Journey's end

Beggs appeal concluded

One of the most protracted appeal processes in recent years has now come to judgment, with the issue of a 94-page opinion in Beggs v HM Advocate [2010] HCJAC 27 (9 March 2010). The appellant had been convicted of murder in October 2001, but it took eight years to reach the stage of full argument on 11 grounds of appeal, all of which were dismissed in a 222-paragraph judgment. Leave to appeal was refused.

Two of the major areas of controversy deserve special mention here: the validity of the warrant upon which the appellant’s house had been searched, along with the related evidential issues; and whether the fact that the jury did not give reasons for its decision was a breach of article 6(1) of the ECHR.

The first of these had initially been litigated at a trial within a trial, because the warrant produced as a Crown production appeared to have been altered. The document contained a typed petition for warrant to search the house, followed by the warrant itself, properly dated and signed by the sheriff. But the typescript of the petition was covered with various pencil additions, deletions and interlineations suggesting that warrant was being sought to search a lock-up garage at a different address.

The trial judge concluded that the warrant authorised the search of the house and admitted highly incriminating evidence of what was found there: HM Advocate v Beggs

(No 4) 2002 SCCR 62. The appeal court held that, in view of the obvious irregularities, the judge was obliged to follow the course which he did, an exercise which did not involve “going behind the warrant” but had been confined to exploring the reasons why the warrant had been defaced. The court also held that in granting the warrant the sheriff had applied the proper test and had struck the correct balance between public interest and private right, so the evidence obtained was admissible.

On the alleged breach of article 6 in respect of the jury verdict, the appeal court was addressed in detail on a range of European authorities on the duty of a court to give reasons for its decision. The jurisprudence makes it clear that the duty may vary according to the nature and circumstances of the case; it has also been clear (until now) that the absence of reasons for a verdict may be offset by the discernability of the basis of the decision from the procedural framework in which the jury operates.

In the circumstances and complexities of the present case, it was argued that the fact that the jury did not give reasons was not sufficient to meet the fair trial guarantee.

The appellant founded particularly on Taxquet v Belgium (13 January 2009, Application 926/05) as the basis for an argument that the Strasbourg court had embarked on an new approach requiring greater transparency, but the appeal court preferred (and applied) the reasoning set out in Transco plc v HM Advocate 2005 JC 44 to the effect that an understanding of the reasons underlying a jury’s verdict could be obtained from the speeches to jury by prosecutor and defence and the charge by the presiding judge. Taxquet and the earlier line of authority had also been examined by the Supreme Court of Norway in A v The Public Prosecution Authority (12 June 2009), which had concluded that Taxquet had not imposed a requirement that a jury supply reasons for its verdict, a conclusion with which the appeal court agreed.

Lewd and libidinous practices

When the Sexual Offences (Scotland (Act) 2009 comes into force, probably later this year, crimes involving the sexual abuse of children will be prosecuted under an entirely new definitional structure. Until then (and indeed in respect of offences committed before the Act takes effect), the old law relating to lewd practices will remain in force. But doubts about the proper definition of this crime have recently given rise to a flurry of case law.

In Heggie v HM Advocate 2010 SCCR 185 it was held that the trial judge had misdirected the jury when (at a trial conducted over three years previously) he told them that they had to be satisfied that the accused’s intention had been one of sexual gratification or an intention to corrupt the child’s innocence; indeed the Crown conceded that only the latter intention need be proved.

However, Heggie was distinguished in Sommerville v HM Advocate 2010 SCCR 299 (another appeal three years old), where it was held that there was no need to prove such an intention and no authority to support the need to prove an intention to obtain sexual gratification, something which had not been argued in Heggie.

The most recent case on all of this is Casey v HM Advocate [2010] HCJAC 40 (23 March 2010), where the sheriff had directed the jury in the same way as the trial judge in Heggie. This time it was made clear that the mens rea of lewd practices was simply that the accused should have intended to do the acts libelled; the motive or sexual impulse which led him to do them was irrelevant. Indeed, as the Lord Justice Clerk made clear, the mens rea of lewd practices was not discussed in Webster v Dominick 2005 JC 65, where lewd practices was only analysed in terms of its actus reus. It is however ironic that this line of authority should appear shortly before the law is to be changed, at least for new cases.

Return and recall orders

If there are two provisions of sentencing law which give rise to the greatest complexity (and the greatest risk of error by sentencers), they must be ss 16 and 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Section 16, which provides for return orders in respect of someone who commits an offence punishable with imprisonment during the unexpired portion of an earlier custodial sentence from which he has been released early (either unconditionally or on licence), is probably used more in the sheriff court than at other levels of the judiciary, while the operation of s 17 is solely within the jurisdiction of the Scottish Ministers, giving them (in the case of a long-term prisoner released on licence) a discretionary power to revoke that licence and recall him to prison.

The contrast between these two regimes confronted the appeal court in Stuart v HM Advocate [2010] HCJAC 34 (16 April 2010), where the sheriff had run foul of both provisions and passed incompetent sentences. He was not the first to do so, and will not be the last (unless practice changes quickly), for he was clearly not made aware of the factual position. The accused had been released on licence from a High Court sentence and then recalled under s 17; before the sheriff he pleaded guilty to offences committed while he had been at liberty, but nobody gave the sheriff any information about his release and recall dates. The sheriff made a s 16 order to run consecutively to the original High Court sentence which the accused had been recalled to serve, without complying with (a) s 16(5) of the 1993 Act and considering whether to remit the case to the High Court; or (b) s 204A of the Criminal Procedure (Scotland)Act 1995, which prohibits the imposition of a consecutive sentence on someone who has been released at any time under the early release provisions and then recalled.

In quashing the incompetent sentences and remitting the case to the sheriff, the appeal court stressed the importance of the sentencing court being made aware of all the necessary information when considering a case such as the present, suggesting once more that it would be desirable for the Crown to draw the true position to the attention of the court. But surely a defence lawyer also has a responsibility to ensure that a court does not pass an incompetent sentence, or at the very least to advise the court that it might be about to do so?

“Acceptable plea” letters

When is a Thom letter not a Thom letter? The question continues to intrigue, since nowadays procurators fiscal routinely serve on accused persons a summary complaint (no doubt containing only charges which can be fully proved) while at the same time writing a letter to his solicitor saying (in effect) “If your client pleads now to this or that, he can forget the rest”. But such pragmatism has its price, as is evident from MacDonald v McGowan [2010] HCJAC 36 (23 April 2010), where the letter contained a typing error as to the terms of the acceptable plea and did not reflect the case instruction note prepared by the depute fiscal who had marked the case before the papers were passed to the depute in court.

Although the sheriff repelled a plea of personal bar taken by the accused (whose guilty plea in terms of the letter was rejected by the court depute since it did not reflect the instruction on the papers), an appeal against that decision was sustained, the court holding that the letter passed to the defence was an unequivocal and unqualified announcement of the Crown position, upon which the defence solicitor was entitled to rely in seeking and accepting instructions from his client.

• Charles Stoddart is a criminal law author and a former sheriff