Where to draw the line

Withdrawal of a guilty plea

It is, of course, very difficult to withdraw a guilty plea once it has been entered, especially following legal advice. Only in very exceptional cases will such a course be permitted and a full explanation is needed of the circumstances in which the plea was tendered, or where there is said to have been a genuine error or misconception before that point.

Whillans v PF Edinburgh [2010] HCJAC 91 (29 July 2010) simply confirms the reluctance of the appeal court to interfere in such cases. In that case, the appellant was charged with dangerous driving, contrary to s 2 of the Road Traffic Act 1988. In the summary complaint served on him, there were detailed averments alleging a course of dangerous manoeuvres on a motorway, causing a collision between his own and two other vehicles. He pleaded guilty by letter and was then required to appear personally for sentence, being told he was liable to disqualification. He duly appeared at court and waited in the public benches for about two hours, before he was approached by a solicitor to whom he gave brief instructions. Following a plea in mitigation, the appellant was fined and disqualified; he then lodged a bill of suspension, having sought different legal advice.

The court rejected his contention that as a result of information given to him by the police at the time of the accident, he thought he would receive only a fine and three penalty points; his argument that he did not understand the gravity of the charge was also rejected. Frost v McGlennan 1998 SCCR 573 was of no assistance to the appellant; there, a reference in the charge to excessive speed had apparently confused the accused into believing that he was simply charged with speeding. On a full review of the authorities including MacGregor v MacNeill 1975 JC 57, Healy v HM Advocate 1990 SCCR 110, and Reddie v HM Advocate 2005 SCCR 407, there was no justification for suspending the conviction; the court would not entertain an appeal of this kind only because the sentence imposed was greater than the appellant had been led to expect.

Validity of a search warrant

It is well established that there are three fundamental elements of a valid search warrant: the date on which it was granted, the signature of the granter, and an adequate description of the premises to be searched. The first two of these are crucial because without them the validity of the warrant at the time of the search cannot be determined, particularly where the search warrant is one of those which, by statute, are only valid for a particular time. But what if the address of the proposed search appears to be inadequately specified? Does that invalidate the warrant? It all depends on the circumstances.

In Paterson v HM Advocate [2010] HCJAC 85 (24 August 2010) the relative box provided on the warrant for the insertion of the name and address of the occupant of the premises contained only the words: “James Paterson, Flat 0/1, 11 Anwoth Street”. In spite of the absence of a place name, the High Court refused to pass a bill of suspension in which the validity of this warrant was challenged, and applied the test set out in Bell v HM Advocate 1988 JC 69 at 73: whether the occupier of premises to whom the warrant is shown would be able to satisfy himself that the constable has power to search those premises. On an examination of the document as a whole there were various references in other sections to “Glasgow” and “Strathclyde”, and the Crown told the court that there is only one “Anwoth Street” in Britain: in Tollcross in Glasgow. It was held that the combination of the unusual street name, the other references and the fact that it was at no time suggested that in conducting the search the Glasgow police had any difficulty in locating Anwoth Street or in satisfying the occupier of their authority to search, meant that the test in Bell v HM Advocate had been satisfied.

Excessive penalty for contempt

Petitions to the nobile officium challenging a sentence for contempt of court are relatively rare (at least in the case of an individual), but one recent example is Corkish v HM Advocate [2010] HCJAC 89 (27 August 2010), where a sentence of one year’s imprisonment was quashed and replaced by a simple admonition. Not surprisingly, the circumstances were very special.

The petitioner had been cited as a Crown witness against two accused charged with a catalogue of very serious crimes involving firearms, conspiracy to murder, two attempted murders, murder itself and attempting to pervert the course of justice. Two trials were held at which the petitioner had given evidence; the first had to be deserted after three days due to jury problems, but the second trial proceeded to a conclusion. At the first trial, the petitioner initially failed to identify one of the accused and prevaricated in his answers to questions, before changing his evidence about identification. At the second trial, he did identify the accused, but admitted he had lied about a number of matters at the first trial and was ultimately dealt with for contempt in respect of his admitted perjury and prevarication.

But the petitioner’s sentence was quashed, after it became apparent that the averments made on his behalf in the petition were undisputed by the Crown. They had failed to provide him with special measures to protect him at the first trial, in spite of leading him to understand that such measures would be taken; there was uncontroverted evidence about a catalogue of health problems which were affecting him when he was giving evidence; and he had been under real and substantial threats to his person and his family prior to and during both trials, resulting in his admission to the witness protection scheme.

Also produced to the appeal court was an affidavit from an assistant chief constable with Strathclyde Police, to the effect that if the sentence remained undisturbed that could have a general adverse effect with regard to reluctant witnesses who might be further deterred from coming forward. Further, the Crown confirmed the existence of danger to the petitioner and had decided (at a high level) not to prosecute him for perjury. The appeal court was concerned about the wider implications of the sentence imposed; this was something to which the trial judge had given insufficient weight.

“Domestic” breach of the peace

Never in the field of criminal law has the definition of a (minor?) crime caused so much bother to so many. Hatcher v PF Hamilton [2010] HCJAC 92 (7 September 2010) is this month’s case on breach of the peace and concerns what in common parlance is described as a “domestic”. Over the course of an evening, a husband was alleged to have shouted and sworn at his wife, objecting to her going on a work outing just after New Year. He was angry and upset because he thought she might have been unfaithful to him at a recent Christmas office party; he questioned her for several hours and refused to allow her to go to bed.

All of this happened in the family home; the only other persons in the house were the couple’s two children aged 12 and 15, who were in their respective bedrooms. The wife was upset and called the police. At her husband’s subsequent trial for breach of the peace, one of the findings made by the sheriff (after holding that there was a case to answer) was that the behaviour was likely to have caused serious fear and alarm to the children and was severe enough to cause alarm to an ordinary and reasonable person observing the same.

The High Court quashed the conviction, holding that the evidence was insufficient in law. There was no public element to what had occurred; it did not threaten serious disturbance to the community; and the sheriff was not entitled to find that it was likely to have caused serious fear and alarm to the children, since there was no evidence that they were even aware of what had happened. Further, the sheriff had been wrong to characterise the children as members of the community or public.

While the court reviewed some of the recent case law on the application of the conjunctive test, it left the door open to future prosecutions for breach of the peace committed in a dwellinghouse by means of conduct directed by one family member to another. But it remains to be seen whether any such cases are taken up. As from 6 October 2010, it is more likely that such conduct will be dealt with under s 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which creates the new offence of threatening or abusive behaviour. But in this area of law, nothing can be taken for granted.

Charles Stoddart is a criminal law author and a former sheriff