Rory Connell Morrison v. Her Majesty's Advocate

Criminal Note of Appeal Against Conviction:- The appellant was convicted after trial on indictment at Edinburgh Sheriff Court of a charge of assault and a separate charge of robbery. The sheriff made an order in terms of section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of sentences on another indictment matter, ordering that the appellant be returned to prison for a period of four months. As regards the robbery charge on the present indictment, the appellant was sentenced to two years and six months imprisonment and on the assault charge he was sentenced to eight months imprisonment and were ordered to run consecutively to each other and also consecutively to the period specified in the order under section 16. The appellant lodged a note of appeal under section 110 of the Criminal Procedure (Scotland) Act 1995 on the grounds that the jury had deleted any reference to an "assault" in relation to the robbery charge and in the absence of any other evidence of violence or intimidation, the jury ought to have convicted the appellant of theft only. It was further submitted that esto the conviction of the appellant for robbery was upheld a sentence of two years six months imprisonment was excessive. It was submitted on behalf of the appellant that the Crown had prosecuted their case as one of assault and robbery and once the jury had negatived the assault part of the charge the jury could not properly go on to convict of robbery and should have convicted the appellant of a simple theft. It was submitted on behalf of the Crown that the jury's verdict could be justified by the recognition that some violence had been used in the incident by the appellant, notwithstanding that the jury had made the deletions they did. Here the court considered the legal definition of robbery and, notwithstanding the deletions of the averment of assault and also the specification of the narrative relating to an assault, whether there was sufficient evidence of personal violence used for the purpose of appropriation of the property of the complainer to amount to a robbery. Further, the court went on to consider whether the sentence imposed on the robbery charge of two years and six months imprisonment was excessive.