Sneddon v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 01 January 2006 |
| Neutral Citation | [2005] HCJAC 41 |
| Date | 01 January 2006 |
| Court | High Court of Justiciary |
Justiciary - Crime - Shameless indecency - Indecent conduct - Lewd, indecent and libidinous practices - Alternative verdict not sought at trial - Whether an amended verdict can be substituted - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 118
Justiciary - Crime - Shameless indecency - Indecent conduct - Complainer aged 16 years - Indecent assault - Whether an amended verdict of indecent assault can be substituted
Section 118(1) of the Criminal Procedure (Scotland) Act 1995 provides that the High Court of Justiciary may dispose of an appeal by, inter alia, setting aside the verdict of the court and substituting an amended verdict of guilty.
Section 118(2) of the Criminal Procedure (Scotland) Act 1995 provides that an amended verdict of guilty must be one which could have been returned on the indictment before the trial court.
Schedule 3, para 9(2) to the Criminal Procedure (Scotland) Act 1995 provides that any part of a charge in an indictment which itself constitutes an indictable offence, shall be separable and it shall be lawful to convict an accused of that offence.
The first appellant (Sneddon) was convicted by a jury in the sheriff court on a charge of shameless indecency. The complainers were two girls aged between nine and ten years.
The second appellant (P) was convicted by a jury in the sheriff court of three charges of shameless indecency. In charge 1 the complainer was his daughter aged 16 years and in charges 3 and 4 his step-daughter aged between eight and 12 years.
While these convictions were under appeal a full court inWebster v Dominick2005 1 JC 65 decided that shameless indecency was not a nomen juris. Where indecent conduct was directed against a victim who was within a class of persons whom the law protects the crime was that of lewd, indecent and libidinous practices.
The first appellant argued that the crime which was the subject of the charge was not one known to the law of Scotland and nothing could be substituted for it. While the appeal court could substitute an alternative verdict, that alternative had to be one which could have been returned by the jury, on the indictment. Shameless indecency did not carry an implied alternative verdict. The jury could not return any other verdict, moreover, because they had not been invited to do so. The court could not now substitute a conviction for another offence. While it was conceded that if any crime had been committed by the first appellant it was that of lewd, indecent and libidinous practices the fact remained that the appellant faced an indictment which did not disclose a crime known to the law.
The second appellant adopted the approach of the first appellant. It was further argued in respect of charge 1, however, that the offence, if committed, could only have been one of indecent assault given the age of the complainer (16 years). The directions for an offence of indecent assault were different from those in fact given by the sheriff.
The Crown argued that their primary position was that the offences of shameless indecency had simply been misdescribed and that the offences and thus the convictions were on any view those of lewd, indecent and libidinous practices. It did not matter that an incorrect nomen juris had been applied.Alternatively it was argued that if the convictions in both appeals fell to be quashed, another conviction should be substituted by applying sec 118(2) of the Criminal Procedure (Scotland) Act 1995. If the word "shamelessly" were to be omitted the conviction would be one of indecent conduct because that was the species facti. More particularly thespecies facti in the case against Sneddon and charges 3 and 4 in P disclosed the crime of lewd, indecent and libidinous practices. In respect of those charges the Crown moved to set aside the verdicts and substitute verdicts of guilty of lewd, indecent and libidinous practices. The Crown acknowledged that charge 1 in the appeal of P presented a difficulty given the age of the complainer but argued that the court could substitute a verdict of guilty of indecent assault. Charge 1 and charges 3 and 4 in P had relied upon the application of theMoorov doctrine and the Crown argued that could still be applied.
Held that: (1) it was not right to simply treat the conviction of Sneddon and charges 3 and 4 in P as if they were convictions for lewd, indecent and libidinous practices (para 11); (2) if the adverb "shamelessly" had been deleted from the charges the words left were entirely descriptive of acts amounting to lewd, indecent and libidinous practices (para 12); (3) it was not necessary to specify by anynomen juris the offence charged (para 12); (4) the actus reus would have been the same as was thought necessary for shameless indecency and there would not have been any material difference in respect of mens rea (para 12); (5) the court had the power to substitute amended verdicts of guilty of lewd, indecent and libidinous practices (para 12); (6) the fact that the Crown had not sought such convictions in the trial was not relevant (para 12); (7) charge 1 in P was different because there was significant difficulty with substituting an amended verdict of indecent assault (para 13); (8) it had not been part of the Crown case as charged, that the...
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W.m. V. Her Majesty's Advocate
...of threats to be substituted, even where the Crown had not sought a conviction for such offences at the trial (Sneddon and P v HM Advocate 2006 JC 23). There was little difference in the actus reus or mens rea of threats and breach of the peace. Reply by Mr Shead [9] Mr Shead submitted that......