Discerning changes in sentencing trends

Someone told me once that old Mr Moorov lived on for quite a long time after the events which gave rise to his immortality: he really did arrange for himself a monument stronger than bronze (Horace) for here we are again, this time in Dodds v HMA 2002 GWD 25 787, which involved alleged events some thirty years ago. In allowing the appeal, the Court affirmed that there was no authority for taking a more rigorous approach to the doctrine simply because of the passage of time and also declined to fix any maximum period of time for the doctrine’s application, since that depended on facts and circumstances. However the appeal was allowed on the basis that taking into account the character and circumstances of the various offences (of rape) and the lapses of time between them, there was not sufficient to entitle the jury to hold that they were part of a systematic course of criminal conduct. The fact that the appellant had not argued no case to answer did not apparently prevent the appeal court considering the matter.

Independent and impartial?

Just when you thought that it was safe… Kenny v Howdle 2002 WD 25-789 finds the court of appeal considering whether or not a court presided over by an honorary sheriff amounts to an independent and impartial tribunal and reserving their opinion on the point. You have been warned. Another area of concern which is developing quite nicely is the appeal against conviction on the ground that the appellant’s defence has not been properly conducted. Traditionally court lawyers were accorded considerable freedom of action, being officers of the court rather than hired employees for a criminal; it is, as Jeffrey v HMA 2002 GWD 25 788 implicitly recognises, not entirely clear where we are going. In particular, the appeal court seems to have concerns that the principles set out in Anderson v HMA 1996 SLT 155 may have been widened by the three subsequent cases and to be looking for a chance to consider the whole matter again. It may be safe to say that while in general the appeal court is anxious not to question the judgment of the defence lawyer, a defence based on a misunderstanding by that person of the relevant law if likely, prima facie, to afford a prospect of appeal.

Warrants

Warrants have come round again, this time in the case of Knaup v Hutchison 2002 GWD 26- 890 where suspension was sought of a warrant granted in terms of s23 (3) of the Misuse of Drugs Act 1971. The appeal court observed that although the sheriff who granted the warrant could not now recall the information put before him, provided the warrant was ex facie valid it should be assumed that it was granted according to law unless a valid challenge was made. This would seem to put an end to the prospect of a raft of challenges to warrants brought in the hope that something might turn up in the report of the judge involved. Another old friend. Delay, turns up in a slightly different guise in Mills v HMA (No2) Here the complaint was that the appellant’s article 6(1) right to a fair trial had been breached by virtue of a delay of 18 months in hearing his appeal. The high court has reduced the sentence to one of 9 months imprisonment but the appellant contended before the Privy Council that the only proper remedy was for the original conviction to be quashed. In refusing the appeal, the court explained that quashing a conviction was only one of various remedies available for breaching a time guarantee and that the correct approach was to consider first what remedy would normally be appropriate under domestic law and then whether that remedy would achieve satisfaction for the breach according to European jurisprudence. In the present case it was felt that the delay could be and indeed had been adequately addressed by a reduction in sentence.

Culpable and reckless conduct

We seem to spend more time here on procedural rather than substantive points, so it is quite agreeable to turn to the consideration of the topic of culpable and reckless conduct in Mallin v Clark 2002 GWD 26-885. (Is this charge becoming more common or is that a mistaken impression?) The allegation was that the appellant had recklessly concealed a used syringe in his pocket and culpably failed to disclose that fact to officers who were to search him, with the result that one of them was injured The appellant had apparently been asked whether he was in possession of any sharps and had replied that he did not know. . The appeal against conviction was allowed on the basis that on the particular facts of the case no proper basis for a duty of disclosure, especially when a possibility of involvement in criminal activity was involved had been established. The court recognised that it should be reluctant to make any decision which would expose police officers to unnecessary danger but felt it unlikely that a police officer would actually rely on a statement by a drug addict who was about to be searched. While the decision, respectfully, cannot be disputed, it may be that there is a case for legislation here. I mention the possibility that the charge may be becoming more common because it does seem to be a way round what we normally think of as mens rea. One should always be very careful, it is suggested, when dealing with alleged offences in which the actus reus involves omission rather than commission

Road traffic

And now for some road traffic. McAleney v Brown 2002 GWD 847 is actually a construction and use case, an appeal against a sentence of a fine of £1000 imposed on a painter earning £12000 per annum whose unsecured ladder fell off the roof of his van causing a following vehicle to overturn. I mention it as it is difficult to get guidance about the likely penalty in such cases: here the fine was halved on appeal. There have also been a number of successful appeals against periods of disqualification in which the court has felt that the original sentencer has taken into account matters not strictly relevant. Here are three from 2002 GWD 25. In 852, West v Heywood it was felt that the judge had been unduly influenced by the appellant’s conduct at the trial, in 853, Brennan v Higson the judge, in animadverting about other possible charges which the appellant might have faced arising out of the circumstances as narrated (vehicle straddling middle line of road, lights off and appellant in prone position across both front seats) appeared to have sentenced the appellant for more than he was charged with, and 857 Sutherland v Reith (106 mph in a 70 mile limit) where the sheriff was said to have seemed to take into account an element of danger from a second charge of dangerous driving to which a plea of not guilty had been accepted. While it is difficult to extrapolate any particular point of principle from these cases, it does appear that in dealing with statutory offences the court must be careful not to give too much weight to the surrounding circumstances if they are capable of instructing the commission of additional offences. However it has to be said that it was the writer’s understanding up till now that all sides of the bar recognised that an accused’s conduct in court might be symptomatic of his or her attitude to the offence in question and thus of significance in deciding the appropriate sentence. Incidentally Finlay v Mc Fadyen mentioned last time is now to be found at 2002 GWD 25-799. As discerning sentencing trends is not easy, one should probably be slow to conclude from two swallows (Cahill v Heywood 2002 GWD 803 and Anderson v McFadzen 2002 GWD 804) that there has arrived a summer in which police assault is not regarded quite as seriously as it once was – although like possession of cannabis and driving while disqualified it no longer seems to beg a custodial sentence. Since anecdotal evidence had its own charm, I cannot resist mentioning the story of the single sheriff court where the incumbent began to impose compensation orders in the case of convictions for police assault. Far from achieving the desired result of deterring the commission of such offences, the result was an increase, short-term admittedly, in the number of cases of breach of the peace, which came with a Police (Scotland) charge appended.

Delays
One of the things that contributed to Hamlet’s feeling that it might not all be worth the bother was the law’s delays and the old problem crops up again in the highly unusual case of Beglan, Petnr 2002 GWD 27 936. (If this one were ever dramatised it would be to Samuel Beckett rather than Shakespeare that one would look) The petitioner got nine months on 21May 2001. He appealed and was granted interim lib. a week later. He abandoned the appeal on 13 August and then his troubles really began. Three letters were written to the warrant office of Strathclyde Police asking to be told when the warrant was issued so that he could hand himself in. The warrant was issued on 25th September. Thereafter there was an unexplained bout of inactivity on the part of the police and eventually Mr Beglan had to petition the nobile officium asking that the warrant be suspended and the sentence (for embezzlement) quashed. Which it was, on the ground of oppression. A newer situation, however, is that highlighted by HMA v Cinci 2002 GWD 934. By virtue of an application in terms of sec 273 of the Criminal procedure (Scotland) Act 1995 a witness to an incident in Scotland was allowed to go to the magistrates’ court in Brisbane and give his evidence, in the presence of a magistrate there, to be heard and seen by the jury in a High Court trial here by means of live television link. The global village indeed.