APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lady Cosgrove	[2010] HCJAC 25 Appeal No: XC769/09 OPINION OF THE COURT delivered by LADY PATON in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by THE RIGHT HONOURABLE ELISH ANGIOLINI, Queen's Counsel, Her Majesty's Advocate, Appellant; against LEE DONALD STEWART First Respondent; and COLIN STEWART Second Respondent: _________

Appellant: A. Mackay, Advocate Depute; Crown Agent

First respondent: M. Mackenzie; Burn & McGregor, Aberdeen

Second respondent: A. Brown; Mackie Dewar, Aberdeen

26 February 2010

Introduction

[1] This is a Crown appeal against the sheriff's decision at a first diet in Aberdeen Sheriff Court, dismissing Charge 4 on an indictment as irrelevant.

Charge 4 is in the following terms:

"On 30 May 2008 at 28 Newton Road, 96 Cummings Park Circle, and elsewhere in Aberdeen you COLIN STEWART and LEE DONALD STEWART did abduct John Wright McPherson Leaper ... and detain him against his will and assault said [John Leaper] and repeatedly strike him on the head and body with a baseball bat and a metal pole, repeatedly cut him on the head with the lid of a can or similar instrument, repeatedly kick and punch him on the head and body, repeatedly threaten to kill him and repeatedly strike on the body with a knife, all to his severe injury and permanent disfigurement

you LEE DONALD STEWART did commit this offence while on bail, having been granted bail on 26 November 2007 at Aberdeen Sheriff Court

you COLIN STEWART did commit this offence while on bail, having been granted bail on 13 February 2008 at Aberdeen Sheriff Court."

The sheriff's reasoning is set out at pages 6 to 7 of his Note as follows:

"Having considered the respective minutes and parties' submissions, I took the view that because of the particular way in which the Crown had chosen to libel charge 4, the charge was rendered irrelevant. I come to that decision because it is not clear to me what the Crown's intention is in the libel of charge 4. Is it alleging that abduction took place followed by assault to severe injury and permanent disfigurement or was the assault part of the charge the modus operandi of the alleged abduction. On the other hand, was the Crown libelling a charge of abduction aggravated by assault.

It seemed to me that the circumstances of the present case distinguish it from both Cordiner and Young referred to above. In both of these authorities, although the Crown had libelled a single charge alleging a plurality of crime, the libel had separate sub-lettering.

It is also my view that if either accused were in a position to argue a submission of no case to answer, because of the way charge 4 has been libelled, he may well be prevented from doing so in that if the submission related to either abduction only or assault only, the submission could not effectively be made because it could not strike down the whole charge.

The Crown libel also does not make it clear whether the aggravation "all to his severe injury and permanent disfigurement" is intended to refer to only the assault part of the charge or also to the allegation of abduction.

I also take the view that schedule 3, paragraph 9 of the 1995 Act does not help the Crown in that the libel of charge 4 is capable of being interpreted as a single crime, namely abduction aggravated by assault.

For these reasons, I took the view that it was appropriate to sustain both accused's minutes in relation to charge 4 and dismissed charge 4 as irrelevant".

Submissions for the Crown

[2] The Advocate depute contended that the Crown had set out sufficient factual averments, together with a date and three loci, to make the charge relevant. The two appellants had gone to the flat at 28 Newton Road with an accusation that the victim John Leaper had been involved with the girlfriend of one of the appellants. Mr Leaper had there been detained against his will, and assaulted. Mr Leaper had then been led through streets in Aberdeen, being assaulted on the way. He was taken to 96 Cummings Park Circle, where he was further assaulted. The abduction and assaults had thus occurred contemporaneously. The Advocate depute submitted that relevancy was properly tested by asking whether the averments were sufficient in law to entitle the Crown to ask the accused to plead guilty or not guilty. A charge was irrelevant only if the facts averred were not capable of constituting a crime.

[3] Three arguments had been presented to the sheriff, recorded at page 3 of his Note and paraphrased below:

(i)                Both appellants submitted that the defence were prejudiced by the Crown having libelled two separate crimes in one charge, namely abduction and assault, as a submission of "No case to answer" could not be made in relation solely to abduction or solely to assault. A submission of no case to answer would be competent only if the court could be persuaded to strike out the whole charge.

(ii)               Difficulties could arise in relation to the lodging of a Special Defence. It was doubtful whether a Special Defence could be argued in relation to only part of Charge 4.

(iii)               It was not clear whether the Crown intended to libel two separate crimes (i.e. abduction and assault) or whether the intention was to libel an abduction aggravated by an assault to severe injury and permanent disfigurement.

[4] In response to those arguments, the Advocate depute submitted that the libelling of two crimes in the same charge did not ipso facto render the charge irrelevant. In Charge 4, facts were averred which amounted to the crimes of assault and abduction. A nomen juris was given to each crime (which was not strictly necessary in terms of paragraph 2 of Schedule 3 of the Criminal Procedure (Scotland) Act 1995). In terms of paragraph 9 of that Schedule, the jury could convict of one or other or both crimes. That approach was envisaged in Cordiner v HM Advocate 1991 SCCR 652. Thus a "No case to answer" submission could be made in respect of parts of Charge 4. Such a submission could be sustained in whole or in part, and the jury directed to delete the parts of the charge held irrelevant. As for the lodging of a Special Defence (say, of self-defence), the Special Defence could be worded to focus upon the relevant parts of the charge. Finally, the Crown's position as set out in Charge 4 was clear. Mr Leaper had been detained against his will, taken to various places, all the while being assaulted in the ways libelled. The abducting and the assaulting took place together. In any event, that was a matter about which the jury should decide, having heard evidence. Fair notice had been given to the accused. The sheriff had erred in sustaining the plea to the relevancy and dismissing Charge 4.

Submissions for the first appellant

[5] Miss Mackenzie for the first appellant invited the court to hold that the sheriff had not erred. The jury were being presented with a confusing picture. It was preferred practice to have one charge libelling the abduction and a separate charge libelling the assault. Abduction and assault were two distinct crimes, and ought to be charged separately. A useful approach to relevancy was to consider what would appear on the first appellant's record in the event of conviction. The requirements of fair notice had not been met. The charge was confusing, and there was a risk of prejudice to the appellants.

Submissions for the second appellant

[6] Mr Brown for the second appellant contended that the form of libel selected by the Crown resulted in its not being sufficiently clear what the libel actually meant. Counsel accepted that a "No case to answer" submission could be made. However the sheriff was correct in relation to the lack of clarity about the aggravations (to severe injury and permanent disfigurement). It was not clear whether those aggravations were referable to the abduction or to the assault. The history of the case was instructive. This was the Crown's third indictment. In the first indictment, two separate charges were libelled, the first being abduction, and the second assault. The same factual averments supported each charge, and an attack was made upon them for that reason. The Crown accepted the criticism, and withdrew the libel. In a second indictment, the Crown indicted a charge of abduction, with a narration of hitting, being forced to go by the use of threats, and then further details of the attack and the aggravations including injuries. Finally, a third indictment had been served upon the appellants, containing the confusion as to whether the aggravations related to one part of the charge (the abduction) or another (the assault). The sheriff was correct to dismiss Charge 4.

Discussion

[7] In our opinion, the Crown's intention is to libel two crimes in charge 4, namely abduction and assault, perpetrated on the victim contemporaneously. A plurality of crimes contained in one charge does not necessarily render that charge irrelevant. A charge may (and frequently does) libel more than one crime: for example, "assault and murder", "assault and robbery", "assault and rape". A jury is entitled to convict of both of those crimes, or one only, while acquitting of the other (by, for example, deleting parts of the charge: cf Rory Morrison v HM Advocate, 12 February 2010 [2009] HCJAC 16); see paragraph 9 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995, which provides:

"(1) Where two or more crimes or acts of crime are charged cumulatively, it shall be lawful to convict of any one or more of them.

(2) Any part of the charge in an indictment or complaint which itself constitutes an indictable offence or, as the case may be an offence punishable on complaint, shall be separable and it shall be lawful to convict the accused of that offence ..."

[8] In the present case, the Crown offers to prove two contemporaneous crimes, namely abduction and assault. Certain facts are averred, including the detaining of the victim against his will, and various types of assault perpetrated upon him while he was so detained. In this particular case, because the two crimes libelled were carried out together during the same time period, there is a certain rationality in libelling both in the same charge. In any event, the mere fact that the two crimes have been included in one charge cannot, in our view, justify a complaint that the charge is irrelevant. Relevancy is tested by asking whether the facts averred constitute a crime or crimes; and whether fair notice has been given to the accused. In the present case, the Crown specifies the date and places of the alleged crimes, followed by factual averments giving specification as to how those crimes are said to have been committed. The Crown supplies a nomen juris for each crime (which is standard practice, although not strictly required in terms of paragraph 2 of Schedule 3 of the Criminal Procedure (Scotland) Act 1995). In our view, what is averred in Charge 4 does indeed constitute the crimes of abduction and assault. Moreover fair notice has been given to the appellants as to what is alleged against them. We are not therefore persuaded that the sheriff was correct to dismiss Charge 4 as irrelevant.

[9] We turn now to consider the difficulties said to have arisen from the way in which the Crown has libelled Charge 4.

[10] It was contended before the sheriff (although not before us) that it would not be open to the defence to present a "No case to answer" submission in relation solely to abduction or solely to assault. We do not agree. It would always be open to the defence to present such an argument in terms of section 97 of the 1995 Act in relation to all or any part of Charge 4 said not to have been established in evidence: cf the dicta of Lord McCluskey in Cordiner v HM Advocate 1991 SCCR 652 at page 671G, and the related commentary. Thus a "No case to answer" submission could be directed against a part or parts of Charge 4 (for example, the part relating to abduction, or the part of the assault relating to the use of a baseball bat). Depending upon the evidence led, it would be open to the sheriff to sustain the submission in whole or in part. When the jury returned to the court room, they would be directed to take their pens and to score out such part or parts of the charge in relation to which the sheriff had ruled that there was no case to answer. Obviously the defence could choose to attack the whole of Charge 4 in terms of section 97; but the defence could equally attack parts of the charge as not having been established by corroborated evidence. Accordingly we do not accept that any difficulty arises in this respect.

[11] It was also argued that Charge 4 was confusing. It would be difficult for the jury to ascertain whether the aggravations (to severe injury and permanent disfigurement) referred to the abduction, or to the assault. In our view, a jury would be unlikely to experience any real difficulty in this matter, as the answer would lie in the evidence led. The jury would be entitled to form a view that, for example, the assault caused the severe injury and permanent disfigurement. They would be entitled to delete such parts of Charge 4 as they did not find proved.

[12] Further it was submitted that Charge 4 made it difficult for an accused to lodge a Special Defence. That is not the case. It might be that the Special Defence should be clearly worded so as to indicate exactly which part of Charge 4 it related to: thus a Special Defence of Self-Defence might explain that insofar as it is alleged that the second appellant assaulted John Leaper by punching and kicking him, any such action on the part of the second appellant was taken in self-defence, the said second appellant having been attacked by the said John Leaper.

[13] Counsel for the first appellant raised the question what, in the event of conviction, would appear on the first appellant's record. We consider that what would appear would simply reflect the jury's verdict: thus it might be the offence of "abduction", or "assault", or "abduction and assault". Again therefore we are not persuaded that any difficulty would arise in this respect.

[14] Finally, we agree with Sir Gerald Gordon in his commentary on Cordiner v HM Advocate, cit sup, that the use of sub-paragraphs, numbers and letters in a charge is a matter of style only, and cannot affect the substance of the charge. We consider that the sheriff in his Note places too much emphasis upon whether a charge contains sub-lettering.

Decision

[15] In the result we are not persuaded that Charge 4 is irrelevant, or that the way in which it has been framed raises difficulties or obstacles to a fair trial. Accordingly in our view the sheriff erred in dismissing the charge as irrelevant. We shall allow the appeal, reverse the sheriff's decision dismissing Charge 4, and remit to the sheriff to proceed as accords. At the advising of this opinion, we are minded to grant the Crown an extension of the 12-month period as discussed with counsel.