Open question on sentencing guidelines

There are probably enough laws already, but perhaps there should be one more to the effect that the way that the number of ways things can go wrong is infinite. Three recent possible hiccups, for want of a better word, in the flow of justice are explored in 2003 GWD 10.  274 is Haney v HMA (no1), where an unsuccessful attempt was made to establish that a trial judge was not to be regarded as independent and impartial because he might have had knowledge of the appellants by virtue of his having been an advocate depute.

The appeal was disposed of under reference to Mellors, Petnr 2002 SCCR 1007, with regard to the fair-minded observer and objectively justified suspicions. 275 Haney v HMA (no2), also unsuccessful, was an appeal against the refusal of a plea in bar of trial on the basis of newspaper reports. Seven months had elapsed from the publication of the more prejudicial of the last two reports and the appeal court held that once the trial had started the jury’s attention would be on the evidence presented to them and that if anything remained of the reports by then its effect could be counteracted by the judge in his charge. The court did make certain observations about what it regarded as contempt of court in respect of some things published at a time when the appellant had been indicted and was thus under the protection of the court. Finally 276 is McRae v HMA, which was a successful appeal arising out of the prior involvement with one of the accused of the person who acted as jury foreman.  The appeal court held that there was a clear requirement in the circumstances that that juror’s prior knowledge should have been disclosed before the jury was balloted or after the sheriff’s preliminary remarks and that in the circumstances an objective observer would conclude that that particular juror would be likely to be hostile to at least one of the four accused. As a jury decision is collective, impartiality on the part of any one member was a flaw affecting the whole decision. A fourth potential hiccup is to be found in the case of Robbie the Pict, Petr GWD 2003-11-308, which is the one, as it were, about the Speculative Society. As an extraordinary (i.e. inactive) member, I do not mind declaring an interest (I belong also to the Stair Society, that other bastion of conservative subversion), but I may say that it is good, and not surprising, to see the appeal court setting its face against any sort of system of enquiry into the extra-judicial associations of judges. To do other would have opened the way to a process that would have made American jury vetting look feeble. It was good too to see the emphasis put by the court on the importance of the judicial oath, which, statistically speaking, is probably better honoured than the one taken by witnesses about telling the truth.

ECHR

One of the effects of ECHR has been that some of our venerable, if not always venerated, institutions have been put under scrutiny. The latest to receive the treatment has been the district court system, with particular reference to the role played by the clerk. Clark v Kelly 2003 GDW 7-164 is a decision of the Privy Council. Inter alia it was held that the clerk is part of the tribunal for article 6 purposes and that the fact that advice is tendered to lay justices is not of itself a ground for finding an infringement of the section.

It was held that what is important is that the clerk should be seen to be carrying out his duties in an impartial and independent way, with any input being advice in general terms on law and procedure. Further it was held that there was no requirement that this advice should be given in public, it being part of the ordinary functioning of, rather than the proceedings before, the court. It was observed that the advice given should be regarded as provisional until such time as it was repeated in open court, in substance at least, so that parties had the opportunity to comment on it, with the clerk openly stating whether the advice was thereafter confirmed or varied. Another ECHR challenge was mounted in Dudley v HMA GWD 6-138.  Here what had happened was that the appellant had been detained in relation to possession of drugs in prison on information obtained as a result of a telephone call between herself and a prisoner being monitored. It was argued that the appellant’s rights under art 8(1) had been violated in the absence of any warning to her that the call might be monitored. It was held that the evidence was admissible, having been obtained in accordance with domestic law and that as the prisoner had been warned about monitoring there was no reason why he should not have passed the warning on. It is, with respect, hard to conceive how any other result could have been contemplated.    

Plagium

Another thing which has been around for some time is the offence of plagium or child stealing, presumably reflective by its existence the days when marauding bands roamed the country in search of one another’s offspring.There has always, one suspects, been  some concern when it has been brought against one of the parents of the child in question. In Orr v K 2003 GWD 8-196, the charge was brought against a mother who failed to return a child ,after agreed contact, to the father with the residence order. The sheriff dismissed the complaint, holding that the abolition of “custody” as a concept in the 1995 Act together with that act’s maintaining the rights and responsibilities of the natural mother removed the basis of the pre-existing law, as illustrated by the case of Hamilton v Wilson 1994 SLT 431, and gave jurisdiction in such matters to civil rather than criminal courts. It is to say the least uncommon to find a common law crime abolished by a side wind in the shape of a civil statute dealing with something else.

Consent

Peace v HMA 2003 GWD 6-142 is one of those genuine consent cases involving a person (a woman’s – in this instance) who might or might not have actually consented as well as possibly having given the impression to the appellant that she did consent (or had consented). The report is worth reading in full – the appeal was a successful one – but I mention it here for a particular purpose. In its formulation of one of the questions to be addressed, the court speaks of the appellant’s genuine belief that the other party had consented or to the jury being not satisfied that he had no such belief.  I mention this as it emphasises once again that what is important is that the prosecution should be able to prove a wicked intention, to use an old-fashioned expression, and that this must be made clear to the jury by the judge. Any suggestion that it is up to an accused to assume the onus of proving a genuine belief will be incorrect. As so often happens, the appellant may well assume the evidential burden, for safety’s sake, of trying to prove genuine belief, but that does not affect the onus. Another useful reminder for judges (and for those who listen to their charges to juries) is to be found in A v HMA 2003 GWD 169, where it was emphasised that it is as well to stick to tried and tested formulae about such things as the concept of reasonable doubt in case the use of other language should complicate or modify the true test and thus lead to a misdirection.

In passing, if it is indeed true that one only learns something after one has been told it three times, then juries should be well catered for, since the modern fashion seems to be for both prosecutors and defence agents to offer their own crash courses in onus of proof, corroboration and doubt. before the judge gets a chance to deal with the matter. Vain repetition? Perhaps not..

Sentencing guidelines

There may not seem at first to be too much to be said about the case of Forsyth v McLeod GWD 2003  8-233, which is an appeal against sentence in a speeding case, the court reducing the appellant’s fine from £450 and 5 penalty points to £250 and 4 points. The offence was of driving at 53mph in a 30mph limit and the sentencing justice described in his report the penalty as being in accordance with guidelines in the local district court.  No further information about these guidelines seems to have been available. The fine was reduced as being excessive having regard to the appellant’s means. The whole position of guidelines remains unclear.  We do not have them issued by the High Court in the same way as the English Court of Appeal, after fairly elaborate soundings, issues them in England.  We prefer to approximate to uniformity by way of judges watching to see what appeals against sentence are successful and reacting accordingly, as well as by paying attention to what may be said by way of reasons when appeals are refused. One suggestion made at a recent Sacro/Amnesty conference about, among other things, post-code justice, made by Professor Neil Hutton was that judges in inferior courts should draw up their own guidelines. One effect of this would be that a clear response to particular local problems would be possible and that it would be possible for local knife-carriers, for example, to be told that other things being equal the court would be considering custody even for first offenders.  The other would be a measure of uniformity, at least locally. If groups of judges in different parts of the country were to take widely different approaches, then this might, superficially, seem to deserve the post-code epithet, but that might not necessarily be a bad thing, although one can see the attractions of nationwide uniformity too. What is more likely to be damaging, not that it is all that likely to happen, is for inferior judges in the same court to adopt widely differing approaches. However the objection (an old one) about not having sentencing policies lest they militate against each case being treated on its merits still has force. The question remains an open one.