Reform in the air
Changes to sheriff and jury procedure, and the possible extension of the presumption against short custodial sentences, feature in this month's criminal law roundup in addition to recent cases of note
Sheriff and jury case management
Criminal Courts Practice Note No 3 of 2015, dealing with sheriff court solemn procedure, came into force on 1 December. It introduces High Court preliminary hearing-type procedures to the sheriff court.
Sheriff Principal Bowen’s 2010 review of sheriff and jury procedures recommended statutory changes such as those introduced in the High Court following Lord Bonomy’s report in 2004. Reform has been delayed due to the controversial proposal to abolish corroboration. Now that that has been deleted from the Criminal Justice Bill, it is hoped the Bowen provisions will become law next year, but they may not come into force for some time after that.
Meantime the practice note requires Crown and defence to meet ahead of the first diet and complete a joint written record, which should be made available to the court as soon as possible and ideally before the first diet calls. Where the accused pleads not guilty it envisages that such diets may take up to 20 minutes each. This may lead to changes in programming to ensure first diet courts are kept to around 20 cases.
In some courts, first diets will be dealt with by a sheriff drawn from a specialist group to ensure continuity and to enable the revised procedures to be given effect.
After the Bonomy provisions came into force, around a half of all High Court cases were disposed of before trials were fixed in the remaining cases. In recent years the Crown has made increasing use of the sheriff and jury court. It should be possible to deal with half of this caseload by s 76 indictments and pleas before the remaining cases are continued to the trial sitting.
In McDougall v HM Advocate  HCJAC 88 (16 September 2015), the appellant was accused of seriously assaulting an 86-year-old, profoundly deaf man with no speech and only basic sign language skills. A specialist interpreter trained in “minimal sign language” regularly assisted him. A recent stroke had added to his difficulties.
The interpreter had assisted the complainer when he provided a police statement. A compatibility minute was lodged objecting to the use of the same interpreter at trial. It was also maintained that it might be necessary to call the interpreter as a witness; indeed she appeared on the Crown list of witnesses. There were said to be five local interpreters, and 50 or 60 nationally, with the skills to assist the complainer but having no prior association with him. The regular interpreter suggested another trained person could assist the complainer if they had time to become acquainted with him.
The sheriff concluded there was no real risk of prejudice to the appellant if the regular interpreter was used, and it was in the interests of justice that the complainer’s evidence be properly interpreted. Were there to be issues about any prior and inconsistent statement to the police, the officers taking that statement would be in a better position to answer questions than the interpreter, who had not taken notes.
The appeal court held this was not a situation where the witness had such special needs that no other alternative could be deployed. In the present case there was a significant risk of prejudice to the appellant. No one suggested the interpreter would be deliberately biased, but using the test of the fair minded and informed observer there was a significant risk of unconscious partiality and the trial could not be a fair one. The interpreter’s presence on the list of witnesses was another factor which should have led to the minute being upheld.
Although the sheriff regarded the interpreter’s performance at trial as exemplary, the interpreting process is a matter of trust requiring another language being converted into English for the court. Since the Crown was not without fault, the court refused a motion for a fresh prosecution.
Care in the community and equality sometimes requires us to treat people differently to achieve a fair result. There might well be circumstances when only one person can interpret for a witness, but this case makes clear that the interpreter should be independent wherever possible from the circumstances of the case and a prior relationship with the witness.
Section 38 Latest
It seems no month goes by without the appeal court considering the virtually catch-all s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. In future the new Sheriff Appeal Court will have the main task of deciding whether a particular set of circumstances match the statutory criteria. Two recent cases have shown the versatility of the provision, though further statutory offences are promised which may overlap or duplicate this and other offences.
In McHugh v HM Advocate  HCJAC 86 (9 October 2015) and Preston v Procurator Fiscal Dundee  HCJAC 94 (28 October 2015), s 38(1) was the vehicle to prosecute the circulation of indecent images, and abusive statements on a chatline respectively.
The complainer in McHugh was visiting the appellant’s sister. The appellant arrived and asked if he could use the complainer’s mobile phone to access his Facebook account. It later transpired that the appellant had taken a screenshot of a close-up of the complainer’s vagina which she had stored on her mobile. This caused her considerable distress.
The sheriff required the appellant to register under the sexual offenders scheme. It was submitted on appeal that the offence did not have a significant sexual aspect; indeed the crime to which the appellant pled guilty involved threatening or abusive behaviour.
The appeal court concluded that the sheriff had determined the matter correctly on the facts disclosed. While sentencers had to “keep a sense of proportion and use their common sense”, motivation was an important factor. The appellant had obtained clandestine access to an intimate photograph and transmitted it to a third party. There was clearly a sexual aspect to the conduct which involved deliberate and voyeuristic elements.
In Preston the appellant had while using a chatline, sworn and made statements which, “in appallingly graphic terms”, promoted and encouraged rape and sexual abuse of children. The appellant sought to rely on the defence under s 38(2) that his behaviour was in the circumstances reasonable.
The chatline service, “Mantalk”, included adult content but was subject to a media industry regulator and guidelines which excluded any aspect of child abuse. The appellant left a message which was objected to by another user who reported it to the service operators who, having listened to a recording of the message, informed the police.
The appellant contended that his behaviour could be construed as reasonable as it occurred in private and was anonymous. This was rejected by the appeal court as the service was accessible to the public, service users were required to listen to and monitor the site and from time to time other callers could, due to technical problems, stumble on to the site. It was clear that the content of the messages would be alarming to a reasonable person. The appellant’s statements were not, as he thought, restricted to the caller that had chosen to talk to him. His comments were disgusting, abhorrent and shocking.
Presumption against custody
The Scottish Government’s consultation on proposals to strengthen the presumption against short periods of imprisonment ends on 16 December 2015. It addresses an important matter which those involved in the criminal justice system should consider and respond to.
Scotland does have one of the highest imprisonment rates in Europe. Following the McLeish review, s 204A of the Criminal Procedure (Scotland) Act 1995 was inserted by the Criminal Justice and Licensing (Scotland) Act 2010 to make a presumption against imposing a sentence of three months or less, unless there was no other method of dealing with the accused.
This provision has led to a drop in the imposition of short sentences, but perhaps not as great as was anticipated. There is power in the legislation to increase the period that the presumption operates up to 12 months’ imprisonment. Views are sought whether the period should remain as it is or be increased to six, nine or 12 months.
In fact the original provision did little to change the existing law that all other methods of sentence must be excluded before selecting imprisonment. The minimum period has increased over the years to 14 days. In most cases where petty persistent offending is involved, other sentences can be deployed. However in some instances where recidivists have alcohol or drug problems which they are not prepared to address, and/or the offender is homeless and likely to reoffend immediately if not imprisoned, a short prison sentence may be the only meaningful way to deal with a case.
There are suggestions that the presumption has led to longer sentences being imposed. The present limit does affect all justice of the peace court cases, where the maximum punishment is 60 days. However for many years prior to the presumption justices appreciated that imprisonment was a last resort and usually deployed where other sentences have been tried and failed.
The reality is that many petty offenders who may be imprisoned are prosecuted in the sheriff rather than the JP court. It might be worthwhile for policymakers to consider, ahead of the introduction of summary sheriffs next year, that they face a landscape where there is a presumption against imprisonment for 12 months or less, which would cover most of their jurisdiction.
Against that, however, can be seen the significant rise in petition and sheriff and jury proceedings, up from 5,000 sheriff court solemn cases in 2009 to 8,000 last year. This trend shows no signs of abating. The increase of the presumption to 12 months might see more of the serious sheriff summary cases prosecuted in the sheriff and jury court.
The recent Audit Scotland report into Efficiency of prosecuting criminal cases through the sheriff courts highlighted that the cost to the system of prosecuting sheriff and jury cases last year was about half the cost of prosecuting all the summary cases, of which there were about 10 times more.
While the opportunity provided by the consultation to discuss prison numbers is helpful, the implications of change could be significant, and wider than the consultation document comprehends. Future moves in this context will need to be guided also by the output of the Scottish Sentencing Council, which has just begun its work. Other community sentencing alternatives and procedures need to be devised to tackle the most deprived and difficult offenders, who often see imprisonment as their best option due to homelessness and a chaotic lifestyle which make regular attendance on a community order problematic.
Frank Crowe, sheriff at Edinburgh