Time, gentlemen?

by Andrew Lothian

Latest criminal cases, including sentencing discounts; non-disclosure by Crown; support for proscribed organisations; circumstantial prof; road traffic

The Journal, August 2004, page 52

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Although the new Criminal Procedure (Amendment) Act, section 20 (not yet in force) seems to provide a statutory basis for what was signalled about sentencing discounts by the case of Du Plooy v HM Advocate 2003 SCCR 640, we will still have to keep an eye on what the appeal court is doing in developing the concepts enunciated in that case. In this spirit we turn to McGaffney v HM Advocate 2004 GWD 16-361, an appeal against an aggregate sentence of 27 months with a two year extension for offences in connection with indecent photographs of children. The court held that as an accepted plea was tendered at an early stage the case should attract a discount, but that it did not possess all of the features which would attract one of one third: in particular there was no question of the accused saving vulnerable witnesses from having to give evidence.

The latter consideration illustrates that there may still be considerable difficulties to be negotiated in the application of Du Plooy, since if there were no vulnerable witnesses in one’s case, the question of whether or not one forced them to give evidence could scarcely arise. In McGaffney a discount of 25% was deemed appropriate for what amounts to early co-operation; unfortunately as the sentencing judge did not disclose what if any discount was being applied we cannot tell from this case how much fine tuning the appeal court might apply in considering discounts. From the case of B (below) it appears that there is a measure of judicial disagreement about the extent of the discretionary aspect of the matter. The appeal court also said in terms that the sentencing judge should have taken into account the adverse effect the detection of his offending (losing job, having to move home) had had on the appellant. I am not sure if these consequences would in every case fall to be taken into account. However as the consequences for someone of being revealed as having an interest in child pornography will always be adverse, it seems that this may be a constant consideration in this kind of case. One is reminded, all the same, of the observation of the forensic expert Ray Wyre that the first reaction of almost all sex offenders is to draw attention to how much they have themselves suffered. As a matter of general approach it appears that in this case the court decided what the appropriate “normal” sentence should be, then applied the discount.

Discount following reduced plea

The discount question was discussed again in B v HM Advocate 2004 GWD 21-453, a case which revealed something of a difference in approach in respect that Lord Philip dissented from the views of Lords Hamilton and Abernethy. The appellant had been charged with the murder of his son, had tendered a plea of guilty to culpable homicide and a sentence of 12 years’ imprisonment had been imposed. The majority of the appeal court considered that not to allow a discount for that plea would result in the appellant receiving the same sentence as he would have had he gone to trial and been convicted on the charge. Taking a base sentence of 11 years’ imprisonment, the majority felt that a discount of two years was appropriate in respect of the appellant’s guilty plea (saving distress to witnesses), his consistent acceptance of responsibility for the death and his remorse. A sentence of nine years’ imprisonment was substituted. Dissenting, Lord Philip gave it as his view that the acceptance of a plea of guilty to the reduced charge was so significant as to eliminate the justification for any further allowance and further that as the sentence fell within the commensurate range, the question of discount was one for the sentencing judge’s discretion.

This appears to be a pretty radical disagreement about the correct approach, with the majority implying that there is some sort of platonic ideal sentence which a correct approach may identify, whereas the minority takes a rather more broad-axe view of things. Further, a rather tricky problem for sentencers may arise where there has been an acceptance by the Crown of a plea to a reduced charge. One must assume on the basis of B that, for sentencing purposes, such acceptance means that the accused has in the end pleaded guilty only to what could have been reasonably expected to be proved anyway. This is somewhat two edged, since there are hints in Du Plooy that you should not get such a big discount if you are in effect bowing to the inevitable, although contrariwise it could also be argued that you are co-operating fully once the Crown has, as it were, ceased to over-egg the pudding. So far as the acceptance of late pleas goes, from the defence point of view, it would seem politic, for example if charged with a contravention of the Police (Scotland) Act, for an accused who accepted guilt in something, to tender a plea as early as possible to breach of the peace, say, and to have this recorded, so that he or she would get the credit for an early willingness to plead to what was eventually accepted rather than have the sentencer be given the impression that what he or she was dealing with was a somewhat opportunistic reduction on the day of trial.

Non-disclosure no infringement

The question of disclosure or otherwise by the Crown to the defence of certain matters is, I think, relatively unexplored in our jurisprudence, which makes Holland v HM Advocate 2004 GWD 21-453 worth a look. The case turns on its own facts, of course, with the Crown arguing successfully that one set of facts allegedly not disclosed (that the complainers in a robbery were themselves facing serious charges on indictment) was immaterial, and in respect of the other matter (that a police officer had said to one of the complainers after an identification parade that she had not done very well), that while this information should have been disclosed, failure to do so did not result in a miscarriage of justice. Attention should be paid to the remarks of Lord Hamilton, who rejected the proposition that unless the court could say that the undisclosed information could not possibly have had an effect there was an infringement of the accused’s rights under article 6 of the European Convention on Human Rights. Instead, the correct approach was a pragmatic one, with the court considering the new information and its possible effect in the light of the whole of the evidence led at the trial.

Eye of the beholder

Rankin v Murray 2004 GWD 18-398 is a rather unusual case, turning as it does on the import of wearing certain jewellery. As such, it may have implications for those whose T-shirts are in themselves a breach of the peace. Be that as it may, this case concerns a prosecution under the Terrorism Act 2000, section 13(1)(b). The charge, effectively, was one of displaying an article in such a way or in such circumstances as to arouse reasonable suspicion that the wearer is a member or supporter of a proscribed organisation. The appeal court confirmed that this did not really require very much, it being a matter of common sense really that if you wear a recognisable symbol of an association in a place where it will be recognised, it will not be unreasonable for people to suspect that you might belong to or support the organisation represented, the question being one of actual belief on the part of the beholder. Where this leaves deluded youths who wear T-shirts with swastikas on as a sort of post-modern iconic statement is not clear. What happens if you sport the swastika in a kind of New Age way and a police officer not conversant with the finer points of oriental mysticism takes you for nothing better than a Nazi Chic Hitler groupie is not clear, always assuming that the National Socialist party has in fact been proscribed.

Circumstantial proof

Corroboration, that old faithful, crops up again in Murray v HM Advocate 2004 GWD 22-481, an appeal against conviction on a charge of wilful fireraising. It may be that the decision does not break significant new ground, but as there seems to be some confusion, in some minds at least, as to what corroboration is, I refer to the case for the purpose of drawing attention to the restatement of the law by Lady Cosgrove: “The Crown case against these appellants was based entirely on circumstantial evidence. The proper approach in such a case is for the evidence to be considered as a whole. What matters is the concurrence of testimony. It is not necessary that each piece of evidence, of whatever kind, should be incriminating in itself. Whether a number of pieces of evidence are incriminating or not is a matter which can only be judged in the whole circumstances taking all the evidence together.”

Trafficking curiosities

There does not seem to have been much in the way of road traffic material recently. McQuaid v Limond 2004 GWD 16-382 is a careless driving case arising out of a lady of 75 being, on one view, rather too careful, going at between 5 and 35 mph on a 60 mph road and slowing almost to a halt on every corner. There was a plea of guilty and a fine of £200 imposed (discount not stated in the report) with six penalty points. Stockton v Gallacher 2004 GWD 19-430 outlines some of the difficulties you may encounter if you are driving in Scotland on a UK licence issued by the DVLA in Northern Ireland. In particular since such a licence does not seem to be a “licence” for the purposes of the Road Traffic Regulation Act 1984, you may not be entitled to a fixed penalty although you will be subject to the general UK restrictions. The court thought this anomaly should be legislatively corrected.

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