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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 20

HCA/2016/000417/XC

Lord Menzies

Lord Turnbull

Lady Cosgrove

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST CONVICTION

by

WILLIAM THOMAS HANDY

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Stewart, QC, Toner; Faculty Services Limited

Respondent:  J Farquharson, AD; Crown Agent

22 March 2017

[1]        The appellant William Thomas Handy went to trial at the High Court of Justiciary at Aberdeen on 20 June 2016 together with a co-accused, Craig Guest, on an indictment which contained three charges of which only the second is relevant for present purposes.  This was in the following terms:

“(2)      On 23 June 2014 at a driveway at (a specific  address in Dundee) you CRAIG MAXWELL GUEST and WILLIAM THOMAS HANDY did set fire to motor vehicle registration number SY05 FBX whereby you poured petrol on said motor vehicle and ignited said petrol and fire took effect thereon whereby said motor vehicle was damaged and this you did wilfully.”

 

[2]        At the end of the Crown case the advocate depute withdrew the libel in respect of the other two charges and the co-accused Guest pled guilty to charge 2.  Senior counsel for the appellant then made a submission of no case to answer.  The trial judge repelled this submission after which the appellant gave evidence and the trial proceeded to its conclusion.  The appellant was found guilty of charge 2 by a majority verdict of the jury and was sentenced to five years imprisonment.  No issue is taken with sentence. 

[3]        The appellant now appeals against his conviction on the basis that there was insufficient evidence against him and that the trial judge erred in repelling the submission of no case to answer.  The argument advanced in support of the appeal both in the written case and argument and in oral submissions to the court today was substantially the same as that advanced to the trial judge in support of the submission of no case to answer.

[4]        In his report to us the trial judge helpfully narrates the evidence as follows: 

The Fire-Raising
[3]        In 2014 PC David Farr, his wife and their infant daughter lived on a quiet residential street in Dundee.  In the early hours of 23 June, they were awoken by the sound of a car alarm.  They went to the window and saw Mrs Farr’s car ablaze.  It was parked in front of the garage attached to their house.  The couple telephoned the fire brigade and tried to extinguish the fire with the help of a neighbour.  They were unsuccessful.  The car was a write-off.

 

The Police Investigate the Fire
[4]        The police discovered that the fire had been started deliberately.  Petrol had been used as an accelerant.  Forensic analysis disclosed the presence of Guest’s DNA on the label of the plastic tub that had contained the petrol. 

 

[5]        During his police interview, Guest confessed to starting the fire.  His position can be summarised as follows.  Someone told him that they wanted a car set alight and where to find the car.  Guest agreed to commit the crime to pay off a debt.  He put petrol into the tub and took it to the Farr’s house.  He poured petrol on the car, ignited it with a lighter, and ran off.  He did not know who resided at the house.  Later he learned that it belonged to a policeman. 

 

[6]        Guest refuses to name the person whom he alleges set matters in train.  He fears reprisals against himself and his young son if he does so.

 

Background - Operation Cartogram
[7]        In early 2014 the police were conducting a disruption operation known as “Operation Cartogram”.  It was intended to make life difficult for various named persons who were suspected of being involved in criminal activity.  The appellant was not initially a target of the operation.  He became a person of interest after being seen to associate with some of the named targets.

 

[8]        PC Farr and his colleague, PC Clark, were part of the team that kept the appellant under surveillance.  On 13 May they saw him driving along the A90 Perth to Dundee Road.  He pulled his car into a layby after they signalled him to stop.  The officers placed him in handcuffs, searched him, questioned him about possible motoring offences and seized the car. 

 

[9]        Later that day the appellant logged on to the website 192.com.  He searched for the home addresses of the two officers.  He discovered where PC Farr lived. 

 

[10]      Guest was the appellant’s personal fitness trainer.  The appellant gave PC Farr’s address to Guest and said that he was “being hounded” by the police.  On 19, 21 and 22 June, there were a number of texts, calls, missed calls and voicemails between Guest and the appellant.  There were no such communications between them on the day of the crime or the following day.

 

[11]      Two days after the fire, the two men went together to an 02 shop in Dundee.  The appellant arranged for a technical specialist to wipe the data from each of their iPhones.  At the same time, he bought a new iPhone for Guest. 

 

The Appellant’s Position
[12]      The appellant continues to maintain his innocence.  He asserts that he made the searches on 192.com to confirm that PCs Farr and Clark were genuine police officers.  When he learned of the fire, he quickly thought that Guest must have been the perpetrator.  He arranged for the iPhones to be wiped to “distance himself” from “the whole scenario”.  He believes that Guest must have acted out of a misplaced sense of loyalty, or to curry favour in the hope that the appellant would invest in his business.”

 

[5]        The trial judge summarises the competing arguments on the no case to answer submission briefly at paragraphs [13] and [14] as follows:

“[13]    Mr Stewart submitted that there was insufficient evidence to link the appellant with the commission of the crime.  There was no evidence that would entitle the jury to infer that he had instigated the crime.  Although there was evidence of his annoyance with PCs Farr and Clark, there was nothing to suggest that he had any meaningful communications with Guest about fire-raising or that Guest was carrying out his bidding.  The jury were being invited to speculate.

[14]      In inviting me to repel the submission, the advocate depute said that this was a circumstantial case.  The Crown relies on all that happened both before and after 23 June to show that the appellant instigated Guest to start the fire.”

[6]        The trial judge then gives his reasons for concluding that there was sufficient evidence as follows:

“[15]    I concluded that there was sufficient evidence, having regard to the following factors:

 

(a)        The appellant was aggrieved about the way he had been dealt with by PCs Farr and Clark on 13 May. 

(b)        On that day and the two ensuing days he made several searches against the names ‘David Farr’ and ‘Ross Clark’.  On 14 May he bought six extra credits for his 192.com account.  He found out PC Farr’s address.

(c)        The appellant told his friend John McGurk that he was going to find out where a particular police officer stayed.

(d)       An iPhone recovered from the appellant has a digital image of an envelope with the name “Ross Clark” and his shoulder badge number “2505”.  The photograph was taken at 08.25 on 14 May 2014. 

(e)        On 14 June the appellant attended Divisional Police HQ in Dundee to clear up a traffic matter.  When another officer, DC O’Donnell, asked him to wait to speak to PCs Farr and Clark, he became “angry and hostile”. 

(f)        On 19 June he met the officers at Downfield police office.  He became agitated when they raised the layby incident on 13 May.

(g)        Guest said that someone else had asked him to commit the crime and he did so to pay off a debt.  The other person had supplied the details of the address.

(h)       The appellant and Guest sought to communicate with each other on 19, 21 and 22 June (as set out in Joint Minute No 2).  There were only two actual calls, one lasting 12 seconds and the other 30 seconds.  Their content is unknown.

(i)         On 21 June 2014 two iMessages were exchanged between Guest’s phone and an untraced phone. 

a.         At 10.07 (outgoing): “Can’t talk mate but meeting was rescheduled to tonight.  I’ll call u later today when im free.  But the area was empty on arrival last night.”

b.         At 10.10 (incoming): “Ok matey boy.  Although that is extremely strange.  Both out [?]”

(j)         The appellant referred to Guest as “matey boy”.  For example, on 30 June 2014 he sent a text to Guest:  “Doubt it matey boy.  I’m down the road will text you tomorrow for we though.  Thanks.”

(k)        On 25 June the two men went together to the O2 shop where the appellant arranged for both their phones to be wiped by a technical specialist.  At the same time he bought a new iPhone for Guest. 

[16]      It is of the nature of circumstantial evidence that it is capable of more than one interpretation.  While there could be an innocent explanation for each strand of evidence, the jury was in my view entitled to infer that the appellant was guilty of the crime on an art and part basis, because he instigated the commission of the crime.”

[7]        Senior counsel for the appellant submitted to us to today that there was insufficient evidence led such as would entitle a jury to hold that the co-accused Craig Guest acted upon the counsel and instigation of the appellant and that accordingly there was no route in law through which art and part guilt on the part of the appellant could be said to be established.  As he had done before the trial judge, senior counsel referred us to Gordon’s Criminal Law, 3rd Ed. at paragraphs 5.19 to 5.23 and the authorities cited therein.  It was submitted that the Crown required to produce evidence of actual instigation, something much more than even wishing ill to be done to a person, something more than approval or knowledge or appreciation that harm was intended to a person was required.  The Crown must adduce evidence to effectively vouch the causative nature of any behaviour or activity by the appellant which could be seen as causing the co-accused to do his bidding.

[8]        Here, there was no evidence of the involvement of the appellant quoad actor.  The Crown accepted there was no evidence of any physical involvement in either the execution or preparation of the wilful fireraising.  There was no evidence of instruction, direction or reward on the part of the appellant towards the co-accused.  The Crown required to adduce corroborated evidence of instigation in order to bring home a sufficiency of evidence against the appellant on the charge.  It failed to do so and the trial judge ought therefore to have upheld the submission of no case to answer. 

[9]        Senior counsel submitted under reference to the passage in Hume’s Commentaries quoted in Gordon, that the test was a high and rigorous test, and properly so where the Crown was seeking to make one person responsible for the activities of another.  There was no sufficiency of evidence on which the Crown could say Mr Guest acted to commit the crime on the instigation of the appellant.  Although senior counsel accepted that this was something which could be established by a body of circumstantial evidence, there must be a sufficient basis for a legitimate inference to be drawn from it.  He regarded the necessary evidence as falling into two parts.  First, was Mr Guest instigated to do what he did?  And second, was the appellant the instigator?  There was insufficient evidence in respect of each of these parts to justify the necessary inferences.  There was a vacuum. 

[10]      The advocate depute submitted that the trial judge was correct to repel the submission of no case to answer.  She relied on the various factors referred to by the trial judge at paragraph 15 of his report to us and amplified these to indicate that on the evidence the circumstantial case against the appellant was in fact stronger than summarised by the trial judge.  There was a sufficient basis in evidence to enable the jury properly to draw the inference that the appellant instigated Mr Guest to commit this offence if they chose to do so.  She reminded us that at the stage of the submission of no case to answer, the court must interpret the evidence in the way most favourable to the Crown, under reference to the well-known authorities of Fox v HMA 1998 JC 94; Al Megrahi v HMA 2002 JC 99; Mitchell v HMA 2008 HCJAC 28, particularly at paragraph 106; and Parracho v HMA 2010 HCJAC 59. 

[11]      We agree with the submissions of the Crown that there was sufficient evidence before the court at the stage of the submission of no case to answer to enable the jury, if they chose to do so, to draw the inferences that Mr Guest committed his crime under instigation and that the appellant was the instigator.  As is observed at paragraph 5.23 of Gordon, “Just what words would be treated as instigation depends on the circumstances of each case”.  Each case of this nature will depend crucially on its own facts and circumstances.  Having regard to the factors referred to by the trial judge at paragraph [15]  of his report, we consider that there was a strong circumstantial case against the appellant.  The trial judge required to consider the evidence in the way most favourable to the Crown.  We consider that he did not fall into any error of law and was entitled to, and indeed correct to, repel this submission.  Accordingly this appeal must be refused.