Duncan Brown v. Her Majesty’s Advocate [2016] HCJAC 112

Note of appeal against conviction:- In May and June 2014, at Glasgow High Court, the appellant stood trial on an indictment containing 21 charges relating to allegations of physical and sexual violence perpetrated against 5 female former partners over 20 years. During the course of the trial the Crown withdrew the libel in relation to 9 charges (charges 3, 4, 9, 15, 16, 17, 19, 21 and 22). The appellant was convicted of five charges of physical and indecent assault (charges 1, 5, 6, 10 and 11) and three charges of rape, two under the common law (charges 2 and 7) and one under section 1 of the Sexual Offences (Scotland) Act 2009 (charge 18). On 9 July 2014 the appellant was sentenced to an extended sentence of 14 years with a custodial element of 10 years. The appellant appealed against his conviction in relation to the common law charges of rape (charges 2 and 7) on the grounds that the trial judge misdirected the jury in relation to the special defence of consent at common law, as opposed to how it is defined in the 2009 Act. In addition, the appellant appealed against his conviction in respect of the statutory rape charge (charge 18) on the grounds that the trial judge had directed the jury that they were entitled to take into account the appellant’s behaviour in relation to the common law rape charges when deciding whether the appellant had a reasonable belief on charge 18. At the hearing of the appeal against conviction before a differently constituted bench the Crown conceded the appeal in relation to all three rape charges and, whilst no written record of the basis of that concession exists, it seems to have been on the basis of the misdirections by the trial judge as contended on behalf of the appellant. Here the Crown sought authority from the court to bring a new prosecution in relation to charges 2, 7 and 18. It was submitted on behalf of the Crown that there had been no fault on the part of the Crown. The court considered that, whilst the application was opposed by the appellant, there were no special features present which merited refusing the application and it was noted each of the three complainers in the relevant charges wished to give evidence again and the court granted the Crown authority to bring a new prosecution under section 118(1)(c) of the Criminal Procedure (Scotland) Act 1995. In relation to the appeal against sentence in relation to the remaining physical and sexual assault charges (charges 1, 5, 6, 10 and 11) the sentencing judge had described the appellant as a man who habitually and regularly beat his partners whilst drunk and the charges comprised of a catalogue of serious physical domestic abuse over an extended period resulting in serious injury. It was noted that the the Criminal Justice Social Work Report referred to a lack of insight and remorse on the part of the appellant. In addition, the appellant had a lengthy schedule of previous convictions for assaults and domestic abuse related public disorder offences albeit at summary level. Here the court quashed the original sentence and substituted a sentence of 5 years imprisonment for what it described as convictions “of considerable significance” which involved a catalogue of physical and sexual abuse against two former partners and one assault on a child.