APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Menzies Lord Wheatley	[2012] HCJAC 95 Appeal No: XC638/11 OPINION OF THE COURT delivered by LORD MENZIES in APPEAL AGAINST CONVICTION AND SENTENCE by IM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Burns, solicitor-advocate; Gilfedder McInnes for Ian Moir & Co, Glasgow

Respondent: A Stewart QC AD; Crown Agent

13 July 2012

Introduction

[1] The appellant was convicted before a Sheriff and jury on 1 September 2011 by a majority verdict of a charge in the following terms:

"on various occasions between 26 December 2009 and 18 August 2010, both dates inclusive, at...you IM did have unlawful sexual intercourse with LC, ... born 29 November 1994, a girl then above the age of 13 years and under the age of 16 years;

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 5(3)"

The appellant was aged 75 and 76 during the period libelled in the charge, and was aged 77 at the date of trial. The complainer was aged 15 throughout the period libelled in the charge.

[2] The trial which resulted in the above verdict lasted some four days. The complainer was called as a witness for the Crown, as were her parents and a police officer. In addition, as a courtesy and in order to minimise inconvenience to the witness, the Crown led the evidence of a medical witness who was on the defence list of witnesses, namely Mr Samuel McClinton, a consultant urological surgeon who had examined the appellant and prepared reports on him.

[3] The appellant did not give evidence. It was agreed by joint minute that his wife was unfit to attend court but that the terms of an interview which she gave to the police could be considered by the jury.

[4] On 28 September 2011 the appellant was sentenced to 2 years imprisonment for this offence. He has appealed against both conviction and sentence. The appeal against conviction proceeded on two broad grounds, the first of which related to the way in which the Sheriff in his charge to the jury gave directions as to Mr McClinton's medical evidence, and the second of which related to the way in which the Sheriff in his charge dealt with the evidence relating to a meeting which was said to have occurred during which the appellant was said to have made incriminating admissions. We heard submissions from Mr Burns in relation to the first ground of appeal, and from the Advocate Depute in response. We then adjourned the appeal to enable us to consider these submissions and to issue a written opinion giving our decision on the first ground of appeal. This is that opinion.

The relevant parts of the first ground of appeal

[5] In the Note of Appeal there was a criticism of the way in which the Sheriff gave general directions to the jury as to how they should approach the medical evidence, in the context of the evidence as a whole. However, those criticisms were not maintained before us, and we do not repeat them here. The passages in the first ground of appeal which are relevant to the issue in dispute before us were as follows:

"The Appellant denied intercourse had taken place when interviewed. ...The Appellant had been treated for erectile dysfunction in 1993, prior to the birth of the Complainer. He was also found to have Peyronie's Syndrome, and this condition was extant, and was exacerbated by erectile dysfunction. In the opinion of a consultant who had examined the Appellant, this made intercourse highly unlikely, though not impossible. He estimated the possibility of the Appellant being able to have intercourse in the range of less than five per cent. Individuals with erectile dysfunction could have perhaps thirty per cent chance of being capable of intercourse. The expert's analysis of the Appellant's prospects related to him as an individual in the light of both conditions..."

"In the course of his address to the jury, the Solicitor Advocate appearing for the Appellant dealt with the question of reasonable doubt. He suggested to the jury that, if they accepted the Consultant's evidence to the effect that this individual had a chance of less than five per cent of achieving intercourse, then they might think that his evidence itself, if accepted, constituted reasonable doubt, in that the low probability of the Appellant being physically able to have intercourse raised such a reasonable doubt, and they might conclude that they may not need to go much further. In charging the jury, ...The Sheriff reminded the jury that the expert had stated that some thirty per cent of men with erectile dysfunction were capable of intercourse, and that they should have regard to all of the other evidence. (Judge's Charge pages 21-25). The judge referred to the condition of erectile dysfunction in general as having an applicability of about seventy per cent. That however was only one erectile problem that the Appellant had. The combination of problems meant, in the evidence of the expert, that the Appellant's chance of achieving erection was less than five per cent. It is submitted that the submission made to the jury was a fair and proper submission, and that the learned Sheriff's instruction to the jury was a misdirection in connection with a crucial part of the Appellant's defence, and that a miscarriage of justice thereby arose."

The Sheriff's charge to the jury

[6] The Sheriff dealt with Mr McClinton's evidence at pages 24/25 of his charge, in the following terms:

"In his report of the 24^th of June of this year, the doctor refers to this erectile dysfunction as an associated erectile dysfunction, but, as the procurator fiscal pointed out in cross-examination, he confirmed that the two conditions, that's the Peyronie's and the erectile dysfunction are separate conditions and of course he did say that erectile dysfunction is like to get worse with age, a general comment. He did not say that it was impossible for Mr M to achieve an erection, indeed, he said as much to Mr Burns. He says in the letter of the 26^th July to Mr M's solicitor, "It is my opinion Mr M would be extremely unlikely to achieve an erectile...an erection sufficient for intercourse," but his evidence in course...court, he was able to say, according to my notes, but it's your recollection that counts, that 70 per cent of men with this condition will have problems obtaining an erection. As the fiscal points out, that means 30 per cent, according to him are able, although in the doctor's view, if Mr M was able to do so it would be unlikely to be a normal erection. My note says "distorted" but your recollection is what counts. And he also said, according to my notes, that it is unlikely that he would be able to have intercourse."

The report by the Sheriff to this court

[7] The Sheriff in his report to this court dealt with the evidence of Mr McClinton at paragraphs [41] to [50], and dealt with the first ground of appeal at paragraphs [54] to [59]. In fairness to the Sheriff, it is important to note that when writing his report, for the reasons explained below, he did not have access to the transcript of Mr McClinton's evidence.

[8] The relevant passages in the Sheriff's report relating to the present issue are paragraphs [50], [58] and [59], which are in the following terms:

"[50] I have no note of any reference to a less than 5% likelihood of the appellant being able to have intercourse as suggested by Mr Burns in his address and as referred to in the Note of Appeal.

...

[58] As to the witness' evidence in court, although at page 24, referring to his comments in his report of 24^th June 2011, I made reference to my note that he had said that 70% of people with the condition may have problems obtaining an erection, I emphasised at line 23 on that page and line 6 on the following page that it was their recollection that counted, but according to my note he said that it was unlikely that the appellant would be able to have intercourse. I have checked my notes carefully and I have no note that the consultant gave evidence that "this man had a chance of less than 5% of achieving intercourse" as suggested by the Note of Appeal. I appreciate that Mr Burns suggested that in his address. In charging the jury I did not refer to his comments directly. It was a matter for the jury what their recollection was.

[59] I think it is fair to comment, however, that if the doctor expressed himself in those terms it is not something which registered with me at the time as significant evidence. I suspect that had it done so I would have covered the matter with the jury, particularly as expressed as it is in the Note of Appeal it is not clear to me precisely what it means. I would not expect a scientist to express an opinion in that way but to say perhaps that less than 5% of people with condition x can do Y. That is not what is suggested in the note of appeal. I have some difficulty in understanding precisely what was meant by an opinion expressed as it is in the note of appeal and suspect that had it been said that way I would have intervened with the witness to clarify his evidence to allow me to charge the jury appropriately. I do not, of course, have the facility to consider the full terms of the evidence given by the doctor to ascertain whether my notes are simply defective on this point or whether I have missed this evidence. If it has it could not have been emphasised and I would have expected it to be covered in cross examination, which it does not seem to have been."

Procedure in the appeal process

[9] The appellant lodged a Note of Appeal against conviction and sentence on 5 December 2011, and the Sheriff's report was received in Justiciary Office on 12 January 2012. Leave to appeal against conviction was granted on 17 January 2012 and leave to appeal against sentence was granted on 3 February 2012. Thereafter the appellant's solicitors requested transcription of Mr McClinton's evidence. At a procedural hearing on 11 April 2012 the court directed the Sheriff Clerk to make available to the Clerk of Justiciary the digitised evidence of Mr McClinton to enable counsel for the appellant and the Crown to listen to this with a view to entering into a joint minute agreeing the evidence for the purpose of the appeal. However, there were technical difficulties in arranging for both parties to listen to the digitised evidence of the witness. In order to resolve this problem, it was agreed between the Crown, the agents for the appellant and Justiciary Office that a transcript should be prepared on behalf of Justiciary Office, and if possible, agreed between the parties. This transcript was not available until 12 June 2012, i.e. one week before the appeal hearing. It was only at the outset of the appeal hearing that Mr Burns and the Advocate Depute confirmed to the court that each was satisfied that the transcript was accurate and could be relied upon (although no joint minute to that effect was available). In these somewhat unusual circumstances, the Sheriff has not had the opportunity of considering the transcript, nor of giving us any additional observations that he might have in light of it. Notwithstanding this, we concluded that it would be appropriate to proceed with the appeal on the basis of the material before us.

The evidence of Mr McClinton

[10] The appellant was seen by Mr McClinton on 25 May 1995 when he was diagnosed as having Peyronie's disease and associated erectile dysfunction. Mr McClinton examined him again on 12 May 2011 and prepared a report dated 24 June 2011. In that report he observed that "When seen again in May 2011 the clinical findings were the same as before and the history was essentially unchanged with an inability to achieve erections sufficient for intercourse and a history of no intercourse for some years." Mr McClinton's conclusion in the report was as follows:

"This man has a long history of erectile dysfunction which would be in keeping with his assertion that he is unable to have intercourse and indeed has not had intercourse for some years now."

"

[11] As we have indicated, both the Crown and Mr Burns for the appellant accepted that the transcript now before us was accurate. The following excerpts are of particular relevance to the issue before us:

Witness	Yes, just to confirm, It is my opinion that Mr M would be extremely unlikely to achieve an erection sufficient for intercourse under any circumstances, and apart from his history it would be extremely unlikely that any of the currently available oral medications used to improve erections would be effective for him.
Mr Burns	Thank you. And if I could just ask you to confirm where it says "would be extremely unlikely"
Witness	That's correct
Mr Burns	Thank you. Now that I think is the summary of matters, but could you have before you please defence production no.1 which I hope will be a medical report. And is that a report which you prepared?
Witness	That's correct yes
Mr Burns	And was that pursuant to the examination of the patient on 12 May 2011?
Witness	That's correct
Mr Burns	Thank you. And I think in the first part of that you describe the history as you found it in 1995?
Witness	Yes I did.
Mr Burns	And could I take you please to the third paragraph. Can you tell me what in lay terms that we would all understand you found?
Witness	Eh he has fibrosis, associated with a disease called Peyronie's disease, which is a disease that affects the parietal tissue and causes scarring of the tissue, so you get a firm area in the penis which is due to a scar within the penis itself.
Mr Burns	And what's the effect of that condition?
Witness	It stops the penis from becoming erect at the site where the disease affects it and also often affects the flow of blood through the penis, so approximately 70% of people with this disease would have problems getting an erection.
Mr Burns	And what's the nature of the problem?
Witness	It's an inflammatory condition, we don't know the exact cause of it.
Mr Burns	Yes. And in terms of the outcome does the inability of the erectile tissue, does that come pretty well automatically with the syndrome, or..
Witness	Yeah in about 70%
Mr Burns	Yeah and is that what you found with regard to Mr M back in 1995
Witness	That's what he was complaining of at the time yes.
Mr Burns	Thank you. Does this get better with age or worse with age or is it unaffected by age?
Witness	The Peyronie's doesn't change. It's irreversible.
Mr Burns	It's reversible?
Witness	Erectile function tends to get worse with age in general.
Mr Burns	So as at 1995 there's an irreversible condition which is likely to get worse by the passing years.
Witness	Yes
Sheriff	The condition is not going to get worse?
Witness	The condition will get worse, erectile dysfunction will get worse.

...

Mr Burns	Now when you saw him again in 2011 what did you find with regard to his condition?
Witness		There had been no change in terms of findings on examination and he reported very similar symptoms as he did 10 years previously with no early morning erections and inability to have intercourse
Mr Burns		Could you please read out the summary.
Witness		The summary or conclusion?
Mr Burns		Eh both, we will take the summary first.
Witness		The summary was that I first saw this man in 1995 and he was diagnosed as having Peyronie's disease and associated erectile dysfunction. A number of different treatments were offered but these were not particularly effective. The most effective treatment would have been a penile implant but he did not want to pursue that at that time. When seen again in May 2011 the clinical findings were the same as before and the history was essentially unchanged with inability to achieve erections sufficient for intercourse and a history of no intercourse for some years.
Mr Burns		And your conclusions?
Witness		That he had a long history of erectile dysfunction which would be in keeping with his assertion that he is unable to have intercourse and indeed has not had intercourse for some years now.
Mr Burns		That was based on your meeting with him. Would you have required any further medical procedures to advance your knowledge of this condition?
Witness		The only further procedures you could have potentially carried out would have been testing of nocturnal erections which would have been using a machine to see whether or not there was any evidence of erections during the night while he was sleeping.
Mr Burns		Right. Did you pursue that?
Witness		I didn't.
Mr Burns		And is there any particular reason for that, for not pursuing it.
Witness		Given both their long history of erectile dysfunction and the extent of his Peyronie's disease, I think the chances of him getting an erection were probably less than 5%. So I didn't pursue it any further.
Mr Burns		So it can be said that it would be impossible?
Witness		You can never say impossible but extremely unlikely.
Mr Burns		Extremely unlikely? Thank you. And if he managed to achieve erection would it appear as normal or would it, the organ, be distorted in some way.
Witness		If he is able to achieve an erection it's unlikely to be a full erection and slightly to be distorted, yes.
Mr Burns		And if he did achieve such would it be capable of being used for penetrative intercourse?
Witness		Again that is extremely unlikely
Mr Burns		Extremely unlikely. Thank you. Would you bear with me please. Thank you very much Mr McClinton.
Sheriff		Yes.
PF		Thank you my Lord. Good afternoon again Mr McClinton. Do I understand that you are referring to just one condition that you found with Mr M when you first saw him in 1995 or there was two difficulties for him.
Witness		He has two conditions, one associated with the other, so he has erectile dysfunction and he has Peyronie's disease.
PF		And are you linking the erectile dysfunction to the Peyronie's disease?
Witness		Yes because that's a common connection
PF		Because it's a common connection? But you do get people with Peyronie's disease who are still able to achieve erections? Is that correct?
Witness		That's correct
Pf		I think you said actually did I get that right, it stops 70% from getting an erection?
Witness		Yes about 70%
PF		So 30% are able to?
Witness		Yes
PF		Thank you and you said that its associated with this erectile dysfunction but in fact there are a lot of causes of erectile dysfunction aren't there?
Witness		Yes very many, yes"

Submissions for the appellant

[12] Mr Burns submitted that it was clear from the Sheriff's charge to the jury, and from the passages of his report quoted above, that the Sheriff misunderstood Mr McClinton's evidence. He focused on the figures of 70% and 30%, but he did not take account of the fact that the conjunction of the two conditions from which the appellant was suffering resulted in his conclusion that the chances of him getting an erection were probably less than 5%. This was a matter of great importance, and amounted to a misdirection on a fundamental matter.

[13] Mr Burns submitted that this was a material error on the part of the Sheriff, and indeed the Sheriff appears to recognise this himself at paragraph [59] of his report, where he acknowledges that if Mr McClinton had expressed an opinion to the effect that the appellant's chances of him getting an erection were probably less than 5% the Sheriff would have intervened with the witness and would have required to charge the jury appropriately on this point.

[14] Although the Sheriff reminded the jury on several occasions that it was their recollection of the evidence which counted, this was not enough to vitiate the error. In support of this proposition Mr Burns relied on Renton and Browns Criminal Procedure at paragraph 29-31, Simpson v HMA 1952 JC 1 and Mills v HMA 1935 JC 77.

Submissions for the Crown

[15] The Advocate Depute submitted that the Sheriff's failure to address Mr McClinton's evidence regarding the conjunction of the appellant's two conditions resulting in the chances of him getting an erection as being probably less than 5% did not amount to a material omission which would vitiate the verdict. When the charge was read as a whole, and bearing in mind the way in which the jury would have heard it, it was a fair summary of Mr McClinton's evidence. Notwithstanding the omission, the charge was adequate. Mr McClinton's conclusion was that penetrative intercourse would be extremely unlikely, and this was essentially what the Sheriff was saying at the end of his directions about Mr McClinton's evidence (at page 25, lines 7/9). He repeatedly asserted to the jury that it was their recollection that counted. He agreed that it was unfortunate that the Sheriff made reference to the figures of 70% and 30% and made no reference of less than 5%, but he maintained that in the whole circumstances there was no miscarriage of justice.

Discussion

[16] Lord Justice Clerk Aitchison made the following observations in Mills v HMA (at page 82):

"It is very easy in a serious case for the most experienced judge to omit to give some direction that ought to have been given, and the question must always be whether the omission is sufficiently material to vitiate the verdict. In my view the omission in this case is fatal to the verdict, and the appeal must be allowed.

I reach this conclusion with regret. It can never be a light thing to interfere with the verdict of a jury on a charge of murder and, as I have already said, there is, in my view, ample evidence to support the verdict; but, by the law of Scotland, an accused person is entitled to have his case tried with an adequate direction to the jury, and if on any vital matter the direction is so inadequate as to amount to a misdirection, it is our plain duty to set the verdict aside. We are not entitled to depart in any way from that imperative rule."

[17] In the present case, it appears that the evidence of Mr McClinton about a less than 5% likelihood of the appellant getting an erection (and if he did, it being extremely unlikely that it would be capable of being used for penetrative intercourse) did not register with the Sheriff. He had no note of this evidence, and as he observes at paragraph [59] of his report, if this passage of the evidence had registered with him he would probably have intervened with the witness for clarification, and would have charged the jury accordingly. However, it is apparent from the transcript (agreed to be accurate) that the evidence was given.

[18] We consider this evidence to be important, and the failure to refer to it as material. The Sheriff mentioned in his charge that Mr McClinton's evidence was that "70% of men with this condition will have problems obtaining an erection. As the fiscal points out, that means 30%...are able". This leaves open to the jury the possibility that the appellant fell within the 30% that are able. This is misleading, because it took no account of the conjunction of the two conditions, which caused Mr McClinton to regard the chances of the appellant getting an erection as being probably less than 5%. This is a significant difference, and we are in no doubt that this error was sufficiently material that it vitiated the verdict.

[19] It is correct, as the Advocate Depute pointed out, that the Sheriff repeatedly reminded the jury throughout his charge (and did so twice in the passage at pages 24/25 excerpted above) that it was the jury's recollection that counted. However, as discussed in Renton and Brown at paragraph 29-31, we do not consider that in the circumstances of the present case this was sufficient to avoid a misdirection. This was the last occasion on which the jury heard any mention of this passage of the evidence before they retired to deliberate on their verdict. The impression which they may have gained from this passage in the Sheriff's charge may have been that the appellant fell within the 30% able to obtain an erection. Although the Sheriff does quote the statement in Mr McClinton's letter dated 26 July 2011 that "it is my opinion that IM would be extremely unlikely to achieve an erection sufficient for intercourse", he omitted the words that followed, namely "under any circumstances"; the Sheriff then closed this passage of his charge by telling the jury that "He also said, according to my notes, that it is unlikely that he would be able to have intercourse", which does not reflect exactly the tone of Mr McClinton's evidence in the transcript, in which he described both the chances of the appellant getting an erection and if he did achieve an erection whether it would be capable of being used for penetrative intercourse as extremely unlikely.

[20] Mr McClinton's evidence that he considered that the chances of the appellant getting an erection were probably less than 5%, and extremely unlikely, and that in the event that he did achieve an erection it was extremely unlikely that it would be capable of being used for penetrative intercourse, was not contradicted nor was it subject to cross-examination. We consider that if the Sheriff felt it necessary to make reference to the figures of 70% and 30%, he ought also to have drawn attention to the figure of 5% and these other elements of Mr McClinton's evidence. With regret we consider that this amounts to a misdirection on a material matter. There has been a miscarriage of justice; we shall accordingly allow the appeal on this ground, and quash the conviction.