James Wilson v. Her Majesty’s Advocate [2016] HCJAC 70

Note of appeal against conviction:- On 17 November 2015, at Edinburgh High Court, the appellant was convicted after trial of two charges of extortion and attempted extortion. Charge 1 libelled that the appellant, along with a co-accused JC, sent an anonymous letter to WT and made anonymous phone calls to him pretending that the letter had been sent by dangerous criminals from England, all threatening him and his family that unless he paid £60,000 they would be harmed and the appellant offered to courier the money for WT and took possession of it. The second charge libelled that the appellant and JC sent further letters to WT and made telephone calls threatening him and his family with violence unless he paid them £375,000. The appellant’s co-accused pled guilty at the close of the Crown case. The appellant was convicted of both charges. The appellant and the co-accused were sentenced to 5 years imprisonment. The appellant appealed against his conviction on the basis that there was insufficient evidence in relation to charge 1. At the trial there had been a submission at the close of the Crown case that there was insufficient evidence of identification on both charges. It had been accepted by the Crown that to prove charge 1 they required to rely upon Howden v HMA 1994 SCCR 19. The trial judge repelled the ‘no case to answer’ submission observing that it had not been contended that there was insufficient evidence in relation to charge 2 and it was not necessary, in applying Howden, for there to be direct evidence of identification for Howden to apply. Here on behalf of the appellant it was conceded that there was sufficient evidence in relation to charge 2, however, it was submitted there were insufficient similarities between the circumstances of charges 1 and 2 to point to the appellant being the perpetrator of both crimes. It was submitted that, whereas in previous applications of the Howden principle where the complainers in each charge had been different, in the present case, the complainer in both charges 1 and 2 was the same and there had been no direct identification of the appellant as the perpetrator in charge 1. It was further submitted that the time gap between charge 1 (between January and March 2013) and charge 2 (between April and May 2014) was too great and there was an absence of special features to justify the inference that the same person had committed both offences. On behalf of the Crown it was submitted that there was no rule in the application of the Howden principle that required it to be two different complainers speaking to the two or more charges. What was required was for there to be corroboration of identification in relation to one of the charges and in relation to the other charge there would be no need for a separate identification, provided it could be established that the offence was committed by the same person. In relation to the issue of the time interval it was submitted that was just one factor in considering whether the principle could apply. Here the court refused the appeal. The court considered that the ratio in Howden had no application having regard to the evidence in the case. The court considered that there was corroboration of the complainer’s identification of the appellant in relation to charge 1. In relation to charge 2 there was evidence from a source other than the complainer speaking to the appellant as being involved in the commission of charge 2, namely, telephony evidence which linked him to the co-accused’s DNA through the calls with “Davie” a lawyer in Glasgow. In relation to charge 1 there was the evidence of the complainer speaking to the appellant’s involvement. Given the similarities between the circumstances of charges 1 and 2 the court observed that it was not surprising the jury convicted the appellant of both charges.