Removal of screen to enable dock identification of domestic abuser ‘should not have occurred’



Lord Carloway
Lord Carloway

Appeal judges have criticised a sheriff’s decision to allow the removal of a screen behind which a domestic abuse victim had given evidence against her former partner in order for a dock identification to take place.

Vulnerable witnesses are entitled to give their evidence from behind a screen to conceal an accused person from their view, but the procedure adopted in this case “defeated the purpose of the legislation” and “should not have occurred”, the judges said.

‘Special measures’

The Appeal Court of the High Court of Justiciary made the observation in the case of Christopher Wilson, in which it partly sustained an appeal against conviction which raised the issue of what was required to corroborate the complainer’s testimony of the assault libelled when the Crown elected to libel a number of assaults within one omnibus charge. 

After giving evidence the complainer was asked to identify the appellant, but the court said there was “no need” for her to do so.

The Lord Justice General, Lord Carloway said: “The procedure adopted by the procurator fiscal depute, and assented to by the sheriff, in removing the screen at the conclusion of the evidence in chief, should not go without comment. 

“Section 271A of the 1995 Act provides that a person such as the complainer is entitled as a vulnerable witness (s 271(1)(iv)) to give evidence with the benefit of standard special measures, including the use of a screen which conceals the accused from her view (s 271K(1)). 

“The procedure adopted defeated the purpose of the legislation and should not have occurred. There was no need for a dock identification by the complainer of the appellant as her partner. It was, in any event, capable of simple proof aliunde or by agreement.”

The Lord Justice General, sitting with Lord Drummond Young and Lord Turnbull, heard that the appellant was convicted of charge (3) on an indictment which libelled that between 1 and 24 November 2017 at various locations in Mayfield and Dalkeith he assaulted his partner “CC” by repeatedly punching and kicking her on the head and body, repeatedly causing her to fall to the ground, seizing her by the hair and dragging her across the floor, seize her by the throat, push her into a bath and forcibly pin her down, throw a remote control at her, throw a television at her, spit on her, empty the contents of an ashtray on her, strike her on the body with a vacuum cleaner, and repeatedly chase her and push her on the body, all to her injury.

The offence, which committed while he was on bail, was aggravated by involving abuse his your partner, in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

The sheriff imposed a Community Payback Order, with 150 hours unpaid work, a supervision requirement for 24 months, a Restriction of Liberty Order for a period of six months and a Non-Harassment Order of three years, and the appellant was also sentenced to six months imprisonment for his conviction on charge (5), breaching his bail condition not to approach the complainer.

‘No case to answer’

However, he appealed against his conviction, arguing that the sheriff erred in repelling a “no case to answer” submission on charge (3), on the basis that CCTV images of one incident could not corroborate separate instances of assault on separate dates and different loci, nor could it corroborate the complainer’s account of what happened in another incident at the appellant’s mother’s house on the same date as the images. 

The sheriff “misdirected” the jury to the effect that the images could corroborate the complainer’s evidence of a number of assaults on separate dates at different loci. 

It was also submitted that the sheriff erred in directing the jury that the images could corroborate the complainer’s evidence of an assault on the same date of the images. 

Further, counsel of the appellant submitted that the sheriff misdirected the jury that the specification in charge (3) was narrative of how the crime was committed and that every detail did not require corroboration. 

The final ground of appeal related to the consequences of a successful appeal on charge (5). 

The judges ruled that there was “sufficient evidence” for the sheriff to repel the no case to answer submission, but held that there was a “material misdirection” on the issue of corroboration.

Corroboration

Delivering the opinion of the court, the Lord Justice General said: “Spinks v Harrower 2018 JC 177 confirmed the well-established principle in the law of evidence that corroboration is required to prove separate, that is distinct, crimes including different episodes of assault. What amounts to a separate episode is a question of fact and degree.

“The mode of providing a sufficiency may be by the application of conventional or mutual corroboration (PF, Aberdeen v Taylor 2019 SCCR 96); but where the crimes are separate, corroboration of each must exist in one form or another. 

“Separate episodes of assault do not constitute a separate crime known as a course of conduct in which only one incident requires to be corroborated as if it were an element in a single episode of assault as in Campbell v Vannett 1998 SCCR 207. 

“However, if one incident involving one complainer is proved by corroborated evidence to have been committed by the accused, then other incidents, which are themselves proved to have happened by corroborated evidence, will also be proved to have been perpetrated by the accused if the evidence yields an inference that they must have been committed by the same person (Howden v HM Advocate 1994 SCCR 19). 

“Leaving aside the issue of the dates in the libel…there was a sufficiency of evidence in relation to charge (3) for two separate reasons. 

“First, the jury could have accepted, as a matter of fact, that the whole period from the appellant’s appearance at the complainer’s door at Laurelbank Place to her escape from Lawfield Road, constituted a single episode of multiple assaults during which the complainer was effectively held captive and thus subjected to continuous criminal activity. 

“The second method would have been by employing the principle in Howden (supra). There was ample evidence to prove that the complainer had been assaulted repeatedly in the manner in which she described. 

“Whether that was ultimately so or not, the evidence was enough to justify the sheriff in repelling the no case to answer submission. For these reasons, the first ground of appeal falls to be rejected.”

‘Miscarriage of justice’

However, the sheriff failed to direct the jury on how they might be able to convict the appellant on one or other of the two bases set out above. 

Lord Carloway continued: “He directed them that they could find corroboration of the whole libel of charge (3) if they accepted that the CCTV images showed the appellant assaulting the complainer… 

“This is a material misdirection, proceeding as it does on the error that all that is required to be corroborated, so far as the identity of the perpetrator is concerned, is that the appellant played some part in one element of the libelled course of conduct. 

“In order to find the libel as a whole proved, the jury would have had to have been directed on a quite different route to verdict along the two lines which have been described. 

“The jury would have had to have been satisfied either that the contents of the libel constituted a single continuing crime by virtue of the complainer being held captive throughout or that there was sufficient proof that the earlier assaults must have been committed by the same person…”

He concluded: “Since it was open to the jury to have reached the view that the incidents at the three locations constituted separate episodes of assault and that those in which the complainer alone identified the appellant were not proved to their satisfaction, the court is satisfied that a miscarriage of justice has occurred by virtue of a material misdirection on the nature of the required proof.” 

© Scottish Legal News Ltd 2019



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