Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 28

HCA/2015/000958/XC

 

Lady Paton

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION

by

JAMES McCRACKEN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  M Mackenzie;  Faculty Services Ltd

Respondent:  A Edwards AD;  Crown Agent

8 April 2016

Introduction

[1]        On 13 February 2015, the appellant (then aged 69) was convicted of lewd and libidinous practices, and rape.  He was sentenced to 8 years imprisonment.  He appeals against conviction on the ground that there were insufficient similarities in time, character and circumstances for the application of the Moorov doctrine.  A “no case to answer” submission should have been sustained.

The trial judge’s report

[2]        The report from the trial judge is in the following terms:

“Introduction

 

On 13 February 2015 at Glasgow High Court the appellant was convicted of charges 1, 3, 4 and 5 as amended on the indictment which were as follows:

 

‘(001) on various occasions between 9 July 1978 and 8 July 1984, both dates inclusive at a flat at 47 AR Drive and 26 NA Street, both Glasgow you JAMES MCCRACKEN did use lewd, indecent and libidinous practices and behaviour towards AB, born 9 July 1972, and did place your hand under her clothing, touch her breasts, touch her vagina over her clothing, place your hand inside her underwear, touch her vagina, and penetrate her vagina with your fingers;

 

(003) on various occasions between 9 July 1984 and 8 July 1986, both dates inclusive at a flat at 47 AR Drive and 26 NA Street, both Glasgow you JAMES MCCRACKEN did use lewd, indecent and libidinous practices and behaviour towards AB, born 9 July 1972, a girl then above the age of 12 years and under the age of 16 years, and did place your hand under her clothing, touch her breasts, touch her vagina over her clothing, place your hand inside her underwear, touch her vagina, and penetrate her vagina with your fingers:  CONTRARY to the Sexual Offences (Scotland) Act 1976, Section 5;

 

(004) between 20 July 1997 and 19 July 1999, both dates inclusive at Flat 1/2, 8 NA Street, Glasgow you JAMES MCCRACKEN did assault CM, born 20 July 1986, and did get into bed with her, pull her towards you, rub your penis against her body, touch her body, pull down her underwear, attempt to force her legs apart, touch her vagina, ejaculate on her body, penetrate her vagina with your penis, force her to touch your penis and masturbate you, and you did rape her;

 

and

 

(005) between 21 March 1996 and 19 July 1999, both dates inclusive at Flat1/2, 8 NA Street, Glasgow you JAMES MCCRACKEN did use lewd, indecent and libidinous practices and behaviour towards LAM, born 21 March 1988, and did touch her breasts and penetrate her vagina with your fingers’

 

…

 

Relevant evidence

 

The Crown relied on … the evidence of the three complainers and the application of the rule of mutual corroboration.

 

The first complainer

 

The appellant was a close friend and drinking companion of the first complainer’s parents.  He, along with his long term partner, would visit the family home on frequent occasions and often engage in long drinking sessions with the complainer’s parents.  All those involved in these drinking sessions were alcoholics.  He would regularly give sweets and money to the complainer.  The appellant held a considerable position of trust within the family and he was known as ‘Uncle Jimmy’.  The complainer had known the appellant since she was a baby.  None of this evidence was disputed. 

 

On these visits, or drinking sessions, the appellant would go into the complainer’s bedroom at night, when she was in bed asleep and touch her under the covers.  He would handle her chest or breasts under her clothing and touch and rub her on the vagina.  This escalated to digital penetration.

 

These drinking sessions would sometimes be held at the appellant’s home and the first complainer was taken there.  On other occasions the first complainer was sent to the appellant’s house to be cared for by the appellant and his partner ‘Auntie Margaret’.  On occasions when the complainer was left alone with the appellant the same abuse would take place.  Again this occurred when the first complainer was in bed.  The abuse was frequent and repeated over many years when the complainer was between 6 and 14 years of age.  The first complainer estimated in her evidence she was abused ‘probably once a fortnight’.  The abuse ended when the complainer was taken into care at 14 years of age. 

 

The second complainer

 

The second and third complainers were sisters.  Their grandmother was a close family friend of the appellant.  At the time of the abuse their mother was also an alcoholic and she, the appellant and the appellant’s partner would drink on visits to the family home.  Their stepfather who lived with them did not drink very much.  The appellant held a position of trust within the family and was known to all as ‘Uncle Jimmy’.  They had known the appellant all their lives.  None of this evidence was disputed.  Prior to the offence, the second complainer was sent to Uncle Jimmy’s overnight for child care on two occasions.  The appellant’s flat was small and she slept in the pull down bed within the kitchen.  On a third overnight visit in 1997, when she was 11 years old, the appellant got into bed beside her.  She turned over so that she had her back to him.  He then touched and rubbed her thighs and breasts from behind.  She froze.  He then rubbed his penis against her, pulled her legs apart and penetrated her vagina.  He then took his penis out and placed her hand upon it and moved it until he ejaculated. 

 

The third complainer

 

On a later occasion both the second and third complainers were sent for overnight care to the appellant’s house in 1998.  The second complainer slept at the end of and outside of the bed.  The third complainer slept inside at the top of the bed.  She was between seven and nine years old.  The appellant got into bed beside and at the back of her.  He touched or rubbed her from behind, touched her breasts and then digitally penetrated her.  When he did this, the third complainer jumped out of the bed and ran to the bathroom.

 

The appellant’s partner Margaret McN gave evidence.  She confirmed that she did not live with the appellant but sometimes stayed with him.  She also confirmed that they visited the first complainer’s family home for a drink, about once a fortnight, for a ‘good few years’.  Later on they would visit the second and third complainers’ mother who was a friend.  The second and third complainers would sometimes stay at her house.  She could not remember if they visited the appellant.”

 

[3]        47 AR Drive was the home of the sisters CM and LAM;  26 NA Street was the appellant’s home, until he moved to 1/2 8 NA Street which then became his home.

 

Submissions for the appellant

[4]        Counsel submitted that each charge in the indictment was spoken to by only one witness.  The jury had not been entitled to apply the Moorov doctrine, for the reasons set out below.  There was therefore an insufficiency of evidence in respect of all of the charges.  A “no case to answer” submission had been wrongly refused, leading to a miscarriage of justice.  The appeal should be allowed and the convictions quashed.

[5]        While the time frame for charges 4 and 5 was acceptable, there had been significant differences in the conduct libelled.  Accordingly the Moorov doctrine was not applicable in respect of charges 4 and 5.  There was thus an insufficiency of evidence in relation to those charges, and the trial judge erred in refusing the section 97 submission.  The convictions of charges 4 and 5 should be quashed.

[6]        Esto the Moorov doctrine could properly be applied in respect of charges 4 and 5, there was a considerable gap in time between the conduct in charges 1 and 3 and that in charges 4 and 5.  The gap amounted to about 12 to 15 years.  It was accepted that a considerable time gap did not necessarily exclude the Moorov doctrine (Tudhope v Hazelton 1985 SLT 209;  AK v HM Advocate 2012 JC 74;  H v HM Advocate 2015 SLT 380).  Nevertheless the greater the time-gap, the greater the similarity in conduct was required.  In the appellant’s case, there had been no particular similarities or unique features of the conduct to overcome the considerable time-gap.

[7]        Furthermore the conduct in charges 1 and 3 was not the same as that in charges 4 and 5.  For example, charges 1 and 3 concerned repeated abuse over a period of time, with the appellant apparently taking advantage of every opportunity of contact with the complainer;  charges 4 and 5 concerned single incidents, with nothing untoward happening at other times, despite contact with the complainers. 

[8]        When all the evidence was analysed, it could not be said with reasonable certainty that the offences were instances of a single course of criminal conduct persistently pursued by the appellant, such that the Moorov doctrine could be applied.  Reference was made to McMahon v HM Advocate 1996 SLT 1139, at page 1142E-F;  HM Advocate v AP [2015] HCJ 62 paragraph [6];  Pringle v Service 2011 JC 190; and Ogg v HM Advocate 1938 JC 152 at page 158.  At its highest, the evidence disclosed a general propensity or predisposition, but not conduct permitting the application of the Moorov doctrine.

[9]        The appellant’s primary submission was that the convictions on all charges should be quashed.  If, however, only the convictions on charges 1 and 3 were quashed, leaving the convictions on charges 4 and 5, the question of sentence would have to be revisited.  The court was invited to allow the appeal and to quash the convictions on charges 1, 3, 4, and 5.

 

Submissions for the Crown

[10]      The advocate depute invited the court to refuse the appeal.  The Crown submissions are reflected in the Discussion section below.

 

Discussion

[11]      In McMahon v HM Advocate 1996 SLT 1139, at page 1142F et seq it was observed that:

“… it is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule [in Moorov] can be applied.  The question is ultimately one of fact and degree …”

 

[12]      Similarly in MR v HM Advocate 2013 JC 212 at paragraph [20], it was said that:

“[20]  What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel (see NKS v HM Advocate, Lord MacLean, delivering the opinion of the court, para 10) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (Ogg v HM Advocate, Lord Justice-Clerk (Aitchison), p 158;  AK v HM Advocate, Lord Justice-Clerk (Gill) para 10).  Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury (Reynolds v HM Advocate, Lord Justice-General (Hope), delivering the opinion of the court, p 508) under proper direction of the trial judge.”

 

[13]      Further, in Dodds v HM Advocate 2002 SLT 1058, at paragraph [9], it was pointed out that:

“[9] … The extent of the period of time within which a Moorov similarity can be applied is not and cannot be fixed by rule of law.  If the circumstances of the commission of two crimes are of particularly unusual similarity, it may be that corroboration can be found to exist even if the charges are separated by a long period of time …”

 

[14]      In the present case, the challenge is to the trial judge’s refusal of a “no case to answer” submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.  There is no criticism of the trial judge’s charge.

[15]      When considering a section 97 submission, the judge has, of course, to take the evidence at its highest.  The relevant evidence is summarised in the judge’s report and charge.  Read short, they note the following:

• Each complainer was a young girl.
• The appellant was a friend of each complainer’s family and was known as “Uncle Jimmy”.He often had access to the complainers, for example, after drinking sessions with the family.
• The appellant was in a position of trust so far as the households were concerned.
• The assaults were carried out in the appellant’s home or a complainer’s home.
• Each assault was carried out when the complainer was in her bed.
• In each case, the appellant touched the complainer’s breasts and private parts, penetrating the vagina with a finger or (in one case) his penis.

[16]      For the appellant, it was contended that the Moorov doctrine was not applicable to charges 4 and 5.  We do not accept that argument.  Charges 4 and 5 were both serious charges, involving penetration.  Digital penetration can corroborate penile penetration, and vice versa (cf HMcA v HM Advocate 2015 JC 27).  The case of HM Advocate v AP [2015] HCJ 62 is distinguishable, as the supporting evidence in that case was a single instance of conduct of a much less serious nature than that in the present case.

[17]      Further, it was submitted that there were significant dissimilarities in the conduct proved to have occurred (one example being the fact that charges 4 and 5 concerned single incidents, whereas charges 1 and 3 concerned a lengthy period of sustained abuse).  However in our view, any dissimilarities in this case were for the jury to assess, having been addressed by both Crown and defence, and properly directed by the judge (cf NKS v HM Advocate 2006 SCCR 70).

[18]      Counsel for the appellant emphasised the time-gap between the conduct in charges 1 and 3 and that in charges 4 and 5.  It was said that some 12 to 15 years had elapsed, although it seems to us that the time-gap was more in the region of 10 to 11 years.  On the issue of time-lapse, we note the guidance in paragraph [9] of Dodds, cit. sup., echoed in AK v HM Advocate 2012 JC 74, at paragraph [14], where it was said:

“[14] It is common ground that there is no maximum interval of time fixed by law beyond which the Moorov principle cannot apply and that where the interval is a long one, it is necessary to consider whether there are any special features in the evidence that nonetheless make the similarities compelling …”

 

We also note that time-lapses of 13 years 10 months (AK), and 18 years (AS v HM Advocate 2015 SCCR 62) have not, in the circumstances of those cases, been held a bar to the application of the Moorov doctrine.  The key issue in every case is whether there are “similarities in time, place and circumstances in the behaviour proved … such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused” (MR paragraph [20], quoted in paragraph [12] above).

[19]      In our opinion, the evidence summarised in the judge’s report and charge, and paraphrased in paragraph [15] above, satisfied that test.  Accordingly the judge did not err in repelling the section 97 submission and leaving the evidence to the jury to assess the questions of fact and degree arising, to decide whether to apply the Moorov doctrine, and to reach the verdict they did.

[20]      In any event, having considered the summary of the evidence in the trial judge’s report, we are not persuaded that any miscarriage of justice has occurred.

 

Decision

[21]      In the result, we refuse the appeal against conviction.