Historic sex offender loses appeal against conviction and sentence

James Penrice argued that the trial sheriff had misdirected the jury in relation to evidence led regarding another similar offence he had previously been prosecuted for. He was sentenced to 15 months’ imprisonment following conviction.

The appeal was heard in the Appeal Court of the High Court of Justiciary by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull.

Unchallenged evidence 

The terms of the charge of which the appellant was convicted were that he had pulled down the lower clothing of the complainer, AW, and struck her buttocks with his hand and a belt, and that he had touched her breasts and buttocks and on one occasion had induced her to touch his penis. The complainer was between 12 and 16 years of age at the relevant times.

The only available source of corroboration in respect of this charge was evidence led in support of a docket that had been attached to the indictment and specified similar behaviour perpetrated towards another young girl of roughly the same age, CL, in the same time period. The appellant had pled guilty to this conduct when he was prosecuted in respect of it in 2015.

It was conceded that CL’s evidence was capable of providing mutual corroboration for the evidence of AW. The appellant’s solicitor did not cross-examine CL as he did not believe it would be appropriate to challenge the credibility of that witness in light of the appellant’s guilty plea in respect of that offence.

In his address to the jury, the appellant’s solicitor said that the fiscal made a “big deal” out of the fact that he did not cross-examine CL, but that they did not have to return a verdict on that allegation and therefore he saw no reason to waste the jury’s time by cross-examining her.

He went on to say: “Do we really care what she says? His Lordship will say to you, well, you could use that to corroborate other things. You’re entitled to do that if you wish, but that’s the position. You’re not being asked to return a verdict. I don’t care about that, and neither should you.”

In his charge to the jury the trial judge said that as the evidence of CL had not been challenged, the jury could accept that what she said had happened to her was true. Counsel for the appellant submitted that it would be wrong for a judge to suggest that evidence was required to be treated as truthful simply because a witness had not been challenged.

It was further submitted that this could be contrasted with what the sheriff had said in relation to the two complainers. He had made it clear that the jury’s function was to determine whether they could accept the evidence given by either or both of these witnesses as credible and reliable, but had placed the evidence of the docket witness in a different position by directing the jury that this evidence was accepted and was to be treated as true.

In support of the appeal against sentence, it was submitted that the offending was at the lower end of the scale for such charges, and the period of imprisonment was therefore excessive in light of the appellant’s age.

Quite wrong

The opinion of the court was delivered by Lord Turnbull. Of the appellant’s solicitor’s comments regarding the evidence of CL, he said: “It was quite wrong of the appellant’s solicitor to suggest that the jury should not care about the evidence of the witness CL. The legal effect of her evidence, as he knew, was important, as it was available to provide corroboration for the evidence of either or both complainers.”

He continued: “Of even more importance however was the suggestion that he had chosen not to cross-examine this witness in order not to waste the time of the jury and the implication that there was available to him a basis to challenge the witness’s credibility and reliability in the same sort of way as he had in cross-examining the two complainers.”

On the effect of these comments on the sheriff’s charge, he said: “In light of this it was plainly necessary for the sheriff to correct what had been said, to explain the use to which the evidence of CL could be put and to give directions about how to approach her evidence. In evaluating how the sheriff conducted this exercise it is necessary, of course, to take account of all that was said and not to isolate the passages founded upon in the appeal from the rest of the charge.”

Examining the full context of the charge, he said: “The sheriff explained that the evidence led in relation to the docket was evidence in the case and that the jury would have to assess it when considering their verdict on the charges. He went on to explain that the defence were wrong in suggesting that the jury should ignore that evidence. He directed them that they should treat the evidence of CL as evidence in the case. It was immediately following these directions, and in this context, that the sheriff gave the direction first focused on in the appeal.”

In relation to the appellant’s sentence, he said: “The sheriff took account of the appellant’s age and the possibility that in other circumstances the charge of which he was convicted might have been prosecuted on the same indictment as his earlier conviction. As set against these considerations he took account of the abuse of trust involved in the appellant’s conduct and its effect on the complainer. He also noted that the appellant denied any responsibility for sexual offending and showed no remorse.”

He concluded: “As was accepted on the appellant’s behalf, no criticism could be advanced in respect of the factors which the sheriff took into account. The submission was simply that in the circumstances the sentence was excessive. We do not agree. We consider that the sentence selected was appropriate.”

For these reasons, the appeal was refused in respect of both conviction and sentence.