviour towards another person. The appellant had previously pled guilty to the conduct on the docket. The appellant pled not guilty to the three charges on the indictment and the cause came to trial before a sheriff (J McCormick) and a jury on 18 September 2019. On 20 September 2019, the appellant was convicted of one charge of lewd, indecent, and libidinous practices and behaviour. On 17 October 2019 the appellant was sentenced to 15 months' imprisonment. The appellant appealed against both conviction and sentence to their Lordships in the High Court of Justiciary.

The appellant was indicted on three charges of lewd, indecent, and libidinous practices and behaviour against two complainers. A docket was attached to the indictment which specified further lewd, indecent, and libidinous practices and behaviour towards another person. The docket matter was the only possible corroborative evidence for one of the charges on the indictment, through the application of the doctrine of mutual corroboration. The appellant had previously pled guilty to the conduct on the docket. At trial, the solicitor for the appellant did not cross-examine the docket witness and did not challenge her credibility or reliability. In the course of addressing the jury, the Crown stated that if the jury accepted the account of the docket witness, and were satisfied that the doctrine of mutual corroboration applied, then they could use that witness's evidence to corroborate the accounts of the complainers. In his address to the jury, the solicitor for the appellant stated that the evidence of the docket witness was not something that the jury should care about and, further, that he had chosen not to cross-examine that witness in order not to waste the jury's time. The sheriff directed the jury that, in the absence of challenge to the docket witness, the jury could accept her evidence as true. The appellant was convicted of one of the charges on the indictment and sentenced to 15 months' imprisonment. He appealed.

The appellant argued that the jury had been materially misdirected as the sheriff had been wrong to suggest that a lack of challenge to the evidence of the docket witness required her evidence to be treated as truthful.

The Crown submitted that the comments made by the appellant's solicitor in addressing the jury had been wrong and required to be corrected and that, on considering the whole of the sheriff's charge, it was clear that the jury had not been directed to treat the docket witness evidence as true.

Held that: (1) the appellant's solicitor had made a number of incorrect statements in addressing the jury and it was plainly necessary for the sheriff to correct what had been said, to explain the use to which the evidence of the docket witness could be put, and to give directions about how to approach her evidence (paras 11–14); (2) when the whole charge was considered, it was clear in context that the sheriff had done no more than explain to the jury that they were entitled to accept the evidence of the docket witness as true (paras 15–17); (3) the sheriff had considered all relevant factors in sentencing and the sentence selected had been appropriate (para 18); and appeal refused.

Observed that it was a fundamental requirement of the privilege and rights...

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