John Milligan v. Her Majesty’s Advocate [2016] HCJAC 22

Reference from the Scottish Criminal Cases Review Commission:- On 7 May 2009, at Edinburgh High Court, the appellant was convicted after trial of seven charges relating to the possession, taking/permitting to be taken, distribution/showing of indecent photographs of children contrary to the Civic Government (Scotland) Act 1982. The appellant received concurrent sentences in relation to the statutory charges including an extended sentence of 8 years, comprising 7 years custody, for charge 37, a charge of actual distribution. The appellant was also convicted along with a number of his co-accused of charge 54, namely, conspiring with others to commit sexual offences against a child involving various serious allegations. In relation to charge 54 the trial judge imposed an extended sentence of 12 years, with a custodial element of 10 years, to run consecutive to the concurrent extended sentences on the statutory charges. Some of the appellant’s co-accused were also convicted of some or all of charge 54 and had various sentences imposed including extended sentences and Orders for Lifelong Restriction. The appellant’s original appeal against sentence had previously been refused. Here the appeal came before the court as a reference from the SCCRC and cited Strachan v HMA [2011] HCJAC 3 and Boath v HMA (unreported, 1 October 2014) where the verdicts in respect of certain elements of the conspiracy charge were set aside and their sentences were reduced as a result. Here submissions were made on behalf of the appellant in accordance with the submissions made in Strachan in relation to there being insufficient evidence to entitle the jury to convict the appellant on Charge 54 in relation to certain aspects of the libel. It was further submitted that the trial judge had failed to direct the jury that in relation to charge 54 they could only convict the appellant of the sub-heads where the appellant had direct contact with his co-accused or where the sub-heads related directly to the appellant. It was further submitted that a sub-head of Charge 54 had been incompetent because it libelled the rape of a male child and there had been insufficient evidence to entitle the jury to convict of a conspiracy, in relation to an address in North Berwick and a Mr Webber. The Crown conceded that the grounds of appeal were valid. Here the court quashed the original verdict on charge 54 and substituted one having regard to the submissions made on behalf of the appellant, the concessions of the Crown and the decision of the court in Strachan. The court thereafter considered the circumstances of charge 54 and quashed the custodial element of 10 years in respect of Charge 54 and substituted one of 7 years. The court considered that the sub-heads which remained were significant and that the appellant was a central player in the conspiracy.