APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Menzies Lord Wheatley	[2012] HCJAC 120 Appeal No: XC32/12 OPINION OF THE COURT delivered by the LORD JUSTICE GENERAL In the Reference by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of MARK CHAMBERLAIN-DAVIDSON Appellant; _______

For the appellant: Miss S M McCall; John McRitchie & Co, Peterhead

For the Crown: Ms Wade AD; Crown Agent

25 April 2012

Introduction

[1] In June 2006 the appellant was convicted of assault with intent to rape. He was given an extended sentence of 30 months, the custodial part of which was 18 months. He appealed against conviction and sentence. At the hearing of the appeal in March 2010 he abandoned the appeal against conviction. The appeal against sentence was allowed and a sentence of 18 months imprisonment simpliciter was substituted.

[2] On 13 January 2012, the Scottish Criminal Cases Review Commission (the Commission) referred the case. The question before us is whether we should reject the reference on the ground that it is not in the interests of justice that it should proceed (Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s 194DA). We considered this reference along with the references in the cases of RM and Edward Gallagher in which the same issue arises. I refer to my Opinion in those cases for a summary of the relevant legislation (RM v HM Adv; Gallacher v HM Adv, [2012] HCJAC 121).

[3] In this case the Crown has taken a different position on the question of finality and certainty.

The evidence at the trial

[4] The complainer's account was that the appellant approached her in the street. He said that he wanted sex. He grabbed her wrists. She screamed. He put his hands over her mouth and told her to stop screaming. She broke free and fled towards a nearby car park. There she met the witness SP and told her what had happened.

[5] SP said that as she drove her car into the car park she saw the appellant walking out of it. While she was parked she heard screaming. She got out of the car. The complainer ran into her arms. The complainer was hysterical. She was shaking and crying. She described the attack.

[6] The appellant was interviewed by the police. He said that he had met the complainer, but had merely said hello to her as he passed. She started to scream. He then grabbed her wrists.

[7] The appellant did not give evidence.

The appellant's application to the Commission

[8] The appellant complained to the Commission that there was no corroborative evidence to support the allegation that the assault was carried out with intent to rape. He submitted that the sheriff had given inadequate directions as to (1) the reliance that the appellant could place on his police interview as a mixed statement, (2) the evidential value of the complainer's distress and her de recenti complaint to SP; and (3) the definition of rape. He submitted that the evidence of the police interview had been led in breach of his article 6 rights. He relied on the decision of the Supreme Court in Cadder v HM Adv (2011 SC (UKSC) 13) that had been given on 26 October 2010.

The Commission's decision and its reasons

[9] The Commission observed that the only evidence to support the allegation of intent to rape came from the complainer. According to the Commission's understanding of the law, an aggravation that is libelled need not be proved by corroborated evidence (Reference, paras 91-94). There was therefore no miscarriage of justice in this respect.

[10] The Commission considered that the leading of the evidence of the police interview was in breach of the Cadder principle. In its view, the appellant's admission was necessary to corroborate the complainer's account of the assault. Without it, an acquittal would have been inevitable. The Commission concluded that there might have been a miscarriage of justice; but that it was not in the interests of justice to refer this matter to the court. The appellant had served his prison sentence. When he first applied to the Commission, he had made no complaint about the admission of his police interview. His various complaints were, to a large extent, unfounded and unwarranted. The only aspect of the police interview about which he complained was the absence of legal advice. All parties proceeded in good faith on the understanding that the interview had been conducted fairly and that its contents were admissible. The appellant never denied that he had seized the complainer's wrists. He chose not to give evidence. He relied on his police interview by way of his defence. In these circumstances the Commission concluded that it was not in the interests of justice to refer this issue.

[11] The Commission considered that a miscarriage of justice might have arisen from misdirections by the sheriff. Intent to rape was an essential element of the libel. It was therefore incumbent on the sheriff to direct the jury as to the meaning of rape. The complainer's distress corroborated only the fact that whatever occurred had occurred against her will. The sheriff failed to direct the jury that the complainer's distress could not corroborate the occurrence of an assault accompanied by a demand for sex. The appellant's police interview was a mixed statement. His admission that he seized the complainer's wrists was incriminating. His denial that he demanded sex or placed his hand over the complainer's mouth was exculpatory. The sheriff failed to direct the jury about the evidential significance of a mixed statement.

[12] The Commission considered that these were misdirections which, taken together, might have caused a miscarriage of justice. It was in the interests of justice to refer that issue.

The Notice of Appeal

[13] The appellant has lodged a Note of Appeal advancing grounds based on the matters that the Commission has referred. Counsel for the appellant also seeks leave to advance further grounds in terms of section 194D (4B) of the 1995 Act; namely (1) that the element of intent to rape has to be proved by corroborated evidence; and (2) that on the basis of Cadder (supra) the evidence of the police interview was improperly led. Counsel for the appellant submits that it is in the interests of justice that these questions should be considered by the court. Although the appellant has served his sentence, the appeal is of practical importance because he remains subject to the notification requirements of the Sexual Offences Act 2003.

[14] The appellant requires leave of the court to argue these additional grounds (1995 Act, s 194D(4B). That question arises only if this court does not reject the reference in limine.

[15] At the hearing on this Reference we decided, for the reasons that I shall give, not to reject the Reference and to continue the case for a report from the sheriff on the proposed additional grounds of appeal.

The Crown's position

[16] In RM v HM Adv and Edward Gallacher v HM Adv [2012] HCJAC 121 the Crown restricted its submission to the question of finality and certainty in cases concluded before the Cadder decision. The Crown's concern on that point did not extend to the reference in this case, since the Commission had referred only questions of potential misdirection.

Conclusions
The reference

[17] In my opinion, the Commission's decision to refer this case on the two misdirection grounds was a reasonable and responsible exercise of its judgment in the application of the statutory test. That being so, I consider, for the reasons that I have given in my Opinion in RM v HM Adv; Gallacher v HM Adv (supra), that we have no reason to, and should not, interfere.

[18] In any event, I consider that the Commission was right in making the reference.

Disposal

[19] We shall therefore decline to reject the Reference; and consider the proposed additional grounds of appeal after we have received the sheriff's report.