Alan Kerr v. Her Majesty’s Advocate [2015] HCJAC 96

Note of appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- In 2009 the appellant pled ‘not guilty’ in relation to an offence that on various occasions between 1 and 15 July 1998 at an address near Stirling he used lewd, indecent and libidinous practices towards an 11 year old complainer by touching him on the body and handling his private member. The Crown accepted that plea of ‘not guilty’. Now the appellant has been charged with further indecent acts including having “unnatural carnal connection” with the same complainer, during the same period at the same address as the charge back in 2009. Attached to the current indictment is a docket in terms of section 288BA of the Criminal Procedure (Scotland) Act 1995 describing the appellant having used lewd, indecent and libidinous practices towards the same complainer involving similar conduct as he had previously been acquitted for. The appellant tendered a plea in bar of trial founding upon section 7(2) of the Double Jeopardy (Scotland) Act 2011 which provides:- “7(2) A person charged with an offence may aver, as a plea in bar of trial, that the offence arises out of the same, or largely the same, acts or omissions as have already given rise to the person being tried for, and convicted or acquitted of, an offence”. At first instance, the judge repelled the plea on the basis that the crime charged was not the same act as previously libelled. The appellant sought leave to appeal, which was granted, and the appellant appealed against the decision of the judge at first instance. It was submitted on behalf of the appellant that the facts relating to the earlier charge were inextricably linked in time, space and subject matter and whilst the sodomy and the lewd and libidinous behaviour required different facts to prove them, they arose from the same incident of sexually abusive behaviour. On behalf of the Crown it was submitted that the sodomy allegation had not been made prior to the earlier indictment having only just been made by the complainer. The Crown did not rely upon the “special reasons” exception in section 7 but, rather, that the offences arose out of different acts. Here the court examined the statutory interpretation of the 2011 Act and the Scots Law Commission Report of 2009 upon which the legislation was based. The court considered whether the act now charged, namely, sodomy, arose out of the same, or largely the same, acts as the lewd and libidinous charge previously libelled. The court considered that the two charges are not the same, that they are separate and different crimes and, as such, do not satisfy the statutory test for the plea in bar of trial to succeed, and the appeal was refused.