Guidance on guidelines

Too late to abandon?

Cases involving five judges sitting in the appeal court are always worth a look, and Hendry v HMA 2006 GWD 6-106 is no exception. Here the court was considering whether or not an appellant is entitled to abandon an appeal after the case has been called but before any argument has been heard. The hearing arose out of appeals against sentence which had been attempted to be abandoned before submissions were made.

The decision that abandonment was competent approves West v HMA 1955 SLT 425 and overrules Ferguson, Petr 1980 SLT 21. There is an interesting observation that notwithstanding the terms of section 116 of the Criminal Procedure (Scotland) Act 1995, which provides for the lodging of a note of appeal as nearly as possible in the style prescribed by the Act of Adjournal, for the reasons set out in R v Gibbon (1946) 31 Cr App R 143 the practice of allowing counsel to abandon orally is not objectionable.

Faulty defence again

Still on procedure, Irvine v HMA 2006 GWD 6-107 is another attempt (unsuccessful) at appealing on the grounds that a miscarriage of justice had occurred as a result of alleged failures on the part of those charged with the defence of the appellant. The appeal court, briefly, held that what were characterised as omissions would not have made any difference anyway. Sometimes it is not easy to see why appeals on this ground get as far as they do, especially as they would necessarily seem to involve the court in the task of considering the “evidence” led in the light of the rest of the evidence in the whole case. It will, of course, be clear that these articles are written to some extent from the perspective of a judge: it is, from that perspective, something of a concern that a presiding judge might be asked to give his or her views on the quality of the defence, as would happen if the appellant, erroneously I think, decided to proceed by stated case. What effect might that have on the question of judicial independence?

Judicial independence, though not perhaps in the sense that it is normally understood, is also a feature of McFarlane v Thain 2006 GWD 3-49, where an appeal succeeded on the basis that the sentencing judge had distracted himself with matters which appeared irrelevant to the matter in hand. It also seems that the appeal court took the view that the sentencing judge, by making sentences concurrent, was in some way giving a discount for a plea of guilty. It is plain that in all cases what the court must do is to consider what would have happened under the old way of doing things, and then move to an extra step, namely ascertaining the facts of the plea and discounting accordingly.

Weapons and common purpose

It sometimes seems that topics ebb and flow in the world of criminal justice, and it does seem some time since we heard much about concert. Black v HMA 2006 GWD 6-104 is interesting in this respect as it says something about how concert may be established. Essentially in the appeal it was argued that on the evidence a jury could not find sufficient evidence of a common criminal purpose beyond that of an assault with a baseball bat. The other weapon in question was a knife. The appeal court held that the trial judge had been correct to leave it to the jury to decide whether or not in the circumstances a knife and a baseball bat fell to be considered as weapons of the same sort for the purposes of concert. It is clear from the case that the important thing is the establishing of a general common criminal purpose to commit a serious crime and that the means are, in a sense, incidental to that. Accordingly any approach that tried to insist that actual knowledge that a knife might be used falls to be rejected. The case is well worth the consideration of anyone involved in a prosecution in which the question of concert arises, since there may be misunderstanding about the degree of actual knowledge required.

Some rules on guidelines

It is a few years now since the distinguished criminologist David Thomas, speaking in Scotland, advised in the strongest terms against us following the English down the path of sentencing guidelines. With Scotland having a relatively small judiciary, he thought that the complications introduced by guidelines far outweighed any advantage. It is possible, if the district courts come to do a fair share of criminal business, that the situation might change, and no doubt there will be pressure from somewhere for them (there always is), but with a robust appeal court they really should not be necessary. Purvis v Fraser 2006 GWD 7-124 casts some light, however. One discovers from that case, which is about penalties imposed for possession of differing sorts of cannabis, that the justices who imposed the penalties had been following certain sentencing guidelines issued by a Borders district justices committee.

The first thing the appeal court said was that it was in the circumstances unnecessary to reach a concluded view on the lawfulness of these guidelines – from which one takes that there is a question mark still. The appeals (there were two cases) were unsuccessful as the court held that the penalties were not inappropriate. In one case it was a fine of £100 for possession of drugs worth £3, in the other £500 for drugs worth £110. The guidelines in question, however, were criticised. They were devised in private and not published. The appellants were not informed that they might be taken into account. In all the circumstances justice had not been seen to be done. It would seem, therefore, that if there are to be guidelines they will have to be made public – so the offender may know what the stakes are – and presumably will have to be universally applied, so far as may consistently be done.

At this stage it might be worth asking two questions, just in the interest of debate, it will be understood. First, assuming that the pursuit of consistency might be a desirable aim, is it in truth a hunt for an ignis fatuous, with the object being as likely to be found, given all the necessary exceptions, as a unified field theory of contract? Secondly, and this is really a plea for information, is it not the case that the first reference (by Lord Chief Justice Cockburn?) to justice being seen to be done is in fact a reference to justice seeming to be done? The assertion that, in some cases at least, justice must be seen to be believed, although ambiguous, is not thought to be helpful in this connection.

Discounting dos and don’ts

Now for a couple of sentencing matters. Du Plooy v HM Advocate 2003 SLT 1237 – was ever a case so frequently referred to? – is back with us again in the case of Weir v HMA 2006 GWD 8-142. This was a successful appeal against a sentence of two years’ imprisonment – the maximum – for dangerous driving. The facts included the appellant driving at speeds up to 140 mph and driving through a red light and on the motorway in the wrong direction. The appellant, who had a previous conviction for the same offence, tendered as plea of guilty at the preliminary hearing. In reducing the sentence to one of 22 months, it was held that the sentencing judge had erred in not referring to the consideration of a discount in respect of the punitive element of the sentence, even if that element was small compared with the element relative to the need to protect the public. It seems that such sentences will accordingly have to be treated as involving two elements, namely punishment and public protection, which will not necessarily coincide and accordingly those charged with addressing the court in mitigation might like to consider in which other sorts of cases the distinction might arise and what might profitably be done about it.

Mason v HMA 2006 GWD 8-145 considers the appropriate approach to sentencing in serious matters by pointing out a basic error in the approach of the sentencing sheriff. The case involved the sentencing of three 16-year-old first offenders on a charge of assault to severe injury. It appears that the sentencing judge had taken a period of five years as the starting point and proceeded to discount taking into account the ages and personal circumstances of the accused. The appeal court made it quite clear that such an approach is incorrect. While it is not thought that it is one that would be followed by many sentencing judges, it might be worth recording what the appeal court said should happen. This is that the sentencer should set a starting point, taking into consideration the whole circumstances of the offence and the personal circumstances of the offender, including age, record if any and, if a significant period has passed, behaviour since the time of the offence. Thereafter the judge should apply whatever discount is appropriate to reflect the timing of the guilty plea.

Time to think about bail

It may not be strictly relevant but the new proposals about bail are a bit puzzling. It is not clear that there would be time to do everything suggested without something of a disruption, to put it mildly, to the court programme. Further, if the procurator fiscal does not have the determining “Yes” (and that is a constitutional change perhaps rather larger than those who have suggested it realise), how on earth is anyone else supposed to discover all the reasons for granting bail unless the procurator fiscal effectively argues in favour of it.? Finally, if the court refusing bail is to give reasons, will any appeal be about those reasons or will be it an application, effectively, for High Court review? Too early for me to suggest an answer, perhaps, but not too early, I think, for parties concerned to make submissions.