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HIGH COURT OF JUSTICIARY
2007HCJ14
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OPINION OF LORD UIST
in
the cause
HER MAJESTY'S ADVOCATE
against
CHRISTOPHER
THOMAS TRACEY
______________
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Crown: Weir AD; Crown Agent
Accused: Paterson, Solicitor; Paterson Bell, Kirkcaldy
20 November 2007
The indictment
[1] The accused
appeared before me for trial at Dunfermline High Court on 19
November 2007
on an indictment containing the following charge:
"on a number of occasions between 12
December 2006 and 4 January 2007, both dates inclusive, at 424 Murchison Path,
Glenrothes, Fife and 100 Queen Margaret Drive, Glenrothes you did have unlawful
sexual intercourse with DM, c/o Fife Constabulary, Glenrothes, born 7 March
1994, a girl then under the age of thirteen years: CONTRARY to the Criminal Law
(Consolidation) (Scotland) Act 1995, Section 5(1);
you did commit this offence while on
bail, having been granted bail on 1 November 2006 at Kirkcaldy Sheriff Court."
When the diet called before me Mr Paterson for the accused
tendered a plea of not guilty to the charge.
Procedural history
[2] A preliminary
hearing had taken place before Lord Turnbull on 13 July 2007 when the accused was represented by
Mr Fyffe, Solicitor, who tendered a plea of guilty as libelled on his behalf.
The plea was signed by the accused and the judge. The Minute of the preliminary
hearing then continued:
"The Advocate Depute moved for
sentence and for a proof to be fixed. He explained that the accused had pled
guilty as libelled as he accepts that intercourse took place on two occasions
on the understanding that the complainer was aged 15 or 16. The Crown's
contention is that intercourse took place on one further occasion after the
accused had been advised of the complainer's true age. The proof in mitigation would
be to determine (a) the state of the accused's knowledge regarding the
complainer's age and this would require evidence to be led; and (b) that
intercourse did take place on a third occasion as this is not accepted by the
accused.
Mr Fyffe for the accused addressed
the court and stated that he had no opposition to that course of action. His
position was that sexual intercourse took place on two occasions only. The
Crown allege intercourse took place on one further occasion when the accused
was aware of the complainer's true age. The accused asserts that he was advised
of the complainer's true age but that intercourse did not take place after that
time when he was so advised.
Lord Turnbull stated that in his view
this was possibly a matter for a jury at trial.
Mr Fyffe submitted that the view
taken by the defence was that the accused would be convicted of the offence
libelled regardless of whether intercourse took place on two or three
occasions.
Lord Turnbull replied that the case
was about knowing what the complainer's age was.
Mr Fyffe felt that this point was
central to the mitigation of the case rather than whether the accused committed
the offence libelled.
The Court, being satisfied that the
issues mentioned were not appropriate for a proof in mitigation, directed that a plea of not guilty be
recorded and continued the
preliminary hearing until 26 July 2007 at 10.00 am within the High Court of
Justiciary at Edinburgh; bail continued."
[3] The minute of
the continued preliminary hearing before Lady Dorrian on 26 July 2007 records
that Mr Paterson appeared for the accused "and stated that the accused had pled
guilty at the previous preliminary hearing however (sic) said plea had not been accepted by the court". That
preliminary hearing was, on the motion of the Crown, continued to a further
preliminary hearing on 23 August 2007 at Edinburgh High Court at which Mr
Paterson appeared and, as the minute records, "intimated to the court that the
accused maintained his plea of not guilty". The minute further records:
"The Advocate Depute advised the
court that certain matters in the case were not in dispute. He stated that he
anticipated that the jury in the case would be asked by the Crown or the
defence to add a rider to their verdict in the event of their returning a
verdict of guilty."
The trial
[4] When the case
proceeded to trial before me the Crown led evidence from the complainer, her
brother and mother, her two female friends, the sister of the accused and a
police officer who spoke to parts of a police interview with the accused. The
contents of a joint minute of agreement containing nine paragraphs also formed
part of the Crown case. At the close of
the Crown case Mr Paterson intimated that no evidence was to be given by or on
behalf of the accused. I then requested that submissions be made outwith the
presence of the jury as to the procedure which was to be followed thereafter.
[5] Mr Paterson
referred to the procedural history of the case as outlined above. He said that,
as the accused accepted his guilt of one incident at each address, there was no
defence to the charge and he would be asking the jury to convict him. The jury
could deliberate on whether sexual intercourse took place on two or three
occasions and whether the accused knew she was only twelve years of age. I
should consider whether it should be left to the jury to add a rider to their
verdict on the number of incidents of intercourse and the accused's belief
about the age of the complainer. So far as the former matter was concerned, he
did not see that it made any practical difference whether intercourse took
place on two or three occasions. So far as the latter matter was concerned, the
burden of proof was on the defence and the standard of proof was balance of
probabilities. His position was that these matters would have been better dealt
with in a proof in mitigation (which had, of course, been sought by both the
Crown and the defence at the first preliminary hearing). After a short
adjournment certain authorities, which are included in the cases I discuss
below, were referred to.
[6] The Advocate
Depute in response stated that the difficulty lay with the terms of the
statute. Belief of the accused that the complainer was thirteen or older was no
defence and therefore irrelevant. All that the Crown had to establish for
conviction was that the complainer was under thirteen years of age and that the
accused had had sexual intercourse with her. Juries had in the past competently
returned verdicts with riders recommending leniency. He recollected it having
been done in that very court about two years previously. As a rider contained
only a recommendation, it could be ignored by the trial judge. The question was
whether the Crown or the defence or the judge should say anything to the jury
about the possibility of their adding a rider recommending leniency to their
verdict of guilty.
Procedure at the
preliminary hearing on 13 July 2007
[7] I begin by
considering the procedure which was followed at the preliminary hearing on 13
July 2007.
At that hearing a plea of guilty as libelled was tendered on behalf of the
accused and signed by him personally and by the judge. The Advocate Depute then
moved for sentence and asked that a proof in mitigation be fixed, for the
reasons stated in the minute, and the solicitor for the accused did not oppose
that proposed course of action. The presiding judge stated that in his view
this was possibly a matter for a jury at trial, that the case was about knowing
what the complainer's age was and then, being satisfied that the issues
mentioned were not appropriate for a proof in mitigation, directed that a plea
of not guilty be recorded. I know of no power in the court to direct that a
plea of not guilty be recorded after a plea of guilty as libelled has been
tendered on behalf of an accused and that plea signed by him personally and by
the judge. The minute of the preliminary hearing of 13 July 2007 does not
mention anything about the accused having withdrawn his recorded plea of guilty
as libelled or the judge having erased or annulled it, so presumably it stood
along with the plea of not guilty which the judge directed should be entered.
In my opinion, once the plea of guilty as libelled was tendered on behalf of
the accused and the plea signed by him and by the judge, it constituted a
conviction which could be removed only by being quashed on appeal: Evans, Petitioner 1991 SCCR 160. Quite
apart from that, I am not aware of any power of a single judge of the High
Court to direct that a plea which has not been tendered by or on behalf of the
accused, and which is directly contrary to the plea tendered by the accused,
should be recorded. The only power of the court to direct that a plea which has
not been tendered by the accused be recorded is the power to direct the
recording of a plea of not guilty where the accused has not pleaded guilty and
at the same time has not formally tendered a plea of not guilty, as, for
example, where he has remained silent, refused to tender a plea or made a
statement which is not a direct and unambiguous admission of guilt: see
Macdonald's Criminal Law (5th Ed) at p 278. Accordingly, it seems to
me that the procedure in this case at the first preliminary hearing went awry
when the plea of not guilty was recorded.
The procedure at the
trial
[8] However that
may be, I was faced with a situation at trial where the accused had pleaded not
guilty, the Crown had led its evidence and no defence evidence was to be led.
The accused's position remained as had been indicated to the court at the first
preliminary hearing. I therefore had to decide what, as a matter of law, it was
open to the jury to do in the circumstances.
(i) The first issue
[9] The first
issue which arose for determination related to the dispute between the Crown
and the accused about whether intercourse between the accused and the
complainer had taken place on three or only two occasions. The Crown led
evidence from the complainer that intercourse had taken place on two occasions
at the first address mentioned in the indictment on two succeeding days and on
a third occasion at the second address mentioned on the indictment. In his
police interview the accused admitted intercourse on one occasion at the first
address and on one occasion at the second address. There was therefore no
corroboration of the second act of intercourse alleged to have taken place at
the first address. As I have mentioned above, Mr Paterson accepted in his
submission that it did not make any practical difference whether intercourse took
place on three or only two occasions, and I agree with that statement. Had it
been necessary for me to decide this issue, I would have held that it was
something which could competently have been decided by the jury. The reason why
I would have done so is because the number of occasions on which intercourse
took place relates to the extent of the accused's guilt of the charge, and that
is a matter which is properly within the province of the jury. The problem
which arose did so because the Crown, although knowing that their case was that
intercourse had taken place on three separate occasions, had not libelled that
in the charge, but instead chosen to make the unspecific allegation that it
occurred "on a number of occasions". There is no reason why the charge could
not have libelled "on three occasions", in which case the precise nature of the
allegation being made against the accused would have been evident to everyone.
Had that been done, it would have been open to the accused to go to the jury
and ask them to delete the word "three" and substitute the word "two". The jury
would have been entitled to do this as it would not have involved a substantive
amendment to the charge but a conviction within the four corners of the libel
for criminal conduct less than that libelled. I do not think that in principle
it makes any difference that in this case the Crown libelled "on a number of
occasions" instead of "on three occasions". Had the matter been pressed, it
would have been open to the accused to go to the jury and invite them, if they
accepted his version of events, to delete the words "a number of" and
substitute "two". Fortunately, as the result of a practical view of the matter
taken by Mr Paterson, it was not necessary for the jury to be asked to decide this
point.
(ii) The second issue
[10] The second issue which arose for
determination related to the question whether it would have been open to the
jury to add a rider to their verdict either recommending leniency in general
terms or making a finding on the accused's belief about the complainer's age at
the material times. This involves consideration of the rarely discussed topic
of riders to jury verdicts. Macdonald (supra) states at p 348:
"When a jury convict, they are
entitled to make a recommendation to the leniency of the court, or in capital
cases to the mercy of the Crown, and to state the grounds of their
recommendation."
No authority is given to vouch the above proposition.
[11] In Renton & Brown's Criminal Procedure (6th
Ed) the following statement appears at para 14-26.1:
"Neither diminished responsibility
nor provocation nor any other plea in mitigation is a special defence, and
evidence may be led in the course of the trial of provocation, diminished
responsibility, mental weakness, or any other mitigating circumstance, without
prior notice."
[12] Two cases are
cited in support of the above statement. The first is Clark v HM Advocate 1968 JC 53, in which the two accused
were charged with wilfully neglecting their child contrary to the Children and
Young Persons (Scotland) Act 1937, section 12(1). The
defence, for the purpose of showing that the neglect was not wilful, proposed
to call a doctor to give evidence that the accused were so mentally
irresponsible that they did not appreciate the effect of their conduct on the
child. The sheriff-substitute refused to allow the doctor to be called as a
witness. It was held by the Appeal Court, applying HM Advocate v Cunningham 1963 JC 80, that the proposed line of
evidence was not relevant to the question of guilt but at the same time
observed by them that the witness ought to have been admitted, since his
evidence might have been relevant to mitigation and the jury were entitled to
hear it and, if so advised, to make a recommendation for leniency. Lord Justice
Clerk Grant stated at p 55:
"Even assuming that the proposed
evidence was not relevant to guilt or innocence, it would, I think, have been
preferable to allow Dr Parry to give evidence, so far as relevant to
mitigation, before the jury retired, in order that, if they thought fit and as
they were entitled to do, they might add a recommendation to leniency when
returning their verdict."
Lord Walker stated at p 58:
"Before us the learned Advocate
Depute maintained that the sheriff had followed the correct procedure. Although
neither applicant is seeking to appeal against sentence, so that the question
of mitigation of guilt does not now arise, I should not like it to be thought
that by passing over the matter in silence I was giving tacit approval to the
view that competent evidence relevant to mitigate guilt can, when tendered by
an accused, lawfully be withheld from the jury. When, in the time-honoured
phrase, the accused is remitted to the knowledge of an assize, the interlocutor
invariably allows him a proof in alleviation as well as in exculpation, and
that was done in this case. An allowance of proof in alleviation is not a
meaningless phrase, for it is within the province of the jury to commend the
guilty to the leniency of the court, and such a commendation forms a factor to
be taken into account in measuring punishment. In my view an accused person is
entitled as of right to lay before the jury all evidence which might properly
induce them to commend him to leniency in the event of his being held guilty."
The third member of the court, Lord Milligan, did not discuss
riders to verdicts or recommendations of leniency by the jury, but pointed out
at p 60:
"I think that it is important to note
that in the present case the purpose for which the evidence of the psychiatrist
was to be led was to attempt to obtain an acquittal and not merely to obtain a
modified sentence."
[13] The second case cited is HM Advocate v Murray 1969 SLT
(Notes) 85, in which the accused was charged with causing the deaths of three
people by dangerous driving. His counsel sought to lead evidence that on the
night in question he had been working in a dry-cleaning establishment and that
as a result at the time of the accident he was under the influence of
tetraclorethylene, a chemical used in dry-cleaning. Lord Justice Clerk Grant
repelled a Crown objection to the admissibility of such evidence and said in
his charge to the jury (at p 86 of the report):
"In considering whether the accused
was guilty of dangerous or reckless driving the question whether he was under
the influence of tetraclorethylene at the time is of no moment and must be left
out of account altogether. If it is established to your satisfaction, even on a
balance of probability, that he was so under the influence of that substance
that may be relevant and indeed would be relevant to the question of sentence
and of mitigation of punishment. And I should add that it is always open to a
jury to make a recommendation of leniency if they think so fit, but these
factors have no bearing on the question of the accused's guilt under charge 1.
The evidence I have referred to may go to mitigation if the accused is found
guilty, but it has no bearing on his guilt."
[14] In the more
recent case of HM Advocate v McIntyre (30
October 1997,
unreported) the accused was a solicitor charged with a contravention of the
Firearms Act 1968, section 1(1)(a) and (b). The account given by the
accused in evidence at the trial was to the effect that a criminal client (and
childhood friend) had handed him two handguns and some bullets, asking him to
hand these in to the police, which in evidence the accused said he intended to
do the day after the guns and bullets were found by the police in his garage.
Lord Marnoch charged the jury as follows:
"It is always possible for a jury to
add a rider to its verdict recommending leniency and, if you were to accept
that the accused was genuinely intending to hand over the guns to the police on
the same day on which they were discovered or very shortly afterwards perhaps,
then it would be appropriate and helpful that you add that rider to any guilty
verdict which you return. Now, it would be sufficient for you simply to say
'and the jury recommend leniency'. You don't have to say anything else. If you
did that, your verdict would be construed as meaning that, although in
possession of the guns, the accused did intend that day or very shortly
afterwards to hand them in to the police."
[15] It was held in
England in the days of capital punishment that neither
counsel nor the judge was entitled to invite a jury to add a recommendation for
mercy. In R v Larkin [1943] 1 KB
174 Humphreys J, delivering the judgment of the Court of Criminal Appeal, said
at p 176:
"There is another matter to which the
court wishes to refer. Twice in the course of his direction to the jury Oliver
J reminded them that, in the event of their finding the appellant guilty of
murder, it was within their province to recommend him to mercy. Although the
matter could not affect an appeal against either conviction or sentence, the
court desires to say that it strongly deprecates any reference by a judge, when
trying a capital case, to the privilege of the jury to make a recommendation of
any kind. A jury frequently asks a judge whether they may add a rider to their
verdict, and on the judge being satisfied that the rider is a proper one, leave
is given. When such a rider takes the form of a recommendation to mercy in a
capital case it may be of great value to the authorities who have the duty of
advising His Majesty whether or not the sentence should be carried out, but if
that recommendation comes, not as the spontaneous act of the jury, but because
they are asked by the judge whether they would like to recommend the prisoner
to mercy, it loses its whole force and probably has no effect on the mind of
any person who considers the case. It ceases to be the act of the jury, since
it would indeed be a strange jury which, on being asked in a murder case if
they would like to make a recommendation to mercy, refused to add to their
verdict those words which express the desire common to every human being, that
mercy should be shown. Another great objection to the practice, if it be a
practice, with which I have been dealing is that it has always been impressed
on juries by judges, particularly when trying a capital case, that they are not
concerned with the consequences of their verdict and judges have frequently
reprimanded counsel who have referred to such a matter as a recommendation to
mercy. If, however, judges are to make a practice of referring to the
consequences of a verdict of guilty in a capital case, it is difficult to see
why counsel for the defence should not have the same right, and if counsel for
the defence, then counsel for the prosecution, and so a trial for murder might
resolve itself into an undignified and undesirable squabble whether or not, in
the opinion of the jury, the capital sentence ought to be carried out. The
court hopes that the practice with which I have been dealing will not be
followed in the future."
The above passage was reiterated and applied by the Court of
Criminal Appeal in the later case of R v
Black [1963] 1 WLR 1311, also a case of capital murder.
[16] In R v McGlade (Times Law Reports, 14 March
1990) the appellant had been tried for and convicted of buggery. Although
invited by the trial judge to do so, the jury had not indicated by way of a
rider to their verdict their finding as to consent. The Court of Appeal stated
that there was clear authority that if the verdict of a jury led inexorably to
only one version of the facts being found, the trial judge was bound to
sentence upon that basis, but, if the verdict left open some important issue
which might affect sentence, the judge, having heard the evidence himself in
the course of the trial, was free, and indeed it was his duty, to come to a
conclusion, if he could, as to where the truth lay. They held that, in the
circumstances of that case, if the judge had been unable upon the evidence to
be sure that there had been no consent to the act of buggery, he would have had
to deal with the matter on the basis that there was consent, but he had made it
clear that on the evidence he had heard he had come to the conclusion that
there had been no consent and in all the circumstances the sentence of five
years imprisonment could not be faulted. In R
v Vincent John Young (1990) Cr App R (S) 279 the Court of Appeal held that
in a charge of buggery of a female the issue of consent was not one for the
jury to determine: if it required resolution, it was a matter for the judge. In
R v Ronald Thomas Cranston (1993) 14
Cr App R (S) 103 it was held by the Court of Appeal that in a case of buggery
of a woman it was not necessarily wrong to invite the jury to add a rider
dealing with the question of consent.
[17] In R v Paul Raymond Mills [2004] 1 Cr App R
(S) 57 (reported at p 332 of the volume) the appellant was convicted on four
counts of being knowingly concerned in fraudulently evading the prohibition on
the importation of certain class A and class B drugs. He was the driver of a
lorry which was stopped by customs officers at Dover and in which the drugs were found in
boxes sandwiched between pallets of fruit. He stated in interview that he was
bringing a load of fruit into the country and agreed to transport boxes which
he believed to contain pornographic video tapes in return for a payment of
£2,500. He admitted that he knew it was illegal to import pornographic video
tapes. At his trial he claimed that he believed that the boxes contained
pornographic video tapes of a kind which were not subject to a prohibition on
importation. Before the trial began the judge raised the question whether the
jury should be asked to determine whether the appellant knew or believed he was
importing controlled drugs as opposed to pornographic material subject to a
prohibition. Having heard submissions he concluded that the only issue for the
jury was whether the appellant was knowingly concerned in the fraudulent
evasion of the prohibition. In giving his decision he said this:
"Mitigation is not a proper subject
for the jury to determine. It is not for the jury to determine whether or not
his mitigation is to be believed. If he is guilty, if the jury find him guilty
and are sure that he knew that he was bringing in something that was
prohibited, then the weight to be given to the mitigation is a matter for the
judge."
At the trial he left to the jury the question whether they
were sure that the appellant knew or believed that he was fraudulently bringing
into the country something which he knew to be prohibited. In sentencing he
stated to the appellant that it was clear that the jury had disbelieved his
evidence that he thought that what he was importing was non-prohibited
pornography and that he had concluded that the appellant knew very well that
what he was importing was drugs with a high value and imposed a sentence of 16
years imprisonment. Following the imposition of sentence the jury submitted a
note signed by 11 jurors which indicated that their verdict of guilty was based
on the view that the appellant genuinely believed the goods were not drugs but
were prohibited. Having heard submissions, the judge ruled that he did not
consider himself bound by the jury's note, declined to vary the sentence and
indicated that he was sure that the appellant knew that he was involved in a
drug smuggling operation. The Court of Appeal, in refusing the appeal against
sentence, found no fault with what the judge had done and said (per Judge Beaumont
QC) at p 340:
"...... this court is driven to the
conclusion that the judge was not bound by the information that the jury
disclosed to him for these reasons. What that note disclosed was not a finding
that they the jury were asked to make by way of decision in reaching their
verdicts on the indictment. What they were asked to do was to say whether they
were sure that the appellant was fraudulently engaged in the importation into
this country of what he knew to be prohibited substances. Whether those prohibited
substances were drugs or some other prohibited substance clearly has a
relevance for the purpose of sentence. It was, in the context of the evidence
heard in the course of the trial, an issue raised by the appellant's defence.
But in this case it was not a question that had to be answered by the jury,
having regard to the issue correctly left to them by the learned judge in his
summing-up as being the only issue in the case."
[18] It seemed to
me that the second issue which I had to determine involved a consideration of
the fundamental distinction between the function of the judge and the function
of the jury in a criminal trial. It seems to me that the function of the jury
is exclusively to determine whether the Crown have proved the charge, either in
whole or in part. I agree with the view of the trial judge in R v Paul Raymond Mills (supra) that
mitigation is not a proper subject for the jury to determine, that it is not
for them to determine whether or not the mitigation can be believed and that the
weight to be given to the mitigation is a matter for the judge. Nowadays when a
jury is balloted the minute records simply that the accused was remitted to the
knowledge of an assize. It has for long
been the practice for a judge in Scotland when charging the jury to direct them
that they must have no regard to the consequences of any verdict which they may
return. It follows from that that if the jury consider an issue of mitigation
they are considering a matter relating to sentence, which is a consequence of
their guilty verdict. It appears that for some time now there has been a
practice both in Scotland and England of a jury adding a rider to its verdict
recommending mercy or leniency or even making some other finding in fact which
is capable of going to mitigation. The first mention of such a practice in Scotland which I have been able to discover
is the statement in Macdonald at p 348. No similar statement is to be found in
Hume or Alison. In England, at least in capital murder cases, there was a prohibition
on counsel or the judge mentioning to the jury that they could add a rider
recommending mercy, but there is no statement in the textbooks or cases about
the existence of a similar prohibition in Scotland. It seems to me to be
self-evident that in adding a rider to their verdict recommending mercy or
leniency or making some other finding in fact going to mitigation the jury are
venturing outwith their proper province and trespassing on the function of the
judge. Findings of diminished responsibility or provocation by a jury are, I
think, in a different category and must be regarded as sui generis since they are part of the verdict and based on legal
principles on which the jury have been directed by the judge.
[19] There are
obvious objections to a jury being permitted to add such a rider or make such a
finding in fact. First, it is likely to complicate their task. Had the jury in
this case been allowed to consider the question of the accused's belief in the
complainer's age I would have had to charge them that they were not concerned
with the consequences of their verdict, that his belief in her age was wholly
irrelevant so far as guilt of the crime charged was concerned, but that it
could be relevant for another purpose and for that other purpose they should
consider whether the accused had established on the balance of probabilities
his claimed belief about the complainer's age. In my view such a series of
directions would be confusing and self-contradictory. Secondly, it could be to
the prejudice of an accused where he was asserting his innocence of the crime
charged since a juror reluctant to concur in a guilty verdict may be persuaded
to do so by the prospect of a recommendation of mercy or leniency. Thirdly, any
rider added by the jury is only a recommendation, which the judge is free to
ignore if he takes a different view of the facts. The potential for such a
disagreement is obviously undesirable. Fourthly, it is no part of the function
of the jury to seek to influence sentence. A jury does not have an open mandate
to express in their verdict their view on matters other than whether the Crown
have proved the guilt of the accused. Fifthly, any recommendation for mercy or
leniency by the jury would be made in ignorance of other factors relevant to
the sentencing process. For example, a jury recommending leniency or mercy
would not know the criminal history of the accused and could well end up making
such a recommendation when they would not have made it had they known of his
criminal history. In the present case it was known to the jury that the accused
was on bail at the material time as that fact was libelled on the indictment
and not challenged, but prior to the motion for sentence they were unaware (as
was I) that the accused had previous convictions for violence and was subject
to a probation order and a deferred sentence. The question of mitigation of
sentence must be considered in the round in light of a whole series of factors
and it does not make sense to permit a tribunal which may be ignorant of
relevant factors to have an input, even by way of recommendation, into the
sentencing process.
[20] It seems from
what I have been able to discover that the practice of juries adding a rider to
their verdict making a recommendation to mercy arose in capital murder cases
where the jury were well aware of the inevitable consequence of a conviction.
The practice then seems to have extended to other types of case in which a
rider recommending leniency was added to the guilty verdict. It is not a practice
which appears to have been subjected to any close analysis and it is one on
which no authoritative guidance has been given. For the reasons given above I
think it is a practice which is inconsistent with principle in that it
trespasses upon the function of the judge, although clearly a different view
has been taken by others. I am well aware that it is a practice which appears
to have received the approval of the authors of the fifth edition of
Macdonald's Criminal Law and of Lord Justice Clerk Grant and Lord Walker. The
unvouched statement in Macdonald is not binding on me. The statements by the
two judges in HM Advocate v Clark (supra) were made in the Appeal Court but as they were made obiter they are not binding on me. In HM Advocate v Murray (supra) Lord Justice Clerk Grant was
sitting as a trial judge, as was Lord Marnoch in HM Advocate v McIntyre, and their decisions are therefore not
binding upon me.
[21] As I took the
view that the question of the accused's belief in the complainer's age was an
issue going to mitigation of sentence I concluded that it was a matter for me,
and not for the jury, to determine. Upon my announcing my decision Mr Paterson
then tendered a plea of guilty as libelled, the Advocate Depute moved for
sentence and produced to the court a schedule of previous convictions and I
adjourned the diet for sentence for the purpose of obtaining a social enquiry
report. When I come to consider sentence at the adjourned diet I shall, in
light of the evidence which I heard in the course of the trial and any
submissions made on behalf of the accused, reach a conclusion on his belief in
the complainer's age at the material time and take that into account, along
with all other relevant factors, in deciding what the appropriate sentence is.
