APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY ALAN KERR AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 96
HCA/2015/486/XC
Lord Justice Clerk
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL
under section 74 of the Criminal Procedure (Scotland) Act 1995
by
ALAN KERR
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: K Stewart QC; Turnbull McCarron, Glasgow
Respondent: R Goddard AD; the Crown Agent
1 May 2015
Statutory Interpretation
[1] At common law, once a person had been either acquitted or convicted of a charge, he had “tholed an assize” and could not be tried again (MacDonald: Criminal Law (5th ed) 272). This is known as the double jeopardy rule, although the formal plea in bar of trial was one of tholed assize. The previous charge:
“must have been for the same crime, depending on the same evidence, and not for what is truly another crime, though having a semblance of connection with the offence originally charged” (ibid, citing Alison: Practice 617, Galloway v Somerville (1863) 4 Irv 444; Glen v Colquhoun (1865) 5 Irv 303).
The Crown could not circumvent the rule by “describing the same facts in a different manner” (ibid, citing Hume: Commentaries ii 466; Alison: Practice 615-616).
[2] In HM Advocate v Cairns 1967 JC 37, the Lord Justice Clerk (Grant) adopted (at 40) these statements of the law. He referred to the need for a “plain identity” of charges (Dorward v MacKay (1870) 1 Coup 392, Lord Neaves at 397); the accused requiring to have previously been “in jeopardy” in respect of the same offence (Fraser (1852) 1 Irv 66, LJG (McNeill) at 73).
[3] The Scottish Law Commission were asked to visit the subject as recently as 2007 and, following a Discussion Paper (No.141, 2009), produced a Report (No.218, 2009). Attached to the Report was a draft Bill, whose sections (1 and 2) were enacted (as sections 1 and 7) in the Double Jeopardy (Scotland) Act 2011, with which this appeal is principally concerned.
[4] According to the SLC Report (para 2.5) the law was “unclear” and required (paras 2.6-7) to be “simplified and restated”. In examining the “core rule”, the SLC identified a series of facts giving rise to a number of distinct offences; in particular the theft of a car, drunk driving and dangerous driving. It expressed the view that it would be objectionable, without good reason, to separate these charges and keep one in reserve pending trial of the others. The concern was of an accused being retried in respect of matters “arising from the same incident”. The use of the words “same incident” is significant in interpreting the words of the subsequent legislation.
[5] It is clear that the SLC was recommending that an accused person should be protected from re-prosecution not only in respect of the same crime but in respect of crimes which “should have been litigated, the general rule being that all charges arising out of the same incident should be brought together whenever possible” (para 2.10). The final two words were intended to provide a safety valve to cope with circumstances where to do so would be inappropriate (para 2.11). There was also concern about the situation where an original charge was later discovered to be one aspect of a “larger and more significant crime” (para 2.12).
[6] The Report recommended (para 2.13) a “dual approach” in which “a reasonably narrow core rule against double jeopardy was supplemented by a broader principle against unreasonably splitting cases”. Again, the use of this language is interesting when it comes to a consideration of the words used in the Bill and later the Act.
[7] The recommended narrow rule became section 1 which, in so far as relevant, provides:
“(1) It is not competent to charge a person who … has been convicted or acquitted of an offence … with
(a) the original offence
(b) any other offence of which it would have been competent to convict the person on the original indictment or complaint, or
(c) an offence which
(i) arises out of the same, or largely the same, acts or omissions as gave rise to the original indictment or complaint, and [emphasis added]
(ii) is an aggravated way of committing the original offence.”
This reformulation of the double jeopardy rule is in narrower form than that at common law. It focuses on the nomen crimins; the offence as libelled. The reference to “the same … acts” is only relevant where what is charged in the second offence is an aggravation of the first offence (hence the critical use of “and”); it would not prohibit, as the common law rule did (see supra), prosecuting a person for the same acts under a different nominate offence (eg an attempted rape as an indecent assault; or rape, unlawful (under age) intercourse or incest, see infra).
[8] This is somewhat problematic when the second essential element of the Report’s recommendation is considered. This is the “broader principle” (para 2.19). The SLC examined the issue of whether the test should be one based on “same facts” or “same acts”. The discussion is not entirely easy to follow, especially in that a charge usually avers an accused’s acts as facts. The Report derived support from the rather different jurisprudential base of the European Union recommending a test based on “same acts”. Taking its cue from Van Esbroeck [2006] 3 CMLR 6 (at para 42), the SLC defined this test as involving “a set of facts which are inextricably linked together, irrespective of the legal classification given to them”. This test is similar to that in the ne bis in idem principle of the European Convention (Protocol 7, Art 4 not ratified by the United Kingdom; Zolotukhin v Russia (2012) 54 EHRR 16 at para 81 et seq). Such a test would, the Report states, prohibit a person acquitted of rape of a sister being subsequently charged with incest (para 2.22). In that respect, the rule would alter the common law as defined in the poaching cases cited in Macdonald; Glen v Colquhoun and Galloway v Somerville (supra). It would place the practice of the Crown, which is normally to charge all connected offences together, on a statutory footing (para 2.23).
[9] The phraseology used in the Report (para 2.23) is that “subsequent prosecutions arising from the same acts” would be prohibited (subject to a “special reasons” exception). This is the wording used in the recommendation (para 2.27). In the draft Bill (s 2) and the Act (s 7), it became:
“7(2) [A person charged with an offence] may aver, as a plea in bar of trial, that the offence arises out of the same, or largely the same, acts or omissions as have already given rise to the person being tried for, and convicted or acquitted of, an offence”.
[10] The salient feature is the need for the two offences to have arisen “out of the same, or largely the same, acts”. That is different from prohibiting multiple prosecutions for crimes arising out of the same incident. Quantum valeat, it is also different from prohibiting multiple trials in respect of “inextricably linked” facts. The statutory prohibition would not cover the example given by the SLC of the theft of a car followed by dangerous/drunken driving. The two crimes may be regarded as part of the same incident, and the facts or acts may be linked, but they do not involve the same act or fact, nor are they inextricably linked.
The Charges and Plea in Bar
[11] The appellant is charged with, amongst other things, having “unnatural carnal connection” with a person, then aged 11, at an address near Stirling, on an occasion between 1 and 15 July 1998. Attached to the indictment is a docket (Criminal Procedure (Scotland) Act 1995, s 288BA) describing what must be the same occasion, when the appellant is alleged to have used lewd, indecent and libidinous practices towards the same complainer by removing his clothing, handling his testicles, rubbing his buttocks, penetrating his anus with his fingers and pressing his erect penis against his body. These acts are presumably alleged to have occurred immediately prior to, or at the same time as, the sodomy. In 2009, a plea of not guilty was accepted from the appellant in respect of an offence that, on various occasions between the same dates and at the same place, he used lewd, indecent and libidinous practices towards the same complainer by touching him on the body and handling his private member.
[12] The appellant tendered a plea in bar of trial founding upon, amongst other matters, section 7 of the 2011 Act. The judge at first instance repelled the plea on the basis that the crime now charged was not the same act as previously libelled. The appellant has appealed, with leave, against that decision. He contended that the test in section 7 was a wider one than that at common law. The mischief being struck at was the “unreasonable splitting of cases”. The task for the court was whether, in terms of Van Esbroeck (supra), the facts were inextricably linked together in time, space and subject matter. Although the sodomy and the lewd and libidinous behaviour required proof of different facts, they nonetheless arose from the same incident; a single episode of sexually abusive behaviour. The new test was broader than the old one of species facti (Rodger v HM Advocate [2014] HCJAC 133).
[13] The advocate depute explained that the sodomy was being libelled now because the complainer had only recently proffered this allegation. The allegation had not been made prior to the acceptance of the plea on the earlier indictment. However, the Crown did not seek to found upon the special reasons exception in section 7. The contention was that the offences arose out of different acts.
Decision
[14] The question is whether the allegation of sodomy arises out of the same, or largely the same, acts as gave rise to the lewd, indecent and libidinous practices charge of which the appellant has been acquitted. It is not contended that the current libel offends against the general, and now narrow, double jeopardy rule in section 1 of the 2011 Act (see Note of Appeal, cf the appellant’s first instance minute). There is no European Convention issue as Protocol 7 Article 4 (ne bis in idem) has yet to be ratified and the principle is not encapsulated under the general Article 6 (S v Germany (1983) 39 DR 43). The situation here is readily distinguished from Van Esbroeck [2006] 3 CMLR 6, where what was involved was an attempt to re-prosecute the same conduct. It was a classic “same acts” case.
[15] The two offences charged against the appellant are not the same (s 1(1)(a)). The appellant could not have been convicted of sodomy on the original indictment (s 1(1)(b)). Sodomy is not an aggravation of lewd behaviour (s 1(1)(c)). It is a separate and different crime. It is not argued in the appeal that the respondent’s actions are oppressive (cf the first instance minute). The only issue is whether, in terms of section 7, the new libel offends the broader principle of being a re-prosecution of an offence arising out of “the same, or largely the same, acts”.
[16] As outlined above, if the intention of the Scottish Law Commission had been to introduce a new statutory prohibition on the multiple prosecution of offences arising out of the same “incident” (“unreasonable splitting”), that is not what was achieved, or at least wholly achieved, by the words in the draft Bill and Act. The statutory test is whether the act now charged (sodomy) “arises out of the same, or largely the same, acts” as those lewd practices originally libelled. It does not. It arises out of a quite separate act; being that of penile penetration of the complainer’s anus. That act was not previously libelled. The single occasion act of sodomy is not “inextricably” linked (Van Esbroeck [2006] 3 CMLR 6 at para 42) to the various acts of touching libelled in the earlier indictment. There is no doubt a link, as there is between many criminal acts occurring at the same general time and place, but it is not an inextricable one. That is determinative of this appeal which must be refused.