Sb Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Bracadale,Lord Justice Clerk |
| Judgment Date | 21 May 2015 |
| Neutral Citation | [2015] HCJAC 56 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2014 |
| Date | 21 May 2015 |
| Published date | 30 June 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 56
HCA/2014/3072/XC
Lord Justice Clerk
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
SB
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Gilchrist; Paterson Bell (for Beltrami & Co, Glasgow)
Respondent: Erroch AD; the Crown Agent
21 May 2015
Introduction
[1] On 18 June 2014, after a trial at Edinburgh Sheriff Court, the appellant was found guilty, by the unanimous verdict of the jury, of a charge which libelled that:
“on 25 [and 26] November 2012 … at Roseneath Terrace, Edinburgh …, Coventry … and elsewhere you … did abduct … AB, aged 11 years, … and did seize hold of him, struggle with him and forcibly carry him out of a common stair … and place him into a nearby vehicle, place him in a state of fear and distress, convey him by motor car … to Coventry and detain him against his will …”.
The jury deleted a libel of assault, notwithstanding their inclusion, in the verdict, of the appellant’s forcible physical contact with the complainer. The appellant was sentenced to 2 years imprisonment.
[2] The appeal raises an issue about whether a parent can abduct his own child in circumstances where, although his parental rights and responsibilities have not been removed, the court has made a residence order whereby the child is to live with the other parent. In that connection, there is a complaint of defective representation. The appeal poses an additional question about the effect of a concession, made by counsel in the course of a trial, on the court’s duty to direct the jury upon the matter conceded. Finally, there is an appeal against sentence.
Evidence
[3] The appellant married MB in India in 1999. They have two children, viz AB, the complainer, who was aged 11 at the time of the events libelled, and his younger brother. The appellant and MB separated, not for the first time, in December 2008. At that time, they were living in Coventry. Thereafter, there were contentious litigations in England and Scotland regarding the residence of the children and the degree of contact which they should have with the appellant.
[4] During the hearing of the appeal the appellant referred to a judgment of HH Judge Richards, in the High Court of Justice in England, dated 23 January 2009. This had been referred to in the trial. It contains inter alia a finding (at para 43) that MB had:
“through her behaviour and personality, harmed the physical development, the emotional behaviour and educational development of both [children]. The evidence discloses that with the boys she has been harsh, uncompromising and arguably cruel.”
Although the judge was satisfied that the mother was attending to the children’s physical and emotional needs, he was critical of her ability to look after the children beyond that. This was partly because of the content of extracts from audio recordings which the appellant had clandestinely made of MB’s engagement with the children.
[5] It is not entirely clear what orders were, or were not, made at the time of Judge Richard’s initial findings. What is known is that, just over a year later (29 January 2010), after a hearing of some 7 days, the same judge made an order whereby the children “shall each reside with their mother” MB. MB was to “make the children … available for contact with” the appellant. This contact was to take the form of indirect communication by way of cards, letters and presents. By this time, the children were living with MB in Scotland. The appellant’s application for the return of the children to England was dismissed.
[6] On 25 September 2012, the sheriff at Edinburgh also made “a residence order in favour of [MB] … whereby the children … shall reside with [MB]”. He too awarded the pursuer only indirect contact “by letterbox”; this being restricted to twice per year. The appellant’s other craves, which were presumably for further contact, were dismissed. Both residence orders were proved at the trial.
[7] The appellant gave evidence that in October 2012, he had, unknown to MB, rented a flat above MB’s home in Roseneath Terrace. He made further clandestine audio recordings of MB and the children. In particular, on 15 November 2012, he made a recording which he handed to the police. The appellant testified that, on 25 November 2012, he had heard MB screaming at the children. She had slammed the door and left the flat. The appellant went downstairs, having waited until MB had left the building.
[8] The complainer gave evidence that his mother and brother had gone to the shops. He had remained in the close. The appellant had suddenly appeared and chased him up the stair. The complainer was frightened. He pushed the buzzer of his neighbour’s flat. He lost his slippers (later found on the stairs above his flat). The appellant grabbed him, pulled him down the stairs, put his hand over his mouth, and put him into a car. The complainer had been crying and begging the appellant to let him go.
[9] MB had returned after 5 to 10 minutes, to find the complainer missing. The appellant had taken him to Coventry. Although the appellant maintained that the complainer had gone with him willingly, he did accept that he had carried the complainer to the car and that he had grabbed him, supposedly because he had fallen. His account of the complainer going with him voluntarily was implausible and clearly rejected by the jury. He had said that he had only decided to take the complainer to Coventry once he was in the car; a contention that the jury also rejected.
[10] In the course of a somewhat prolonged and argumentative cross-examination, the appellant expressed his view that the residence orders had been based on mistakes. He contended that, notwithstanding the terms of the court orders, he had “full parental rights and responsibilities” and had a right to protect his children. The court orders had not said that he could not have direct contact with his children. He did accept that he did not have the right to remove the complainer from his home, but claimed that he was entitled to make sure that he was safe.
Lawful authority
[11] At an early stage in the trial, the sheriff raised with the appellant’s counsel the issue of whether it was being maintained that the appellant had lawful authority to take the child from his place of residence. Counsel stated that it was not. The sheriff raised the matter again prior to speeches and charge. Counsel confirmed that the position remained the same. The defence was that the child had gone willingly and had therefore not been abducted.
[12] When he came to charge the jury, the sheriff directed them that abduction was the crime of deliberately carrying off or detaining somebody against that person’s will and without lawful authority. He stated specifically that “In this case no issue of lawful authority arises”. The jury’s focus on the libel of abduction was accordingly on the issue of whether the appellant had carried off and detained the child against his will. The sheriff also directed the jury on the need for proof of evil intention on the assault element, in the sense of a deliberate act intended to cause physical injury. This had presumably been heeded by the jury and prompted the acquittal of assault.
[13] The Note of Appeal in its original form (lodged on 3 September 2014) raised the issue of lawful authority only in the context of an allegation of defective representation. It was averred that, at a First Diet of 13 August 2013, the appellant’s agents had “made it plain that his defence was primarily based on the issue of lawful authority as disclosed in his defence statement”. This was not minuted, although the statement (which was not produced in the appeal process) was lodged on that date. It was said that, at the trial, the appellant had attempted to raise this matter, especially in cross-examination; a fact not entirely borne out by a study of the transcription (see above). The appellant alleged that the position adopted by counsel in relation to lawful authority “was contrary to the appellant’s instructions” and “contrary to the legal position”. The ground argued that the residence order of 25 September 2012 did not deprive the appellant of his parental rights and responsibilities (Children (Scotland) Act 1995, s 11(11)).
[14] Leave to appeal was refused by the judge at first sift on 13 October 2014; the judge commenting that the appellant had not produced any affidavit in support of his position. The appellant was afforded (Note by the Court, 13 November 2014) time to lodge an affidavit in advance of a decision by the court at second sift. By that time, trial counsel had reported that, in his view, the appellant’s parental rights, upon which any lawful authority would have been founded, had been severely restricted by the English and Scottish residence and contact orders. The appellant could only have indirect contact with the children, who were to live with their mother. The express terms of the orders meant that the appellant’s right (1995 Act, s 2(1)(a)) to regulate their residence no longer prevailed. Counsel stated that this was explained to the appellant, who was told that the trial would be conducted on that basis; the defence being that the complainer had gone willingly with him. The appellant had been left in no doubt about the way in which the trial was to be conducted. The appellant’s then agents confirmed the accuracy of this and explained that the appellant had previously had similar advice from another member of the Bar.
[15] The affidavit of the appellant, which was lodged subsequently, stated that he had asked his counsel many times to challenge the competency of the libel. He had given him materials, including Orr v K 2003 SLT (Sh Ct) 70 (see infra). It confirmed that counsel had told the appellant that the defence was to be one of...
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