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Technical but important

18 June 18

Latest criminal cases, including breach of community order; identification; alcohol tests; sentencing for historical sexual abuse; plus comments on the new law on statements, and on appeal statistics

by Frank Crowe

Are people still appealing?

I was dismayed at the small selection of cases on offer for this month’s column. Sometimes I have about 20 to choose from, and many are left on the cutting room floor for reasons of space determined by the Editor. I have rescued a few of these from last time since only five High Court and one Sheriff Appeal Court opinions have been issued since then.

Not all opinions are worthy of wider dissemination, and the courts recognise this by not publishing all the judgments issued. Of those which made the cut, GB v HM Advocate [2018] HCJAC 24 (9 March 2018), an unsuccessful appeal against the sheriff’s decision to extend the 12-month time bar in a case involving an alleged assault with intent to rape, referring to the well-known cases of Swift 1984 JC 83 and Early 2006 SCCR 583, cuts no new ground, the court noting that the sheriff had considered all the relevant circumstances and concluded that sufficient reason had been shown to justify an extension.

The most recently published figures show that in 2013-14, 763 solemn appeals were lodged compared to 673 in 2015-16, and summary appeals fell over the same period from 1,022 to 860. It is understood that about two-thirds of appeal cases are sifted out, so only a select few are heard in full by the court and reported for posterity. It is not clear what to make of these figures, but more scrutiny would seem worthwhile.

Breach of community order

Russell v Procurator Fiscal, Falkirk [2018] SAC (Crim) 7 (28 February 2018) raised a point said to be “commonly misunderstood by sheriffs and perhaps also by agents”.

The appellant had pled guilty to assault on his wife, aggravated by being on bail. A community payback order was imposed by the sheriff as an alternative to custody. Five months later the appellant admitted breaching the order, which the sheriff then revoked and sentenced him to five months and 15 days’ imprisonment. The sheriff reported that he would have imposed six months’ imprisonment reduced to four and a half months for the guilty plea but added a consecutive month for the CPO breach.

The court stated that in breach cases it was important to note whether the CPO had been imposed as a direct alternative to imprisonment or a fine, as the sentencing procedure set down in the Criminal Procedure (Scotland) Act 1995 differed. In the present case s 227ZC(7)(b) gave no power to punish separately for the breach of the order when imprisoning; accordingly the sentence was reduced to four and a half months.

Corroborating driver identification

Coltman v Procurator Fiscal, Dunoon [2018] SAC (Crim) 6 (27 February 2018) deals with an important corner in road traffic cases where the suspect is obliged to reply to a requirement under s 172 of the Road Traffic Act 1988 by a police officer investigating a relevant offence asking if that person was the driver of a particular vehicle at the relevant time. Such a requirement had been answered in the affirmative in this case about two hours after alleged dangerous driving. The sheriff at trial found as fact that the Police National Computer had revealed the registered keeper to be the appellant’s wife. The defence had lodged a DVLA V5 registration form to the same effect. At appeal the Crown conceded that the evidence about the PNC was inadmissible hearsay. Counsel for the appellant submitted that the evidence of the V5 form was similarly insufficient to corroborate the appellant’s admission.

The court took the view that very little was required to corroborate the admission, as the appellant had been found in a hotel, close to his car which was parked outside, a relatively short distance from the incident which had occurred about an hour and 45 minutes beforehand. The court founded on Elphinstone v Richardson 2013 JC 29 and Fox v HM Advocate 1998 JC 98, that circumstantial evidence need only confirm or support direct evidence and need not be more consistent with it than with a competing factual account. The court also held, under reference to Sinclair v Clark 1962 SLT 307, that the criterion “at the time the offence was committed” for a warning under s 1(1)(a) of the Road Traffic Offenders Act 1988, was met by the chain of circumstances from the incident, police involvement and detection of the appellant close to the vehicle involved. I must say that if the Crown had lodged the V5 form and cited the appellant’s wife, a lot less bother would have ensued. 

Search and samples

The case of Perreault and Syed v HM Advocate [2018] HCJAC 25 (4 April 2018) made headlines at the time of the arrests in July 2016 when the appellants, who were transatlantic aircraft pilots, failed breath tests at Glasgow Airport shortly prior to the aircraft taking off. Both pilots had blood samples taken and each was given a sample, which was put within their property. When they appeared on petition as custodies the next day they were remanded for seven days before being released on bail at full committal.

At no stage did either appellant properly receive their sample. Objection was taken prior to trial as a preliminary issue that it would be unfair to use the evidence obtained from the Crown blood samples since the defence samples had been destroyed by a nurse in the prison following an instruction from the security manager. The sheriff had ruled evidence from the blood samples admissible, but this was overturned by the Appeal Court as it was clear that neither appellant had been handed their sample as was required under the relevant legislation – see Perry v McGowan [1986] RTR 240. While the Crown was concerned the case might encourage technical points about compliance, the Appeal Court was clear that lessons had to be learned by the Crown, Police Scotland and Scottish Prison Service to ensure that in similar circumstances the provision of a sample was done in such a way that an accused’s rights were protected.

Sentencing: historical sexual abuse

Cases of this type form an increasing part of the solemn courts’ workload, particularly in the High Court where, it is said, as many as 75% of trials involve allegations of this type.

In HM v HM Advocate [2018] HCJAC 26 (17 April 2018) the appellant had been convicted after trial of lewd, indecent and libidinous practices and behaviour towards his younger sister between 1971 and 1975 when she was aged between four and eight, rape of the same sister on one occasion during this period and rape of a younger cousin on various occasions between 1973 and 1976 when the child was aged between three and six.

The trial judge imposed a cumulo penalty of nine years’ imprisonment, indicating he would have imposed four years on the first charge and six years on each of the other two. These sentences would have been ordered to run consecutively, making a total of 16 years, which he considered excessive. While the Appeal Court did not fault that reasoning, it noted the appellant was a first offender with a supportive wife and children and the offences occurred when he was aged between 13 and 17; he was now 59. The judge appeared to have overlooked the approach to be taken in such cases when sentencing an adult for offences committed as a child: see L v HM Advocate 2003 SCCR 120 and Greig v HM Advocate 2013 JC 115. Social workers had assessed the appellant to be of low risk and the court considered the judge had not taken into account the intervening 40 years of good behaviour and pro-social life. In Greig’s case a sentence of eight years had been reduced to five, but he had offended when aged 14 and 15 compared to the longer period in the present case. The court quashed the sentence of nine years and substituted a cumulo sentence of six years’ imprisonment.

A long time coming

The gestation of the Criminal Justice (Scotland) Act 2016 was long and tortuous from its introduction as a bill in June 2013 to receiving Royal Assent, minus the controversial abolition of corroboration clause, in January 2016. Since then the provisions have been introduced slowly and in piecemeal fashion, most recently in a tranche from 25 January 2018. Because of their nature, changes in evidence and procedure have often been brought into effect for new cases coming to court after a particular commencement date, so in many solemn cases the court will still be working through “old stock” and some important changes may not feature as live issues at trial for some time yet.

It is pleasing to see that Sheriff Principal Bowen’s sheriff and jury reforms are working well, albeit some eight years after his report was published. The additional time afforded has ensured that parties are better informed prior to the first diet with improved disclosure leading to clearer defence statements, an increase in guilty pleas and issues focused in cases going forward. It is pleasing also to see custody diets fixed within the 140-day period or bail being agreed where delays have occurred. In Edinburgh we still have one or two “old stock” cases circulating, one of which had its first diet in April 2015 and shows few signs of being trial ready!

As yet little has emerged from the changes in detention procedures, although there must be concern due to an ongoing dispute between defence lawyers and SLAB that accused persons may not have sufficient advice to consider their situation. While s 34 of the Act allows police to put questions to “a person in custody in relation to an offence... [or] any other matter”, the suspect need only give his name, address, date and place of birth and nationality, and its juxtaposition with s 109, inserting the soon to be memorable s 261ZA of the 1995 Act, raises a number of potential issues.

This section starts off boldly with a double negative which can only have been inserted to confuse the casual reader; the effect of the section, however, is that anything which an accused says in the course of a police or similar official interview is admissible at trial. This change, at a stroke, ends the conundrum of whether what was said was incriminating, exculpatory or a “mixed” statement, and renders obsolete Morrison v HM Advocate 1991 SLT 57 and McCutcheon v HM Advocate 2002 SLT 27. Classically, as we know, the caution indicated that anything the suspect said “may be used in evidence against” him. An accused at trial could not rely on denials made to police and might require to give evidence to assert that position. A mixed statement such as “I hit her in self-defence” could be used as an admission that the accused was at the locus and involved in the incident, affording corroboration, albeit that a defence had been asserted.

Section 261ZA creates a new dilemma: whether the suspect gives a “no comment” interview or denies the offence, and whether any detail in that vein should be given; the latter may obviate the need to give evidence at trial.

Psychologically the investigating officer wishes the suspect to engage and say something, although saying too much has been the downfall of many an accused. On the other hand, a defence expressed early and consistently maintained may give rise to a reasonable doubt at trial. It will be interesting what transpires once these cases come to trial.

Frank Crowe, sheriff at Edinburgh

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