Communicated on 22 March 2016
FIRST SECTION
Application no. 14541/15
Charles Bernard O’NEILL against the United Kingdom
lodged on 13 March 2015
STATEMENT OF FACTS
1. The applicant, Mr Charles Bernard O’Neill, is a British national, who was born in 1962. He is currently detained at HMP Saughton. He is represented before the Court by Mr J.S. Rhodes a lawyer practising in Glasgow with McClure Collins Solicitors.
A. The circumstances of the case
1. Introduction
2. On 12 May 2010, the applicant and a co-defendant, William Lauchlan, were convicted after trial of various sexual offences. The applicant complains that the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, was not respected in relation to one charge of which he was acquitted, charge 8 on the indictment. He alleges that presumption of innocence was infringed in two ways:
(i) by the trial judge allowing the evidence initially led in support of charge 8 to be used as corroborative evidence for the other charges he faced; and
(ii) by the Appeal Court observing that his acquittal on charge 8 was “an error”.
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. Indictment and trial
(a) The indictment
4. In September 2008 the applicant and Mr Lauchlan were indicted in respect of a number of crimes, covering some 18 charges (counts) on the indictment. These included murder and related offences, and a series of sexual offences. Two separate trials took place. The first trial covered the series of sexual offences; the second, the murder and related offences. It is first trial, that of the series of sexual offences, which is the subject of the present application.
5. The sexual offences included the following (following the approach taken by the domestic courts, the numbering used throughout this summary refers to the original numbering in the indictment):
- charge 5 (against the applicant only): sodomy of a fourteen year old, IY;
- charge 7 (against the applicant and Mr Lauchlan): sexual assault of another fourteen year old, DW;
- charge 8 (against the applicant and Mr Lauchlan): indecent assault and sodomy of a seventeen year old, JG, at addresses in Polmont, Scotland, and Blackpool, England; and
- charge 10 (against the applicant and Mr Lauchlan): meeting a person under 16, with the intention of engaging in unlawful sexual activity involving or in the presence of a child. The child was SA, a six year old.
(b) Acquittal on charge 8
6. Evidence was led in respect of all four charges. However, when JG gave evidence in respect of charge 8 he did not give any evidence of any conduct which had taken place in Scotland, only conduct in Blackpool, England. Consequently, at the conclusion of the prosecution case, the defence submitted that there was no case to answer on charge 8 as there was no evidence of a crime having been committed in Scotland. The prosecution conceded that this was the case and, pursuant to section 97 of the Criminal Procedure (Scotland) Act 1995 (see paragraph 23 below) the trial judge acquitted the applicant and Mr Lauchlan of charge 8.
7. Notwithstanding the acquittal on charge 8, the trial judge allowed the prosecution to rely on the evidence it had led in respect of charge 8 as corroboration for charges 5 and 7. (It is a rule of Scot criminal law that, before someone can be convicted of an offence, there must be at least two sources of evidence to prove every element of the charge which is essential to the definition of the crime. This is known as corroboration: see paragraphs 24–27 below.)
(c) The judge’s charge to the jury
8. In the course of his charge (summing up) to the jury, the trial judge gave the jury the following directions.
9. On presumption of innocence, the judge directed the jury as follows:
“The first general direction I wish to give, ladies and gentlemen is to make it clear that an accused person is presumed to be innocent of any charge against him. This presumption of innocence which any accused enjoys is one that exists throughout the case unless and until the accused is proved to be guilty. In a criminal court in Scotland no one is required to prove that he is innocent and I’m sure none of us would wish the position to be any different.”
10. Then, having taken the jury through the indictment, the trial judge emphasised that they were only required to consider verdicts in charges 5, 7 and 10.
11. In respect of corroboration, he directed them:
“... in Scotland no one can be convicted of a criminal offence upon the unsupported evidence of a single witness no matter how credible and reliable that single witness may be.
Scots law insists that there must be corroboration, that is to say separate evidence from some other independent credible and reliable source which confirms or supports the principal source of evidence. The separate sources of evidence may be of a different character to each other.”
12. He later expanded on that direction, stating:
“Now ladies and gentlemen you’ll recall that, at an earlier stage, I gave you general directions about the need for corroboration, that is, the essential requirement that there should, there must be, two separate sources of evidence in regard to what I have more than once referred to as the essential facts in the case: (a) whether the crimes charged were committed: and (b) if they were, whether the accused was the perpetrator.
Sometimes, as counsel explained, and for various reasons, there is little or no eyewitness evidence and this can happen, as you can readily understand, especially in the case of sexual offences. In such cases a special rule can apply. This is the rule of mutual corroboration and it is necessary in the circumstances of this case that I should explain it to you.
It is, as was mentioned in the speeches, also known by this rather mysterious name of the Moorov doctrine after the case in which it was first developed by the court.”
(For an explanation of the Moorov doctrine, see paragraph 25 below.)
13. Having again made clear to the jury that they were only required to return verdicts on charges 5, 7 and 10, the trial judge then directed the jury that, by using the rule of mutual corroboration, they could consider the evidence initially led in support of charge 8 when considering their verdicts on charges 5 and 7. However, they could not apply the rule to charge 10 as it was not sufficiently similar. The direction was as follows:
“Now you will have noted straight away ladies and gentlemen that I’ve referred here to charge 8 and you will of course recall that the accused have been acquitted of that charge but this does not mean that the evidence which you heard in relation to charge 8 cannot be considered by you to the extent that it may be relevant to proof of charges which remain live. So the Crown is entitled to rely upon the evidence given by [JG] for the purpose of the rule of mutual corroboration which I have explained to you.
From what I have just explained ladies and gentlemen it will be evident to you that the rule of mutual corroboration does not apply, and I so direct you, in respect of charge 10.
This is because charge 10 is not, I consider, sufficiently similar to charges 5, 7 and 8. So you cannot rely upon the evidence of any of the alleged victims of charge 5, 7 or 8 as sources of mutual corroboration in regard to charge 10, nor can you use the evidence of any of the alleged victims of charges 5, 7 or 8 as support for any of the witnesses who spoke to charge 10. That last charge, number 10, stands on its own in the sense that the rule of mutual corroboration does not apply to it for the purposes of the present case and I trust that’s clear.
Now, if you believe any two complainers from charges 5, 7 or 8, and you will remember that, in the case of the first accused [Mr Lauchlan], there are only two relevant complainers for present purposes, namely [DW] and [JG]. You then have to decide if, by reason of the character, circumstance and time of each alleged offence, the crimes are so closely linked that you can infer that the accused was pursuing a single course of criminal conduct. It is not enough if all that is shown is that the accused had a general disposition to commit this kind of offence, and I wish to stress to you ladies and gentlemen that you must apply this rule of mutual corroboration, the so‑called Moorov doctrine with caution.
[...]
So far as the second accused [the applicant] is concerned the position is as follows: you would be entitled to use the evidence of [JG] to corroborate the evidence of [IY] and the evidence of [DW], and you would be entitled to use the evidence of [IY] and [DW] as mutually corroborative.
[...]
Now I direct you ladies and gentlemen that, in this case, there is enough evidence in law that the crimes alleged in each of the charges 5, 7 and 8 are sufficiently closed in time, character and circumstance for the rule to apply but it is for you to decide if the evidence of the respective complainers is reliable and credible, secondly if, the necessary link in time character and circumstances has been established and thirdly, if this special rule should be applied.”
14. Finally, in respect of charge 10, the trial judge emphasised that the rule on mutual corroboration did not apply at all to that charge and, accordingly, that charge must be considered on its own without regard to the evidence led in support of charges 5, 7 and 8.
(d) The jury’s verdict
15. The jury convicted applicant of charge 5, and both him and Mr Lauchlan of charges 7 and 10.
3. Appeal
16. Both men appealed against their convictions. The applicant’s grounds of appeal included the submission that it was a breach of Article 6 § 2 for the prosecution to have been allowed to rely on the evidence originally led in respect of charge 8 as corroboration for charges 5 and 7.
17. The Appeal Court dismissed the appeal on 19 June 2014. In considering whether the evidence on charge 8 could be used as corroboration for the other charges, it found a court could not acquit a person of a charge over which it has no jurisdiction. If an accused person maintains that a court has no jurisdiction to try a charge, he should render a plea to that effect. This had not been done. In any case, the correct remedy would have been to “desert the diet pro loco et tempore” as regards that charge (that is, stop the charge being determined during that particular trial). This would allow the charge to be considered by the correct jurisdiction. It was not correct for the court to rule on the merits of a charge over which it had accepted it has no jurisdiction. Thus, section 97 of the 1995 Act (on the basis of which the trial court had acted in order to acquit the applicant) was not a vehicle within which to raise a “no jurisdiction” point (for an explanation of section 97, see paragraph 23 below). It was purely concerned about whether there was sufficient evidence to support a charge, and not the competency of that charge. The acquittal on charge 8 was thus an error.
18. Nevertheless, the Appeal Court found that the evidence of indecent assault and sodomy in England remained available to provide corroboration for the other charges in the indictment.
19. The Appeal Court’s observations on this point had no effect on the acquittal on charge 8, which still stood.
20. In respect of Article 6 § 2, the Appeal Court found:
“[35] There is no breach of Article 6(2) by reason of the evidence on charge 8 being advanced by the Crown in the one single criminal process as proof of charge 7. ... [A]t the point of seeking a conviction on charge 7, all that the Crown were asserting was that the appellants had committed what the appellants had had notice of in charge 8, albeit that, by the time the Crown addressed the jury, a conviction could not follow upon that charge for technical reasons. The Crown contention had been consistent throughout the proceedings and no party could reasonably have thought that the section 97 acquittal ... could have had the effect of barring the Crown from relying on the evidence on charge 8 as mutual corroboration of a charge awaiting judicial determination.
[36] As the European Court said in Sekanina v. Austria (1993) 17 EHRR 221 (at paras 28 and 30), there is a distinction to be drawn between cases where there has been a decision on the merits of an allegation and one where there has not. In the former, it is not open to the state to assert the guilt of a person whose innocence has been established. That is not what, in reality, occurred in this case. The appellants were not acquitted of the Blackpool element in charge 8 as a result of a decision on its merits but because the court considered that it had no jurisdiction to try the matter. The situation (Sekanina v. Austria (supra); Asan Rushiti v. Austria (2011) 33 EHRR 56; Lamanna v. Austria, 10 July 2001 (no 28923195); Allenet de Ribermont v.. France (1995) 20 EHRR 557; Geerings v. Netherlands (2008) 46 EHRR 49) where there is an assertion of guilt in a separate process in circumstances in which that guilt has not been properly established, or has even been rejected, in a criminal court is not in any event analogous. This separate argument advanced by Mr O’Neill must be rejected.”
21. The applicant sought leave from the Appeal Court to appeal to the Supreme Court of the United Kingdom, submitting, inter alia, that the Appeal Court had erred in its interpretation of Sekanina v. Austria, 25 August 1993, Series A no. 266‑A. The Appeal Court refused leave to appeal on 21 August 2014. It found that no issue arose as to the compatibility of its earlier judgment with the Convention and, in any case, that the matter was not one of general public importance. It observed:
“On the central point about the interpretation of Sekanina v. Austria, the court is unaware of any European Convention jurisprudence to the effect that an acquittal of a charge by a court, which was not competent to do so, is in some way binding and that it precludes the use of evidence of that charge being used by a court for the purposes of determining a charge which is competently before it. Questions of the jurisdiction to try a criminal charge and the use of evidence of crimes allegedly committed in other jurisdictions, are matters for the domestic law and do not engage the Convention.”
22. On 25 September 2014 and again on 6 October 2014, the Scottish Legal Aid Board refused the applicant legal aid for the purpose of seeking special leave to appeal directly from the Supreme Court.
B. Relevant domestic law and practice
1. A submission of no case to answer
23. By section 97(1) of the Criminal Procedure (Scotland) Act 1995, immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both: (a) on an offence charged in the indictment; and (b) on any other offence of which he could be convicted under the indictment. Subsections 97(2)-(4) provide:
“(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment.
(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.
(4) A submission under subsection (1) above shall be heard by the judge in the absence of the jury.”
2. Corroboration
24. Before someone can be convicted of an offence Scots law requires corroboration: that is, there must be at least two sources of evidence to prove every element of the charge which is essential to the definition of the crime. Thus, no accused person can be convicted on the evidence of one witness alone, however credible. The two sources of evidence required need not be of equal weight, and corroboration can take the form of direct or circumstantial evidence.
25. Scots law also recognises the doctrine of mutual corroboration. This means that the credible but uncorroborated evidence of a single witness to an offence may corroborate, and be corroborated by, the credible but uncorroborated evidence of a single witness to another offence. Under the doctrine the evidence of the two witnesses can become mutually corroborative. For instance, in the leading case on mutual corroboration, Moorov v. HM Advocate [1930] JC 68, the accused was a shopkeeper who was convicted a number of assaults or indecent assaults on a series of female shop assistants. His appeal against conviction centred on those charges where the only direct evidence against him was that of the shop assistant in question. The Appeal Court found that the shop assistants’ evidence could provide mutual corroboration for each other. However, the Appeal Court made clear that the rule only applies when the similar charges are sufficiently connected with, or related to, each other. The alleged crimes must be sufficiently connected in time, character and circumstance. Thus, in Moorov itself, the sufficient connection could be found, inter alia, in the sexual nature of the assaults, that they were all committed on employees, that they were all committed on Moorov’s premises and that the modus operandi in each case was the same or similar.
26. The evidence that may be introduced by the prosecution to prove a crime charged in an indictment can include evidence which, in itself, could constitute a separate crime (Griffen v. HM Advocate [1940] JC 1). This remains the case even if the prosecution would be unable to seek a conviction in respect of that separate crime or decide to withdraw the charge relating to that separating crime (McIntosh v. HM Advocate [1986] SCCR 496; and Danskin v. HM Advocate [2002] SLT 889). The evidence remains available to prove the remaining charges even if there has been an acquittal (Mair v. HM Advocate [2013] HCJAC 89). Thus, evidence on which an accused has been acquitted remains available for corroboration on other charges he faces (see, for instance, Cannell v. HM Advocate [2009] SCCR 207).
27. Evidence of a crime committed outwith Scotland is also capable of corroborating a crime committed in Scotland (see, for instance, HM Advocate v. Joseph [1929] JC 55).
COMPLAINTS
28. Relying on Article 6 § 2 of the Convention, the applicant complains that the presumption of innocence was not respected in his case. This, he submits, occurred in two ways.
29. First, despite his acquittal on charge 8, the prosecution was allowed to continue to rely on the criminal conduct alleged in that charge for the purposes of providing the necessary corroboration for charges 5 and 7 on the indictment. The trial judge allowed the prosecution to do so, and indeed instructed the jury that the evidence on charge 8 was available to them to consider as corroboration for the remaining charges. Voicing any suspicions of guilt is incompatible with the presumption of innocence (see, inter alia, Sekanina v. Austria, 25 August 1993, Series A no. 266‑A) and allowing evidence to remain before a jury when there has been a finding of not guilty amounted to the voicing of a suspicion of guilt.
30. Second, the Appeal Court further violated Article 6 § 2 by unilaterally declaring that the decision to acquit the applicant on charge 8 was erroneous. There was no appeal against that acquittal before the Appeal Court. The applicant had been formally and finally acquitted. The statement that the applicant’s acquittal was erroneous, in circumstances where that acquittal was final, was of itself tantamount to voicing suspicion of guilt.
QUESTION TO THE PARTIES
Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case given the decision of the trial judge to allow jury to use the evidence led in respect of charge 8 as corroboration for charges 5 and 7 on the indictment?
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