Policy and practice

In the days when Petronius was a force in the land (for younger readers – “ran for ages”, “oasis of civilization”, “profoundly witty”, etc), we used to get the occasional communication from an old university chum Arthur Coote, a freelance journalist in the Borders. The old fool has been in touch again and I quote: “While it’s a good thing to see the legislature intent on increasing the number of crimes known to Scots law, unless they up the bawbees paid to the legal aid lads and lassies the number of court solicitors looks like going down exponentially”. I pass on his comment as an example of informed lay involvement.

The Moorov minimum

Turning to the law then, there is a useful case on the Moorov doctrine, namely McRae v HMA 2005 GWD 23-416. This was a case in which the court had allowed the jury the possibility of invoking the doctrine in a case involving two instances of indecency said to have taken place more than three years apart in time. The paucity of incident and the wide time gap appear to have been balanced, if that is the correct word, by very close similarities in a number of ways as to the general circumstances spoken to by the two complainers. As such, the case would seem to support the notion that where one or more of the Moorov essentials are weak, this may be compensated for by strength in other departments.

Sentencing knife crime

The sentencing of persons who carry knives or other weapons continues to present problems. There are two cases on the topic reported at GWD issue 23, respectively 423 and 424. Morrison v Donaldson was an unsuccessful appeal against a sentence of four months’ imprisonment for possession of a knife. The appellant had no previous analogous convictions, had not served a custodial sentence before and no one had been injured. However the court made it clear that those who carried knives should recognise the consequences of being involved in any criminal purpose with them. In Ross v HMA a differently constituted court seems to have reached very much the same conclusion, allowing an appeal to the extent of substituting a period of four months’ imprisonment. The position now would seem to be that while you may conceivably escape custody for simple possession without authority/excuse, any hint of other contemporaneous criminal activity and you will be sent to prison. It may be that the law as it stands is not in a particularly happy state.

Flagrant breach

Breach of the peace continues to cause the occasional problem, possibly because of its very general and all-purpose nature. Owens v Donaldson 2005 GWD 24-437 was a successful appeal against conviction, the breach being said to have involved shouting and swearing during an Irish republican march after the appellant had been warned by the police about his conduct. Smith v Donnelly 2001 SLT 1007 was invoked (and must be regarded as the ruling authority), and it was held that in the absence of a finding of actual alarm the conduct did not reach the appropriately flagrant level as to be a self-evident or ipso facto breach.

Evidence bearing on credibility

Criminal evidence, and especially ways of getting it from “vulnerable” witnesses has been a matter of much concern recently; in this light it is worth having a look at HMA v A 2005 GWD 25-459. In this case, which concerned charges of lewd conduct against two girls, the Crown proposed to lead evidence from a clinical psychologist which would bear on the credibility and reliability of one of the complainers. In repelling an objection to this course, the trial judge held that while expert evidence on these points was generally inadmissible, in this case the jury required expert assistance to enable them to reach a conclusion as to the witness’s state of mind. The matter is somewhat complicated by virtue of the fact that the defence, who objected, itself intended to lead expert evidence to the effect that the witness had false memory syndrome, and in that circumstance it was fair that the Crown should also lead expert evidence ab ante

Conflicting objectives

Another area of change, so far as sentencing goes at least, has been to involve the court more directly with the accused, as in DTTO hearings. Accordingly it is with some sense of disappointment that one comes to the case of McLaughlin v McQuaid 2005 GWD 25-476, undoubtedly correct though it is. The case involved a bill of suspension which sought, successfully, to set aside the fixing by a sheriff of probation progress hearings. This is a practice which has evolved, occasionally, on the basis that such a hearing is likely to help the probationer, and indeed there is (admittedly anecdotal) evidence to the effect that some accused at least consider that they benefit from the practice. The appeal court held, however, that section 229(1) of the Criminal Procedure (Scotland) Act 1995 did not provide authority for the fixing of such hearings and that the court, having made a probation order, became functus. It is not known whether any legislative change is contemplated in this connection; it may be sufficient to say that a lot of worse, and less proven, ideas have made their way onto the statute book before now.

Staying with sentencing for a moment, I suppose that there was a time when all that an accused really wanted to know, to begin with, was whether he would go to jail if he pleaded guilty. It must be the case that this question is not becoming easier to answer. In so far as legislation affects sentencing, there are clearly two objectives in the official (i.e. non-judging) mind. At one extreme there is a determination to keep people out of custody through all sorts of devices such as restriction of liberty, compensation, intensive probation and more, even down to that last standby of the overburdened social worker, the deferred sentence. At the other there is a determination that victims, whoever they are, shall see that their concerns are more than adequately reflected in sentences of the maximum severity and so the penalties for certain fashionably objectionable crimes zoom ever upwards.

Joined up sentences

Was it Bob Dylan who said that the man who robbed the bank had nothing on the man who founded it? But I digress. Macauley v Houston 2005 GWD 25-477 is an illustration of what can go wrong with the “mix and match” approach. In that case the appellant had received a cumulo sentence of three months’ restriction of liberty order and 150 hours of community service. One might be forgiven for thinking that this was just the sort of non-custodial sentence that might find favour with those opposed, for whatever reason, to custodial sentences. The unfortunate thing, however, was that as the appeal court held, this disposal was not one which had ever been in the contemplation of the legislature, both penalties being seen as discrete. Accordingly the restriction of liberty order had to be quashed. It may be that this is the sort of thing that is bound to happen when new disposals are introduced piecemeal: at one time, one recalls, it was not possible to combine a compensation order with a community service order. One solution might be to legislate to the effect that no sentence should be, in this sense, discrete. This would not, of course mean that such combinations would necessarily be appropriate, but it would introduce a far-reaching level of welcome flexibility. Or would that be too easy?

Speed as dangerous driving

In the world of road traffic, Dysart v Daldrup 2005 GWD 23-433 is something of a novelty. It involved a successful Crown appeal against the acquittal on a charge of dangerous driving of an accused who had been followed for 14 miles doing a speed of 126 mph. The court held that while speed would not always be a ground for a conviction, this particular degree of speed was, and that what the trial court should be concerned with was potential and not necessarily actual risk. It was held that no reasonable sheriff could have failed to convict and the matter was remitted back with a direction so to do.

Latitude and fairness

Finally, for a consideration of the general question of fairness to the accused and in particular the question of latitude, attention is directed to the case of Stewart v HMA 2005 GWD 27-523. The appellant was a police officer accused of 13 charges of rape and other sexual offences and the appeal was against the original judge’s refusal of three minutes. The first averred that five of the charges were irrelevant and lacking in specification by reason of lack of fair notice, the second averred delay in regard to some of the charges and the third claimed a violation of the appellant’s right under article 6 of the European Convention in respect of delay. Reviewing the law, the appeal court in refusing the appeal held that the latitude taken was justified, drawing a comparison between the position of complainers in a small community and that of children in a residential home. It was further held that any delay would cause difficulties for the Crown as well as for the defence and this situation was one which could be dealt with by an appropriate charge to the jury; and that in the absence of delay by Crown or police the appellant’s article 6 right had not been infringed.