John Deeney v. Her Majesty’s Advocate [2021] HCJAC 33

Note of appeal against conviction:- On 19 November 2020, following a trial at the high court, the appellant was convicted of a charge of indecent assault relating to events which took place when the appellant was aged 13- 17 years. The libel of the charge included:- “…. on various occasions between 23 July 1981 and 21 August 1984 you ... did indecently assault [PT], born ... 1972 ... and did instruct him to remove his lower clothing and to kneel on his hand (sic) and knees, place your arm around his neck, seize hold of him and penetrate his anus with your penis to his injury.” Attached to the indictment was a docket which related to events alleged to have occurred when the appellant was aged between 9 and 10. He was of an age when he had criminal responsibility, however, it would not have been competent to prosecute the appellant for the docket offence at the time when the indictment was served by virtue of section 41A of the Criminal Procedure (Scotland) Act 1995 as introduced by section 52(2) of the Criminal Justice and Licensing (Scotland) Act 2010. The docket was in the following terms:- ““on various occasions between 22 April 1977 and 13 July 1978 ... at ... Wishaw, you ... did indecently assault [JK], born ... 1970 and did lead him by the hand, induce him to get into your bed, rub his back, kiss him on the mouth, touch his penis, masturbate him and force him to masturbate you.” On 17 December 2020, the appellant, then aged 53, was sentenced to 4 years imprisonment. The appellant appealed against his conviction it being contended that the trial judge misdirected the jury that there was sufficient evidence to entitle them to convict as the evidence relative to the docket was not capable of providing corroboration for the single charge on the indictment. It was submitted on behalf of the appellant that the trial judge ought to have invited submissions from parties in relation to sufficiency and withdraw the charge from the jury. Alternatively, it was submitted that if the trial judge had not erred, the appellant’s trial counsel had erred in failing to make a ‘no case to answer’ submission in terms of section 97 of the 1995 Act at the close of the Crown case. It was submitted that children under the age of 13 lacked capacity to consent to sexual activity and given the appellant’s age at the time of the events in the docket, he would not have been able to comprehend the concept of consent. It was necessary for the application of mutual corroboration that the corroborative events amounted to a crime and the docket evidence did not constitute a crime as there was no offence of sexual conduct between younger children. Whilst the appellant was over the age of criminal responsibility at the time of the docket events it was submitted the court should have regard to the changes which Parliament had enacted in relation to the age of criminal responsibility and also with the alterations introduced in the 2009 Act. On behalf of the Crown it was submitted that the docket events were admissible, the issue of the appellant’s consent was irrelevant, the appellant’s trial counsel had not erred in failing to make a section 97 submission, the matter was correctly to the jury and no miscarriage of justice had occurred. The court refused the appeal. Principally, the appeal was refused as what had been argued on behalf of the appellant amounted to an objection to the relevancy of the evidence referred to in the docket and section 118(8) of the Criminal Procedure (Scotland) Act 1995 provides that a conviction cannot be “set aside” unless any such objection was timeously stated, which it had not been. The court did, however, go on to consider the merits of the appeal and stated that there is no requirement that the events referred to in a docket should constitute a crime of which an accused could competently be convicted. In the present case the court noted that the docket events amounted to a crime of indecent assault and occurred at a time when the appellant was above the age of criminal responsibility at the time and could have been convicted of that offence and subsequent statutory changes did not alter that. The court observed that the appellant’s inability to consent was irrelevant.