APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Emslie Lord Philip	[2009] HCJAC 96 Appeal No: XC811/06 OPINION OF THE COURT delivered by LORD PHILIP in NOTE OF APPEAL AGAINST CONVICTION by ALISTAIR HEGGIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead; Drummond Miller

Alt: K. Stewart, A.D.; Crown Agent

11 December 2009

[1] The appellant was convicted on 12 October 2006 in the High Court of Justiciary at Glasgow of four charges, a contravention of Section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, a charge of indecent assault and two charges of assault to injury. The conviction for indecent assault was quashed by this Court on 23 January 2009.

[2] The terms of the three charges of which the appellant remains convicted are as follows:

"(1) on 23 July 2005 within a caravan situated in a car park on the north shore of Loch Vennachar situated off the A821 Kilmahog to Aberfoyle Road, Central Scotland, you ALASTAIR HEGGIE did use lewd, indecent and libidinous practices towards D.J.W. born 21 April 1991, c/o Central Scotland Police, Stirling, a girl then of or over the age of 12 years and under the age of 16 years and did touch her on the legs, attempt to induce her to perform oral sex on you and expose your private member: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6;

(3) on 23 July 2005 at the camping area on the north shore of Loch Vennachar, situated off the A821 Kilmahog to Aberfoyle Road, Central Scotland you ALASTAIR HEGGIE did assault G.R. c/o Central Scotland Police, Stirling and did punch him on the head to his injury;

(4) on 23 July 2005 at the camping area and the car park, both on the north shore of Loch Vennachar, situated off the A821 Kilmahog to Aberfoyle Road, Central Scotland, you ALISTAIR HEGGIE and MARK HEGGIE, did assault O.G. c/o Central Scotland Police, Stirling and did strike him on the head with a stone or similar instrument, strike him on the head with a glass bottle, chase him, repeatedly punch and kick him on the body, repeatedly attempt to strike him on the body with a knife or similar instrument and strike him on the body with a knife or similar instrument to his injury,"

[3] On 9 November 2006 the appellant was sentenced to eighteen months imprisonment on charge 1, six months imprisonment on charge 3 and three years imprisonment on charge 4. The sentences on charges 3 and 4 were ordered to run concurrently with each other but consecutive to the sentence imposed on charge 1.

[4] The appellant appeals against conviction on all three charges. The first ground of appeal is that the appellant was denied a fair trial as a result of the failure of the respondent to disclose certain information. The written ground of appeal states:

"At the trial the Crown led evidence from the complainers D.W.and D.S.. Their evidence was the foundation for the convictions on charges 1 and 2 and each gave evidence in relation to charge 4.

The Crown has now disclosed information relating to the precognition of each of the complainers by an official in the Procurator Fiscal's office at Stirling. Reference is made to the letter of [9] February 2009 addressed to the agents.

At the trial the complainers were both asked about their dealings with the official in question. Reference is made to pages 6-9 of the trial Judge's report for a summary of the evidence given.

Although the defence had access to the statements given to the police by each complainer the details in the letter of [9] February had not been disclosed.

It is submitted that the Lord Advocate was under a duty in terms of Article 6 of the Convention to disclose the information contained in the letter of [9] February. In seeking a conviction, in the absence of obtempering this duty, the Lord Advocate was acting incompatibly with the rights referred to and accordingly her act was ultra vires. Reference is made to Section 57(2) of the Scotland Act 1998.

In any event the failure to disclose this information resulted in the appellant being denied the fair trial to which he was entitled. The information could have been used to test the credibility and reliability of the complainers. In those circumstances the Lord Advocate by seeking a conviction was acting incompatibly with the appellant's right to a fair trial guaranteed by Article 6 and such an act was ultra vires. Reference is made to Section 57(2) of the Scotland Act 1998."

[5] The letter dated 9 February 2009 was sent by the Appeals Unit of COPFS to the defence agents and was in the following terms:

"Alastair Heggie - Appeal against Conviction

I refer to your previous request for disclosure of the precognitions of Crown witnesses D.W. and D.S.. Crown counsel have instructed that the precognitions themselves are confidential and will not be disclosed. However, in light of the concerns previously expressed, the Crown is prepared to disclose the following content of the precognitions.

In their original precognitions, the witnesses spoke to the following:

·       D.W. described the appellant punching G.R. As regards the assault on O.G. (Charge 4), she stated that she saw the appellant throw a 'boulder' that struck him on the head; punch him on the head; kick him on the legs; try to 'get him on the ground'; and at one stage be in possession of a knife. She also saw the co-accused produce a knife and stab O.G. on the knee, and kick him on the back.

·       D.S. described hearing G.R. say that the appellant had punched him. She also saw the appellant punching O.G. while holding what appeared to be a knife.

The advocate-depute who was to conduct the Preliminary Hearing on this matter noticed that there were significant discrepancies between what the witnesses had said at precognition, compared to their police statements, in relation to charges three and four. (NB these concerns did not arise in relation to charges one and two, where the accounts at precognition were in line with the police statements).

As a result of the above discrepancies, the Precognition Officer was instructed to re-interview both witnesses, with the following outcome:

·       D.W. accepted that she hadn't seen the appellant throw a 'boulder', or try to get O.G. on the ground. Also, it wasn't the co-accused who had kicked O.G. on the back, but the appellant. She stated that the appellant hadn't had a knife, but that the co-accused did, and was holding O.G.s leg and stabbing him on the leg.

Following the second interview, the Precognition Officer has concluded the 're-precognition' with a note in the following terms:

'W. was re-interviewed on the assault of G. (referred to as 'Colin' by W.) where she admitted to embellishing her account of the incident because of hearing from other witnesses what had occurred. She claims now to have witnessed A Heggie (accused) kicking G., who was lying on the ground, to the body at his back area where he had recently received surgery as M Heggie (accused) held G's leg up and stabbed his knee. She then saw R. (witness) attempt to get M Heggie off G. and Sharpe (witness) attempt to get A Heggie (accused) off G..'

·       D.S. was re-interviewed by telephone. There is no record of whether she changed her position from the first precognition in any way at the second interview. Instead, the Precognition Officer has simply added a concluding note to the original precognition in the following terms:

'This witness was telephoned approximately between 8-16 June 2006 re discrepancies in her precognition compared to her original police statement. She explains this was due to shock she was suffering when giving [sic] police statement and honestly forgetting elements which she has since recalled and disclosed at precognition to me, when in a calm, relaxed state of mind. She admitted to blocking the incident out of her mind and to some details being mixed up but stressed she would not and has not lied about this incident, being honest and genuine throughout.'

I hope this is helpful. If you have any questions, please do not hesitate to contact me.

Yours sincerely,"

[6] In his report (pages 5 to10) the trial Judge gave the following account of the evidence given by D.W. and D.S.:

"Charges 1 and 2

The jury heard evidence that during the course of the afternoon the appellant spoke to D.W. and D.S. about having caught some fish earlier in the day. As the evidence of these two witnesses relates to the grounds of appeal against the appellant's conviction on charge 1 and 2, it is appropriate that I summarise the evidence they gave.

D.W. was the first of these witnesses to give evidence. She spoke to having taken part in the camping visit to Loch Venacher. She is O.G's niece and was accompanied by her friend D.S.. During the Saturday they had started talking to the appellant and his son, who had been fishing. She gave evidence that the appellant had told the pair of them that he had caught a few fish earlier in the day and had asked whether they wanted to see them. She said they had gone with the appellant to his caravan to see the fish.

The witness explained that the appellant had asked them to go into the caravan. They had done so. The appellant had also entered the caravan. The door had been shut. The appellant had then said that he would look for the fish and they had sat down, whilst he did so.

The witness then described how the appellant, who had only been wearing shorts, had pulled down his shorts in front of D.S. and had exposed his penis to her. The witness said that she could see the appellant's penis. She gave evidence that the appellant had then asked D.S. to give him a blow job, to which D.S. had responded 'no way'.

The witness then explained that the appellant had turned towards her, continuing to expose himself. She said that he had asked her whether she would give him a blow job. She had said she would not. The appellant then pulled up his shorts and sat down beside her and started to rub her leg. She explained that she and D.S. had managed to get out of the caravan. The appellant had asked them to return but they refused to do so.

The witness gave evidence that she and D had decided not to say anything to anyone about what had happened. She explained that although they had been shocked and scared by what had happened, they had not wished to cause any bother. They went back to join the other members of their party, who were having a barbecue in the camping area where their tents were erected.

The witness also gave evidence about what she alleged had happened later in the evening, involving the appellant, his son and O.G. and G.R.. She spoke to having seen G.R. being struck by the appellant in the camping area near the side of the loch (charge 3) and O.G. being kicked by the co-accused, Mark Heggie, as he lay on the ground at the edge of the car park, whilst the appellant had been on his knees beside O.G. (charge 4).

During the course of his cross-examination of the witness counsel for the appellant asked a series of questions of the witness as to her dealings with Darius McQueen, an official within the Procurator Fiscal's Office in Stirling, when she had attended that office in connection with the precognition of the case against the appellant and his son.

When counsel first embarked on those questions, I intervened to clarify the line of questioning counsel intended to pursue. I did so because I was apprehensive that the questioning might involve the witness being asked about or volunteering the detail of what she had said at precognition about the events of 23 July 2005 and result in her giving incompetent or inadmissible evidence. Outwith the presence of the jury counsel for the appellant explained that what he wished to do was to put to the witness, in general terms, that when she was being precognosced by Mr McQueen he had commented to her that something she had said to him on an earlier occasion (the details of which counsel did not intend to elaborate upon) may not be correct and that he had also suggested to her what she should say about what happened in the caravan. Here again counsel made clear that he did not intend to elaborate on the detail of what Mr McQueen might have said to the witness. Counsel submitted that if what he wished to put to the witness had occurred it would have been improper. After the Advocate Depute had the opportunity of addressing the court, the evidence resumed.

Under further cross-examination by counsel for the appellant, the witness D.W. confirmed that she had been interviewed by Darius McQueen at the Procurator Fiscal's Office about the case. She indicated that she was called back to the office on a second occasion for a further meeting with Mr McQueen. She confirmed that during this further meeting Mr McQueen had suggested to her that certain parts of what she had said previously were not right. She was asked whether Mr McQueen had made any suggestion to her as to what her evidence ought to be, to which she responded that she could not remember. She was asked whether in the end of the day she had just 'stuck to her guns', to which she replied that she had done.

D.S. also gave evidence that during the course of the Saturday she and Danielle had started talking to the appellant and his son. She said that she had asked the appellant whether he had caught any fish and that they had gone with him to his caravan to be shown fish which he said he had caught. D.S. indicated that once they were in the caravan, she and Danielle had sat down. She stated that whilst they were talking to the appellant about fish he suddenly stood up, took down his trousers and exposed himself. She indicated that she could see his penis and that he had asked who was going to give him a blow job. She had replied 'no way'. She said that she had also seen him touching D. on the leg. She indicated that she and D. had decided not to tell anyone what had happened. After they had returned to the camping area, she saw the appellant play fighting with his son and sometime later she had observed a fight at the car park in which the appellant was kneeling over O.G. and punching him as he lay on his back on the ground.

Under cross-examination by counsel for the appellant, her account of what had happened in the caravan was challenged. She confirmed she had been interviewed by Darius McQueen at the Procurator Fiscal's Office in Stirling. Counsel for the appellant indicated to the witness that he did not want her to tell the Court what she had said when she was precognosced. However, he took from the witness that she had been called back to the Procurator Fiscal's Office on a second occasion. She agreed, as was put to her, that on that second occasion Darius McQueen had suggested to her that when she had been talking about one particular individual she had really meant another. She was asked whether she had changed her position because of that. She gave evidence that she had changed her position and had said to Darius McQueen that he was quite right. She was asked whether Darius McQueen had told her certain things that she had said in her police statement. She agreed that he had, but stated that she could not remember whether she had said to him that what he had read over to her had not happened. In response to such a suggestion from counsel for the appellant, she replied 'possibly'.

The evidence given by D.W. and D.S. was the evidence upon which the Crown sought the appellant's convictions on charges 1 and 2.

When he gave evidence the appellant denied ever having been in the caravan with the two girls and having exposed himself to either girl. In convicting the appellant in respect of charges 1 and 2 the jury clearly rejected the appellant's evidence.

Charges 3 and 4

The circumstances giving rise to the appellant's conviction on charges 3 and 4 began whilst G.R. was walking along the shore of the loch. As he did so the appellant punched him. At this stage the appellant was drunk. He had followed G.R. before striking him and had shouted at him 'I'll have a fucking word with you'. It was when G.R. turned in response to this comment that he was struck in the face. The blow rendered him dizzy. He left the shore of the Loch and walked up through some trees to his father's car, where his father, O.G., was sitting with D.W.. G.R. told his father what had happened. O.G. and D.W. then went down to the campsite, to which the appellant had already returned. On O.G.'s arrival there he was confronted by the appellant, who had a boulder in his hand. The appellant swung his arm and hit O.G. on the head. Some words were exchanged between them. O.G., who was dazed, then ran away along the shore of the loch with the intention of going back through the woods towards his car. He was pursued by Alistair Heggie. On reaching the boundary of the car park O.G. collapsed and fell on the ground. Lying there he was kicked several times in the back. Lying in that position he could hear the appellant calling upon his son to assist. He was then aware of Mark Heggie lifting up his left leg and stabbing him in the leg. The complainer tried to avoid further blows and was stabbed on the head in the process of doing so. The appellant kicked the complainer on the back whilst his son was attempting to stab him with a knife. The complainer was terrified by what was going on. During his evidence he indicated that he thought he was going to die. The fight broke up when D.S. grabbed a hold of the appellant and G.R. grabbed a hold of Mark Heggie. As the appellant departed in the direction of his caravan he was heard to be shouting 'Get knives to stab the bastard'. He was shut in the caravan for some time by Elizabeth Collins, but eventually both appellants ran off and ended up in the tent of another person who was camping in the locality."

[7] Counsel for the appellant argued that the Crown should have disclosed the contents of the letter prior to the trial. Had the defence been aware of the information it contained counsel would have been able to cross-examine the witnesses exhaustively in relation to the discrepancies between their statements. In relation to charges 1 and 2 the witnesses W. and S were interdependent and in order to convict the jury had to find both credible and reliable. The information in the letter raised questions about their credibility and reliability. There was a real risk of prejudice to the defence arising from the non-disclosure. As a result the appellant had been denied a fair trial.

[8] The Advocate Depute submitted that the evidence of the two witnesses related primarily to charges 1 and 2 and the evidence which they ultimately gave was very much in line with their police statements. In particular the witness W. did not embellish her evidence in the way she had done in her original precognition. Accordingly the evidence at the trial was less incriminating than the contents of her original precognition. In these circumstances, even if counsel for the defence had been equipped with the information now contained in the letter of 9 February, it was very unlikely that he would have put to the witness a more incriminating version of events than she had already given in evidence. As it was, counsel was able to explore the fact that she had given differing previous accounts and to suggest to the jury that the witness's credibility and reliability were suspect. In the result the non-disclosure complained of had no effect on the conduct of the defence and accordingly there was no miscarriage of justice.

[9] The second ground of appeal was to the effect that the trial Judge had misdirected the jury in relation to the definition of lewd, indecent and libidinous practices. In explaining to the jury what the Crown required to prove to bring home a conviction on charge 1 his Lordship said:

"You would also need to be satisfied that the accused's intention was one of sexual gratification, or (my emphasis) an intention to corrupt the child's innocence."

Counsel for the appellant submitted that the essence of the crime was the corruption of innocence or the morals of the young. There was no requirement for the jury to be satisfied that the accused's aim was one of sexual gratification although that often accompanied the corruption of innocence. The definition of the crime set out in McKenzie v Whyte 1864 4 Irv. 570 at 575 had continued to represent the law and was consistent with the description of the nature of the crime in Hume's Commentaries, Alison and McDonald on Criminal Law. The judge had expressed the requirement to prove the intention to corrupt innocence and the intention to obtain sexual gratification as alternatives, either one of which would entitle the jury to bring in a verdict of guilty. That was a fundamental misdirection which required the conviction to be quashed.

[10] For the Crown the Advocate Depute accepted that the trial Judge had erred in his definition of the crime but submitted that on the evidence the jury could have had no doubt of the appellant's intention to corrupt the innocence of the complainer. In these circumstances there was no miscarriage of justice.

[11] We approach the consideration of the first ground of appeal on the basis that the Crown, by supplying the information contained in the letter of 9 February, accepted that that information should have been disclosed to the defence prior to the trial. The Advocate Depute did not argue otherwise, but concentrated his submissions on the consequences of non-disclosure for the conduct of the defence. Counsel for the appellant did not argue that the precognitions themselves should have been disclosed, and he acknowledged that the weight of authority would have prevented counsel for the defence from putting precognitions to either witness, see HMA v McSween 2007 SCCR 310. We were not informed as to the precise extent of the information available to the defence at the trial, but it is clear that counsel had access to D.W.'s police statement and knew that, after she had been precognosed for the Crown, she had been interviewed again and, when challenged by the procurator fiscal, had retracted to some extent the account given in her original precognition. It seems to us therefore that there was very little, if anything, of the contents of the letter, that counsel for the defence did not have available to him at the trial. Even if counsel for the defence had not previously known that the witness had embellished her original precognition and that she had departed from the embellishments when re-interviewed by the procurator fiscal, we consider it inconceivable that counsel would have put to the witness that she had previously given a more incriminating account of events than she had done in examination in chief. In all these circumstances we are quite unable to see how the information contained in the letter would have placed the defence in a better position to cross examine D.W. than they were without it. For that reason we have come to the view that no miscarriage of justice occurred and that the first ground of appeal must be rejected. The information provided in relation to D.S. did not contain any material to indicate that the defence might have suffered prejudice in the event of its non disclosure. We did not understand counsel for the appellant to argue to the contrary.

[12] In relation to the second ground of appeal, it was accepted on behalf of the Crown that the essence of the crime of lewd, indecent and libidinous practices was the corruption of innocence or the morals of the young. There was therefore a misdirection by the trial judge in relation to the definition of the crime. The question then arises as to whether the misdirection resulted in a miscarriage of justice. The evidence which was accepted by the jury was clear, and came from the two girls, D.W. aged 14, and D.S., aged 17. Both girls spoke to sitting in the appellant's caravan having been invited there by him, when the appellant, who was in a standing position, pulled down his shorts and exposed his penis to each of them in turn. He asked each of them separately to engage in oral intercourse with him. When his request was refused he sat down beside D.W. and started to rub her leg. Both girls then managed to get out of the caravan. The appellant was aged 46. The evidence disclosed actions on the part of the appellant which were clearly designed to incite D.W. to engage in sexual activity with him. There can hardly be a clearer example of conduct by a middle aged man designed to corrupt the morals of a girl of 14. The jury convicted accordingly. In these circumstances the trial judge's slip in using the disjunctive "or" instead of the conjunctive "and" did not have the effect of causing a miscarriage of justice. Indeed it would be a miscarriage of justice to interfere with the jury's verdict. The second ground of appeal is accordingly rejected.