APPEAL BY JOSEPH FRANCIS MCHALE AND KEVIN CHARLES SCHRUYERS AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL BY JOSEPH FRANCIS MCHALE AND KEVIN CHARLES SCHRUYERS AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC_35 (31 May 2017)) URL: http://www.bailii.org/scot/cases/ScotHC/2017/[2017]_HCJAC_35.html Cite as: 2017 SCL 866, 2017 GWD 27-438, [2017] HCJAC 35, [2017] ScotHC HCJAC_35, 2018 JC 11, 2017 SCCR 427

[1] On 25 April 2016, at the High Court, Glasgow, the appellants, along with Robin

Vaughan, went to trial on a series of charges generally involving successful and

unsuccessful attempts to force open Automated Teller Machines in the Aberdeenshire area

between August and November 2013. There was also a charge (22) of theft of golf

equipment, including Galvin Green golf clothing, from the Paul Lawrie Golf Centre on

South Deeside Road on 26 October 2013. Another co-accused, Peter O’Brien, failed to

[2] During the course of the trial, Mr Vaughan pled guilty to charges 2, 9 and 10 (infra).

On 19 May, the appellants were convicted of these charges and charges 15, 22, 24, 25 and 27.

The charges involved ATM machines on the following dates at the specified locations:

[3] On 5 August 2016, Mr McHale was sentenced to 12½ years imprisonment (reduced

from 13 years to take into account an interrupted period in custody); Mr Schruyers was

[4] The crimes involving the ATMs were described by the trial judge as a “highly

distinct – if not unique – course of conduct”. Eye witnesses spoke to seeing up to four dark

clothed persons acting in concert. They involved targeting small Aberdeenshire towns in

the hours of darkness, placing tape over any cameras at the loci, using crow bars to break

into the premises and introducing gas and wiring into the ATMs with a view to blowing

them up and stealing the money inside. The modus operandi required a degree of expertise to

improvise a hot wire ignition system, the wires being heated by a battery and attached to

matches. Some £21,000 was obtained from the events in charge 9 and £112,000 from charge

10. There was fresh blood found on the ATM in charge 10 which did not belong to any of

[5] In charge 9, a black Audi was used as the getaway car. In charge 10, a silver Audi

was seen. In charges 15 and 24, a white Audi, which had been stolen from outside a DW

Sports Club in Aberdeen on 15 October, was used. In charge 25 a white Audi, presumably

the same one, was also used. The white Audi was observed at the Norvite farm shop, Old

Meldrum, on 25 October. That was the same day as the crime in charge 25. The appellants,

Mr O’Brien, and an unidentified male left the Audi and entered the shop. A shop assistant

became suspicious and, when challenged, Mr McHale handed over a pair of black gloves

which had been in his pocket. Subsequently Mr O’Brien was found to have a pair of black

gloves which had been stolen from the shop. When recovered from woods near Methlick on

29 October, the Audi had materials in it for use in blowing up ATMs, including gas

cylinders, a battery with leads attached to matches, a sledge hammer and a pair of gloves.

Mr Schruyers’ DNA was matched to DNA recovered from the Audi’s steering wheel.

Nearby, “Galvin Green” golf clothing from the Paul Lawrie Golf Centre break-in on

[6] Another car, which had been stolen from the same DW Sports Club on 3 September,

was seen in woods near Ellon on the following day. There was no link established between

this car and any of the charges. A stolen silver Audi was being driven by Mr O’Brien when

he was detained by the police in Liverpool on 31 October. This too contained Galvin Green

golf clothing and equipment suitable for use in the crimes (eg power tools and a crowbar).

[7] Very soon after the golf centre break-in, which occurred at about 1.00am, Messrs

McHale, O’Brien and Schruyers were observed at Mr O’Brien’s flat in Torry. There was

much to-ing and fro-ing, with a large bag and clothing being transported. Subsequently

Mr McHale and Mr O’Brien left the flat wearing golf clothing of the type stolen from the golf

centre. All of this was consistent with CCTV footage recorded at the golf centre which

showed three men leaving a silver saloon car and breaking into the premises with a large

black bag or sack. Two of the men were identified as similar to Mr Schruyers and

Mr O’Brien. A laptop computer was recovered from the flat, upon which searches had been

made, on 13 and 14 October, for Audi cars and, on 26 October, on an “ATM locator”. On the

latter date, a Google map was downloaded which showed “Norvite Animal Nutrition”,

[8] According to Francis Clark, who had a chalet at Cruden Bay, Mr Vaughan had asked

to come and stay at the chalet along with a few friends. Four had come in late August or

September and had stayed for a week or 10 days. They went away and came back again. It

was not always the same group. Mr Vaughan and a person called Terry were always part of

the group. Mr Clark mentioned a small man with white skin, and short or no hair, with a

weird last name, “shrewd or something”. They had three or four Audis; first a black, then a

white, then, possibly another black one. They had told him that they were going to blow up

ATMs. On 19 September they had mentioned obtaining £100,000 from Bieldside (charge 10).

They had equipment, such as gas cylinders and various car number plates, stored in a

garage. On one occasion Mr Clark found the group wiping red dye from the stolen money.

In October he saw a couple of thousand pounds on the table. One of them explained how

[9] On 27 October Mr Vaughan had phoned Mr Clark from a car to say that he was on

his way back up to “do” more machines. There were three or four Liverpool voices in the

background. With regard to the raid on 10 November (charge 27) DNA matching that of

Mr McHale was found on tape surrounding a wire which was part of an explosive device

[10] The evidence linking the individual appellants and the co-accused to the particular

crimes was circumstantial; some of the connectors being strong and others weak. In relation

(1) he was present at the DW Sports Club when the white Audi, used in charges

15, 24 and 25, was stolen on 15 October; the car later being found to contain

(2) he was in the white Audi, with Messrs O’Brien and Schruyers, when it was at

the Norvite farm shop on 25 October when he tried to steal a pair of gloves;

(3) he was in the company of Messrs O’Brien and Schruyers going into

Mr O’Brien’s flat in Torry at about 1.00am, shortly after the golf centre break-in on

26 October. On the following morning he was seen, with Mr O’Brien, leaving the flat

wearing Galvin Green “Insular” clothing of the type stolen (charge 22), and of the

type later recovered from the flat and from the woods where the white Audi was

(4) his DNA was found on tape surrounding wires recovered from material left

[11] In relation to Mr Schruyers, his DNA was found on the steering wheel of the

recovered white Audi, thus linking him to charges 15, 24 and 25. He too was at the flat in

Torry. Francis Clark said that one of the men who came to stay at his chalet had a weird

name, “shrewd or something”. He had really short, or no, hair, white skin and was quite

small. The description matched that of Mr Schruyers in court and the description given to

the jury by a detective sergeant when viewing CCTV footage. Mr Schruyers is also from

[12] Mr O’Brien’s DNA was found on a pair of black gloves found in the recovered white

Audi, thus linking him with charges 15, 24 and 25. He was also at the Norvite farm shop.

He was detained in Liverpool in a silver Audi wearing the gloves which he had stolen from

the Norvite farm shop. The car contained Galvin Green golf clothing, linking him to the

[13] Mr Vaughan had been identified as an ever present member of the group in the

chalet. It would seem that he was the organiser of that accommodation. His DNA was

found on tape covering the camera in charge 2. He was found in possession of £1,000 in

Scottish bank notes on 3 October near his home in Liverpool. During the period

27 September to 13 October, there had been attempts to launder RBS notes, stained with red

dye, in Liverpool betting shops. Mr Vaughan told Mr Clark on 27 October that he was on

his way back up to raid more ATMs in the area. This was the day before the events libelled

[14] Mr Vaughan pled guilty during the trial. At that point, the advocate depute, in

moving for sentence before the jury, tendered a schedule of his previous convictions. The

nature and extent of his record was not disclosed. On the following day, Mr McHale moved

the trial judge to desert the diet on the basis of unfairness “by analogy” with section 101 of

the Criminal Procedure (Scotland) Act 1995. That motion was refused because section 101(1)

did not apply and that, if any prejudice had been caused, it was not sufficiently serious to

peril the continuing trial. It could be cured by a direction even in the case of the revealing of

an accused’s previous convictions (Crombie v HM Advocate 2015 SCCR 29). No specific

direction mentioning previous convictions was given in the judge’s charge 10 days later.

She thought that any such direction would draw attention to the matter. She did, however,

state that the jury should not regard Mr Vaughan’s plea “and any information in respect of

that plea” as evidence in the case. The jury required to “put it aside and have no regard to

[15] The submission on appeal was that revealing Mr Vaughan’s record was grossly

prejudicial in that it showed that the appellant had associated with a known criminal. This

rendered the trial unfair, not in common law terms, but under Article 6 of the European

Convention on Human Rights. The judge’s directions were insufficient to cure the error.

[16] Objection was taken to the testimony of Mr Clark about the phone call from

Mr Vaughan, with Liverpool voices in the background, on 27 October to the effect that he

was on his way up to “do” some machines. The trial judge repelled this on the basis that the

case involved concert (Dickson: Evidence para 363; Docherty v HM Advocate 1980 SLT (notes)

33). On reflection she considered that this may have been an error (Beacom v HM Advocate

2002 SLT 346; McLay v HM Advocate 1994 JC 159 at 165 and 179). However, the judge reports

that this evidence was not significant and would not have caused any material prejudice.

[17] Both appellants maintained that the trial judge ought to have sustained their no case

to answer submissions. Although it is said that the judge had relied upon Howden v HM

Advocate 1994 SCCR 19, she reports that she did not apply it. She took from it only the

approach to take in the identification of peculiar features which would entitle a jury to

conclude that the crimes were committed by the same person or, she reasoned, group. If the

jury concluded that the same group had been involved, and there was a common criminal

purpose, the question then was whether there was evidence to prove that the particular

accused had been one of the group and party to that common criminal purpose. Emphasis

was placed on the discovery of blood from an unknown person on one of the ATMs.

[18] It was submitted on behalf of Mr McHale that, as distinct from Howden, there was no

“sufficient identification” of the appellant in any of the ATM charges. The finding of his

DNA on the tape, as distinct from the wires, was insufficient. The ratio in Howden could

only apply where there was some form of identification, albeit a tentative one, in relation to

each charge. The reasoning in Howden could not apply where there was evidence that the

group varied. On behalf of Mr Schruyers it was said that it was not enough to show that the

appellant was in the company of others who may have been involved in criminal activity. It

was not enough to show participation, as part of the group on one occasion, when there was

no identification of the appellant being a member of the group on another occasion.

[19] Following from the submissions on sufficiency, it was said that the trial judge had

misdirected the jury. The evidence did not show that the ATM crimes were committed by

[20] The judge had told the jury that the Crown case was that all of the offences, other

than charge 27, were committed by the same group of four men; the appellants and Messrs

O’Brien and Vaughan. On charge 27 it was the appellants and Mr Vaughan. The Crown

relied on the jury drawing two conclusions from the circumstantial evidence. The first was

that it was the same group. The judge directed the jury that if they were not so satisfied,

they could not convict. She made it clear that they had to be satisfied that the same four

men had acted together to commit these crimes. It was not enough that there were

similarities. The unusual features had to point to it being the same group. Secondly, the

jury had to be satisfied that each accused was part of that group and an active participant in

the common plan to commit the particular crime charged. If they were not, they required to

[21] It was submitted that the trial judge erroneously directed the jury that the Norvite

farm shop had been searched for on the laptop. The evidence was that any such search had

been on the day after the Norvite visit. The judge accepts that there was no specific search

for the shop but that the map produced, from whatever search there was, showed the

location of Norvite farm. The anomaly in date was not explored in evidence.

[22] In human rights terms, it is not a breach of Article 6 of the Convention to reveal an

accused’s previous convictions during his trial (Andrew v HM Advocate 2000 SLT 402, LJC

(Cullen), delivering the Opinion of the Court, at 406). As was recognised by the European

Commission in X v Austria (App No 2742/66), evidence of an accused’s previous convictions

is regularly given in a number of Convention countries without it being perceived as a

breach of Article 6 (see Boyd v HM Advocate 2001 JC 53, LJG (Rodger) at para [9]). In these

circumstances, disclosure of a co-accused’s convictions can hardly be regarded as a breach of

the rights of another accused. It is not a fact which inevitably leads an unfair trial by

[23] Section 101 of the Criminal Procedure (Scotland) Act 1995 provides that an accused’s

previous convictions shall not be laid before the jury, or referred to in their presence, in

advance of their verdict. That section was not breached. Furthermore, the trial judge

directed the jury that the co-accused’s plea of guilty, and any information in respect of it,

was not evidence in the case. The jury were directed to put it aside and have no regard to it.

These directions remove any question of the tendering of the co-accused’s record

prejudicing the appellant. No specification of the co-accused’s record was given. No

miscarriage of justice has been demonstrated on this ground. That having been said, leaving

the tendering of a schedule of a co-accused’s previous convictions until after a jury’s verdict

[24] The evidence objected to related to the telephone call with Mr Vaughan on

27 October. This was the day before the Clydesdale and RBS charges (24 and 25). It is the

day after Mr Schruyers, Mr O’Brien and Mr McHale were in the flat in Torry. In the call,

Mr Vaughan said that he was on the way up to Aberdeenshire to “do” more of the

machines. There were Liverpudlian voices in the background. That is hardly surprising as

that was where Mr Vaughan lived and was apparently coming from. The call was made

[25] Despite the acceptance of a plea of not guilty from Mr Vaughan to the charges

occurring in October and November, the Crown were still maintaining that he was involved

in these charges; hence the terms of the judge’s charge. No point was made in the appeal

about this apparent inconsistency in the Crown’s approach. In that situation, in which the

Crown were still seeking to prove the guilt of the appellants in concert with Mr Vaughan,

the terms of the call were admissible as part of the res gestae; ie to prove that Mr Vaughan

and other Liverpudlians were coming up to commit the crimes (HM Advocate v Docherty

1980 SLT (notes) 33, Lord Stewart at 34, citing Walker & Walker: Evidence (1st ed) p 35 (para

37; see 4th ed para 9.9) and Dickson: Evidence (Grierson ed) 363. Beacom v HM Advocate 2002

SLT 349 involved the leading of a post crime interview of an accused against whom the

Crown had decided to withdraw the libel. That conduct was regarded as unconscionable,

but it is of no relevance here. This call was not a statement made after the completion of a

crime, but one made beforehand which demonstrated preparation for crimes proved to have

been committed the next day involving Mr Vaughan and Liverpudlian accomplices.

[26] If an accused person is proved to have committed a particular offence and it is

demonstrated that another identical offence has been committed, that may be sufficient to

prove that the accused perpetrated both offences (Gillan v HM Advocate 2002 SCCR 502, LJC

(Gill) delivering the Opinion of the Court, at para [19]; cited in Wilson v HM Advocate 2016

SCCR 425, LJG (Carloway), delivering the Opinion of the Court, at para [19]). Whether it is

sufficient will depend upon the particular facts and circumstances; notably the extent of the

identical features and their proximity in time and place. There may also be situations in

which it can be inferred that the same gang or group was involved in two crimes. In that

situation, if an accused is proved to have been involved in one of the crimes, the identical

features of the second crime and its proximity in time and place to the first, may provide

sufficient evidence to draw the same type of conclusion. Identical crimes committed on the

same night and at a nearby loci may be an example where the same numbers are involved.

[27] However, in a situation where there are near identical crimes committed in similar

locations over a period of weeks, it may not be legitimate to conclude that they were

committed by the same persons; albeit that they were perpetrated by a gang under the same

leadership. In this case, assuming, as the Crown maintained, that Mr Vaughan was the

director of operations, the question must be whether there was sufficient evidence for the

jury to conclude that his cohorts were the same, when carrying out: first, the raid on

26 August; secondly, the successful crimes on 18 and 19 September; thirdly, the unsuccessful

attempts and the golf centre break-in over a month later from 25 to 28 October; and fourthly,

the final attempt (which did not involve Mr O’Brien) on 10 November. Although it may be

legitimate to draw an inference, that those involved in a raid on one day were the same as

those involved in a raid on the next day or two, it is far more difficult to infer involvement in

events several weeks apart, without some evidence linking the accused to each block of

[28] In what was a circumstantial case based upon several different strands of evidence,

the key question is whether the jury could reasonably find the ATM charges, or some of

them, proven in respect of either or both of the appellants. It was not an “all or nothing”

case, although the trial judge appeared to regard it as such. The proper approach is to look

at the totality of the evidence pointing to the involvement of a particular accused. If that

evidence is accepted, the next task is to assess whether, when taken along with the rest of the

evidence, it proves participation in any of the charges, and if so, which. Proof that the same

group of four persons committed all the ATM crimes was not an essential element in this

case. The outstanding common feature was the particular modus operandi used in a series of

planned and swiftly executed raids on, in the main, rural ATMs at night, relatively closely

aligned in time and place. In each case there was an explosion, or an attempt to cause an

explosion, by a method which at that time was otherwise unknown in Scotland. Other

common features were the stolen Audi vehicles, the use of gloves and dark clothing, and a

connection with Liverpool. The fact that the crimes were committed was not in issue. The

only question was whether the Crown had proved the participation of each of the

appellants. In these circumstances any involvement in planning and preparation could be

significant, especially when added to the incriminating DNA evidence. The key contention

for the defence was that, particularly in the absence of direct identification of an appellant as

a participant in a raid, the evidence relied on by the Crown was not sufficient. A similar

submission was presented to this court in support of the argument that the no case to

answer submissions ought to have been upheld. It is therefore necessary to examine the

[29] Mr McHale was linked to charge 27 by virtue of his DNA being found on tape

surrounding the wires used in the interrupted attempt in Bucksburn on 10 November. The

submission to the contrary is rejected. The finding of his DNA on any component of the

material to be used in causing the explosion forms an obvious link between Mr McHale and

the crime. Sufficient proof of that link was, of itself, enough to prove his involvement on

that charge. He was linked to the stolen white Audi and was in it at the Norvite farm shop

with Messrs O’Brien and Schruyers. He was wearing Galvin Green clothing shortly after the

break-in at the golf centre; more clothing being found near the recovered white Audi in due

course. He was thus linked to charges 15, 22, 24 and 25. Again, that circumstantial evidence

was sufficient to prove guilt on these charges. When taken with the totality of the evidence,

the jury would have been entitled to hold, from his being at the sports club when the white

Audi was stolen and his presence in it subsequently, that Mr McHale was involved in all of

the ATM charges in the short time span from 25 to 28 October. In order to bring home

charges 2, 9 and 10, however, there would have to be something linking him to them,

occurring, as they did, a month earlier. The very similar nature of the crimes was not

sufficient for the jury to draw the inference that the same four persons, and in particular

[30] Mr Schruyers is linked to the white Audi through his fingerprint on the steering

wheel and his identification at the Norvite farm shop, and thus to charges 15, 24 and 25. He

is linked to the golf centre break-in through his activities at the Torry flat. There appears to

be nothing specific to link him to the Bucksburn charge the following month. He is

identified as part of the chalet group through his distinctive name and Mr Clark’s

description, to which the jury were entitled to have regard from their own observations of

Mr Schruyers in court. This linked him to the ATM raid gang as a generality. However, it is

not clear from the trial judge’s report when this appellant joined the chalet group and, in

particular, whether he was there in the initial group of four or not. In these circumstances,

as with Mr McHale, there was insufficient evidence to link him to the earlier charges. The

Notes of Appeal also challenged the convictions on charge 22 (the theft from the golf centre),

but it is clear that there was sufficient evidence against both appellants in that regard.

[31] As already observed, if there had been sufficient evidence to satisfy the jury that all

the ATM incidents involved the same members of the same gang, they would have been

entitled to hold that each appellant had been involved in them all. That is how the trial

judge directed the jury. There was insufficient evidence to link the appellants to the earlier

charges. However, this does not render the judge’s directions challengeable. Indeed, she

made an erroneous direction in favour of the appellants in stating that the jury could not

convict either appellant of any of the ATM charges unless they were satisfied that they had

been involved in all of them. If, and in so far as, any of the directions can be regarded as

productive of a miscarriage of justice, any difficulty extends only to those convictions which

are to be quashed. It remained open to the jury to convict only of certain of the ATM

charges, such as 15, 24 and 25, if they had not been satisfied of the appellants’ involvement

[32] The alleged misdirection in relation to the search for the Norvite farm shop is of no

materiality and, in any event, the trial judge’s directions were broadly accurate, so far as

they went. The fact that the search date was after the Norvite visit does not mean that the

[33] It follows that the appeals will be allowed to the extent of quashing the convictions of

both appellants on charges 2, 9 and 10 and Mr Schruyers’ conviction on charge 27. At the

advising the court will hear any submissions regarding the effect of this on the appellants’

[1] The circumstances of these appeals are set out in the Opinion of the Court of today’s

date ([2017] HCJAC 35). The court has also been provided with a sentencing statement,

[2] In relation to the co-accused, namely Mr Vaughan, on 22 November 2016 his

sentence of 11 years was reduced to 10 years (HCA/2016/460/XC). The reason for that

reduction was because the trial judge had erroneously thought that Mr Vaughan had been

[3] Although both appellants now stand convicted only of attempts in relation to the

ATM charges, which were not the most serious on the indictment, and although it was

accepted by the trial judge that Mr Vaughan was effectively the ringleader in respect of the

offences, at least of those to which he pled guilty, these offences are still of considerable

gravity. Both appellants, and Mr Vaughan, were described by the trial judge as career

criminals with substantial previous convictions, including periods in custody. In relation to

Mr McHale, that includes a conviction at the High Court in 2006 for robbery and, in the case

of Mr Schruyers, a 6 year prison term imposed at Liverpool Crown Court for robbery in

2010. Both of the appellants were on licence at the material time.

[4] In all these circumstances, taking into account the reduced number of charges of

which the appellants have been convicted following upon this appeal, the court will reduce

the sentences in respect of Mr McHale to 8½ years imprisonment and Mr Schruyers to

8 years imprisonment.

Scottish High Court of Justiciary Decisons