Milestones on a long road

Latest criminal cases, including temporary sheriffs; sentencing and sentencing discounts; non-disclosure by the Crown; drug offences

The Journal, April 2005, page 40

The long-running temporary saga

J Alfred Prufrock spoke of those who measured life with coffee spoons. For those of us who use leading cases as milestones on the way through our legal lives, it is salutary to note that Starrs v Ruxton was reported at 2000 SLT 42. The fallout continues, not just in the minds of those who maintain that we are still seriously under-sheriffed but in the very appeal court itself. Which brings us to Robertson v Frame 2005 GWD 03-23. The case actually involves three separate appellants, collectively known as “C”, who sought suspension of their various convictions before various temporary sheriffs. Because of perceived uncertainty about the possible effect of the case of R v HMA 2003 SLT 4, the appeals were remitted to a court of five judges for a fuller consideration of the question of acquiescence. In the event it was held that, although the appellants had been entitled to and had not received a trial before a court of independence and impartiality (which was the objection to temporary sheriffs), nevertheless by their actings in the light of the prevailing legal situation at the time of their conviction and sentence they were barred by acquiescence from now appealing. In other words, it was effectively held that a defective determination by a temporary sheriff was one which was an invalid act capable of being acquiesced in rather than one which was necessarily null and void and as such incurable. The effect of this decision, it is understood, is that everyone ever convicted and sentenced by a temporary sheriff will not be able thereby to lodge a bill of suspension in the sure and certain hope of success.

Much interest in base rates

Still on discounts for early pleas, it looks as though this may be more of a finely tuned exercise than was previously thought, in theory at any rate. In Ritchie v HMA 2005 GWD 02-25, the sentencing judge had selected as the base a period of three and a half years. Thereafter there had been applied a discount of 12 months. The reasons given for the full one third not being applied (the nature of the charge, a bail aggravation and the appellant’s extensive record) were characterised by the appeal court as erroneous and irrelevant and the appellant was afforded a full one third discount, which resulted in a sentence of 28 months instead of the 30 originally imposed. This truly represents fine tuning and anyone who thought that there was anything of the broad axe about the matter should think again.

In Arthur McColm v HMA (unreported) the appellant had pleaded guilty to a charge of serious assault and been sentenced to three years’ imprisonment, the sentencing judge saying that he had made allowance for the guilty plea but not how he had arrived at the sentence imposed. The appeal court considered it necessary to re-examine the sentence and having done so imposed one of 30 months instead, this including a one third discount. This would appear to make the base rate one of 45 months, or three years and nine months. On the assumption that the original sentencer had in fact allowed a discount of one third, without saying so, his base rate then would be four years and eight months (with any lower discount making the base rate correspondingly higher).

Accordingly this appeal may be said to have succeeded because the sentence was too high, as well as because the principles surrounding the discount were not fully set out. This is worth emphasising, because all the statute seems to require is for the court to say that the sentence is different (if it is) from that which would have been otherwise imposed. Obviously the appeal court expects a little more than the legislature. What we are being asked to do is to construe a statute in the light of a previously decided case (du Plooy) which had, on one view, made the subsequent legislation unnecessary. But that being so, i.e. that the Act was passed, does it not effectively cancel out du Plooy to the extent that it does not enact what was said in that case? One for the statutory construction experts, I think.

The case of William Steward v PF Perth (unreported) incidentally tells us that penalty points should not be discounted, as they are in the nature of a warning to an accused person as regards their future driving. In this case the appeal court substituted a fine of £350 for one of £450, perhaps causing a little shrieval headscratching as regards the question, how far out does a monetary penalty have to be to become wrong in law? One answer of course is when the discount has not been applied rigidly, but otherwise?

Sentencing at the sharp end

It seems that the possession of offensive weapons continues to cause sentencing difficulties, though why this should be so is not clear. Love v Dyer 2005 GWD 02-31, for example, is a successful appeal against a custodial sentence passed on someone who had a previous analogous conviction for carrying a knife in public. The sheriff had decided to impose a custodial sentence discounted from six months to four, but the appeal court, apparently impressed by the fact that the appellant was in employment, preferred community service. It is not clear what effect this might have on the view that any carrying of knives will have to attract custodial sentences if the present wave is to be stemmed; further, it should perhaps be understood by victims that it is not necessarily a mitigatory fact that the person who stabs them had a good job. It is noticeable, too, that wheras in summary cases the proportional discount of, say, one quarter may not in real terms amount to very much (though doubtless still welcomed by the recipient), in murder cases the opposite may be true. In particular, at the time of writing, from press reports it seems that an early plea in one such case has resulted in the reduction of the punishment part of a life sentence from 24 years to 17.

Hepburn v Griffiths 2005 GWD 06-93 is another successful appeal against a custodial sentence for a crime involving a knife: in this case it was presented at a police officer who had been called by a householder concerned about her safety. It seems that the appellant had been drunk at the time and on medication and that he had a job. An order for 200 hours of community service was substituted.

Material non-disclosure

Turning now to criminal procedure, the duty of the Crown to disclose material information to the defence, against a background of a possible miscarriage of justice if it does not, is highlighted by the case of Kidd v HMA 2005 GWD 06-80, a successful appeal against conviction. At the appeal the Crown conceded that the existence of a prior and contradictory statement by an eyewitness relied on at the trial should have been made known to the appellant’s legal advisers, but argued that the fact that this had not been done did not amount to a miscarriage of justice. The appeal court, however, took the view that this might have had an effect on the jury’s assessment of credibility of an essential witness.

Cases about separation of charges do not come up all that often, as the law is thought to be well settled. The case of Darren Grainger v HMA (unreported) sees the appeal court revisiting the matter, although on the facts stated it is not easy to see why an appeal was taken against the decision to refuse a motion for separation of charges of (1) hamesucken and robbery, and (2) hamesucken, indecent assault and attempted murder. It has long been understood that it is in the public interest to have all charges against an accused tried on the same indictment unless there is demonstrable prejudice to the accused in following such a course. It was also argued that the trial judge had failed to give the jury adequate directions about indecent assault, but this line was seen to have been dependent on a misunderstanding by those presenting it of the nature of indecent assault, which is no more than an assault with certain associated matters of fact for which a normal direction about the mens rea of assault is sufficient. The appeal was not successful.

Recasting for Salmon

And finally, it is worth having a look at Henvey v HMA 2005 GWD 08-108, which is a case about being concerned in the supply of drugs. It had been argued that the carrier bag in question, found in possession of the two accused and containing ecstasy tablets, was thought by one of them to contain SIM cards and by the other to contain cigarettes. One might have thought, on a commonsense basis, that a person would normally know what was in his or her possession and that it was for the accused to prove otherwise. The trial judge gave a direction along the lines of what was said in Salmon v HMA 1999 SLT 169. At the appeal, however, the Crown conceded that standing what was said in R v Lambert [2002] 2 AC 545, section 28(2) of the Misuse of Drugs Act 1971 did not impose a legal burden of proof on the defence but only an evidential one and that accordingly the jury had been misdirected. The Crown argued unsuccessfully that there had, nevertheless, been no miscarriage of justice.

Accordingly in cases of this sort it appears that the possibility that the accused had not known what was in the bags, if raised, is just another matter on which the prosecution has to satisfy the jury in persuading it of guilt beyond reasonable doubt. Presumably the formula for the trial judge would be to direct that if an accused were believed on this point he would have to be acquitted and also, if the evidence about this, along with the other evidence in the case, left them short of satisfaction beyond reasonable doubt, the same would apply.