Criminal court: CPO breach application not out of time

Reference is often made in legal submissions to trite law, on the basis that the law is clear, previously decided and free from doubt. However, even what is thought to be trite law has a habit of rearing its head from time to time.

In this article, I will look at a matter which arose before me recently, breach of a community payback order (“CPO”) after the time for completion of the order had expired, and then go on to say something about the Moorov doctrine which was recently considered again by the High Court in GS v HM Advocate [2023] HCJAC 35.

CPO breaches

CPOs are a sentencing option imposed by sheriffs on a regular basis, most commonly by way of supervision of an offender and/or unpaid work in the community.

However, what happens when the order is breached but nothing is done until after the period of the order has expired? Assistance is given in Stewart v Dunn [2015] HCJAC 93.

Sections 227ZC and 227ZD of the Criminal Procedure (Scotland) Act 1995 deal with breaches of CPOs. Section 227C deals with the duties of the “responsible officer”, usually referred to as the “supervising officer” responsible for, inter alia, compliance matters.
Nowhere in these sections is there to be found a restriction on proceedings for breach of the order being initiated after the period of the order has ended.

In Stewart, an unsuccessful appeal by bill of suspension, the appellant was sentenced on 19 January 2015 in relation to a contravention of the Misuse of Drugs Act 1971 by the imposition of a CPO to undertake a number of hours of unpaid work within three months.

The appellant did not complete the hours within that period.

On 29 April 2015, the appellant submitted a form explaining that he had ‘‘received various custodial sentences/remands’’ making it impossible for him to complete the work within the period. A three month extension was requested. On 6 May, the sheriff granted an order extending the period for completion by three months. The appellant subsequently received another custodial sentence.

An application was lodged requesting further extension of the CPO. The appellant was brought before the court for the application to be considered. On 24 June the sheriff revoked the CPO and deferred sentence until 26 August 2015.

The appellant brought a bill of suspension of the orders of 6 May and 24 June 2015, arguing that the CPO expired at midnight on 18 April 2015 and that its requirements fell at that point and could not thereafter be varied.

Dealing with the appeal, at para 20, the High Court said: “the nub of the punishment being imposed is the requirement to carry out unpaid work. That is the primary concern. Time limits, while important, are of secondary importance and the default periods provided for… often require, in practice, to yield for pragmatic reasons such as where the offender is in full time employment and, however desirable it may be, it is not realistic to expect him to complete the hours within three or six months”.

At paras 22 and 24 the court indicated:

“[22]… As for the timing of any application to extend the time limit, the 1995 Act is silent. It does not, for instance, state that the application must be presented to the court prior to the expiry of the subsisting time limit. That makes sense. There are bound to be cases where the responsible officer cannot conclude, in advance, that the hours of unpaid work will not be completed in time…

“[24] Finally, we observe that nowhere is it provided that failure to complete the required hours of unpaid work within the time limit provided by the court will bring an end to the CPO. We do not find that surprising… it would be surprising if that were the statutory intention.”

It would therefore seem that time is not of the essence with regard to the submission of an application to vary or for breach.

Moorov: a refresher

Turning to mutual corroboration, Moorov v HM Advocate 1930 JC 68 established the principle of corroboration by evidence of two or more incidents similar in time, place and circumstances, where there is only one source of evidence for each, allowing an inference to be drawn of a single course of criminal conduct persistently pursued. This principle was reiterated by the court in Ogg v HM Advocate 1938 JC 152, and MR v HM Advocate 2013 JC 212, at para 20.

At para 21 of the opinion of the court in MR, a full bench stated: “There is then no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as a more serious crime.”

It has further been confirmed that there is no rule in law whereby less serious, non-penetrative criminal conduct cannot provide corroboration of a more serious, penetrative crime: HMcA v HM Advocate 2015 JC 27, at para 9.

For the application of mutual corroboration, the nomen juris of each criminal act is immaterial. The question is whether there is an underlying unity of conduct: McMahon v HM Advocate 1996 SLT 1139 at 1142E-F.

Any course of conduct must be viewed as a whole, rather than in individual compartments: JGC v HM Advocate [2017] HCJAC 83; 2017 SCL 1042 at para 12; HMcA v HM Advocate, para 11.

There is no maximum interval of time fixed by law beyond which mutual corroboration cannot be applied: AK v HM Advocate 2012 JC 74 at para 14. The more similar the conduct is in terms of character, the less important a significant time gap may be: AS v HM Advocate 2015 SCCR 62 at para 10; though it may be easier to infer a course of conduct where there are shorter gaps: JL v HM Advocate 2016 SCCR 365 at para 30; Duthie v HM Advocate [2021] HCJAC 23 at para 28.

It is a question of fact and degree whether the conventional similarities in time, place and circumstances exist so as to allow the inference to be drawn that there was a single course of criminal conduct persistently pursued: HM Advocate v SM (No 2) 2019 JC 183 at para 6, following MR v HM Advocate at para 20; Adam v HM Advocate 2020 JC 141 at para 29; PGT v HM Advocate [2020] HCJAC 14.

It is not the case that as a matter of law, in a lengthy time gap case, there require to be special, compelling or extraordinary circumstances before the appropriate inference can be drawn: Duthie v HM Advocate at para 28.

A course does not necessarily imply that the offence is committed or attempted every day or even every month. Opportunity or inclination may be intermittent: Moorov at 89.

How similar?

In Reynolds v HM Advocate 1995 JC 142, the court stated at 146D: “We accept that there was a process of evaluation to be conducted, because there were dissimilarities as well as similarities… Where the case lies in the middle ground… a jury should be properly directed so that they are aware of the test which requires to be applied.”

Just because there are dissimilarities does not necessarily mean that mutual corroboration cannot apply: Livingstone v HM Advocate [2014] HCJAC 102, at para 17.

In AL v HM Advocate [2016] HCJAC 120; 2017 SCL 166, the appeal was against conviction in relation to two charges over a libel of 16 years. The court in refusing the appeal, noted (para 8) that there was much force in the similarities highlighted by the trial judge, adding as a similarity “the consideration that… these offences occurred in the environment of a controlling, dysfunctional, domestic relationship”.

It is important to look at the totality of the circumstances in which the offending behaviour took place: TN v HM Advocate 2018 SCCR 109, at paras 11-17.

The similarities must relate to the alleged criminal conduct: Reilly v HM Advocate [2017] HCJAC 5, at para 35.

GS v HM Advocate: the evidence

In GS, the appeal, which was refused, was against conviction of two charges of sexual assault, one relating to the appellant’s daughter (S) and the other to her friend (H). The High Court considered in particular the situation where there are similarities and dissimilarities in the incidents.

Charge 1 libelled that between 2004 and 2010 the appellant used lewd, indecent and libidinous practices towards S, and placed his mouth on and licked her vagina, and touched her vagina under clothing.

Charge 3 libelled that between 2014 and 2015, the appellant sexually assaulted H at another address, in that he tried to touch her and repeatedly attempted to kiss her.

Charge 2 libelled an offence of sexual assault of a third complainer, in the same time period and at the same address libelled in charge 3. The jury returned a verdict of not proven on charge 2.

S, H and the third complainer were close friends of about the same age.

S’s evidence was that the incident of oral sex happened once, when she was five years old, in her bedroom. The appellant touched her vagina regularly when she was between the ages of six and 11, and on each occasion he was drunk. He would also look at her when she was in the bath, when she was between eight or nine and 12.

H’s evidence was that when she was 16 years old, she went to S’s party at the address in charge 3, where the appellant then lived.

Everyone at the party, including the appellant, consumed alcohol. When H was in the bathroom, which did not have a lock, the appellant came in and tried to kiss her. She went to the livingroom, where the appellant “tried to do things” to her, tried to kiss her and put his hands on her as she was leaving.

The sheriff correctly directed the jury on mutual corroboration, and stressed that it was a matter for them to decide whether the necessary link in time, character and circumstances had been established and the principle should be applied, but that they had to be cautious about deciding to apply it.

Appeal decision

It was held that there were numerous similarities between the accounts given by S and H, and it was not difficult to discern common features of an underlying pattern running through the appellant’s offending. When he was under the influence of alcohol he took advantage of young vulnerable females, who were in his home, in circumstances where he was able to gain access to them by invading their privacy or security.

The evidence of the appellant watching S as she bathed was evidence of additional invasion, and although not part of the libel of charge 1, was led without objection. It was open to the jury to have regard to it.

Although there were dissimilarities between the circumstances in which the complainers were abused, the significance thereof in the context of the whole evidence was a matter for the jury to weigh when considering whether to apply the doctrine of mutual corroboration.

The test was whether on no possible view of the evidence could it be said that the respective accounts of S and H constituted component parts of a single course of criminal conduct systematically pursued.

At paras 22-24 the court said:

“[22] In recent times the court has stressed that it is always a question of fact and degree whether the conventional similarities in time, place and circumstances exist so as to allow the inference to be drawn that there was a single course of criminal conduct persistently pursued (HM Advocate v SM (No 2) 2019 JC 183… at [6], following MR v HM Advocate 2013 JC 212… at [20]; Adam v HM Advocate 2020 JC 141… at [29]). Since the question is one of fact and degree it will in most cases fall to a properly directed jury to determine it.

“[23] It is only where it is impossible to say on the evidence that the individual incidents were component parts of a single course of conduct persistently pursued that there will be an insufficiency of evidence as a matter of law (ibid; Donegan v HM Advocate 2019 JC 81… at [39], following Reynolds v HM Advocate 1995 JC 142). The test of impossibility is obviously a high one. If that test is not capable of being met, the issue becomes one of the weight to be given to the evidence… questions of weight are for the jury, not the judge.

“[24] In many cases it will be possible to identify both similarities and differences… It is for the jury to decide whether in the light of the similarities and the differences, the necessary inference of the pursuit of a single course of criminality can justifiably be drawn.”