APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Carloway Lord Bonomy	[2010] HCJAC 40 Appeal No: XC315/08 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by JAMES CASEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the Appellant: Shead; Capital Defence Lawyers

For the Crown: Mackay, AD; Crown Agent

23 March 2010

The conviction

[1] On 3 April 2008 at Glasgow Sheriff Court, the appellant was convicted of the following charges:

"(3) on various occasions between 2 October 2001 and 1 October 2002, both dates inclusive, at [locus] you did use lewd, indecent and libidinous practices and behaviour towards [complainer 1] born 2 October 1988 ... then a girl between 12 years and 15 years of age, and did brush your pelvis against her, sit on her bed while she slept and place your hand under her clothing, handle her private parts, place your hand inside her trousers, masturbate in her presence, expose your private member, seize her hand and attempt to compel her to touch your private member;

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6

(4) on various occasions between 24 September 2002 and 23 September 2005, both dates inclusive, at [locus] you did use lewd, indecent and libidinous practices and behaviour towards [complainer 2] born 24 September 1992 ... and did place your hand over her clothing, place your hand inside her clothing and touch her private parts, make indecent comments to her, expose your private member, compel her to touch your private member, masturbate to the emission of semen in her presence, pull her causing her to fall to the ground, force her to take your private member into her mouth, hold her head and place your hand over her clothing and touch her breasts.[l1] "

The sheriff's charge

[2] The sheriff reminded the jury of the oath they had taken and directed them that they must reach a verdict only on the basis of the evidence. He told them that they must accept and follow his directions on the law. These included directions on the Moorov doctrine and how it might apply in this case.

[3] In defining the common law offence of lewd, indecent and libidinous practices, the sheriff gave the following direction.

"The aim is to protect young children from sexual abuse. The essence of the crime is indecent conduct intended to gratify the accused sexually or intended to corrupt the child's innocence ... For the Crown to prove these charges you would need to be satisfied, one, that the accused behaved in the way described in the charge; two, that the child was around the age of puberty and three that the accused's intention was sexual self-gratification or the child's corruption."

The sheriff gave a similar direction in defining the statutory charge.

Post-trial events

[4] On the account given in the Note of Appeal, it appears that in the period between conviction and sentence one of the jurors contacted the appellant's counsel and the procurator fiscal. On 9th April 2008 the juror contacted the appellant's agents. They wrote to the sheriff clerk and copied their letter to the sheriff and to the procurator fiscal. By letter dated 28th April 2008 the sheriff clerk indicated that he was not prepared to assist them.

[5] In due course the agents were advised by counsel to lodge a petition to the nobile officium. The Court declined to warrant the petition. Thereafter, on the advice of the Law Society of Scotland, the agents wrote to the juror care of the sheriff clerk. By letter dated 27 November 2008 the sheriff clerk declined to forward the letter. In the result the appellant's agents were unable to ascertain from the juror what was concerning him.

[6] The Crown has produced an affidavit sworn by Mr Anthony McGeehan, a principal procurator fiscal depute at Glasgow. He says that around 9 April 2008 he had a telephone conversation with someone claiming to have been a juror at the appellant's trial. The caller told him that he had an issue in relation to the case and wished to know who the defence agents were. He told Mr McGeehan that he had a query over a 1930s case on which the jury had been addressed and wondered whether that precedent still applied. I assume that the case was Moorov v HM Adv (1930 JC 68). The caller repeatedly indicated that his query was independent of the appellant's case and related to the law generally.

Submissions for the appellant

[7] Counsel for the appellant argued two points, namely (1) that the trial judge misdirected the jury on the question of mens rea; and (2) that, in light of the communications from the juror, the appellant was denied a fair trial or, if that conclusion could not be drawn at this stage, that the court should order an inquiry into the matter.

Alleged misdirection

[8] Counsel for the appellant submitted that the sheriff misdirected the jury in saying that for the Crown to prove the charges they had to be satisfied that the appellant's intention had been sexual self-gratification. The essence of the crime was rather the tendency to corrupt the complainers' innocence (cf Webster v Dominick, 2005 JC 65, at para [49], referred to in Sommerville v HM Adv, [2010] HCJAC 14, at para [12]). Although the jury would have been entitled on the evidence to find that the appellant's conduct had had that tendency, it could not be said that they would inevitably have reached that conclusion. A failure correctly to define the crime charged was a material misdirection. It led to a miscarriage of justice.

Article 6

[9] Counsel for the appellant accepted that, following its decision in Clow v HM Adv (2007 SCCR 201), this court would sanction an inquiry into concerns expressed by a former juror only in the most limited circumstances. The jury's discussions could not be the subject of an inquiry. It was therefore essential that in every case jurors should be directed that they must bring to the judge's attention, before the verdict was returned, any concerns that they might have about the conduct of other jurors. The need for such a direction was emphasised by the House of Lords in R v Mirza ([2004] 1 AC 1118). No such direction was given by the sheriff.

[10] Counsel's primary position seemed to be that the mere failure to give a direction of the kind suggested in R v Mirza (supra) would of itself render the trial unfair. On that view, there would be no need for the appellant to set out even a prima facie cause for complaint. Counsel accepted that logically this would require the quashing of every conviction on indictment that post-dated Clow v HM Adv (supra). In the alternative, counsel suggested that if it was necessary and permissible to investigate the circumstances, the court should write to the juror and ask him what his concerns had been.

Conclusions

Alleged misdirection

[11] In Webster v Dominick (supra) I discussed the actus reus of the crime of lewd, indecent and libidinous practices. In distinguishing that crime from the crime of public indecency, I observed that where indecent conduct is directed against a specific victim within the class of persons whom the law protects, the crime is that of lewd, indecent and libidinous practices. I said that the essence of the offence is the tendency of the conduct to corrupt the innocence of the complainer (ibid, at para 49). The other members of the Court concurred in my Opinion. The tendency of such conduct to corrupt is the rationale on which it is made criminal. It is difficult to imagine indecent behaviour of a sexually abusive kind towards a child that would not have that quality; but it may be that that rationale may require closer consideration in a marginal case (cf Moynagh v Spiers, 2003 SCCR 765). This is certainly not such a case.

[12] The mens rea of lewd, indecent and libidinous practices was not in issue in Webster v Dominick.

[13] In this case, however, the sheriff's direction on the question of mens rea was that the Crown had to prove that the appellant's intention was sexual self-gratification or the corruption of the child. This was a clear misdirection. For the mens rea of the crime all that was required was that the accused should have intended to do the acts libelled. The motive or the sexual impulse that led him to do them was irrelevant (cf Sommerville v HM Adv, supra, at para [14]). However, this misdirection operated to the appellant's advantage, as it raised the hurdle that the Crown had to overcome in order to secure a conviction.

[14] The sheriff's direction on mens rea was taken verbatim from the recommended form of charge in section 42.2 of the CD-Rom version of the Charging the Jury manual (The Manual). This section is dated March 2009. A different formulation appears in the loose-leaf version, also dated March 2009, in which it is said that the Crown must prove inter alia that the behaviour was deliberate, but that "[t]he Crown doesn't need to prove what was the accused's intention or motive."

[15] On the other hand, in relation to the statutory form of the offence that is libelled in charge (3) in this case (supra), both versions suggest a form of direction to the effect inter alia that the jury must be satisfied "that the accused's intention was sexual self-gratification, or the victim's corruption." In both versions the notes say

"While the normal directions on mens rea in relation to a case of indecent assault may be sufficient in particular circumstances it is appropriate in a charge of lewd and libidinous practices to give a specific direction to the effect that it is essential that the Crown should prove the offence was committed for the purpose of sexual gratification."

As authority for this proposition the Manual cites Grainger v HM Adv (2005 SCCR 175, at paras [11] and [15]); but I cannot understand why. The submission for the appellant in Grainger was that on a charge of indecent assault the trial judge should give a specific direction on mens rea to the effect that it is essential that the Crown should prove that the offence was committed for the purpose of sexual gratification (ibid, at para [11]). We rejected that submission. In giving the opinion of the Court, I said that indecent assault is not a separate crime but merely an assault aggravated by some sexual element and that an assault may have the quality of indecency irrespective of the accused's intention or motive (ibid, at para [17]). I remain of that view. Grainger v HM Adv (supra) gives no support for the proposition for which it is cited in the Manual. I think that these sections of the Manual should be urgently revised.

Article 6

[16] The sheriff directed the jury that they must reach their verdict on the basis of the evidence in the context of the law as he explained it to them. We must proceed on the assumption that they understood that direction and acted upon it. It implied that they should not reach their verdict by fanciful methods or take extraneous considerations into account.

[17] The essence of this ground of appeal is that the appellant did not receive a fair trial and that that should be inferred from the mere fact that the juror contacted the defence and the procurator fiscal. Before we can entertain this ground of appeal, the appellant must, in my opinion, at least show that there is some prima facie cause for us to think that there may have been an irregularity or impropriety in the jury's consideration of the case. In Clow v HM Adv (supra) and in the cases considered in R v Mirza (supra), the court had a letter from a juror specifying in some detail what his concerns were. The court could therefore judge whether on that information there appeared to have been an irregularity at the trial.

[18] In this case the information submitted on the behalf of the appellant gives us no reason to think that there has been any irregularity in the jury's conduct or in their consideration of the case. On the contrary, the only firm information before us, in the affidavit of Mr McGeehan, points the other way. It refers only to a general enquiry about the law by someone claiming to have been a juror, who repeatedly said that his enquiry had nothing to do with the appellant's case. Counsel for the appellant was unable to explain why this should give us any cause for concern.

[19] I am not persuaded that in Scottish criminal procedure it should be necessary in every case for the presiding judge or sheriff to give a direction as to what an individual juror should do if he is dissatisfied with the approach or attitude of another juror or is concerned about some other irregularity affecting the jury's consideration of the case. In every criminal trial there are countless ways in which things can go wrong. If the trial judge has a duty to give a direction on this particular possibility, why stop there? If the trial judge had to give directions on such other realistic possibilities as he could envisage, the charge would become over-long, over-complex and unfocused.

{20} This general point can be considered at length and on fuller arguments if it should ever arise. For the present, we are concerned here with the specific question whether there was a breach of this appellant's right to a fair trial. To decide that question we have to look at the trial proceedings as a whole. Although the sheriff failed to direct the jury in the terms proposed by counsel for the appellant, we cannot possibly say that the trial was per se unfair when we have no reason to think that any irregularity affecting the jury actually occurred. Nor can we reasonably order an inquiry in the off chance that a possible irregularity of some sort might come to light.

Miscarriage of justice

[21] Even if I am wrong in my conclusion on either point, I consider that in view of the strength of the evidence against the appellant, it cannot be said that the conviction constituted a miscarriage of justice.

Disposal

[22] I propose to your Lordships that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Carloway Lord Bonomy	[2010] HCJAC 40 Appeal No: XC315/08 OPINION OF LORD CARLOWAY in APPEAL AGAINST CONVICTION by JAMES CASEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the Appellant: Shead; Capital Defence Lawyers

For the Crown: A Mackay; Crown Agent

23 March 2010

[23] I agree, for the reasons given by your Lordship in the Chair, that this appeal should be refused and have nothing useful to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Carloway Lord Bonomy	[2010] HCJAC 40 Appeal No: XC315/08 OPINION OF LORD BONOMY in APPEAL AGAINST CONVICTION by JAMES CASEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the Appellant: Shead; Capital Defence Lawyers

For the Crown: A Mackay; Crown Agent

23 March 2010

[24] I agree, for the reasons given by your Lordship in the Chair, that this appeal should be refused.