Criminal court: The limits of Moorov

A quieter month for appeal cases, as your contributor foresaw in early lockdown. Now that we are six months on, the number of appeal cases has diminished. Although courts have resumed hearing trials on a limited basis, it will be a while until contentious points work their way through to appeal.

High Court trials are resuming with jurors located at a cinema near you, and sheriff and jury trials should resume in November on a similar basis. However, solemn trials which were fixed for around now are having to be adjourned on “joint” motion to dates perhaps in 2021, due to limitations in what can proceed to trial at present. Priority will be given to trials where a diet was previously due to take place, and a draft trial programme is being created (to clear a backlog of about 750 cases). This makes for an anxious time for all concerned: witnesses, accused and lawyers. Summary bail trials are being fixed for February 2021, so there is a bit of catching up to do. It is not clear what will happen if a second wave of COVID cases emerges, and to that extent the legal authorities are in no better position to work out how matters will pan out in the ensuing months than the rest of us.

We can hope that electronic bail monitoring is brought into force soon, to reduce remand numbers as the backlog is worked through. The present bail curfew condition is of limited effect, and police officers calling regularly at domiciles of citation often results in householders evicting the bailee in exchange for a decent night’s sleep. As I see it, the power to allow accused out on bail with a curfew tag has been available since the Management of Offenders (Scotland) Act 2019 was given Royal Assent on 30 July last year, and a new five-year contract was agreed with the suppliers last November on the basis of the extended powers and improved technology. The emergency powers to extend the 140 day period by six months must put the onus back on the courts to release as many accused awaiting trial as is safe and manageable, although in some instances the likelihood of bail being granted must still be problematic. I believe some parliamentary processes are moving with a view to commencement around the turn of the year.

Moorov disapplied

Of this month’s group of cases one can summarise that it was not a particularly good one for the ubiquitous Mr Moorov, as I shall explain.

The circumstances of Ahmed v HM Advocate [2020] HCJAC 37 (18 September 2020) were well known in the tabloids long before the trial in September 2019. The self-styled lifestyle coach offered tips how to pick up young women, calling himself “Addy A-game”. Ultimately he faced an indictment containing 18 charges covering a period from May 2016 to January 2019, arising in the Uddingston and Glasgow areas. No case to answer pleas were upheld in respect of nine charges, and the Crown dropped another four. The appellant was convicted on the remaining five charges, which were contraventions of s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 involving accosting young women, trying to chat them up, requesting their phone numbers and in one case sending abusive messages, and was sentenced to two years’ imprisonment.

There were criticisms in the appeal of the sheriff’s conduct. The Appeal Court held his questioning went beyond clarifying matter into cross-examination, and he should not have ordered the appellant’s counsel to sit down when she was seeking to make a submission in front of the jury. The court also highlighted various adjournments at the instance of the court which seemed to disrupt the flow of proceedings. Your time is not your own when you are presiding over a trial.

Since the young women were alone when approached by the appellant the case proceeded on mutual corroboration, but there was criticism of the directions to the jury. The sheriff accepted he had not explained that the conduct alleged must have been “systematically pursued”, or that it was shown the person concerned had a “general disposition” to commit crimes of this sort. The Appeal Court held that these omissions were not fatal to the case, presumably since these aspects were obvious from the evidence.

The third ground alleged that three of the five charges did not disclose the commission of a crime, as there was no abusive behaviour or threats and the “chat up” conversations were not sinister, were politely communicated and had not been persisted in. The parties were of a similar age and the conduct could not be regarded as threatening merely because it was uninvited and unwelcome. While in one of the remaining two charges an abusive text was sent after the meeting in the street, the circumstances could not corroborate an earlier charge and the Appeal Court was satisfied the doctrine of mutual corroboration had not been available.

Convictions on all five charges were quashed and the appellant was released from custody.

Docket corroboration

All that can be said about Burke v HM Advocate [2020] HCJAC 34 (20 August 2020) was that the appellant supposedly was convicted on a Moorov basis on a single charge occurring shortly after another charge of which he was acquitted. It was submitted that the complainer’s evidence was uncorroborated, but evidence from the complainer in the other charge was of assistance together with CCTV evidence of the incident and photographs showing the damage which had occurred to cars involved in the incident(!).

Also concerning a single surviving charge, but with a docket added, the case of Penrice v HM Advocate [2020] HCJAC 32 (4 August 2020) involved historical lewd, indecent and libidinous behaviour. After trial only one charge remained covering conduct between 1983 and 1987, involving a young girl then aged between 12 and 16. The only available corroboration came from a charge of a similar nature in the docket, to which the appellant had pled guilty in 2015 and been sentenced to 18 months’ imprisonment. In the present case after conviction he received 15 months.

Both complainers had been of a similar age and the time spans of the conduct roughly coincided. During the trial the sheriff elicited from the defence solicitor that he would not be cross-examining the complainer mentioned in the docket, as in view of the earlier guilty plea it would not be appropriate to challenge her credibility or reliability. The sheriff’s charge was criticised as going too far, as he highlighted the lack of challenge to the second complainer’s testimony but directed that the jury had to decide if the evidence of both charges was credible and reliable but could accept the evidence in the docket as true. It was submitted that all that needed to be said was that the jury required to be satisfied that the witness giving evidence in support of the docket could be treated as credible and reliable.

The Crown response was that the defence solicitor had wrongly suggested in his speech that the fiscal had made a “big deal” in her speech about the lack of cross-examination of the second complainer, and this ought to have been corrected by the sheriff; but looking at the whole charge it was clear the sheriff had not directed the jury they must treat the evidence of the docket witness as true. Much of the report criticises the defence solicitor in relation to how statements to the court must not be incorrect or misleading. However, it overlooks the fact that the solicitor very properly did not cross the complainer about a matter to which his client had previously pled guilty.

The appeal against conviction and sentence was refused.

It reminds me of the case back in the day at Kirkcaldy, the opposite of the present case, when the court was critical of a fiscal who could not be bothered to cross-examine an accused who gave evidence: see Young v Guild 1985 JC 27. It was always the highlight of the case for a prosecutor if the accused chose to give evidence. The only time I did not rise to this opportunity was when I prosecuted in Kirkcaldy and was able to say in my closing remarks that the accused’s testimony was so incriminating I doubted if I could improve my case by cross-examination!

I think lawyers sometimes get subliminally confused about the lack of cross in criminal proceedings with the position in a civil proof when if there is no cross in certain areas of the pleadings, these facts may be held established.

Sentencing young offenders

JB v HM Advocate [2020] HCJAC 35 (25 August 2020) is the latest in a line of authority that special care requires to be taken when sentencing young offenders, i.e. those under 25, and particular care if they are under 21 or 16.

The appellant pled guilty by s 76 letter to assaulting a young man by repeatedly stabbing him to his severe injury, permanent disfigurement and danger of life, and attempting to murder him.

Both had been 16 at the time. The appellant had no convictions and the offence appeared to be out of character. As the complainer and a friend walked up the road about 5pm, the appellant and his friend who had been in a house nearby ran out. The appellant stabbed the complainer repeatedly with a large kitchen knife and ran off. The incident was captured on CCTV.

The appellant was sentenced to four years’ detention, reduced from six due to his early plea. He had lived at home with his mother, who was present in court. He had not previously been in trouble, had obtained a qualification to be a mechanic and was studying to be an electrician. It was submitted he had acted impulsively and now bitterly regretted his actions. It was accepted that owing to the gravity of the matter a sentence of detention was inevitable.

A psychological report concluded the appellant had experienced childhood trauma resulting in “toxic childhood stress”, which affected the body’s self-regulatory system, leaving an individual less able to manage their emotions, and caused biological alterations in the body. He had suffered the sudden disappearance of his father, his mother’s mental health difficulties, erratic housing and care, bullying, a period of hospitalisation, observing life-threatening violence and intergenerational trauma. Counsel referred to the long line of authorities dealing with sentencing young offenders, in particular Green v HM Advocate [2020] JC 20, Lord Justice General Carloway at para 80 (see also Hay v HM Advocate [2020] HCJAC 30, referred to in the August briefing).

The Appeal Court noted the appellant showed some maturity and considerable empathy and appeared to have progressed well in detention. It regarded the judge’s starting point of six years as excessive, as it did not pay adequate attention to the best interests of the appellant and his reintegration into society. It substituted a starting point of five years, reduced due to the plea to 40 months’ detention. This will have the effect of taking the appellant out of the long-term prisoners’ regime.

Contempt of court

There is only one decision reported from the Sheriff Appeal Court: despite having potentially a numerically larger appeal population they are not very prolific opinion writers, and as a result the profession has less guidance to work on.

Much of the text of Meade v Procurator Fiscal, Dunfermline [2020] SAC (Crim) 4 (12 August 2020) is taken up with how the appeal should have been by bill of suspension rather than a note of appeal against an incompetent sentence. Fortunately, the solicitor advocate appearing for the hapless appellant had the quick wit to seek to invoke s 300A of the Criminal Procedure (Scotland) Act 1995 which can cure most ills (normally as the fiscal’s friend).

The facts are simple (read from para 7 onwards). Meade failed to appear as a witness and was found in contempt of court. That requires the court to be satisfied that the witness “was wilfully defying the court or was intending disrespect to the court or was acting in any way against the court or was attempting to pervert the course of justice”. In this case, the sheriff did not explain why he rejected the explanation that the appellant had forgotten his citation. No challenge was made to the finding, but parties were agreed that there was a more fundamental difficulty with the disposal, which was incompetent.

Section 307 of the 1995 Act specifically excludes contempt of court from the definition of sentence. The penalty in cases such as this is in s 155 of the 1995 Act: a fine up to £1,000 or 21 days’ imprisonment. There is no provision for alternatives to imprisonment, and a restriction of liberty order under s 245A, chosen by the sheriff, can only be imposed as an alternative to a prison sentence. Furthermore, proceeding immediately to a finding of contempt when the witness was first brought to court was incorrect unless the explanation afforded was manifestly absurd: the sheriff should have borne in mind the guidance in Robertson and Gough 2008 JC 146 and chapter 29B of the Criminal Procedure Rules. The finding was accordingly quashed.

The bench should proceed with caution when contempt is alleged or an awkward situation arises. The case does highlight the need for widespread reform of the law and the over-clumsy appeal procedures would-be appellants face. However, since we are living in a “war economy” and traditionally there is a lull in innovation prior to an election, I suspect like most things we may have to wait until 2022 at the earliest for common sense to prevail.