Adnan Munir Ahmed v. Her Majesty’s Advocate [2020] HCJAC 37

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Note of appeal against conviction and sentence:- In September 2019, following a trial on indictment at Glasgow Sheriff Court, the appellant was convicted of 5 charges of behaving in  a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm by making unsolicited comments to young women who were strangers to him contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. At the close of the Crown case counsel on behalf of the appellant made a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. The submission was upheld in relation to 9 charges, the Crown withdrew 4 further charges and the trial proceeded in relation to the 5 charges which the appellant was ultimately convicted of. The appellant gave evidence on his own behalf. At the conclusion of his evidence the trial sheriff indicated that he wished to ask some questions of the appellant in clarification. The following day the trial sheriff questioned the appellant for a period of 10 minutes, following which the defence case was closed and parties addressed the jury and the jury in due course convicted the appellant of the 5 remaining charges. The appellant appealed against his conviction  on three grounds:- (1) that the content and manner of the questions which the sheriff asked of the appellant at the conclusion of his evidence amounted to improper cross-examination, which would lead an independent observer to conclude that the sheriff had formed an adverse view of the appellant’s credibility resulting in the appellant ing denied a fair trial and a miscarriage of justice occurring; (2) the directions given by the sheriff in relation to the doctrine of mutual corroboration were inadequate; and (3) the sheriff erred in repelling the submission of ‘no case to answer’ made in respect of each of charges 5, 6 and 18 and consequently charges 4 and 16 did not permit corroboration between those charges on the basis of the doctrine of mutual corroboration. In relation to the questioning of the appellant by the trial sheriff the court was critical of the trial sheriff and the nature and extent of his questioning of the appellant. The court did not view what the trial sheriff did as clarifying anything about the appellant’s evidence. The court viewed the conduct of the trial sheriff as akin to cross-examination of the appellant some of which would be inadmissible if put by either party. The court referred to the opinion of the Lord Justice General in Green v. HMA 2020 SCCR 54 at paragraphs 47 to 50 and 52 and what amounts to legitimate judicial intervention. The court considered that the trial sheriff in effectively cross-examining the appellant in the manner he did would result in an informed and impartial observer concluding that the trial sheriff had formed an adverse view on the credibility of the appellant’s evidence resulting in a miscarriage of justice and the appeal on each charge was upheld on this ground. The court was also critical of the manner in which the trial sheriff spoke to counsel for the appellant by telling her to sit down at one point. In relation to ground 2 the court considered that the absence of certain generally used terms in the trial sheriff’s directions, for example, that a course of conduct was “systematically pursued” and that the doctrine would not apply if all that was shown was that the person concerned had a general disposition to commit crimes of this sort, were not fatal. The court considered that the directions when looked at in their totality were sufficient and the appeal on ground 2 was refused. The court reiterated the importance of trial judges/sheriffs providing straight forward directions on the doctrine of mutual corroboration which are contained within the jury manual. In relation to ground 3 the court considered that in relation to charges 5, 6 and 18 there was no evidence of any threatening language, manner or tone and no comments of a sexual nature. The court stated at paragraph 51 that “It does not seem to us that a polite conversational request or compliment can be construed as threatening merely because it is uninvited or unwelcome. There was nothing in the appellant’s behaviour as spoken to by the complainers in charges 5, 6 and 18 which was overtly threatening or which could reasonably be construed as threatening.” As such the court stated that the trial sheriff ought to have sustained the ‘no case to answer’ submission in relation to charges 5, 6 and 18. Further, the court took the view that the doctrine of mutual corroboration would not have been available between charges 4 and 16 and the trial sheriff also ought to have sustained the ‘no case to answer’ submission in relation to those charges.

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