DNA: how conclusive?

Sufficiency of evidence

With corroboration unlikely to be abolished soon, appeals challenging sufficiency of evidence regularly come before the courts. These tend to focus on circumstantial evidence, the application of the Moorov doctrine or the Howden principle.

In Reid v HM Advocate [2016] HCJAC 41 (3 March 2016) the Appeal Court considered a conviction for theft by housebreaking based on the discovery of a cigarette butt inside the house, near the point of entry. On DNA analysis, the profile matched the appellant’s, with a 1:1 billion probability that it matched another unrelated male; the appellant had never been in the house with permission and no workman had been there before the incident. The appellant gave evidence that he did odd jobs in the area. He put flyers through doors and was a smoker, sometimes sharing cigarettes. (A separate issue on appeal was corroboration of the items said to have been stolen; the scenes of crime officer’s evidence that the house had been “ransacked” was held sufficient to corroborate the crime.)

The statistical probability that the butt matched the appellant was much stronger than the evidence in Dunbar v HM Advocate 2015 SCCR 186 (Journal, April 2015, 28 at 29). It was a reasonable inference that it had been discarded by the appellant in the course of the housebreaking. The jury had been left to consider the quality of this evidence along with the appellant’s explanation.

Lord Carloway suggested that the level of statistical probability in a DNA case which would be sufficient for proof beyond reasonable doubt might need to be revisited. Baroness Clark was more cautious, pointing out that DNA profiling currently does not uniquely identify individuals and the science and statistical underpinning may be very complex.

In another DNA case, Laing v HM Advocate [2016] HCJAC 33 (24 March 2016), the appellant was charged under s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 with striking the door of a house with a machete, kicking the door and breaking a window. The occupants gave a description of the perpetrator but could not identify him. Analysis of blood spots at the locus, including on glass from the window, revealed that the likelihood of it coming from an unrelated male was 1:1 billion. This evidence was uncorroborated. When the appellant was detained two days later he had recent lacerations to his fingers. He denied having been in the street but admitted knowing the householder.

The Appeal Court reiterated that where there is one positive identification, very little other evidence is required and in the circumstances the jury had been entitled to convict.

Martin v HM Advocate [2019] HCJAC 42 (29 April 2016) was an appeal against conviction for a series of fire-related offences, four of them relating to caravans parked in laybys on the A85 owned by or accessible to the appellant, and one to a flat in Crieff that he occupied at the time. Evidence pointed to each fire having been started deliberately and there were circumstances pointing to the appellant. The Appeal Court held there was sufficient evidence against the appellant in respect of one charge of fireraising, and in terms of Howden v HM Advocate 1994 SCCR 19 there was sufficient evidence that the same person committed the other offences as they occurred over an 11 month period and all but one arose within a mile of each other. The appellant could be linked to all the caravans and to the flat.

Moorov: elements of the offence

Moorov was revisited by the Appeal Court in CW v HM Advocate [2016] HCJAC 44 (6 May 2016). During his trial the appellant pled guilty to a charge of sexual activity with a male pupil under his charge then aged 15, contrary to s 42 of the Sexual Offences (Scotland) Act 2009. He was found guilty of charges of indecent assault and sexual assault contrary to s 3 of the Act on a young adult male who had been in care and to whom the appellant was introduced as a befriender. They subsequently had a consensual sexual relationship, but the appellant had been told by this male not to touch him sexually when he was drunk and incapable of giving his consent. The Crown relied on Moorov, citing similarity of time, place and circumstance as indicating a course of conduct. The defence submitted that consent was not an issue under s 42 but was for s 3. Since the latter charges had arisen in the context of a long-term consensual relationship, the appellant would at least have had a reasonable belief of consent. The Crown referred to s 14 of the Act, by which a person is deemed incapable of consent when asleep or intoxicated: corroboration could be found in evidence of similar conduct towards a person not capable of consenting because of his age. The Appeal Court said it was not appropriate to break down the crime in one charge into its essential elements, then look to see if the complainer in another charge spoke to those same elements. Charges falling within the Moorov doctrine could be different; what had to be examined was the underlying similarity of the conduct.

In the event the s 3 convictions were quashed due to a misdirection that the jury had to assume the younger complainer did not consent because of the type of offence, and that the appellant could be taken to have appreciated this. While a properly directed jury could have reached the same outcome, there had been a miscarriage of justice.

Adjournment of jury trials

This continues to be a problem area with so many cases being indicted and limited time to deal with them. A fairly robust line is taken when extensions of time are sought; an appeal against the granting of a further extension was refused in Attwell v HM Advocate [2016] HCJAC 37 (8 April 2016). Unexpected timetabling problems in other cases had led to the delay.

By contrast, in HM Advocate v Mathieson, Kilmarnock Sheriff Court, 18 January 2016, unreported, Sheriff Macfarlane upheld a minute that there had been abuse of process amounting to oppression relating to an accused who had not previously appeared on petition and was thus not protected by s 65 of the Criminal Procedure (Scotland) Act 1995. Co-accused had originally appeared on petition in September 2013 and the case was first indicted to a sitting in September 2014. The accused secured an adjournment due to his late inclusion on the indictment. The case was adjourned in October 2014 due to lack of court time until February 2015, and then for the same reason to the end of May 2015. At that sitting a “final” adjournment for lack of time was granted by the sheriff, who indicated her concern at the history and set the case down to a sitting in mid-August. At that sitting the Crown chose not to call the case but re-indicted it. At debate in January 2016 it was argued that the new proceedings were oppressive; the fact the accused had never appeared on petition did not give the Crown carte blanche to delay progress. The Crown accepted that the depute had chosen not to call the case in August 2015 given the likely opposition to an adjournment.

The sheriff did not consider that the delay had resulted in grave prejudice such as to prevent a fair trial, but considered the Crown’s actions to have been duplicitous amounting to an abuse of process by avoiding calling the matter to seek a fourth adjournment. The Crown was granted leave to appeal but did not proceed.

These circumstances are similar to HM Advocate v Wright, Glasgow Sheriff Court, February 1977 (unreported except at Renton and Brown, para 9-21), which was a rare example of the judge disapproving of the Crown’s conduct as amounting to oppression. Three indictments were deserted for various reasons; by the time a fourth was called in January 1977 a defence witness had disappeared. The sheriff took into account that the accused had been “harassed with repeated libels” without the Crown satisfying the court that there was good reason. See also HM Advocate v Reekie 1993 SCCR 460, where there were unexplained delays, various indictments and a repeated failure by the Crown to trace and personally cite essential witnesses, resulting in the court deserting the case simpliciter. It is to be hoped that when the Bowen proposals are brought into force with the court fixing and managing solemn trial diets as is done in the High Court, there will be better use of jury time and fewer adjournments sought for lack of court time.

Forfeiture of vehicles

I thought motions to forfeit vehicles in drink-driving cases were only made as part of the police festive campaigns. Two recent Sheriff Appeal Court decisions (from different benches) show otherwise.

In Chenao Li v Procurator Fiscal, Stirling [2016] SAC (Crim) 7 (8 April 2016) a first offender pled guilty to driving with nearly three times the alcohol limit, and failing to provide a breath specimen, on two occasions nine days apart. He had been fined £750, discounted from £1,000, on the first charge, and £1,200 discounted from £1,500 on the second offence, disqualified from driving for three years and his car valued at £15,000 had been forfeited. On appeal the forfeiture was said to be disproportionate and result in an excessive overall financial disposal; the length of disqualification protected the public adequately. The appellant came from a wealthy family who had purchased the vehicle and he could afford a substantial fine. The court was not impressed by the appellant’s apparent cavalier attitude and considered that in the circumstances the overall sentence was not excessive.

By comparison, in Duncan v Procurator Fiscal, Lerwick [2016] SAC (Crim) 9 (23 March 2016) a 68-year-old with an identical conviction from 2009 had failed to provide a breath specimen. Other previous convictions included one in the High Court relating to sea fish conservation. The appellant was disqualified for four years, and while no fine was imposed, his 15-plate vehicle was forfeited. Tantalisingly, but not uncommonly, no value or other details of the vehicle were produced, though it was accepted to have a significant value.

The type of offence was considered an aggravating factor since it deprives the court of a reliable measure of the alcohol level. Along with the appellant’s record, the court could have regard to the prevalence locally of such offending. There is an implication in the decision that the appellant had sufficient means.

When disclosure is not disclosure

HM Advocate v AM and JM [2016] HCJAC 34 (29 September 2015) is an interesting case; reporting was probably delayed due to subsequent trial proceedings. The respondents, aged 16 and 15, faced two charges of sexual abuse against younger boys. Special measures had been granted in respect of the complainers including taking their evidence on commission and the use of police and social work joint investigative interviews as evidence in chief. These were listed on the indictment as discs and transcriptions. The discs remained in the custody of the Crown, who would only allow the defence to view them in the procurator fiscal’s office by prior arrangement.

The preliminary hearing judge ordered the Crown to produce read-only versions of the discs to enable the defence to consider their terms in their own time and view them in the presence of their clients.

The Crown appealed. After hearing submissions about the disclosure regime and its impact on the accused’s article 6 rights, the Appeal Court pointed out that the items were labelled productions and subject to a different common law regime. They ought to be lodged with the court when the case was indicted, but if retained by the Crown, as with items such as drugs and firearms they were subject to any order of the court. All the defence needed to do was to make a request with the trial court to borrow the items; the court had to decide, having regard to fairness and the interests of justice, whether to grant the application. Since the preliminary hearing judge had set out arrangements to view the productions, the appeals were refused.