Matthew Martin v. Her Majesty’s Advocate [2016] HCJAC 42

Note of appeal against conviction and sentence:- On 6 May 2015, at Perth Sheriff Court, the appellant was convicted after trial on indictment of 6 charges (charges 2-7):- (charge 2) a breach of the peace by setting fire to a caravan belonging to the appellant in a layby on the A85; (charge 3) a breach of the peace by setting fire to a caravan belonging to the appellant in the same layby as charge 2; (charge 4) wilful fire raising by setting fire to an armchair in a common close with the fire spreading to the fabric of the building causing serious damage and endangering the lives of the occupants; (charge 5) wilful fire raising by setting fire to a caravan in the same layby as charges 2 and 3; (charge 6) theft from a lock-fast caravan of a jacket and kettle at a different layby on the A85; and (charge 7) wilful fire raising by setting fire to a caravan (the same one as referred to in charge 6) in the same layby as charges 2, 3 and 6. The appellant was acquitted of charge 1 which was a charge of willful fire raising relating to property in Glasgow. The appellant was sentenced to 4 years imprisonment. The appellant appealed against both his conviction and sentence. The appeal against conviction related to the trial sheriff repelling a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in relation to charges 2-7 in which it was contended that there was insufficient identification evidence of the appellant being responsible. The sheriff repelled the submission on the basis that he considered the Howden principle (Howden v HMA 1994 SCCR 19) could apply in that there was a body of circumstantial evidence which implicated the appellant in respect of all of the charges. It was submitted on behalf of the appellant that the evidence did not provide a sufficient basis to conclude that the appellant was the perpetrator of charges 2-7. It was submitted on behalf of the appellant that for the Howden principle to apply there had to be a minimum of one charge which was independently proved by corroborated evidence and in the present case it was submitted there was no such corroborated charge. In addition, it was submitted that even if there had been corroborated evidence of identification in relation to one of the charges there was an absence of similar facts to provide a sufficient connection between the remaining charges. On behalf of the Crown it was submitted that both charges 5 and 7 were independently corroborated and it was open to the jury, on the circumstantial evidence in relation to each of the other charges, to be satisfied that the perpetrator of charges 5/7 had committed those other offences. Here the court refused the appeal. The court examined a number of pieces of circumstantial evidence in relation to charge 5 and considered that there was indeed a sufficiency of identification evidence in relation to charge 5. The court went on to state that in relation to the remaining charges, namely charges 2, 3, 4 and 7 the Howden principle could apply given that, in relation to charges 2, 3 and 7 these involved the setting fire to caravans in two laybys within a mile of each other. In relation to charge 6 there was sufficient evidence for a charge of reset of the stolen property at the stage of the ‘no case to answer’ submission under section 97 of the 1995 Act which was enough to enable the sheriff to repel the submission. In relation to the appeal against sentence it was submitted that the appellant had never previously received a sentence of imprisonment and had a history of mental health problems. It was submitted that the sentencing sheriff ought to have made inquiries into the possibility of the imposition of a community payback order with a mental health requirement. It was further submitted that in the event that a custodial sentence was the only appropriate sentence the length of it was excessive. Here the court refused the appeal against sentence and considered that the sentencing sheriff was entitled to hold that the only appropriate sentence in the circumstances was custody and that, having regard to the nature of the course of conduct in particular, the seriousness of charge 4 and the risk posed to the occupants of that building, it could not be said that the sentence imposed was excessive.