Fixed penalties "productive of injustice"

Supervised attendance orders

It is an odd thing how some new disposals flourish while others seem condemned to be weedy, struggling things.  It is a while since supervised attendance orders were brought in as another disposal aimed at keeping fine defaulters out of custody.  These have not turned out to be quite as peremptory in character as was originally supposed they might be, this being demonstrated by the cases of Ward v Brown 2000 GWD 31-1228 and Fitchett v McFadyen 2000 GWD 34 1312.

In the former case it was held that where a sentence of imprisonment was imposed in respect of a failure to perform supervised attendance this was to be regarded as a new sentence and as such one which was subject to the general requirements which apply to the obtaining of information from an officer of the local authority as to the background.  Such information had to be up to date and could not be substituted for by information from prosecution or defence.  Thus the cursus honorum of a determined offender might run conviction, fine, means court, further time to pay, means court, SER, supervised attendance order, SER, custody.  All for a fineable offence. In the second case where there was a breach, it was held on appeal that the sentence of imprisonment imposed should be related to what would have been the appropriate sentence as an alternative to the original fine, it being the case that the alternative for a breach will be greater. This means that though the original fine is cancelled by the imposition of the order it is in effect likely to be effectively revived, as a determining factor, in event of breach.  The best that one can say is that matters are becoming so complicated that even the most adept manipulators of the system must be scratching their heads and wondering.

Rehabilitation course

Another refinement of the law which does not seem to have caught on in a big way is that to be found in the Road Traffic Offenders Act 1988 s 34 A whereby a period of disqualification for a drink driving offence can be reduced by a quarter on completion of a successful rehabilitation course.  The case of Swift v MacNeill 2000 GWD 30-1200 refers.  There an appeal was successful on the basis that what the sentencing judge had done was to put much stress on the possibility of the appellant earning a reduction, the correct approach being to determine the correct period of disqualification before the question of a sec 34A order arose.  It is important that anyone appearing for a client in such circumstances should be alerted to the possibility of an order so that it may be considered and made at the time of sentencing as it is anecdotally puzzling that the scheme does not seem to loom larger in disposals.  It cannot always be assumed that the presiding judge will initiate a discussion as to how appropriate it might be.

Human rights

There are three recent human rights cases probably worth a look.  Smith v HMA GWD 2000 30-1168 is a delay case.  There was a fifteen month delay on the part of the Crown between the accused being charged and the date on which the case was due for trial.  This included an unexplained period of six months delay between the appearance on petition and the case being allocated for precognition.  The appeal was refused, it being held that the period fell to be considered as a whole, rather than attention being focused on the one period of inactivity.  Cook v HMA 2000 GWD 29 1118 is another delay case in which a plea in bar of trial was entered.  The basis for it was that the appellant having been under the age of sixteen at the time of the alleged offence, the Lord Advocate had acted unreasonably in not expediting matters.  The basis of the decision of the sheriff was broadly that there had in the whole circumstance been no unreasonable delay, it being observed that the provisions of the Children (Scotland) Act 1995 were of no relevance in respect of a criminal prosecution.  Clark v Kelly GWD 2000 27-1041 was a challenge based on the proposition that the district court in question (Kirkcaldy) was not an independent and impartial tribunal as required by art. 6.  It was held that the clerk of the court, in advising the justice, was not acting in a judicial capacity and that he was not part of the tribunal.  It was held that there was nothing objectionable in his providing legal advice by way of private communication.  It seems that this was an appeal that was never likely to succeed: For years lay magistrates receiving, for good practical reasons, legal advice in private has been an important part of our criminal court system.  So the district court will survive, which is just as well otherwise justice would be further than ever from the community.

Search warrants

Procedurally search warrants continue to attract attention.  While it is not always easy to see what grounds someone might have for challenging a warrant which is ex facie in order, the appeal court does seem to be willing on occasions to require explanation as to the ground on which a warrant was granted.  Ormiston v HMA 2000 GWD 37-1390 involved an attempt to suspend two search warrants.  The purported basis for this was that the police officers seeking the warrants had not given the justices sufficient information to enable them to exercise their discretion properly.  In both cases the information was that an unnamed informer had indicated that heroin was there; in one, the justice particularly recalled seeking information about the reliability of the source, in the other there was a reference to her invariable practice.  In both cases the officer seeking the warrant had given evidence on oath.  Both attempts at suspension were unsuccessful.  Two matters seem worthy of comment.  The first is that the practice of requiring the person granting a warrant to state the basis on which it was done is new and is thought undesirable, involving as it does allegations of unlawful actings of someone who has taken a judicial oath, perhaps on the thinnest of grounds.  Secondly, anecdotal evidence would suggest that persons granting warrants have now been alerted to the importance of keeping a record of what information is given to them.  Still on the question of judicial probity, it is worth having a look at the judgment of Sheriff I.G. McColl in the case of Stott v Minogue 2000 GWD 37-1386.  In this case, which proceeded under art 6 of the Convention, the accused sought a declaration that the sheriff was not a Freemason.  The sheriff held that the court was not bound to give the declaration requested, the judicial oath and the judge’s ethical duty to disclose any interest providing a sufficient guarantee of impartiality.  It is to be hoped that the judgment, which sets out the legal position in the clearest of terms, will, as it deserves, be regarded as the last word on the subject

Road traffic

I wonder whether the totting up procedure is susceptible to a Convention challenge, since the manner in which twelve points is reached may differ so variously in terms of gravity and at worst can smack of the ridiculous “three strikes and you’re out” approach.  Fixed penalties are productive of injustice, even with the possible escape route of exceptional hardship.  In this connection Smith v Kennedy 2000 GWD 37-1414 is a reminder that no matter how good your grounds are they will not get you anywhere unless you can establish them as matters of fact - possibilities are not enough.  The other cases of particular note are McLean v Higson 2000 GWD 34-1324, in which a sentence of three months imprisonment imposed on a first offender with a breath alcohol reading of 186 (ie five times the limit) who was involved in a head on collision was upheld in spite of the appellant being in employment with a good income and Wilson v Watt 2000 GWD 34-1323, in which because there was evidence that the appellant drove off after another driver smelled alcohol on his breath and threatened to call the police, it was held that the court was justified in inferring that the failure to stop was to avoid the possibility of being tested for alcohol.  This is something that is frequently suspected but not often susceptible of proof.

Miscellaneous

The next three cases have nothing in common save that they are all reported in GDW 29.  1119 Nicolson v HMA deals with the circumstances in which a search without warrant for drugs may be justified, it being argued that the search without warrant was an irregularity without justification and in particular that the police had not stated under what powers they were acting in so doing.  On appeal it was held that there was no requirement for evidence about powers, the other evidence having demonstrated that there was reasonable grounds for suspicion for the purposes of both sec 23 of the Misuse of Drugs Act 1971 and sec 163 of the Customs and Excise Management Act 1979.  There was also a point taken about the manner in which the judge had dealt with the question of a juror who had come to feel ill because of the presence of known associates of one of the accused sitting in court.  At first sight the point does not seem a strong one and little headway was made in respect of it, the appeal court holding that there was no fixed way in which such matters should be resolved and that in the present case what the judge had done, and declined to do, was within his discretion and appropriate to the circumstances.  

1125 Youngson v Higson involves that slightly unhappy creature a breach of the peace which involves a libel of  assault, thus making it one which is recognised as increasing the maximum sentence available in certain circumstances to six months imprisonment.  The sheriff purported in so finding to follow the case of Sproull v McGlennan 1999 SLT 402, but that case was distinguished as it was held that the instant one did not involve a libel of assault.  Two matters arise: the first is that there is no justification for the widely held belief that breach of the peace can never be an offence of violence for the purpose of invoking the maximum for a second offence and second, that as a previous conviction for breach of the peace will not disclose the terms of the libel it seems unlikely, as a practical matter, that such a conviction would ever be recognised as a previous one inferring violence were the court to be considering the question in relation to a subsequent conviction for assault. Finally 1129, Fraser v MacDonald makes it clear if the matter was ever in doubt that when dealing with a breach of community service and imposing a custodial sentence the court should take into account if appropriate the fact that some of the community service has been carried out.  Thus those hard liners who would argue that an order had not been complied with until it had been complete have suffered something of a reverse.

Delay in summary trials

It is remarkable how many summary trials these days do not take place within a year of the incident giving rise to the complaint.  The reasons for this, notoriously, are multifarious, although no one designing a new system would presumably have such delay in contemplation.  Even where delay can to a material extent be confidently asserted to be the fault of the crown, the High Court has regularly discouraged the trial judge from trespassing on the Lord Advocate’s preserve by bringing matters to an end by refusing further adjournment, the theory being that the latter is the proper guardian of the public interest. This is of course another example of the anomaly of the Lord Advocate being something more than just the head of the prosecution service.  Be that as it may, it is with some interest that one looks at the case of Love v Brown 2000 GWD 33 - 1268, which proceeded by way of Bill of Advocation.  Mr Love having been convicted on a charge of drink driving.  The conviction was quashed on the basis that there had been too much delay for which the Crown bore responsibility, involving such things as trouble over video equipment, the final  adjournment being granted because of the unexplained unavailability of a police prosecution witness.  Of the four adjournments, it is fair to say that pressure of court business played its part as well, although it may be difficult to judge whether this is the fault of the fiscal, the sheriff clerk or no one in particular.  It seems however that the judge of first instance is not only entitled but bound to say at a certain stage “enough is enough”, even though the master of the instance wants to keep going.  It is interesting too that the court entertained the Bill not directly after the decision to allow matters to continue was made i.e. after the motion for further adjournment was made and the new trial date fixed but after the trial complained of had taken place.