APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Mackay of Drumadoon Lord Drummond Young	[2012] HCJAC 110 Appeal No: XC455/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by EKENE ANGELBAT ANOLIEFO Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Labacki; Capital Defence

Respondent: Stewart, Q.C; Crown Agent

31 August 2012

Introduction

[1] On 28 May 2009 the appellant was convicted after trial at Aberdeen High Court on one charge of assault, six charges of breach of the peace and a charge of rape. The charges of which the appellant was convicted were in the following terms, charge 12 before the jury narrated below being charge 13 upon the indictment:-

"(1) on 2 November 2007 at Hutcheon Street and Holland Street, both Aberdeen, you did assault R G, c/o Grampian Police, Queen Street, Aberdeen and did repeatedly ask her back to your home, follow her, repeatedly seize hold of her by the body and push her against a wall;

(2) between 1 January 2008 and 31 January 2008, both dates inclusive at

Canal Road and Elmbank Terrace, both Aberdeen, you did conduct yourself in a disorderly manner, approach J C, c/o Grampian Police, Queen Street, Aberdeen, make inappropriate and sexual remarks to her, follow her to a block of flats at Elmbank Terrace, and attempt to force entry there all to her fear and alarm and did commit a breach of the peace;

(3) on various occasions on 15 and 16 March 2008 at Charles Street, Aberdeen and elsewhere in Aberdeen, you did conduct yourself in a disorderly manner, approach S H, born during 1993, c/o Grampian Police, Queen Street, Aberdeen, make inappropriate and sexual remarks to her, attempt to kiss her, touch her on the leg, and note down her number, offer her cigarettes, alcohol and Cannabis all to her fear and alarm and did commit a breach of the peace;

(5) on 24 March 2008 at George Street, Aberdeen, you did conduct yourself in a disorderly manner, enter a telephone box then occupied by R F, c/o Grampian Police, Queen Street, Aberdeen, make indecent remarks to her, place her in a state of alarm and commit a breach of the peace;

(6) on 6 May 2008 at George Street, Aberdeen, you did conduct yourself in a disorderly manner, approach K H, c/o Grampian Police, Queen Street, Aberdeen, engage her in conversation, repeatedly demand that she enter your car, place her in a state of fear and alarm and commit a breach of the peace;

(7) on 15 June 2008 at Pittodrie Street, Aberdeen, you did conduct yourself in a disorderly manner, approach M R, c/o Grampian Police, Queen Street, Aberdeen, engage her in conversation, ask her to enter your car, place her in a state of fear and alarm and commit a breach of the peace;

(11) on 13 July 2008 on a journey between Dee Street and Powis Place, both Aberdeen, you did detain S S, c/o Grampian Police, Queen Street, Aberdeen in your motor vehicle against her will and did at 13c Powis Place, Aberdeen assault her, show her pornographic films, push her onto a bed, pin her down, forcibly remove her clothing, attempt to kiss her and did rape her to her injury;

and

(12) on 24 July 2008 at Menzies Road, Aberdeen, you did conduct yourself in a disorderly manner, did approach D B, c/o Grampian Police, Queen Street, Aberdeen ask her inappropriate questions, make sexual remarks towards her, place said D B in a state of fear and alarm and commit a breach of the peace."

[2] The convictions were all by unanimous verdict of the jury with the exception of the conviction on charge (1), which was by a majority. Appeal against convicition in respect of charges 1, 2, 3, 5, 6, 7 and 12

[3] Charge 1 is a charge of assault. The other charges are charges of breach of the peace. The grounds of appeal on which the appellant seeks to challenge his convictions on charges 2, 3, 5, 6, 7, and 12 include:-

"(2) It is submitted that the directions given in respect of the crime of breach of the peace were apt to confuse. Reference is made to pages 14-15 of the charge to the jury. It is accepted that the trial judge made reference to the proper definition of the offence at page 14. However in summarising what the Crown had to prove at pages 14-15 the trial judge referred only to the conduct presenting as genuinely alarming and seriously disturbing to the ordinary reasonable person.

Those latter directions suggested that there was no need to establish that the conduct threatened serious disturbance to the community.

(3) In any event it is submitted that there was insufficient evidence led from which it could be inferred that the conduct complained of was such that it was severe enough to cause alarm to ordinary people and threaten disturbance to the community."

Submissions on behalf of appellant

[4] Counsel for the appellant explained that grounds of appeal 2 and 3 were intended to raise two issues: (a) whether sufficient evidence had been led to warrant the appellant's conviction on the charges of the breach of the peace and (b) whether the trial judge's direction in respect of those charges of breach of the peace had been correct. He also mentioned a consequential issue. The conviction on charge 1, a charge of assault, and certain of the charges of breach of the peace had been dependent on the application of the Moorov doctrine. Accordingly in the event that the convictions on all of the charges of breach of the peace fell to be quashed, the conviction on charge 1 would also require to be set aside on the ground of an insufficiency of evidence.

[5] Turning to ground 2 counsel for the appellant submitted that although the trial judge's directions had opened with a proper statement of the law, when he had turned to deal with what the Crown required to prove his directions had been inadequate and had been liable to confuse. At that stage the trial judge stated as follows:

"In summary for the Crown to prove these charges of breach of the peace, you would require to be satisfied firstly, that the accused behaved in the way described in the charges and secondly, that in the circumstances in which it took place that conduct was, or was likely to be, genuinely alarming and seriously disturbing to the ordinary reasonable person".

[6] Counsel for the appellant submitted that in order to assess the significance of the inadequacy, it was appropriate to have regard to what counsel had said when they were addressing the jury. The Advocate depute had explained his understanding of the crime of breach of the peace in very limited terms. He stated:

"... but for something to become a breach of the peace, it needs to be something that can cause annoyance or alarm or to breach public decorum and it should be something substantially greater than just irritation. ...it's conduct which is genuinely alarming and disturbing in its context to any reasonable person."

Defence counsel had said even less. He submitted that the jury required to be

satisfied:

"that there was something more than a cultural misunderstanding; something more than even bad manners; even a slightly confrontational approach, if you like. There has to be something which is overtly offensive."

[7] Counsel for the appellant submitted that the terms in which the Advocate depute and the defence counsel had addressed the jury had heightened the risk of a miscarriage of justice. That placed more emphasis on the significance of what the trial judge had said. In the event, the summary given by the trial judge had been defective in that it failed to direct the jury that the Crown required to prove that the conduct complained of in each of the individual charges of breach of the peace had been severe enough to threaten serious disturbance to the community. Put shortly the argument was that the trial judge had failed to direct the jury that the conduct must pass the "conjunctive test". In other words the conduct must not only be "severe enough to cause alarm to ordinary people" but additionally "threatened serious disturbance to the community". Reference was made to paragraph 17 of the Opinion of the Court delivered by Lord Coulsfield in Smith v Donnelly 2001 SCCR, Harris v HM Advocate 2010 SCCR 15 and W.M. v HM Advocate [2010] HCJAC 75.

[8] Turning briefly to the issue of sufficiency of evidence, counsel for the appellant argued that when regard was had to the summary of the evidence in the individual charges, as set out in the trial judge's report to this court, it was clear that there was insufficient evidence before the jury to entitle them to hold it established that the appellant's conduct in respect of the individual charges of breach of the peace had threatened serious disturbance to the community. Even if a passer-by had come on the scene of each of the individual incidents, and had been concerned by what they saw and heard, the conduct of the appellant had not been severe enough to threaten serious disturbance to the community. Counsel for the appellant accepted that some of the complainers had been distressed by the actings of the appellant, but contended that even if the appellant's conduct had been criminal it had not constituted the crime of breach of the peace. Surprising though that may be, those charges were illustrative of a gap in the law, as it then was, a gap which had subsequently been filled by the enactment of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

Submissions on behalf of respondent

[9] The Advocate depute invited the court to adopt the approach followed by the court in WM v HM Advocate. Taking the charges of breach of the peace one by one, he sought to demonstrate that in relation to each of those charges, there had been a public element, with the appellant's actings having taken place in a public place. As far as the trial judge's directions were concerned, the Advocate depute sought to rely on the fact that the first part of those directions were correct. He acknowledged that an element was missing from the trial judge's summary, which we have quoted, of what the Crown required to prove. However he argued that no miscarriage of justice resulted from that omission because there had been ample evidence before the jury to satisfy the conjunctive test and that there was no real possibility that had fuller directions been given, or the summary had been omitted, that would have resulted in different verdicts.

Discussion

[10] It is apparent that the directions given by the trial judge followed the guidance, which was then current, in the Jury Manual (issued by the Judicial Studies Committee). Unfortunately the Jury Manual did not fully reflect the law as laid down in Harris v HM Advocate. That may well explain why the trial judge's summary did not contain any reference to the community element. No doubt the approach the trial judge adopted when charging the jury on these charges was consistent with the manner in which the trial had been conducted by the Advocate depute and counsel for the appellant. The relevance of none of the charges of breach of the peace had been challenged in advance of the trial, nor was any submission made at the close of the Crown case that the appellant had no case to answer in respect of any of those charges of breach of the peace.

[11] Nevertheless, in the light of the authorities to which we have referred, we have reached the conclusion that the jury were misdirected. The trial judge did not direct the jurors fully as to the terms of the conjunctive test. In particular he did not direct them that they required to address and be satisfied that the conduct of the appellant had caused the risk of serious disturbance to the community. In our view that was a material misdirection; the circumstances of these charges are such that it cannot be said that, if properly directed, there was no real possibililty of the jury deciding that the conjunctive test had not been satisfied. Accordingly the appeal against conviction will be allowed insofar as it relates to the appellant's conviction on the charges of breach of the peace, charges 2, 3, 5, 6, 7, and 12, and consequentially also in respect of the charge of assault, charge 1 .

Appeal against conviction in respect of charge 11

[12] The appellant also has before the court two grounds of appeal contained in a supplementary note of appeal. Those grounds are in the following terms:

"1. In connection with the allegations made against the appellant, the appellant was detained and interviewed by the police on several occasions. It is understood that on each occasion the appellant did not have the opportunity to consult with a solicitor before being interviewed nor was a solicitor present during the interview. Evidence of the appellant's police interviews was led by the Crown to demonstrate that there were inconsistencies between the evidence he gave at trial and what he said to the police in respect of the allegations which form charges 7 and 11. Against that background, in seeking conviction, the Lord Advocate was acting incompatibly with the appellant's rights under the European Convention on Human Rights including Articles 6(3)(c) & 6(1). Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

2. Separatim. The trial judge ought to have ruled the evidence inadmissible or at least directed the jury to disregard the evidence in so far as it was relied on by the Crown for conviction. Reference is made to the preceding paragraphs".

Although these grounds are drafted in respect of charges 7 and 11, they only remain of relevance in respect of charge 11, in view of the fact that we have already concluded that the conviction on charge 7 falls to be quashed.

Submissions on behalf of appellant

[13] Counsel for the appellant explained that these two grounds were founded on the decision of the Supreme Court in Cadder v HMA
[2010] UK SC 43; 2010 SCCR 951. The grounds raised two related issues. Whether by virtue of the admission of evidence relating to the appellant's police interviews, the appellant had been denied a fair trial and, if so, whether the trial judge had erred in admitting the interviews and in failing to direct the jury correctly in respect of the evidence constituted by those police interviews.

[14] The background to this evidence is summarised in a supplementary report prepared by the trial judge. As he indicates in that supplementary report, so far as charge 7 is concerned the appellant was interviewed under caution on 26 July 2008. He denied any knowledge of the incident involving M R, the complainer in that charge. So far as charge 11 is concerned, (the charge of rape), the appellant was interviewed under caution on 14 July 2008. He admitted that he had met the complainer in or outside the Pearl Lounge in the early hours of 13 July 2008. During the interview he indicated that they had gone back to his flat and had some drinks. They had then "cuddled on his bed", but had not had sexual intercourse. After the appellant had been interviewed, DNA evidence from swabs and clothing became available. That indicated that there had indeed been sexual intercourse between the appellant and the complainer. The appellant then submitted a special defence to the effect that he and the complainer had had sex in his car. By the time of the trial, the special defence had been amended to state they had had intercourse at the appellant's flat. The appellant gave evidence in support of his amended special defence of consent.

[15] Counsel for the appellant explained that these prior police statements had been used to challenge the appellant's credibility during the course of the Advocate depute's cross examination of the appellant at the trial. Thus in relation to charge 7 the questioning focused on the fact that the appellant had denied knowledge of the incident complained of in that charge during the course of his police interview, but at the trial had offered an explanation as to what happened. On charge 11 the appellant's credibility had been challenged by leading evidence of the prior police interview on 14 July. Although that interview had been described by the trial judge as "confused" and "difficult to understand" in his initial report to this court, during that interview the appellant had appeared to indicate that he denied having sexual intercourse with the complainer on 13 July 2008. That of course was inconsistent with the evidence which he gave during the trial itself.

[16] Counsel for the appellant submitted that the significant use that the Advocate depute had made of the interviews to undermine the appellant's credibility's was clear from the transcript of the appellant's evidence and also from the transcript of the Advocate depute's address to the jury.

[17] There was no dispute that the appellant was not afforded the opportunity of taking legal advice prior to either of those interviews taking place. The appellant's convention rights had accordingly been breached. The issue that therefore arose was whether the test laid down in McInnes v HM Advocate 2010 SCCR 286 had been met. In practical terms had the transcripts of the two police interviews not been introduced was there a real possibility of a different outcome at the trial in relation to charges 7 and 11? Counsel for the appellant argued that but for the admission of those interviews there would have been a real possibility that the jury might have reached a different verdict on both those charges and in particular on charge 11.

[18] Counsel for the appellant stressed that the appellant's evidence had been a central issue for the jury. He argued that by placing the reliance which the trial Advocate depute did on the police interviews, the Advocate depute had caused the appellant to lose a realistic chance of acquittal on charge 11.

[19] Counsel for the appellant also argued that the trial judge had erred in failing to rule the evidence relating to the interviews as inadmissible and in having failed to direct the jury to disregard the evidence relating to the police interviews in so far as it was relied on by the advocate depute in seeking conviction on those charges.

Submissions on behalf of respondent

[20] In response to these submissions the Advocate depute accepted that the two police interviews of the appellant should not have been led in evidence and that by doing so the Crown had acted incompatibly with the appellant's convention rights under article 6(3)(c) and 6(1). However the Advocate depute explained that the Crown's position was that having regard to the evidence as a whole, the leading of evidence as to the contents of the two police interviews had not deprived the appellant of a fair trial and had not given rise to a miscarriage of justice. Reference was made to the decision of McInnes v HM Advocate and Cadder v HM Advocate, per Lord Hope at para 64.

[21] In developing that argument, the Advocate depute stressed that the contents of the police interviews were exculpatory in that nothing said during either of those interviews had been relied upon by the Crown in seeking a sufficiency of evidence in relation to either of the two charges. The Advocate depute submitted that there had been ample evidence to convict the accused on charges 7 and 11, constituting ample material upon which the jury could have found the evidence of the complainer in each of those charges to have been credible and the appellant's account of what happened incredible.

[22] In relation to charge 11, the charge of rape, the Advocate depute submitted that the complainer's account of events was supported by the following evidence:

(a) The SOS text the complainer sent to Paul Wilkin, whilst she was still confined in the appellant's flat.

(b) The complainer's distress and dishevelled appearance, which were apparent to Paul Wilkin when he met her shortly after she was able to leave the appellant's flat.

(c) De recenti statements complaining of rape made by the complainer to Paul Wilkin and the police.

(d) Medical evidence of a number of fresh bruises and other marks on the body of the complainer consistent, with her having been gripped.

(e) Forensic evidence of recent damage to the complainer's tights, which could have been caused by strong tugging or pulling at the thigh.

(g) Evidence from a computer expert which corroborated the complainer's evidence of the playing of pornography on a computer in the appellant's flat.

[23] The Advocate depute submitted that when the totality of that evidence was looked at it could not be said that there was any real possibility of the jury having reached verdicts of acquittal on either charge 7 or charge 11, had the police interview evidence not been led.

Discussion
[24] It is undoubtedly the case that the Advocate depute used the police interview the appellant had given in relation to the charge of rape as a tool in challenging the credibility of the appellant's evidence in respect of the rape charge. Accordingly the question is whether the appellant's credibility had been so undermined by other chapters of the evidence that the use of the police interview statement did not make any material difference.

[25] Having regard to the evidence the jury heard as to the complainer taking steps to send an SOS message to Paul Wilkin; the evidence given by Paul Wilkin as to the state of distress of the complainer; the evidence of de recenti statements; the medical evidence relating to the injuries suffered by the complainer; the forensic science evidence relating to the damage to the complainer's tights; and the expert evidence from a computer engineer as to pornography having been displayed on the appellant's computer; there was considerable support for the complainer, whom the jury found credible. We are persuaded that there is no real or realistic prospect that the jury might have come to a different verdict on charge 11 had they not heard evidence of the statements in the police interviews inconsistent with the appellant's evidence, which are narrated in paragraph [14] above. In these circumstances the first additional ground of appeal falls to be repelled.

[26] As far as the second additional ground of appeal is concerned relating to alleged misdirection of the jury by the trial judge we see no reason to differ from the views expressed by the court in Crozier v HM Advocate 2011 HCJAC 95:

"[16] ... Insofar as the leading of evidence of what was said in the interview might now be open to objection in light of the decision of the Supreme Court in Cadder v HM Advocate, that is a matter which goes to the admissibility of the evidence. For no doubt understandable reasons, no objection was taken at the trial. There was accordingly no basis upon which it would have been incumbent, or indeed proper, for the trial judge to have directed the jury to ignore the terms of the police interview".

In these circumstances the second additional ground of appeal falls to be repelled and the appeal against conviction on charge 11 is also refused.

[27] A further hearing in respect of the appeal against sentence will be required.