APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Clarke	[2013] HCJAC 166 XC636/12 and XC640/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   DANIELLE FOWLER   and in   APPEAL AGAINST SENTENCE   by   MARK SCOBBIE Appellants;   against   HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant (Fowler): Beardmore; Harvie Diamond & Co, Glasgow

Appellant (Scobbie): Alonzi; Capital Defence

Respondent: Niven-Smith AD; the Crown Agent

 

27 November 2013

General

[1] On 31 October 2012, at the High Court in Glasgow, Danielle Fowler was found guilty, along with Mark Scobbie, of a charge which libelled as follows:

"(1) on 23 June 2011 at ... 31 Eriboll Street, Glasgow and in the common close there you ... did assault Robert Glen, ... and did repeatedly punch and kick him to the head and body, repeatedly strike him on the head and body with a glass bottle or similar implement, seize him by the legs, drag him down a stairway ... causing his head to strike off the stairs ..., all to his severe injury, permanent disfigurement and to the danger of his life and you did abandon him ... and attempt to murder him".

 

Miss Fowler was sentenced to 11 years imprisonment. Mr Scobbie was sentenced to 10 years imprisonment (4 months being attributable to a bail aggravation).

Circumstances of the offence

[2] The trial judge reports that the complainer was aged 42 and an alcoholic. He had not known the appellants in advance of the day of the incident, but had met up with them in the city centre. Miss Fowler lived in a first floor flat at the address in the libel. At about 7.00pm, MP, who lived across the landing, heard noises coming from the flat. Although the spyhole of her own door had been partially obstructed by one or other of the appellants, she was able to see Miss Fowler and another person (Mr Scobbie) dragging a body from the flat and along the landing. They then returned to the flat. Mrs P went out, noting that there was "blood everywhere", including down the stairs. The deceased was lying at the bottom of the stairs, hunched against the door of a downstairs neighbour. He was clearly severely injured. The police were called. As she returned to her own flat, Mrs P noticed a bloodstained mop lying outside Miss Fowler's flat. It had not been there earlier.

[3] The police arrived at about 7.45pm and summoned an ambulance. The complainer was taken to the Western General, but transferred to the Southern General because of a large blood clot on his brain. He had in excess of 10 injuries to his head, requiring suturing, as well as other bruises. He also had cuts and abrasions over the rest of his body. He remained in hospital for some 11 days.

[4] At about 8.50pm, a senior police officer arrived. Having noted the apparent source of the trail of blood, and the mop which had been used to wash it away, he called at the flat. The door was opened by Miss Fowler, who was wearing a bloodstained football top. Her hands were also bloodstained and there was blood spatter on the wall in the hall. Mr Scobbie was in the livingroom, also wearing bloodstained clothing and holding a vodka bottle. There were clear signs of a disturbance.

[5] The appellants were detained. Miss Fowler initially said: "I just pushed him out the door". However, at the police station, she admitted that she had hit the complainer, but said that this was because she had been raped; an allegation which she later withdrew. She also appeared to admit that she had "plunged him". Both appellants were too intoxicated to be interviewed formally. Miss Fowler was interviewed on the following day, when she made certain admissions about cleaning up the blood and obstructing the neighbour's spyhole but, ultimately, she denied the charge and incriminated Mr Scobbie.

[6] Her testimony was that she had asked the complainer to leave her flat. A fight had broken out between Mr Scobbie and the complainer. Eventually both she and Mr Scobbie had put the complainer out. However, he managed to get back in and was again asked to leave. Another fight broke out between him and Mr Scobbie. The complainer had eventually fallen in the hallway and had been dragged out by Mr Scobbie. Miss Fowler admitted that she had cleaned blood in the hall outside the door.

[7] Mr Scobbie also gave evidence, but he maintained that what he had been doing in the flat was trying to restrain Miss Fowler, who had stabbed the complainer on the shoulder. He had dragged the complainer into the hallway in order to prevent further assaults by the appellant Fowler. He had covered the spyhole of the neighbour's door. He maintained that he only dragged the victim to the top of the stairs and propped him against a wall. The appellant had then kicked him down the stairs, causing his head to strike the concrete steps repeatedly on the way down.

 

The Forensic Evidence

[8] A forensic scientist had examined both the locus and the clothing of the appellants. There were three areas of blood spatter in the flat, suggesting three different locations where assaults had taken place. One item of clothing was Miss Fowler's green Celtic top, which had "contact bloodstaining, including some smeared bloodstaining ... on the front and back". This blood was that of the complainer. In examination-in-chief, the forensic scientist had confirming that there was nothing about the pattern of blood on the top that would assist in relation to the question of how that blood might have got there. All that could be said was that the top had come into contact with wet blood. It could have been a direct contact, or a secondary contact. This was in contrast to blood spots which were found on Mr Scobbie's trousers and trainers. The spots on the trainers involved the kind of pattern that might be created when there was an impact into wet blood, suggesting that the trainers had been close to an impact with wet blood. The amount of blood on the trainers suggested a direct rather than secondary contact.

[9] The cross-examination of the forensic scientist on behalf of Miss Scobbie involved putting to her that the examination of Miss Fowler's clothing had produced results which might be regarded as "neutral". The forensic scientist agreed with that. In relation to Miss Fowler's top, the following exchange took place:

"Was there much blood on that shirt? - No.

And did I hear you say that there is a possibility that that blood was there through secondary transfer? - Yes, some, some of the bloodstaining on the football shirt was, was light, but just more in keeping with a secondary transfer than a primary transfer.

For example, if someone had blood on their hands and wiped it on it for example, would that ... - Yes".

 

Speeches and Charge

[10] In the speech to the jury on behalf of Miss Fowler, there was some focus on the contrast between the findings on Mr Scobbie's trainers and those on Miss Fowler's top. In a tantalising opening, it was said that, whereas it was accepted that there was compelling evidence against Miss Fowler, there was "One piece of evidence which should lead you to acquit her". This subject was then left for some time, but reverted to towards the end of the speech when it was said that the most important piece of evidence was "of course" in relation to the top. The forensic scientist had preferred an explanation whereby the blood had got there by secondary transfer. "Crucial, though, crucial is the absence of blood spatter on her shirt". The jury were told that they might expect that someone, who had been involved in what must have been a seriously violent assault on a bleeding man, might have blood spatter on her clothing. One place that there was no blood spatter, nor any evidence of such a spatter having been cleaned, was on that top.

[11] In the introductory passages of her charge to the jury, the judge stressed that it was the jury's assessment of the evidence which counted and not the judge's. She gave the jury the standard direction in relation to the evidence that, if she had mentioned some evidence which the jury considered unimportant or failed to mention evidence that the jury did think was important, they should "take nothing from that" and should place what weight they thought fit on the evidence or part of it.

[12] The trial judge did, to a degree, set out what she understood to be the main points made by the Crown and the defence in the speeches. She touched upon the evidence of blood spatter in the flat and the finding of blood on the clothes and shoes of both appellants, notably on the top of Miss Fowler and the shoes of Mr Scobbie. She described the evidence of the forensic scientist as being that there was contact bloodstaining on the top. When she came to deal with the defence case, the trial judge reminded the jury that it had been submitted on behalf of Miss Fowler that there was no forensic evidence in relation to her shoes. She stated that Miss Fowler's counsel had suggested that "although there was some blood on her shirt ... you would have expected more if she had perpetrated the assault libelled". So, she continued, "the forensic evidence, it is submitted, does not support the Crown case". The judge concluded her remarks on the evidence by reminding the jury that she was "not attempting to summarise all of the evidence ... [or] speeches" and commended the speeches to the jury as a generality.

 

Note of Appeal and Submissions on Conviction

[13] The ground of appeal against conviction is that the trial judge misrepresented the defence position to the jury. It is said in the Note of Appeal that at no stage did the defence suggest to the jury that, if the appellant had committed the offence, more blood would have been found on her shirt. The critical point was not the amount of blood, but the type of bloodstaining. The Note of Appeal states that it was accepted by the forensic scientist that she would have expected blood impact spatter marks to be present on the clothing of a person participating in, or in close proximity to, an attack on a person who was bleeding.

[14] In submissions, it was accepted that the scientist had not said that she would have expected blood spatter marks on the clothing of a person in close proximity to an assault on a bleeding victim. In that important respect, the Note of Appeal was admittedly factually inaccurate. Nevertheless, the trial judge's directions on the evidence, which, unusually, she had elected to summarise, were apt to confuse the jury. The trial judge had misinterpreted what the defence line on the blood staining of the top had been.

 

Decision on Conviction

[15] All that the evidence of the forensic scientist on the top consisted of, so far as the cross-examination on behalf of Miss Fowler was concerned, was that the staining was light and more in keeping with secondary rather than primary transfer. There was no discussion of impact spatter or the significance of the lack of such spatter. All that had been adduced was that there was not much blood on the top and that it could have got there because someone had wiped his or her bloodied hands on it.

[16] The appellant did found upon the absence of blood spatter on the shirt as the "crucial" piece of evidence. The trial judge, in her report, appears to accept candidly that she may have misapprehended the defence position. That is not at all surprising, when regard is had to what the evidence actually was. It may have been legitimate for it to be submitted to the jury, as a matter of common sense, that the absence of blood spatter on the top might suggest some lack of proximity to an assault involving significant effusion of blood. However, what is clear is that this was not put to the forensic scientist and she did not give any evidence upon it.

[17] It remains important for a charge to a jury to be looked at as a whole in the context of the trial. Individual passages should not be scrutinised in isolation (Withers v HM Advocate 1947 JC 109, LJG (Cooper) at 115). The trial judge may not have conveyed the precise nuance of the point being made by the defence to the jury. However, there is always a risk of misunderstanding in such an area; hence the direction to the jury that it is their recollection of the evidence which counts and their view on the weight or importance to be attached to a particular piece of evidence. In any event, in this case, the trial judge did focus the jury's attention on the absence of any significant quantity of blood on the top (which had been the point explored in cross-examination) and the defence speech, which included reference to the lack of spatter, was commended to the jury by the judge despite its lack of evidential foundation. In all these circumstances, there has been no material misdirection.

[18] In any event, even if there had been a misapprehension on the part of the trial judge, this cannot be said to have been productive of a miscarriage of justice. The jury had been told that, if they believed the evidence of Miss Fowler, or it raised a reasonable doubt in their minds, then the benefit of that doubt had be given to her. The jury clearly rejected her testimony in its material essentials. That is understandable given that there was ample evidence against her demonstrating that she had participated in the attack to a much greater degree than she had maintained in her evidence. Notably, she had been identified as dragging the complainer out of the house. She had also made certain admissions to the effect that she had stabbed the complainer. The bloodstaining on her top was not just in one place but had been both to the front and back.

[19] The appeal against conviction is accordingly refused.

 

Sentence
Miss Fowler

[20] It was accepted that the offence was a callous one, particularly as it involved leaving the complainer badly injured at the bottom of a stairwell. Without medical intervention, the complainer would have died. Nevertheless, the submission was that the sentence of 11 years was excessive. There had fortunately been no lasting effects on the complainer and the Crown case had been that there had been no intention to kill. The offence had been committed in the context of binge drinking, which had taken place over a number of hours and all participants had consumed large quantities of alcohol.

[21] Miss Fowler was aged 28 at the time of sentence. She had a young son and, it was said, she had been trying to control her alcohol intake with a view to regaining care of the boy. A "Progress Report" from Turning Point Scotland, which had not been available to the trial judge, had confirmed that she had made such attempts after being liberated on bail pending trial. This report alluded to Miss Fowler's troubled past and referred to her polite and respectful approach to the residential setting of the programme in which she had participated.

[22] The main problem for Miss Fowler, apart from the nature of the attack, was her extensive criminal record extending over a decade. In February 2012, she was placed on probation after a conviction for assault and attempted robbery. In December 2012 she was sentenced to 9 months detention for assault and robbery. Summary offences of dishonesty, assault and public disorder followed. She was placed on probation in November 2003 for a breach of the peace, but contravened that order and was sentenced to a further period of detention. She was given the benefit of a probation order again in June 2006, after convictions for assault to injury and breach of the peace. In August 2007, yet another probation order followed an offence of having a knife. In August and October 2009, prison sentences followed convictions for robbery and, again possession of a knife.

[23] Having regard to the nature of the offence of which she was convicted and her criminal record, the sentence of 11 years cannot be regarded as excessive. As the trial judge reports, this was a very brutal, motiveless attack on a vulnerable alcoholic, whom the appellants had met up with in the city centre. The attack had been a prolonged one and had involved such activities as the obstruction of the spyhole, in order to prevent the appellants being identified, and dragging an unconscious dying man across a landing and down concrete steps. The appellants were fortunate not to have been facing a charge of murder.

 

Mr Scobbie

[24] The principal submission for Mr Scobbie was that, on a comparative basis, although the trial judge had correctly identified there being a distinction between the two appellants, the level of that distinction had been inadequate. Mr Scobbie had been aged only 21 at the date of the offence. Although he had a lengthy record, once the breach of probation and bail offences were taken out of the equation, this consisted mainly of offences of minor dishonesty and public disorder. He did not have the equivalent of Miss Fowler's convictions for violence.

[25] It was also submitted that the trial judge had failed to take into account the period which Mr Scobbie had spent on remand. This was from his first appearance on petition on 27 June 2011 until his liberation by the Crown on 16 October 2011, with an interruption between 18 July and 7 October, when he was serving a 5 month sentence. This matter was not made the subject of a ground of appeal and the court does not have the trial judge's comments on it. In these circumstances, the court is not prepared to accept the assertion that she did not take the period into account. However, assuming that it was taken into account, its totality of some 91 days, when translated into the equivalent in a long term sentence, the distinction in custodial terms between the two appellants becomes relatively minor.

[26] The court regards the distinction as thus insufficient in comparative terms. It will quash the sentence of 10 years and substitute one of 8 years and 6 months.