"Definitive" approach

Sentencing for child pornography

Sentencing guideline judgments in Scotland have been few and far between, but Ogilvie v HM Advocate 2002 JC 74 did set out the range of appropriate disposals for different categories of offences of child pornography and the relevant aggravating and mitigating factors for any particular case.

There, the court accepted the English guidelines then in force, but over the years we have seen the emergence of the COPINE scale of categorisation; the landmark decision in R v Oliver [2003] 2 Cr App R (S) 15; the establishment in England of the Sentencing Advisory Panel and later the Sentencing Guidelines Council (now replaced by the Sentencing Council for England & Wales); and increased statutory penalties for this kind of offence. But the problem of sentencing levels in Scotland had hardly been revisited until the decision in HM Advocate v Graham [2010] HCJAC 50 (27 May 2010) comprehensively addressed this unmet need.

This was a Crown appeal against a cumulo sentence of six months’ imprisonment imposed for contraventions of s 52(1)(a) and (b) of the Civic Government (Scotland) Act 1982, a sentence said to be unduly lenient. The appeal court agreed, increasing the period to six years and four months. The material, which the Lord Justice Clerk described as “vile”, comprised over 79,000 still images of child sex abuse and almost 1,200 moving images, downloaded over four years, many thousands being at level 4 and 5 on the COPINE scale.

In the course of an extensive opinion, the court examined in detail (and under reference to copious authority) the statutory provisions, previous judicial guidance and the development of sentencing guidelines in England & Wales, with particular reference to Oliver and the Definitive Guideline on the Sexual Offences

Act 2003 issued in 2007 by the Sentencing Guidelines Council (to be found at www.sentencingcouncil.org.uk/professional/guidelines/sexual-offences.htm). This version amended the Oliver classification in terms of the nature of the images at each level, crucially in relation to images depicting penetrative sexual activity.

The Definitive Guideline

After analysing the use of guidelines in general, the court concluded that the Definitive Guideline should henceforth be used in all cases for as long as it remained the pre-eminent classification of such offences in the UK; further reference to the COPINE scale was no longer appropriate: see paras [21] to [29].

Various elements in the approach to sentencing in cases of this kind were thereafter explored. As to quantity and seriousness, the court reviewed the case law in England and Scotland, including McGaffney v HM Advocate 2004 SCCR 384, and decided that some general guidance was needed on what constitutes a “small” and “large” number of images (the “low hundreds” and the “high hundreds or thousands” respectively); what the sentencing policy should be in the case of moving images (they may be more vivid and corrupting than a still); and what constitutes commercial distribution.

As for the categories of aggravating and mitigating factors, the court once more agreed that those set out in the Guideline were appropriate in Scotland. In the former category, issues such as distribution and storage have to be addressed, as well as (in the case of contact abuse) whether the offence was facilitated by drugs, alcohol, threats or intimidation; while mitigating factors might include the fact that the images were few in number and held solely for personal use, or where the images were viewed but not stored.

But perhaps most significantly, the court was at pains to stress that too rigid adherence to guidelines can distort the sentencing exercise and produce an unjust result. Although in the present case, the relative Guideline suggested a sentence in the range of two to five years’ imprisonment, the actual sentence had to reflect the culpability of the accused. In the whole circumstances and under reference to Brown v HM Advocate 2010 SCCR 393 and Jordan v HM Advocate 2008 JC 345, the court assessed the starting point at seven years, discounted by one tenth to reflect the plea of guilty.

The evidence was conclusive and there was no question either of a substantive defence or of sparing vulnerable witnesses or complainers from the ordeal of giving evidence. In fixing the discount proportion, the court applied Spence v HM Advocate 2008 JC 174, noting that the plea of guilty came at a continued preliminary diet, thus attracting somewhat less than the discount which might have been applied had the accused pled at the first preliminary hearing or indeed under s 76 procedure.

Finally, the court dealt with another problem in cases of this kind: should the sentencer view the images, or a selection of them, or simply proceed on the basis of the Crown narrative? The court decided this was a matter for each sentencer, but the Lord Justice Clerk’s view was that if a decision was made to view all or some of the images, the sentencer should “be conscious of the ever-present danger of passing sentence when his emotions have been raised by what he has seen”: para [50].

Breach of the peace: thrice more

In the space of six weeks the High Court has added three more opinions to this year’s tally of cases on the ever-evolving crime of breach of the peace.

First, if it was thought that by overruling Young v Heatly 1959 JC 66 the High Court in Harris v HM Advocate 2010 SCCR 15 had put paid to any idea that breach of the peace could never be committed in private, that view is clearly mistaken. Two of the three cases just decided make this clear; the ambit of the crime can extend to behaviour in an apparently private location, provided that the conjunctive test set out in Smith v Donnelly 2002 JC 65 is met: the behaviour must be both severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. A public element to the behaviour is required, something which (if the behaviour occurs in private) can be satisfied if there is a realistic risk of its being discovered: Jones v Carnegie 2004 SCCR 361 at para [12].

What happened in Bowes v McGowan (PF Aberdeen) [2010] HCJAC 55 (8 June 2010) was that the accused had pleaded guilty to a breach of the peace committed in a taxi travelling on various public roads and hired to take the complainer home from school. She was a 14 year old schoolgirl who became alarmed and upset by a completely inappropriate conversation initiated by the accused about intimate sexual matters, which she reported to her family on her arrival home. While his appeal against sentence was pending, the decision in Harris was delivered and he then sought to suspend his conviction on the basis inter alia that what he had done was not a crime, principally because there were no other persons present in the taxi and the case was on all fours with Young v Heatly. But the court did not agree, holding that both parts of the conjunctive test were satisfied; of particular significance was the realistic risk of the objectionable conduct being discovered quickly (as indeed it was) and the fact that the taxi being used at the time was publicly licensed and available for hire to members of the public.

By contrast, the alarming behaviour which formed the basis of two charges of breach of the peace in WM v HM Advocate [2010] HCJAC 75 (16 July 2010) was not reported until many years later. It took the form of threats made by a father to his two young children during access visits, occurring in a flat and also in rented holiday accommodation. The trial was concluded before the decision in Harris, and in charging the jury the trial judge made no mention of any community element, although they were told that there had to be a real risk of discovery. The convictions were overturned because the evidence did not disclose such a risk of the conduct being seen or heard by a third party or parties, or being brought to their attention, whilst that conduct continued or in the immediate aftermath of the conduct having come to an end, the court observing that Bowes v McGowan might have been a borderline case of that kind.

Finally, not everything said and done in public amounts to a breach of the peace, even if it might be said to be indecorous, inappropriate or irritating in nature. In Angus v PF Perth [2010] HCJAC 76 (23 July 2010) a 15 year old schoolgirl nearing the end of her early-morning paper round had been passed a note by one of her customers when he stopped his car next to her. Although they knew each other’s name, they were effective strangers; the note simply contained his mobile phone number; and in passing the note to her, he said they could keep in touch. He then drove off; she phoned her mother because she was scared and the matter was reported to the police as soon as she had completed her round. The High Court held that the sheriff had been wrong to repel a submission of no case to answer: although there was a public element to the behaviour, which was admittedly inappropriate, it was not such as to cause alarm to ordinary people and threaten serious disturbance to the community.

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