Case that makes the heart leap

It may be that what most accused worry about is not so much conviction as sentence. While there are those who will always want to go to trial, either because they are persons of principle or because they enjoy a gamble, this, of course, begs the whole question of plea bargaining. As this system seems to work well enough in other jurisdictions, it is remarkable that it has never caught on here.

We have after all just gone through a period in the annals of criminal justice in which managerial efficiency took the place of considerations of justice, philosophically speaking. I say “gone through” because there are already signs, as regards both Scotland and the whole of the United Kingdom, that a change is coming which will signify a more realistic and less populist approach. However, it is legitimate to ask what is the real difference between a fixed penalty and the guarantee of a particular sentence on a plea. We do, after all, now guarantee a pretty much fixed percentage reduction on sentences when the accused decides, at some stage, to accept guilt. Furthermore, if some sort of central sentencing advisory body does come into existence, the outcome of any criminal case should be that bit more predictable and thus, theoretically anyway, known in advance.

Two for the present

However we have to deal here with sentences as they are now, and in that context there are a couple of cases requiring our attention. Nelson v Barbour [2007] HCJAC 31; 2007 GWD 19-335 concerns the operation of that much misunderstood thing, the sex offenders register. The appellant had been placed on the register for an offence of public indecency, namely removing his clothing, exposing his genitals and gyrating against a handrail. Allowing the appeal, the court held that the sheriff should have had regard to the terms of para 42 of sched 3 to the Sexual Offences Act 2003. The effect of this was to invoke the sexual nature of the offence only in a situation where a person other than the offender was under the age of 18 and was involved in the offence. As there was no scope for any sexual connotation to a public indecency offence outwith that context, the question of the sex offenders register did not arise. Perhaps the Act should be renamed, or perhaps it should be amended. Or perhaps it is all right as it is.

O’Hara v Murray [2007] HCJAC 34; 2007 GWD 23-380 is a partially successful appeal in respect of two charges of theft from farm premises. In respect of the first, a sentence of 80 days’ detention, discounted from four months, was imposed, along with a compensation order for £5,000; and in respect of the second a consecutive sentence of 40 days, discounted from two months. It was argued that the sentences were incompetent, the statutory limit in respect of a common law offence tried summarily being three months’ imprisonment. This matter was dealt with fairly easily, since the appellant had a previous conviction for a contravention of s 178(1) of the Road Traffic Act 1988. The court had no difficulty in holding that this was an offence inferring dishonest appropriation of property within the meaning of s 5(3) of the 1995 Act and as such the maximum period was actually six months. The court did however hold that the compensation order should not have been made, having regard to the appellant’s means at the time and also to the fact that it was imposed in addition to a custodial sentence.

Two points perhaps worth further consideration arise. The first is that it appears that the idea of a compensation order not really being a punishment, but as essentially putting the parties back where they were before the wrong was done, does not find favour here. A French court, for example, may in some circumstances award civil damages in the same process as a criminal trial, but it would appear from this decision that the appeal court regards a compensation order rather more in the light of a fine payable to an offended person instead of to the state. The second is that it is implicit that, for discounting purposes, it is the “base rate” to which the discount is applied, rather than the actual sentence, which is to be looked at when considering questions of competency involving a maximum sentence.

The joy of Moorov

The poet Wordsworth’s heart leaps up, he tells us, when he beholds a rainbow in the sky. Mine does something similar when I see the name Moorov, for reasons that I neither understand nor wish to (although they may be connected with an article published a number of years ago in the Juridical Review by the late Peter Vandore QC, in which he agued that the ratio had been consistently misunderstood and the authority repeatedly misapplied).

And so to Stewart v HMA [2007] HCJAC 32; 2007 GWD 20-345. The appellant, a serving police officer at the time of the offences, faced two charges of penetrative sexual assault and one of indecent assault.

Two main points were argued on his behalf. One was a general attack on the appropriateness of applying Moorov in the circumstances, it being said that there was not a sufficiency of relationship of circumstance, character and time for there to be mutual corroboration. It was also argued that evidence in respect of the less serious charge could not corroborate that of the complainers on the two more serious charges, because evidence on a lesser charge cannot corroborate that on a greater charge.

The appeal was refused, the court holding that it was for the trial judge to decide whether there was a sufficiently close relationship to entitle the jury to find the necessary corroboration. The appeal court went on to consider what it regarded as the significant matters in the evidence, holding that there was no time limit on the application of the doctrine in the face of compelling similarities, these being that the appellant, in the course of his police duties, bought about a situation in which he was alone with the complainer, that in each case the complainer was vulnerable for one reason or another, and that each case involved interference with the complainer’s private parts. As it happened, the third charge was separated from the first two by a latitude of almost four years, but the court pointed out that this was of much less significance that it might otherwise have been because the charge occurred not long after the appellant’s return to uniform after a period as a plain clothes officer.

Statements and precognitions

Another, and quite different, matter of criminal evidence was dealt with in HMA v McSween [2007] HCJAC 33; 2007 GWD 20-344. This was an appeal by the Crown against a decision of a single judge holding a witness statement made by M to be inadmissible in M’s trial for perjury on the basis that it could not be found beyond reasonable doubt not to be a precognition or a statement in the nature of a precognition. What happened was that, inter alia, M, being re-interviewed, gave information to police officers who then composed sentences from what he had said and wrote them down, M then signing each page.

The main point made by the appeal court, in allowing the appeal, was that what was said during the re-interviewing was not a precognition or statement in the nature of such, where the interview took place, not on the instructions of the procurator fiscal, but in furtherance of an ongoing enquiry. It was said, reasonably one might conclude, that the police were doing no more than pursuing with a reluctant potential witness the availability of evidence from him which might support existing evidence pointing to the identity of the murderer. It was stated that the fact that the interviewing officer had formed a view about where the truth lay did not transform him into a precognoscer.

It was also held that the observations in Kerr v HMA 1958 JC 14 did not represent the law as currently understood, it being clear since Thompson v Crowe 2000 JC 173 that questions of admissibility of evidence were questions of law for the judge and all that was required was a ruling on admissibility. The court further held that there was no valid distinction between the use of a statement for the purpose of proceedings for perjury and the use of such a statement for putting to a witness in terms of s 263(4) of the Criminal Procedure (Scotland) Act 1995.