Perfect storm less than appealing
Fuller version of a review of an unusual case where a sentence appealed by the accused was increased by the appeal court
This month has seen reported what is now a rare occurrence at the High Court of Justiciary, in the appeal case Murray v HM Advocate  HCJAC 3.
In this case Mr Murray had tendered a plea of guilty to three charges of sexually abusing, and in one case raping, dementia patients in the care home where he worked. He had tendered the guilty plea two months after his first appearance at court on the charges, and after extensive discussion with his legal advisers, and by them with the Crown. He had admitted his crimes when interviewed by the police at the time of his arrest.
He was sentenced by Lord Turnbull to nine years’ imprisonment, with a discount of two years in respect of his early plea of guilty.
The sentence was challenged on the basis that, as a result of his early plea of guilty, Mr Murray ought to have received a discount of one third on his sentence (the nine years not being challenged). Therefore the best he was looking for was a sentence of six years, rather than the seven to which he had been sentenced.
For better, for worse
Until the passing of the Criminal Procedure (Scotland) Act 1995, the High Court had only limited powers to dispose of criminal appeals without a full hearing. There was a power allowing the court to dispose of “frivolous” appeals without a hearing, but it was not uncommon for the appeal rolls to be filled with appeals with no merit, nor any prospect of success. This caused a waste of court time, a waste of time for the judges and for the prosecution. Many of these appeals were seen as unsupportable by counsel, so the appellant would end up appearing on their own behalf. This had the effect in many, though not all, such appeals of having the appellant address the court at length on matters which were legally irrelevant but which, in some way, the appellant thought affected their guilty verdict or the sentence passed upon them.
However, it was not the legal equivalent of a “free bet”. The High Court had the power, in dealing with an appeal, to increase the sentence imposed on the appellant where the original sentence was deemed to be inadequate. This applied even where the appeal was against conviction alone.
Whilst it was not the case that the court would increase a sentence as a punishment for a “frivolous” appeal, there were cases where defence agents thought that had happened, but it was always a factor in the minds of solicitors and counsel when advising their clients – sentences could go up as well as down.
This was before the Crown could appeal against what it perceived to be “unduly lenient” sentences. The court decided this issue of its own volition, and not at the prompting of the Crown.
Effect of the sift
Finally enough was enough. In the 1995 Act the “sift” procedure was introduced. Now where an appeal is lodged against conviction or sentence in a Scottish criminal case, it is considered by a single judge in chambers, without appearance by Crown or defence. The judge considers the papers submitted with the appeal and decides whether the case “passes the sift”. If the papers disclose “arguable grounds of appeal” then leave is granted and the case proceeds, in due course, to a full hearing.
Where leave to appeal is refused by the single judge, the appellant can seek leave from a panel of two judges who can grant or refuse leave. Again this takes place based on written submissions only.
If leave is also refused at the “second sift”, that is the appeal at an end, unless further grounds of appeal arise later, or the matter is referred to the High Court by the Scottish Criminal Cases Review Commission.
The reader will see however that one side effect of the need for an appeal to be arguable is that “no hopers” normally do not make it to the court, and therefore there is no longer any real possibility of a sentence being increased, unless the Crown has appealed (as it now has power to do). I remember discussing with colleagues when the sift system came in whether any appeals would be allowed through the sift so that the High Court could take the opportunity to increase a lenient sentence, but those more experienced in the workings of the High Court assured me that such motives would always be absent from the minds of the sifting judges.
The appeal defined
And so we come to Mr Murray’s case.
Whereas increased sentences were commonplace until 1996, when the 1995 Act came into force, the numbers have diminished drastically since then. I suspect that there have maybe been a handful of such instances since the sift process came in.
However, criminal practice solicitors and counsel will unfailingly tell their clients that, in the event of their appeal reaching the High Court, it is possible that the sentence could be increased, even where not challenged by the Crown. There is still no such thing as a “free bet”.
The note of appeal for Mr Murray stated: “It is accepted from the outset that the starting point of nine years’ imprisonment is not excessive and no issue is taken with this.
“It is, however, submitted that, absent any factors which would suggest a restriction in such discretion, a discount in the region of one third, as opposed to one quarter, would have been appropriate in circumstances where the appellant pled guilty by way of s 76 procedure.” (Section 76 of the 1995 Act governs an accelerated plea of guilty in a solemn case.)
However Mr Murray’s appeal ended up encountering a “perfect storm” which led to the rare occurrence referred to in the first line of this post.
The appeal court consisted of Lord Justice General Gill, Lord Justice Clerk Carloway and Lady Paton. Lord Gill, in delivering his opinion, with which his fellow judges concurred, noted as follows in relation to the principles of discounts after guilty pleas:
“In Gemmell v HM Advocate 2012 SLT 484 the whole question of discounts for early pleas was reviewed by five judges. I expressed the view that the determination of the starting point and the appropriate discount were separate processes governed by different considerations. I considered that the circumstances of the offence and the offender determined the headline sentence; but that such matters were not relevant to the amount of the discount. The amount of the discount was governed solely by the utilitarian benefits that resulted from an early plea.
“I also expressed my concern that Spence v HM Advocate 2008 JC 174 might have created a climate of expectation amongst practitioners. I repeated that the accused is not entitled to any particular discount in return for a plea of guilty. I considered that the court’s discretion was not wholly unfettered. It should be exercised in accordance with broad general principles. In any given case, the discount would be the greater the earlier the plea was tendered. I thought that, since there would always be some benefit in an early plea, if only in the administrative benefits that resulted from it, an accused should be given at least a token discount. The level of benefit that an early plea brought would depend on the circumstances of the given case. For example, the fact that complainers and other witnesses were spared the ordeal of a trial was, in general, a relevant consideration; but it was not relevant where the potential witnesses were police officers or experts for whom the giving of evidence would have been at most an inconvenience. I also expressed the view that in order to maintain public confidence in the justice system and the credibility of sentences that the court imposed, the court’s discretion should be exercised sparingly and only for convincing reasons. These propositions were, I think, assented to by my colleagues in the case.”
Counsel who had framed the appeal and written submissions had suggested that the appeal should succeed because (a) the judge had given insufficient weight to the length of trial which had been avoided by the plea; (b) that he had, in effect, reduced the discount so that the resultant sentence would not be too low, this amounting to adjusting the discount because of the circumstances of the offence and the offender; and (c) an early plea such as this should, as a matter of course and in the absence of special circumstances, result in a one-third discount.
Lord Gill rejected all of these. The first ground was seen as misconceived, on the basis that the need for a shorter trial should not result in a shorter discount. He pointed out that in summary cases discounts of one third were allowed, even where the trial might last less than one hour.
On the second point he noted that this was not a plea tendered “at the earliest opportunity”, and therefore the criticism of the judge was unfounded.
Thirdly, he made it clear that there was no such thing as a mandatory one third discount, each sentence having to be considered on its own individual circumstances.
The perfect storm
That might have been enough to dispose of the matter. However, the “perfect storm” combined to allow Lord Gill to offer further general guidance, before arriving at his conclusion.
He stated: “[This appeal] was presented in the face of the principle recognised by this court that it is only in exceptional cases that the court will interfere with a discretionary decision on discounting for which the sentencer has given cogent reasons.”
He then proceeded to determine the matter, to which I will return, but he also offered comment on the appeal hearing itself, saying: “On any view, this was an important appeal against a sentence imposed on grave charges. Leave to appeal was granted at the second sift. The application was supported by an opinion of [counsel 1]. The burden of it is set out in the written submissions that I have summarised. We were told that [counsel 1] had withdrawn from this appeal some six days earlier. At the hearing, the appellant was represented by [counsel 2]. He had been instructed only on the previous afternoon. It was soon apparent to us that he had not been properly briefed. He had been given none of the information specifically asked for by [counsel 1] and had not been given all the relevant documents. We had to adjourn the appeal for some time to enable him to read the social enquiry and psychological reports and other papers, and to enable those instructing him to obtain details of the preparation of the defence in the period between the petition stage and the tendering of the plea.
“I have some sympathy with [counsel 2] in his predicament. It is unfortunate that he was instructed so late and that he was not given proper instructions. Something has gone seriously wrong. I express no criticism of any individual; but I remind practitioners of the comments of Lord Penrose in similar circumstances in Smith (CC) v HM Advocate 2004 SCCR 521, at para : ‘the appeal court is entitled to expect that those instructed to argue an appeal against sentence will be fully briefed as to what happened during any trial, the agreed factual basis on which any plea of guilty has been tendered, what happened during the hearings before the trial judge, and the appellant’s instructions on issues relevant to mitigation which are liable to be raised during the hearing of the appeal’.”
Before I turn to the outcome, I should also note Lord Carloway’s comments: “I… have only one additional observation. It is that, when the court is considering an appeal by a convicted person against sentence, it is looking to see whether a miscarriage of justice has occurred by reason of that sentence being excessive, inappropriate or unduly lenient, as the case may be. This exercise does not involve simply correcting any flawed part of the sentencing exercise carried out by the court of first instance and adjusting the sentence imposed according only to that correction. The court requires to look at the entire process in order to decide whether the sentence ultimately imposed is sustainable. Where an appeal is directed specifically towards the discount afforded or the headline punishment selected, the question of whether the net penalty was warranted is likely to involve an examination of both elements.”
So practitioners are reminded that in appeals against sentence it is only whether there has been a “miscarriage of justice” which is relevant. Seen from outside, and without being party to the opinion of counsel and of the detailed case papers, it might seem hard to see that the difference between a six year sentence and a seven year sentence would amount to a “miscarriage of justice”.
But the disposal by the court, as narrated by Lord Gill, was the sting in the tail. He said: “I conclude therefore that this appeal should be refused. That leaves the question of the headline sentence fixed by the sentencing judge. In my opinion, the figure of nine years is unduly lenient. The crimes to which the appellant pled guilty were vile. They involved a grievous abuse of trust. The appellant committed these offences against helpless women whom it was his duty to treat caringly and respectfully. His conduct is aggravated by the fact that, on his own admission, he chose his victims because they were incapable of any meaningful communication with others. The consequences of these crimes on others should not be underestimated. It is little wonder that the appellant's conduct put at least three of his colleagues into a state of shock. The effect upon the immediate families of the complainers has been severe.
“In my view, the headline sentence in this case should be 12 years. Some discount is however appropriate for the fact that the accused pled by s 76 letter. In the circumstances, I consider that the appropriate discount would be a period of two and a half years.”
So, after all that, the seven year sentence against which Mr Murray had appealed, ended up as a sentence of nine years and six months.
Lest we forget
When the press frequently decry the courts for failing to see justice done for victims of crime, it is heartening to see such a clear and unequivocal statement coming from the senior judge in Scotland.
It should also act as a salutary reminder to practitioners and appellants that sentences can go up on appeal, even where the Crown has not challenged them. Bearing in mind that roughly two-thirds of the practising Scottish bar have become advocates since the 1995 Act came into force, it is likely that very few indeed of them have seen the High Court increase a sentence when the case comes before them only with an application by the appellant to reduce it.
I suspect we might have to wait some time before we see a similar event in future.
Paul McConville works as an adviser with Clarity Law (Scotland) Ltd
This is an abridged version of a blog by the author, posted at scotslawthoughts.wordpress.com