Man accused of sodomy fails in ‘double jeopardy’ appeal

A man accused of sodomising a child who claimed the alleged offence arose from the same incident for which he was previously acquitted has had a “plea in bar of trial” appeal refused.

The Criminal Appeal Court refused the appeal after ruling that the previously alleged offence of “lewd, indecent and libidinous practices” towards the same complainer was “a separate and different crime” to that of sodomy.

The Lord Justice Clerk, Lord Carloway sitting with Lord Bracadale and Lord Malcolm, heard that the appellant Alan Kerr had been charged with, among other things, having “unnatural carnal connection” with a person, then aged 11, at an address near Stirling, on an occasion between 1 and 15 July 1998.

Attached to the indictment was a docket describing when the appellant was alleged to have used lewd, indecent and libidinous practices towards the same complainer, immediately prior to, or at the same time as, the sodomy.

However, in 2009 a plea of not guilty was accepted from the appellant in respect of an offence that, on various occasions between the same dates and at the same place, he used lewd, indecent and libidinous practices towards the same complainer.

The appellant tendered a plea in bar of trial founding upon, among other matters, section 7 of the Double Jeopardy (Scotland) 2011 Act, but the judge at first instance repelled the plea on the basis that the crime now charged was “not the same” act as previously libelled.

The appellant appealed, with leave, against that decision, arguing that the test in section 7 was a wider one than that at common law.

The mischief being struck at was the “unreasonable splitting of cases”, it was submitted.

The task for the court was whether, in terms of Van Esbroeck (supra), the facts were “inextricably linked” together in time, space and subject matter.

It was submitted that although the sodomy and the lewd and libidinous behaviour required proof of different facts, they nonetheless arose from the “same incident”, which was a “single episode of sexually abusive behaviour”.

The advocate depute explained that the sodomy was being libelled now because the complainer had only recently proffered the allegation.

The allegation had not been made prior to the acceptance of the plea on the earlier indictment.

However, the Crown did not seek to found upon the special reasons exception in section 7.

The contention was that the offences arose out of “different acts”.

Refusing the appeal, the judges noted that it was not contended that the libel offended against the general, narrow “double jeopardy” rule in section 1 of the 2011 Act.

“The question is whether the allegation of sodomy arises out of the same, or largely the same, acts as gave rise to the lewd, indecent and libidinous practices charge of which the appellant has been acquitted,” Lord Carloway said.

The judges observed that the situation here was “readily distinguished” from the case of Van Esbroeck 3 CMLR 6, where what was involved was an attempt to “re-prosecute the same conduct”.

Delivering the opinion of the court, the Lord Justice Clerk said: “The two offences charged against the appellant are not the same. The appellant could not have been convicted of sodomy on the original indictment. Sodomy is not an aggravation of lewd behaviour. It is a separate and different crime.

“It is not argued in the appeal that the respondent’s actions are oppressive. The only issue is whether, in terms of section 7, the new libel offends the broader principle of being a re-prosecution of an offence arising out of ‘the same, or largely the same, acts’.

“As outlined above, if the intention of the Scottish Law Commission had been to introduce a new statutory prohibition on the multiple prosecution of offences arising out of the same ‘incident’ (‘unreasonable splitting’), that is not what was achieved, or at least wholly achieved, by the words in the draft Bill and Act.

“The statutory test is whether the act now charged (sodomy) ‘arises out of the same, or largely the same, acts’ as those lewd practices originally libelled. It does not. It arises out of a quite separate act; being that of penile penetration of the complainer’s anus. That act was not previously libelled.

“The single occasion act of sodomy is not ‘inextricably’ linked to the various acts of touching libelled in the earlier indictment. There is no doubt a link, as there is between many criminal acts occurring at the same general time and place, but it is not an inextricable one. That is determinative of this appeal which must be refused.”