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Short sentences to PASS away?

19 August 19

Latest criminal cases, including absolute discharge; racial offences; football-related offences; notes of appeal; omnibus charges; plus comment on the raised presumption against short prison sentences

by Frank Crowe

Short prison sentences

The increase in the presumption against short prison sentences has come to PASS! This is a topic I have touched on from time to time, and while much trumpeted by the Scottish Government I thought it would never actually happen, though as visitors to my court may have gathered it is a practice I have tried to follow for the last few years.

The roots are back in the excellent McLeish Report of the Scottish Prisons Commission, published in 2008. The Commission was enthused about the way the Finnish Government reduced prison numbers and produced more positive outcomes from community sentencing than from imposing short sentences. It took a number of years for Scottish politicians to catch up with the rest of Europe. Having the most prisoners per 100,000 citizens wins no prizes, and in Scotland’s case lying third in Europe after Russia and Poland, and ahead of England & Wales, represents a substantial on-cost. Money spent locking up petty persistent offenders at £600+ per week might be better spent tackling underlying problems with drink/drugs/mental health, and in more recent times homelessness. Having stable accommodation with friends and relatives in the community is likely to prevent offending, and community payback orders can work towards assisting the homeless and those with other problems which impact on offending to a better place.

Presumption against short sentences (PASS) legislation was introduced in 2011 as part of the Criminal Justice and Licensing (Scotland) Act 2010, with the presumption – after great debate – being set at sentences of three months or less. Some commentators suggested that setting the level so low would make little or no difference. It did however distinguish Scotland from England & Wales, where weasel words like “custody threshold” were used and could be argued around on a case-by-case basis. Here, like Finland, the legislators were taking responsibility for rising prisoner numbers with a full frontal attack rather than using back-door methods like early release for “good behaviour” and release on a tag implemented by prison officials working to secret criteria. Sentencers had to respond to this change by imposing meaningful alternatives, and if necessary managing the community order to a successful conclusion. Having said that, prison numbers which fell away due to reductions in overall offending have now increased and currently stand at 8,181 prisoners serving sentences.

The 2010 legislation left matters for simple future development whereby a statutory instrument could increase the period from three to 12 months. On 26 June the Parliament passed an order by 83 by votes to 26; it came into force in respect of crimes and offences occurring on or after 4 July, so the effect may not be immediately apparent and agents may need to remind sentencers that the presumption applies in a particular case.

Around the same time before Parliament rose at the end of June, the Management of Offenders (Scotland) Bill passed stage 3; it received Royal Assent on 30 July. Money is promised under this legislation to help social work departments cope with the increase in requests for background reports prior to passing non-custodial sentences. The timescale to bring the bill into force is some way off – 2020 for some parts – but the reintroduction of restorative justice will proceed at a snail’s pace, with schemes unlikely to start until 2023. If I am spared, I will watch this development with interest from my bathchair! 

Hopefully, electronic tagging as a bail condition will start soon and will divert police officers’ time away from trying to enforce bail curfews by repeatedly visiting the homes of those on such conditions at all hours of
the night.

It seems clear that money to support meaningful community sentences will have to be saved from the prisons budget, and steps in that regard have already been taken with the aim of closing Barlinnie Prison and selling off the land to developers in due course. Civil servants seem to be relying on judicial reticence and think the extended presumption will have a moderate effect. That brings to mind, if I may paraphrase a remark once made by the late, great Sheriff Peter McNeill QC: “When you come across a new law, enforce it vigorously!”

Extending PASS from three to 12 months will have a greater effect that the legislators envisage. If one has to contemplate a community sentence instead of imposing eight to 12 months’ imprisonment, a robust suite of conditions may be imposed to the CPO involving conduct conditions and up to 300 hours of unpaid work, together with a restriction of liberty order to keep the offender tucked up at night. Even supervision periods for CPOs may range from 12-18 months, and in my view there will be a need to review these orders in court at regular intervals to ensure progress is being made and offenders are not being set up to fail. Such court arrangements will increase pressures on courts, and programming changes may be required to ensure that witnesses cited to court do not have to wait while these progress reviews take place. This is an area I will watch closely over the next few years and keep you posted. 

Absolute discharge

Absolute discharge is a topic which has come to attention in recent years due to a more robust approach to prosecution and continuing such proceedings in the face of increasingly mitigating circumstances. Here however is a case where the court went too far.

In Procurator Fiscal, Dumfries v McTaggart [2019] SAC (Crim) 3 (23 April 2019) the Crown successfully appealed the imposition of an absolute discharge. The respondent had been charged with embezzlement, but was convicted of stealing £207.86 from her employers. She had three previous convictions for theft and had carried out unpaid work as a direct alternative to a custodial sentence. The sheriff regarded the conduct as a lack of duty of care to the employers. This approach was criticised by the Sheriff Appeal Court, who considered that by convicting of a lesser offence the sheriff closed his mind to the seriousness of the offence which involved a breach of trust. It quashed the order and imposed a six-month CPO with an 80-hour unpaid work requirement.

Racial offences

Guidance in racial offences was given by the Sheriff Appeal Court in Procurator Fiscal, Glasgow v Callaghan [2019] SAC (Crim) 5 (4 June 2019). The respondent was the complainer’s landlord and a dispute arose regarding whether rent had been paid. The respondent made a racial remark and was threatening. The Sheriff Appeal Court had no difficulty holding the sheriff had been wrong to acquit. As is often the case, the fiscal had omitted to lead from the complainer information about his racial grouping, but the sheriff had failed to take account of a clear observation of the witnesses called in court.

Football-related offences

Another football season is upon us and it is worth considering cases which have been dealt with in light of recent bad behaviour at matches by spectators.

In Mack v Procurator Fiscal, Edinburgh [2019] SAC (Crim) 6 (3 July 2019) a sentence of 100 days’ imprisonment imposed on a 22-year-old who invaded the pitch at a Hibs v Rangers match and committed a breach of the peace by kicking away the ball and pushing the Rangers captain was upheld. Although the appellant had been a season ticket holder, had no previous convictions and pled guilty at the outset, the appeal was refused. A headline sentence of 150 days’ imprisonment had been indicated, but was reduced in light of the plea and a 10-year football banning order was imposed. The appellant entered the field of play and prevented a throw-in being taken, and struggled with the player until stewards and police intervened. He had consumed a lot of drink, had little recollection of events and was said to have been under stress following the birth of his daughter. 

The court considered his behaviour to have been grossly disorderly and inflammatory. It had been seen by spectators and on live television and might have caused a reaction among Rangers fans. The sheriff had been correct to emphasise the need for a deterrent sentence “to root out this sort of behaviour and express society’s disapproval”. The sentence was not in the circumstances at odds with published Scottish Sentencing Council guidelines, nor was it contrary to the protection offered to first offenders under s 204 of the Criminal Procedure (Scotland) Act 1995.

Notes of appeal

Directions were given by the Appeal Court on how to set out grounds of appeal in solemn cases, in Watson v HM Advocate [2019] HCJAC 51 (9 July 2019). Lord Carloway, delivering the opinion of the court, was critical of the note of appeal which was in the form of a prose narrative of evidence at the trial and a statement of broad propositions. 

Such a note ought to be set out in clear numbered propositions containing the grounds of appeal to be advanced. They should not be obscured by excessive narrative of evidence, quotation from authority or discussion of the law. These matters may be contained in the case and argument lodged later in the proceedings, albeit in a succinct and articulate manner. Numbering the grounds of appeal assists judges, at sift and the hearing, in understanding, considering and determining each ground in a comprehensible manner. 

Omnibus charges

The Appeal Court wrestled once again with omnibus charges covering a course of conduct over a three-week period, in Wilson v HM Advocate [2019] HCJAC 36 (14 June 2019), which concerned repeated assaults and controlling behaviour by the appellant towards his partner. Four separate incidents were alleged to have occurred: the first in the complainer’s flat, the second and third in the appellant’s flat, and a fourth at the appellant’s mother’s house and a nearby chip shop. Eventually the complainer and her child escaped; she contacted her mother in a hysterical state and was rescued with many signs of injuries apparently from different incidents. Her flat was found in disarray with signs of violence and clumps of hair on the floor. CCTV showed the appellant chasing the complainer when she ran off in the direction of the chip shop. In evidence the appellant said he was only running after her as she had gone “mental”.

The court reaffirmed what was said in Spinks v Harrower 2018 JC 177 (discussed at Journal, August 2018, 30) that corroboration is required to prove separate, distinct crimes including different episodes of assault. The court did point out that despite the complainer’s evidence, which was not objected to, the charge did not allege that she had effectively been held captive and then subjected to continuous criminal activity through the period of the libel. It was satisfied that the evidence from the complainer’s mother of her distress, coupled with expert evidence that the injuries were over a period of time, the photos of the disarray in her flat and CCTV images showing her being chased and grabbed, was sufficient to reject a submission of no case to answer. However the spirit of s 97 of the 1995 Act regarding no case to answer could not be circumvented by libelling an omnibus charge: see Cordiner v HM Advocate 1991 SCCR 652, Lord McCluskey at 671. The sheriff’s directions were not adequate regarding the separate incidents contained in the libel. It held proved the assault in the complainer’s mother’s flat and the chase and assault at the chip shop.

It made the point that the period of the libel was much shorter than in Spinks; nevertheless the Crown ought to have split these charges into the various incidents spoken to by witnesses or be in a position to aver various assaults occurring as an ongoing course of conduct.

Frank Crowe, sheriff at Edinburgh

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