Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord Eassie	[2009] HCJAC 46 Appeal Nos: XC671/07 and XC696/07 OPINION OF THE COURT delivered by LORD NIMMO SMITH in APPEALS AGAINST CONVICTION by KEVIN HERITY First Appellant; and GRAEME McCRORY Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Brown; G Ritchie & Co., Glasgow

Second Appellant: Carroll, Solicitor Advocate; Capital Defence, Edinburgh

Respondent: McCallum, A.D.; Crown Agent

7 May 2009

Introduction

[1] On 2 August 2007, at Glasgow Sheriff Court, the appellants (whom we shall refer to respectively as Herity and McCrory) were convicted after trial before a sheriff and jury of a charge in an indictment in the following terms:

"on 03 April 2007 at Bellahouston Park, Glasgow you ... did while acting together assault Craig Pringle ... and did repeatedly strike him on the head and body with a golf club to his severe injury".

McCrory was also convicted of a bail aggravation.

[2] The appellants have now appealed against their convictions. In addition to the grounds of appeal in respect of which both appellants were granted leave to appeal by the first sift judge, we have decided to grant leave to each of them, in terms of section 110(4) of the Criminal Procedure (Scotland) Act 1995, to argue a further ground relating to concert, the significance of which emerged in the course of the proceedings before us, and which is in the event decisive.

The evidence

[3] In his report to this court, the sheriff has set out the evidence which was led at the trial. It was common ground before us that only four witnesses gave evidence of any significance for present purposes. We shall summarise the salient features of their evidence.

[4] The complainer, Craig Pringle, gave evidence that he, his girlfriend, their young daughter and his brother Scott Pringle went to Bellahouston Park at about 3.00pm on 3 April 2007. His girlfriend and their daughter went to the swing park, while he and his brother went to play pitch and putt on a small 18 hole course. They completed one round and were sitting on the grass when "two guys" walked up and asked to play pitch and putt with them. Scott Pringle said no. The Pringles' golf clubs were lying on the ground: there were about three of them. The guys said a few words, then one of them picked up one of the clubs and started hitting a ball. The Pringles stood up to get the club back. The other guy first stood on the other two golf clubs to prevent the Pringles from picking them up, then picked them up himself and whacked Craig Pringle a great hit on the side of the face. The complainer did not see what happened, it happened so quickly. He did not see anything happening to his brother, who was a bit of a distance away. After he was hit in the face Craig Pringle ran away. He got a bit of a distance away and jumped the hedge, and his brother was standing there. One of the two men had black hair and the other had brown hair. He did not remember whether the one who hit him on the face had black hair or brown hair. The one who hit him was the one who put his foot on the golf clubs. During that time the other one was hitting balls about. He was about 10 feet away. Craig Pringle was not sure if the other man was aware what was going on (i.e. the assault with the golf club).

[5] In due course, the complainer was taken to hospital. His eye socket and cheekbone were fractured. Everything on the left side of his face was mangled. He was blind in his left eye. He also lost some teeth. The left side of his face had to be rebuilt. He thought he was hit a second time with the golf club, but did not remember it happening. This would, however, explain a bruise in the middle of his back. Notwithstanding this evidence, on the motion of the Crown the sheriff deleted aggravations of permanent impairment and permanent disfigurement which had originally been libelled in the charge. It is not apparent from the sheriff's summary of the complainer's evidence whether the blindness in the left eye was permanent.

[6] Scott Pringle described how, after the round of pitch and putt, he and his brother were smoking and talking when two boys came up. One of them picked up a club and as the Pringles went to stand up everything just went mental. The one that picked up the club said, "Gonnae gies a shot" or something. Both of the boys were together when this was said. As the Pringles stood up, the other one grabbed the other two clubs. The two of them started shouting and the Pringles went different ways. Scott Pringle was only interested in the one that was shouting at him. He did not know what the other one was doing, he was off with Craig Pringle, and Scott Pringle was only interested in getting away. He did not see Craig Pringle being hit in the face with a golf club, he just saw himself getting run into the hedge and then he ran away and when he looked across the pitch and putt course his brother was running away. Scott Pringle ran away because he did not want to be hit with a golf club. He ran round the hedge which surrounded the course. He saw his brother in the middle of the course. His brother jumped the hedge. The two males were standing while Craig Pringle ran away from them. He had to jump the hedge to get out. As Scott Pringle ran round he and Craig Pringle met up as the latter struggled over the hedge. They just ran away after that. His brother's whole face was covered in blood and was swollen. During the course of the incident Scott Pringle was tapped, which he explained as meaning hit with no real aggression, on the buttocks. (This was the subject of a charge which was withdrawn by the Crown.) In cross-examination he gave evidence in effect adopting parts of a police statement in which he said that the guy with the dark hair picked up the putter, that this was the guy who had tapped him on the backside with the putter, and that therefore whoever injured his brother, it could not have been the guy with the dark hair.

[7] Herity had dark hair and McCrory had fair hair. Apart from hair colour, however, there was nothing in the evidence of either of the Pringle brothers which would serve to identify either of them as having been involved in the incident. Identification came from two sisters, Katie and Emma Yates, who happened to be walking in Bellahouston Park, witnessed some of the incident, and public-spiritedly followed Herity and McCrory for some distance. Meanwhile, they phoned the police, who arrested both Herity and McCrory in Paisley Road West. The two sisters were able to make positive identifications. They did not, however, see all of the incident.

[8] Katie Yates gave evidence that something had happened on the pitch and putt course. She and her sister saw a couple of guys swinging clubs in the direction of a boy. She thought the people with the clubs were standing together. She only saw one club in the air above one of their heads. About two minutes later the boy jumped over the hedge in front of them with his eye split open. When the guy jumped over the hedge she and her sister tried to see where he was going, and then they left the park. There was an interval of about thirty seconds between the club being held over the guy's head and the guy running away. The guy holding the club was two or three feet from him. They were next to each other. She could not say which of the two men who were arrested was the one who was swinging the club. She did not think there was anything to distinguish them. They were patting each other on the back after the boy ran away, mimicking what they had done, re-enacting what had just happened. (The witness gave a demonstration, swinging her right arm downwards.) The two men were patting each other on the back and laughing the whole way out of the park. In cross-examination about the number of people she had seen, she said that one jumped over the hedge and ran away and two were left standing in the putting green with clubs. She only saw two boys with clubs swinging them in the direction of one man. When asked to look at Herity and McCrory, whom she had identified, she said there was an obvious difference in that Herity's hair was darker than McCrory's. Further cross-examined, she said she thought the person was assaulted before she saw the swinging of the club, she thought he was probably hit two or three times, she saw one swing above someone's head in his direction, so he could possibly have been hit before that.

[9] Emma Yates gave evidence that when she and her sister were walking past the putting green she turned round and a young boy was running towards them, trying to jump the hedge. He made two attempts, jumping over it the second time. She looked up and his eye was kind of gouged into his head. He ran past them and looked over at the area from which he had come. There were two boys there with golf clubs, shouting stuff at him, which sounded aggressive, but she could not say what it was. The boys shouting were holding golf clubs, swinging them over their heads in a downward direction. She identified Herity and McCrory as the two boys. They walked out of the park. On the way out they were talking to a couple of people. They were kind of imitating what they had done, they were obviously discussing it, swinging the golf club and hitting someone. In cross-examination, she accepted that, in saying that, she had not seen what they had done before the young boy came running towards her and her sister.

The Crown speech to the jury

[10] In addressing the jury, the procurator fiscal depute for the Crown, in a speech which can only be described as perfunctory, said this:

"As far as acting together is concerned, you are entitled to infer from what we heard from the Yates sisters, what happened, and we've heard from the evidence that the two accused were acting together. We don't know who actually struck Craig Pringle with the golf club. We know it was one of them, or one person struck him, rather, we don't know which one. To that end I suggest that you are entitled to infer and that would be the way to proceed on the basis of what we've heard."

The procurator fiscal depute did not invite the jury to consider, in a way which might have assisted both them and the sheriff, what evidence he relied on, what it served to prove about the actings of each of Herity and McCrory individually, whether it was proved that one of them, as actor, assaulted the complainer with a golf club, or what served to establish that the two were acting in concert in committing the assault, involving as it did the use of a weapon.

The sheriff's charge to the jury

[11] When the sheriff came to charge the jury, he gave them this direction about concert:

"Both accused appear together on the charge, and you will see that in the charge it is said that they were acting together. Arising out of that, there are some directions that I have to give you. There is a doctrine in our law known as the doctrine of concert, or essentially joint criminal responsibility. Normally a person is only responsible for their own actions, and not for what somebody else does. But if people act together in committing a crime, each participant can be responsible not only for what he himself does, but for what everyone else does while committing that crime. There are three elements to the doctrine: people must knowingly engage together in committing a crime; what happened must have been done in furtherance of that purpose; and thirdly, what happened should not have gone beyond what was planned by, or reasonably to be anticipated by, those involved. In relation to the way in which you approach this issue, what you do is consider the evidence initially against each accused separately, you determine first of all what each accused separately has been proved to have done. After you have done that, ladies and gentlemen, you then determine in respect of each accused whether there was concert to any extent, and if so, how far it extended. If no concert is proved against a particular accused, then he is responsible only for his own acts, but if concert is proved, then the accused is responsible for the acts of the other as well, so far as they fall within the scope of the common criminal purpose in which he was engaged."

While this passage cannot be faulted so far as it goes, it will be noted that the sheriff made no reference to the use of a weapon, especially in a case of spontaneous concert, such as the present.

[12] When discussing the evidence, the sheriff referred to the inability of the Pringle brothers to identify either of the two men, beyond referring to hair colour. He went on:

"Secondly, in terms of evidence of the Pringle brothers, one man effectively was involved with Craig Pringle, and one man was involved with Scott Pringle. If that was the situation, or at least if that remained the situation at the time that Craig Pringle was injured, then you would have to acquit both accused. Even if, bringing in the identification evidence of the Yates sisters, you accepted that the dark haired man was the first accused [Herity] and the fair haired man was the second accused [McCrory], you would have to acquit both accused. On the evidence of the Pringle brothers, there was not a concerted attack by two men on Craig Pringle, and obviously there is only evidence from Scott Pringle which might suggest that it was the fair haired man - if you accept the sisters' evidence, the second accused - who was involved with Craig Pringle. If you accepted that scenario, or it created a reasonable doubt in your minds, you would have to acquit both accused. Realistically, as I will mention again later, I think there are only two options open to you. You can convict both accused or you can acquit both accused. All questions of fact are for you, and theoretically I suppose it would be possible that you could accept the sisters' identification evidence in relation to one accused and reject it in relation to the other accused, but aside from that theoretical possibility, the considerations affecting the two accused are essentially the same, and as I hope I have made clear by now, you would only be able to convict the accused if you were able positively to reject the evidence of the Pringle brothers on a number of matters, and perhaps also, in the case of Scott Pringle, hold that he was speaking to what happened before his brother was assaulted."

[13] The sheriff next discussed the evidence of Katie and Emma Yates, going on to say:

"So the first range of issues you might consider will lead up to that point, whether you are satisfied on the evidence that the Yates see Craig Pringle just having been injured and that that injury occurred when Craig Pringle was with the two accused. But even if you reach that point, ladies and gentlemen, as I hope that you will appreciate from what I've said earlier, that wouldn't entitle you to convict either accused. Before you can convict the accused, you would have to be able to conclude that both accused had participated in the assault on Craig Pringle and you could only do that on the basis of inferences that would be open to you, but which you wouldn't have to make, from the behaviour of the two accused immediately after the assault, assuming as I say you accept that that is the situation up till now. There is the evidence that both accused have got golf clubs, there is the evidence, if you accept it, it's [a] matter for you, that both accused were laughing, there is the evidence that both accused were patting each other on the back, there's evidence that both accused were swinging golf clubs and as it appeared to the Yates sisters at least, this would have been in imitation or mimicry of [what] was done earlier, but of course, ladies and gentlemen, it's not the Yates sisters' impressions that matter, it's your impressions that matter. The short question essentially, ladies and gentlemen, is whether from that tail end of the incident you are able to be satisfied beyond a reasonable doubt that it is proved not merely that Craig Pringle was assaulted by one person, one of the accused, but that both of the accused participated in an assault upon him."

Discussion

[14] As has been seen, the approach of the Crown was that, although it was not proved on the evidence which of Herity and McCrory struck the complainer with the golf club, they should both be convicted on the basis that they were acting together in concert. Before us, counsel for Herity submitted that the sheriff, nevertheless, should have considered whether there was sufficient evidence to entitle the jury to hold that either Herity or McCrory committed the assault as actor, and should have directed the jury accordingly, before going on to give them appropriate directions about the question of concert. In performing this exercise, the sheriff needed to bear in mind that (as he had previously in effect directed them) it was open to the jury to pick and choose in the evidence.

[15] Clearly, the evidence of the Pringle brothers, and indeed the whole evidence in the case, was sufficient to establish that a male struck Craig Pringle with a golf club on the pitch and putt course. Equally clearly, their evidence in itself went very little way towards identifying either Herity or McCrory as the man who did this. There was the evidence that, of the two, Herity had the darker hair, and that this was the person who was engaged with Scott Pringle, while the man with the fairer hair was assaulting Craig Pringle. The Yates sisters both positively identified Herity and McCrory as people they saw on the pitch and putt course. Katie Yates said that she and her sister had previously seen them swinging clubs in the direction of the boy (the complainer) who thereafter jumped over the hedge with his eye split open. She also gave evidence about one guy holding the club which she saw being held over the complainer's head. In cross-examination she repeated that she saw two boys with clubs swinging them in the direction of one man. While Emma Yates did not see anything of the incident itself, when the complainer jumped over the hedge with an injury to his eye, there were two boys with golf clubs who, as they left the park, appeared to her to be imitating what they had done.

[16] In our opinion, there was clearly insufficient evidence to entitle the jury to convict Herity as actor. There was also insufficient to entitle them to convict McCrory as actor. While Scott Pringle was a source of evidence going to identify McCrory as his brother's assailant, there was no corroboration of that identification. The general evidence of the Yates sisters going to the actings of the two boys, including McCrory, does not in our opinion provide the necessary corroboration: neither of them identified McCrory as the one who struck the complainer. We accept, therefore, that the Crown case against either appellant could only succeed on the basis that both appellants were acting together in concert in the commission of the assault.

[17] In this situation, full directions on the matter of concert were required. We have already set out the sheriff's general directions on this matter. In our opinion, however, they did not go far enough. This was not a case of pre-planned concert: there was no evidence to that effect. If there was concert, therefore, it was spontaneous; and, given that the assault involved the use of a weapon, the one who did not wield the golf club could only be found guilty on an art and part basis if there was sufficient evidence to prove that he actively associated himself with the attack in the knowledge that it was being, or was liable to be, used in the course of it: see McKinnon v HM Advocate 2003 SCCR 224. Particular care was required where, as here, there is nothing untoward about the use of a golf club on a pitch and putt course, and the evidence of the Pringles would tend to suggest that part of the unpleasantness shown towards them consisted of taking their clubs and pretending to play with them. Unfortunately, while directions to the foregoing effect were required, they are lacking from the sheriff's charge.

[18] We are satisfied that the deficiencies we have identified in the sheriff's charge constituted misdirections. We are also satisfied that this must be regarded as a miscarriage of justice in the case of each appellant. Without appropriate directions, there was a risk that, whichever of the appellants wielded the club, the jury might convict the other on the basis of his mere presence, even if he did not actively associate himself with the attack. With considerable reluctance therefore, given the circumstances of this case, we have reached the conclusion that the convictions of both appellants must be quashed.

Result

[19] For the foregoing reasons, we quash the convictions of both appellants.