James Penrice v. Her Majesty’s Advocate [2020] HCJAC 32

Note of appeal against conviction and sentence:- In September 2019, following a trial on indictment at Glasgow Sheriff Court, the appellant was convicted of charge 2, a charge of historical lewd, indecent and libidinous practices and behaviour. He was acquitted of a further two charges alleging historic lewd, indecent and libidinous practices and behaviour (charges 1 and 3). Charges one and two related to a complainer AW and charge 3 related to SD, the son of a family friend. In relation to charge 2, the appellant, now aged 72, was sentenced to 15 months imprisonment. Corroboration of charge 2 was derived from evidence led in support of a docket been attached to the indictment which specified sexual behaviour comprising of lewd, indecent and libidinous practices and behaviour perpetrated towards a young girl CL. In relation to the docket evidence, in 2015 the appellant pled guilty to it and had been sentenced to 18 months imprisonment. The appellant appealed against his conviction and sentence. The appeal against conviction related to criticisms of the directions given by the trial sheriff in relation to the docket evidence. During the trial the solicitor acting on behalf of the appellant did not cross-examine CL as he did not consider that it was appropriate to challenge the credibility or reliability of CL in light of the previous plea of guilty by the appellant to conduct relating to her. During the sheriff’s charge to the jury the sheriff stated:- “Ladies and gentlemen, there was no challenge – in particular that she was either lying or that she was mistaken – to the evidence of CL…” and “So you have to decide that if, if the evidence in respect of each charge is credible and reliable and you can accept the evidence relating to the docket as true.” It was submitted on behalf of the appellant that the sheriff had gone too far in suggesting that because a witness has not been challenged the evidence given had to be treated as truthful. It was submitted that the sheriff ought to have directed the jury that they required to be satisfied that the witness giving evidence in support of the docket could be treated as credible and reliable and in directing the jury in the way he had there had been a material misdirection which resulted in a miscarriage of justice. In relation to the appeal against sentence it was submitted that the sentence was excessive having regard to the nature of the conduct which was described as being towards the lower end of the range and were of some age (1980s). On behalf of the Crown it was submitted that the directions given came about as a result of what had transpired during the course of the trial, namely, what had been said by the appellant’s solicitor during the course of his speech to the jury and how the solicitor suggested the jury should approach CL’s evidence. It was submitted that on reading the charge as a whole it was clear that the trial sheriff had not directed the jury that they must treat the evidence of the docket witness as true. Here the court refused the appeal. The court considered what had been said by the appellant’s solicitor to the jury in his speech and made a number of criticisms of the approach taken. In particular, criticism was made of a comment in the solicitor’s speech that he did not cross-examine CL so as not to waste the time of the jury, the clear implication being given that there was available to him some basis to challenge CL’s credibility and reliability in the same sort of way he had in cross-examining the other complainers. The court observed here that, in light of the previous plea of guilty and on the basis of his instructions, there could not have been any grounds for challenging the credibility or reliability of CL’s evidence. As such, the court considered it was necessary for the trial sheriff to give the jury the directions he did in relation to the use the jury could make of the evidence of CL. Reading the sheriff’s charge as a whole the court was of the view that there were no misdirections. The appeal against sentence was also refused having regard to the abuse of trust, the impact the conduct had on the complainer and the absence of any remorse exhibited by the appellant and his continued denial of responsibility.