HER MAJESTY'S ADVOCATE v. M.J.C.
| | HIGH COURT OF JUSTICIARY OPINION by THE RT. HON. LORD OSBORNE in causa HER MAJESTY'S ADVOCATE against M.J.C. ___________ |
28 November 2002
The panel in this case faces an indictment containing a single charge, the terms of which it is necessary for me to narrate. It alleges that:
"On various occasions between 12 October 1993 and 12 September 1999, both dates inclusive, in the houses then occupied by you at flat 3/1, 433 Liddesdale Road, at flat 3/2, 41 Scalpy Street, at flat 2/2, 51 Skerray Street and at flat 1/1, 67 Scaraway Street, all Glasgow, you did use lewd, indecent and libidinous practices and behaviour towards C A C, born 12 October 1987, then residing with you and now c/o Strathclyde Police, Maryhill, Glasgow, remove her clothing, apply creams to her body, lie in bed with her, handle her chest and private parts, insert your finger into her private parts, lick her private parts, induce her to handle your private member and to place it in her mouth, place you private member against her private parts, induce her to masturbate you to the emission of semen and did masturbate in her presence."
This case came before me on 28 November 2002 at a preliminary diet under Sections 72 and 73 of the Criminal Procedure (Scotland) Act 1995. At that preliminary diet, I was informed by senior counsel for the panel that, on 28 August 2000, after a trial, the panel had been acquitted on a charge of rape and convicted on a charge of lewd and libidinous conduct. That charge had originally stood in the following terms:
"On various occasions between 12 October 1993 and 12 September 1999, both dates inclusive, you did in the houses then occupied by you at flat 3/1, 433 Liddesdale Road, Glasgow, flat 3/2, 41 Scalpy Street, Glasgow, flat 2/2, 51 Skerray Street, Glasgow and flat 1/1, 67 Scaraway Street, Glasgow use lewd, indecent and libidinous practices and behaviour towards C A C, born 12 October 1987, care of Maryhill Police Office, Glasgow, remove her clothing, apply creams to her body, lie naked in bed with her, handle her chest, handle her naked private parts, insert your finger into her private parts, induce her to handle your naked private member, induce her to masturbate you to the emission of semen and masturbate in her presence."
I was informed that in the light of the evidence led at that trial the charge just narrated had been amended by the addition of certain words. In particular, the words "lick her naked private parts" were inserted after the second reference to "private parts" in the charge and the words "place her mouth on your naked private member and place you naked private member on her naked private parts" at the end of the charge. I was also informed that, at that trial, in the light of the evidence which emerged, certain deletions from the charge were made on the motion of the Crown. These deletions were of the words "handle her chest" and "insert your finger into her private parts", occurring in the original charge. Thus the conviction recorded on 28 August 2000 was one on the charge as so amended. I was also informed that the panel had appealed against this conviction and, on 18 September 2002, the Court of Criminal Appeal had set aside the verdict and had granted authority to the Crown to bring a new prosecution in terms of Sections 118 and 119 of the Act of 1995. It was pointed out to me that the charge in the present indictment includes the particular allegations which had been deleted from the previous charge. The submission made on behalf of the panel was that the present indictment in the form narrated was incompetent, in respect that it contained a charge which was more serious than that on which the panel had been convicted previously. In this connection reference was made to the terms of Section 119(2) of the Act of 1995. It provides that:
"In a new prosecution under this Section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings."
The provisions of this sub-section had been infringed in respect of the inclusion in the present charge of the words which the Crown had had deleted, prior to conviction, from the former charge. Senior counsel for the panel submitted that the provisions of the sub-section might be contravened in different ways. The Crown might attempt to allege the commission of an offence more serious than that of which the panel had previously been convicted by alleging a more serious offence with a different nomen iuris; alternatively, the Crown might allege a crime with the same nomen iuris, but make different and more serious allegations in the averments in the new charge. It was this latter situation which had come into being in the present case.
In support of his contentions, senior counsel for the panel drew my attention to H. M. Advocate v. Boyle 1992 S.C.C.R. 939, a case dealt with under the provisions regarding retrials contained in the Criminal Procedure (Scotland) Act 1975, which differed from those contained in the Act of 1995. He contended that Section 119(2) of the latter Act had been passed in order to avoid the difficulties which had previously been experienced, exemplified in the case cited. He also drew my attention to the provisions of Section 119(6) of the Act of 1995, which provided that in any new prosecution, subject to the provisions of Sub-section (7), it was competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings. Thus the conduct of the prosecution in a retrial would not be hampered in any way. Reference was also made to H. M. Advocate v. Hemphill 2001 S.C.C.R. 816, although it was recognised that the circumstances of that case were not directly comparable with the present situation.
The advocate depute submitted that the contention advanced on behalf of the panel was unsound. The words "an offence more serious than that of which he was convicted in the earlier proceedings", occurring in Section 119(2) was a reference to the nomen iuris of the crime charged, not to the nature of the averments made by the Crown in support of the allegation of the commission of a particular crime. However, she accepted that, if that submission were wrong, then the averments which had been made in the present indictment, being averments of a more invasive kind of conduct than that which had been proved at the earlier trial, would mean that the relative offence was more serious.
In the light of the foregoing arguments, I decided that the contentions of the panel were correct. It appeared to me that the words "an offence more serious than that of which he was convicted in the earlier proceedings" occurring in Section 119(2) were not intended to be applied by reference to the nomen iuris of the offence involved, but rather by reference to the averments actually made in the new charge, as compared with those made in the earlier charge. It appeared to me that the provisions of Section 119(1) tended to support such a conclusion. It enacts that:
"Subject to sub-section (2) below, where authority is granted under Section 118(1)(c) of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts; and the proceedings out of which the appeal arose shall not be a bar to such new prosecution."
It appears to me that the words "any similar offence" suggest that the nomen iuris of the charge cannot be the criterion. I am also confirmed in that view by a consideration of the provisions of paragraph 2 of schedule 3 to the Act of 1995, which provides:
"It shall not be necessary to specify by any nomen iuris the offence which is charged, but it shall be sufficient that the indictment or complaint sets forth facts relevant and sufficient to constitute an indictable offence or, as the case may be, an offence punishable on complaint."
If, as provided by paragraph 2, the specification of a nomen iuris is not an essential feature of an indictment, it appears to me that it is improbable that it was intended by Parliament to be seen as the criterion by which the seriousness of the offence is to be judged, for the purposes of Section 119(2). In these circumstances, I decided to sustain the panel's objection to the terms of the present indictment. That having been done, the Crown sought and obtained leave to amend the terms of the new charge by the deletion from it of the words which had been deleted from the earlier similar charge.
| | HIGH COURT OF JUSTICIARY REPORT by THE RT. HON. LORD OSBORNE in causa HER MAJESTY'S ADVOCATE against MICHAEL JOHN CHALMERS ___________ |