A.X. v. His Majesty’s Advocate [2024] HCJAC 12

Note of appeal against conviction and sentence:- The appellant was convicted after trial on indictment at the sheriff court of various charges of indecency:- (charge 1) a contravention of section 24(1) of the Sexual Offences (Scotland) Act 2009 by sending sexual and indecent communications to KD, born 26 September 2004, and attempting to induce her to meet him for sexual intercourse; (charge 2) a contravention of section 23 of the Sexual Offences (Scotland) Act 2009 by causing KD to look at a sexual image, namely, a penis; (charge 3) a contravention of section 7(1) of the Sexual Offences (Scotland) Act 2009 by sending indecent communications to LR, born 5 December 2002; (charge 4) a contravention of section 34(1) of the Sexual Offences (Scotland) Act 2009 by sending indecent communications to FE, born 7 November 2003, and asking to meet her for sexual intercourse; and (charge 7) a contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982 by taking or permitting to be taken or made indecent photographs or pseudo-photographs of children. At the close of the Crown case charges 5 and 6, which involved sending sexual communications to and attempting to meet for sex with a child, who was in fact a paedophile hunter, were withdrawn. In due course the sheriff sentenced the appellant to a cumulo sentence of 16 months imprisonment on charges 1 to 4 and admonished the appellant on charge 7 and made him subject of the notification requirements of the Sexual Offences Act 2003 for a period of 10 years. The appellant appealed against his conviction in relation to charges 1 to 4 it being contended that the identification evidence was insufficient to enable the jury to conclude beyond reasonable doubt that the appellant was guilty and that the sheriff had erred in repelling a ‘no case to answer’ submission made at the close of the Crown case. Further, that the sheriff had misdirected the jury in directing them that they could convict the appellant if they were satisfied he had used the alias ’Andrew Gordon’ without further clarification of that direction given that it was the appellant’s position that he did use that profile. Further criticisms were made of the sheriff’s directions in relation to the application of mutual corroboration in the particular circumstances of the case where there had been no identification from the complainers. It was further contended by the appellant that his trial was prejudiced by the conduct of the PFD during his cross-examination, when she had implied that the appellant was guilty of charges of which he had been acquitted and the PFD’s conduct amounted to an attack on the appellant’s character. For example, it was suggested by the PFD in cross-examination the period of time he had spent on bail would have given him “time to make something up”. In addition, the PFD stated “Whether there’s criminality involved or not, that was my decision” in relation to charges 5 and 6 having been withdrawn. The appellant also appealed against the sentence imposed it being contended it was excessive. On behalf of the Crown it was submitted that the sheriff had not erred in repelling the ‘no case to answer’ submission there being no requirement for eye witness identification there being corroborative identification evidence available in respect of each charge. Further, it was submitted that the trial sheriff’s directions to the jury were adequate, however, if there had been a misdirection (as had been conceded by the trial sheriff in his report to the court re the direction on ‘Andrew Gordon’) it did not result in a miscarriage of justice. In addition, it was submitted that the conduct of the PFD was unlikely to have influenced the jury’s consideration of the charges on the indictment. Here the court allowed the appeal. The court considered that the sheriff was correct to repel the ‘no case to answer’ submission there being sufficient evidence of identification of the appellant for the matter to proceed. The court did not consider that the sheriff had miscategorised the defence case in relation to the issue of the use of the ‘Andrew Gordon’ profile. The court observed that the PFD should not have said “Whether there’s criminality involved or not, that was my decision” in relation to charges 5 and 6 and described the comments as ”petulant and inappropriate” and the sheriff ought to have directed the jury of the use the jury could make of the evidence led in support of charges 5 and 6, namely, for identification purposes. The court stated that, in relation to the criticism of the directions given on mutual corroboration, this was an example of the care that should be taken to tailor directions to cover the specific circumstances of the case and what was in dispute between the parties. The court considered that the only real issue in dispute was whether the Crown had proved that the appellant was the person who sent the various messages and was guilty of the offences libelled and rather than dealing with that issue the sheriff had given lengthy untailored directions on mutual corroboration and issues relating to the credibility and reliability of the complainers, matters which were not in dispute in relation to the facts spoken to by them which constituted the offences libelled. The sheriff did not address the issue of where the jury could find proof of identification in each charge to enable the doctrine to apply. As such, the court considered that the sheriff had not provided the jury with a route to a verdict of guilty in relation to identification. In addition, the court noted that the sheriff repeatedly referred to the Accused in his charge, for example, “…[the jury] had to decide whether they could infer ‘that the accused’ was pursuing a single course of crime…” the overall effect of such repeated references was to give the jury the impression that the identity of the appellant as the perpetrator had been established. The court considered that it had been necessary for the sheriff to direct the jury that proof of identification could come from the circumstantial evidence, whether or not he referred to the specific evidence, and not from applying the principle of mutual corroboration and the failure to do so amounted to a material misdirection which resulted in a miscarriage of justice. In addition, the sheriff had failed to direct the jury in relation to what use they could make of the evidence led in relation to the withdrawn charges.