Moral of pleading in mitigation

Sentencing

On the view that what matters most to many a client is the ultimate disposal, we will start this month with a look at sentencing.

When the Crown was first given the right of appeal against sentence, it was argued that it would be used sparingly, and so it has been.  Two recent successful appeals are reported in GWD-7, HMA v Paterson (255) and HMA v Drain (256), both cases of serious assault in which community service orders were made.  In the first case, the accused had already carried out a substantial portion of the community service order made in the originating court and this was taken into account in deciding the appropriate term of imprisonment.  In both cases the appeal court took the view that the sentencing judge had not given sufficient weight to the gravity of the offence.  If there is any moral, it may be that when pleading in mitigation you should not do so persuasive a job that you succeed in obtaining a sentence lenient enough to open the door to the sterner precincts of the High Court.  HMA v Allan 2000 GWD 9-331, another assault case, saw the period of imprisonment increased from one to four years, which is increase on a scale not much encountered since the days of Lord Justice General Clyde, when the appeal court, it was alleged, increased sentences appealed against ex proprio motu quite early in the day’s proceedings pour encourager les autres.

On a couple of more general matters, the question of comparative justice as applicable to sentencing was considered in Brown v HMA 2000 GWD 8-294 in which a woman had received a sentence of eighteen months imprisonment for permitting her house to be used for the supply of heroin while her co-accused, for being concerned in the supply, had received nine months.  While there does appear to be something of a disparity, the Court observed that it was always necessary to judge an individual sentence against the general level of sentences imposed for that particular offence.  In Thomson, Petr 2000 GWD 8-289, the Court had to consider whether or not it was competent to impose a consecutive sentence for a new offence where a prisoner released on licence had been recalled to serve the balance of a previously imposed sentence.  It was held that standing the terms of sec 204A of the Criminal Procedure (Scotland) 1995 it was not.  While the decision is, with respect, undoubtedly correct, one cannot help wondering whether the result was what was intended by Parliament, as it does seem illogical.  Perhaps it is sufficient to say that anyone setting out to understand the relevant provisions concerning recall should not make the mistake of underestimating the time that it might take to sort out what otherwise might be assumed to be a simple matter.

Lastly (on sentencing) in the case of McCulloch v Vannet 2000 GWD 8-300, a fine of £125 payable at £3 per week was upheld for the offence of drinking cider in a public place contrary to a Glasgow by-law where the appellant had been fined lesser sums for two recent and similar offences. This would seem to suggest that, unlike some by-law contraventions, this is a crime which becomes more serious by repetition.

Devolution issues

One of the devolution issues beginning to attract attention is the requirement, arising out of art.6 of the European Convention, which entitles an accused person to a trial within a reasonable time.  Three cases may be of interest, the first two being found in 2000 GWD 8.  Docherty v HMA (275) involved a delay of seven years and two months from charge to service of the indictment.  While the sheriff repelled the plea, the appeal court took the view that the Crown’s explanation for the delay was not satisfactory: even though the matter had been a complicated one to investigate there had been, apparently, excessive periods of inactivity and it was not a satisfactory explanation that “there was only one precognition officer at the fiscal’s office who had a lot to do.” Robb v HMA (276) was a case in which the appellant was charged in September and December 1988 and the indictment served in October 1999. The case involved separate complaints by three children, the Crown’s position being that the decision to proceed was made only after the third set of allegations were made, although on a Moorov basis it would have been possible to go ahead with the first two.  The appeal against the sheriff’s refusal to sustain the plea was successful in respect of part of the indictment: for present purposes it should be noted that there had been a delay between 1994 and 1998 for which the Crown had not been able to give an adequate explanation, it being observed that this period would have to be regarded as unreasonable unless the Crown could show that it was not attributable to it or that if it was, it was not unreasonable. Crummock(Scotland) Ltd v HMA involved a prosecution under the Health and Safety at Work etc Act 1974 for allegedly contaminating a public water supply. The incident complained of was alleged to have occurred in March 1997, with an indictment being served in November 1999. Because the matter was one of some scientific complexity it was held that it could not be said that the delay was so unreasonable as to contravene art 6, on the basis of the impression that the court derived from the submissions made to it by parties. It should be noted, of course, that the question of prejudice arising through delay is a matter, which has to be considered and addressed separately from unreasonable delay as envisaged by the Convention and its subsequent jurisprudence. In Crummock, incidentally, it was also argued, unsuccessfully, that it would be impossible to get an impartial jury, as since those balloted could come from potentially affected areas, and so would in effect be complainers.  The writer recalls putting forward a similar argument, with a similar result, some thirty years ago in respect of a sheriff and jury trial in which a town clerk was alleged to have intromitted in a criminal manner, with public local funds and remains suspicious that the point has something to be said for it, in that case at least, especially in the light of Convention jurisprudence.

Road traffic

Moving on to the more domestic pastures of road traffic, Coomer v Fraser 2000 GWD 8-317 casts some light on the importance of the fixed penalty, affirming as it does that a fine of £80 and four penalty points for speeding was not excessive, it being irrelevant that a fixed penalty of £40 had been offered and not taken up.  McClure v McGlennan 2000 GWD 8-316 is another appeal against sentence, although perhaps with wider implications as regards comparative justice. The appellant was disqualified for six months in circumstances where his co-accused had received six penalty points only from a different sheriff, it being held that if the second sheriff regarded the first one’s disposal as lenient he was not bound by it.  It would appear from this case and Brown (supra) that not too much reliance should be put on the comparative justice principle, since if the disposals are close the point will not arise and if they are far apart the appeal will succeed only if the higher disposal is far out of line with the general trend in all cases of the sort as to be appealable anyway.

Judicial conduct

As regards judicial conduct there is a saying that no one should watch the making of sausages or laws and there certainly may be thought to have been some blood on the floor after the decision in Hoekstra v HMA 2000 HWD 12-417, in which a decision of the Court of Appeal which turned on the construction articles of the European Convention of Human Rights was overturned because one of the judges who made up the Court had previously published an article in a newspaper in which he used language which gave the impression of deep-seated and long-standing hostility to the Convention.  While there is, of course, scope for judges to discuss laws in a temperate way, any public comment that leads to an apprehension that they will not carry out their judicial duties properly, that is to say impartially, cannot be made with impunity.  Interestingly, it was that very Convention that led to the overturning of a case about which there had been always widespread unease, Boyle v HMA 1995 SLT 162 in which the same judge, sitting alone in an appeal against refusal of bail but presumably acting as the voice of the High Court, held that the original court was not entitled to make enquiries behind the Crown’s assertion that it was necessary for further enquiries that the accused be detained in custody.  The law is now as stated in Burn, Peter 2000 GWD 12-418 and is to the effect that the Crown is obliged, according to the circumstances of the case, to make available material which will enable sheriffs to consider the motion for bail on its merits.  Accordingly we are now back to where, before Boyle, we were generally thought to be, with the judge, not the prosecutor, making the decision about liberty or custody.

Technological change

And finally ... as is well known, technological change and legislative attempts to control the consequences thereof, procedures many a legal difficulty. Thus the Appeal Court found itself facing up to the World Wide Web in the case of Longmuir v 2000 GWD 11-381 when it had to construe the Civic Government (Scotland) Act 1982, s52(1)(a) which, as amended, involves the criminal allegation that someone “did make indecent photographs and pseudo-photographs of children”.  In this particular case the Crown intended to lead evidence that photographs had been downloaded from the Internet and it was held that the word “make” in this context included the activity which takes place when someone brings into existence by means of a computer data which had been stored on a computer disc. The case is one which should be read by anyone involved in any way with computer law.  It is also authority for the proposition that as a principle of statutory construction, reference to Hansard (at one time completely ruled out) is now relevant only in the event of the language of the statute being ambiguous or obscure, this being, it is thought, one of the ramifications of applying the mischief rule.