Punished enough?

At one time the average length actually served of a sentence of life imprisonment was about 11 years. Nowadays, in most cases, the starting point is 12 years for the punishment part of a life sentence before parole can be considered. Three recent cases are good illustrations.

On 26 November 2013, the appeal court considered a Crown appeal, HM Advocate v Callander [2013] HCJAC 159, and an appeal by the accused, McGrory v HM Advocate [2013] HCJAC 165. Callander had pleaded guilty at the first preliminary hearing to a charge involving repeated punching and kicking the deceased on the head and body and stamping on the body, in what was described as a brutal, sustained and vicious attack lasting about five minutes. The deceased sustained multiple injuries. Both were alcoholics and had been drinking in a den when an argument broke out and the accused suddenly launched the attack. Eventually another person present persuaded him to stop and they left the locus; on returning the following day they found the victim dead. Aged 40, the accused had an extensive record, mainly for dishonesty, but also including a High Court conviction for assault and robbery.

The accused was sentenced to life imprisonment with the punishment part set at nine years nine months, discounted from 13 years to reflect the early plea. The appeal court considered the sentence unduly lenient, as the discount of one quarter exceeded the maximum of one-sixth set out in the guidance in Boyle v HM Advocate 2010 JC 66. It had been indicated in Jakovlev v HM Advocate 2012 JC 120 that the assessment for an appropriate punishment part should normally start at 12 years. While cases involving knives attracted a higher starting point, 14 years had been held in Cameron v HM Advocate [2011] HCJAC 29 to be appropriate for a murder in which the circumstances of death could not be ascertained. Having regard to the circumstances and the accused’s record, a punishment part of 14 years and six months was appropriate, reduced from 17 years to reflect the early plea.

Weapons element

In McGrory’s case, a punishment part of 20 years was imposed after trial for murder by stabbing. The appellant was driving away from a public house when a taxi driver flashed his lights at him for driving erratically and with his fog lights on unnecessarily. The appellant’s passenger took umbrage and encouraged the appellant to follow the taxi. It eventually stopped at the deceased’s mother’s house. The appellant’s passenger approached and started to punch the taxi driver. The deceased, a passenger in the taxi, attempted to stop the fight but ended up on the ground in a fight with the appellant’s passenger. The appellant had been seen to return to his car, where he appears to have taken a fishing knife from its sheath and stabbed the deceased three times on the body as he lay on the ground.

The appellant maintained in terms of Boyle that there were no aggravating features to justify a departure from the guidelines whereby the punishment part, in relation to murders involving knives, should normally be in the region of 16 years. He had no solemn previous convictions nor prior custodial disposals; his only conviction for violence had been eight years earlier.

The appeal court disagreed as the deceased had been stabbed when lying on the ground, essentially defenceless. The appellant had carried out the attack calmly, and showed no concern for the victim or any remorse.

Cultural factors

More recently, the appeal court in Gul and Rahim v HM Advocate [2013] HCJAC 177 (7 January 2014) considered sentences imposed on a husband and wife of Pakistani origin for the murder of a former friend of the husband. The accused had married in 1999 when the wife was 16. Her husband left her, pregnant, in Pakistan with his family and travelled to the UK to work. He bigamously married a Scottish woman and they had four children together.

Eventually the husband’s family became discontent having his wife living with them, and she travelled to Scotland in 2008. Her husband said she could not live with him and arranged for her to stay with his friend, Noor. It was not clear what relationship Noor and the wife had, but she bore him a daughter in 2012. The wife disclosed to her husband that she had been subject to rape and violence at the hands of Noor for a number of years, and on the day prior to the murder she went to the police with her older child and complained that she was being harassed by Noor. Noor attended and was warned to stay away from her.

The next day both appellants drove to Noor’s flat, where he was brutally murdered by repeated stabbing to the head and body, attempted decapitation and repeated striking on the head and body with hammers. The trial judge called it one of the most appalling crimes he had encountered. The parties’ 12 year old daughter had been present throughout. Each was sentenced to life imprisonment with a punishment part of 23 years.

The appeal court considered that no account had been taken of the appellants’ culture. Too much weight had been placed on their lack of reaction during the trial, and too little to the allegations that the deceased had abused the wife. The daughter said the deceased had sexually abused her, and it seems events came to a head when the deceased announced his intention of marrying that daughter.

Reference was made to Boyle and to Jakovlev (a 19 year punishment part where the accused forced their way into the deceased’s home and carried out an extremely brutal attack on a vulnerable man). The appeal court reduced the punishment parts to 19 years for the husband and 17 years for the wife, as it considered there were additional mitigating factors in her case.

Fair trial

Moving to other topics, in Procurator Fiscal, Jedburgh v Deveney [2014] HCJAC 3 (4 December 2013) a trial was ongoing concerning alleged false statements in relation to obtaining benefits. The trial was adjourned halfway through the evidence in chief of a DWP officer.

During this adjournment, the witness emailed the procurator fiscal depute suggesting a line of examination that might be taken. The fiscal acknowledged the email and disclosed the material to the defence. The defence raised a compatibility issue that the accused could not receive a fair trial, on account of the “discussion” between the witness and the fiscal. The sheriff sustained the minute and deserted the diet simpliciter. The Crown raised a bill of advocation.

Passing the bill, the court said the sheriff should have considered the common law of fairness or oppression before considering ECHR article 6. The question should normally only be determined at the conclusion of proceedings, except in exceptional and blatant cases. The tests for fairness and oppression were substantial ones, to be determined objectively. The sheriff could direct himself to ignore the prejudicial effect of the email exchange. The accused’s arguments were ill founded and the exchange of emails was no different to what might occur if a witness volunteered evidence during the trial. Matters contained in the witness’s email were matters agreed between parties in a joint minute. The court concluded that it was hard to believe there was any significant risk that the evidence of the witness would be tainted.

Signed police statements

In Matulewicz v HM Advocate [2013] HCJAC 7 (sic) from 4 December 2013, the corroborating witness at a trial for assault could not recollect parts of her evidence. A police statement was put to her; she confirmed that it had been made by her to a police officer, that she had told him the truth and had signed it. The sheriff held the witness to have adopted the statement in terms of A v HM Advocate [2012] HCJAC 28.

Upholding this decision, the appeal court held that the statement met the criteria set down in s 260 of the Criminal Procedure (Scotland) Act 1995, and indicated that if the witness adopted the statement as had been done here, it was not necessary to call the officer who had taken the statement.

Right to search

In McAughey v HM Advocate [2013] HCJAC 163 (13 August 2013), the appeal court held that a police officer had had no reasonable grounds to search the appellant’s vehicle on the M74. This had been carried out as part of a Scottish Crime & Drug Enforcement Agency operation against a group thought to be transferring money and drugs to England; £215,800 had been recovered from a lorry driven by the appellant.

On 9 November 2010, a detective sergeant had been one of a number of SCDEA officers briefed about the operation and tasked with carrying out surveillance on the appellant. After observing him take a holdall into his vehicle in Bellshill and drive off in the direction of England, the detective contacted Dumfries & Galloway Police with the intention of having the vehicle stopped by uniformed police. The detective passed on all the information he had to a traffic patrol sergeant. Two officers were given details of the appellant’s vehicle and told to stop it as part of the SCDEA operation.

The appeal court followed O’Hara v Chief Constable of the RUC [1997] AC 286 and Raissi v Commissioner of the Metropolis [2009] QB 564, holding that the arresting officer must form a genuine suspicion in his own mind that the person is in possession of a controlled drug before seeking to search under s 23 of the Misuse of Drugs Act 1971. The officer must have reasonable grounds for the suspicion, based on information he has. Someone else’s suspicion based on information not shared with the arresting or detaining officer will not do (HM Advocate v PB and VW [2013] HCJ 71); an instruction from a superior officer will not do either.

In routine cases, a stop and search carried out by an officer will be based on his own knowledge and observation. In a large, fast-moving enquiry it is vital, notwithstanding the hierarchical nature of the police service, for an officer tasked with undertaking a search, or indeed seeking a search warrant, to be in possession of sufficient information to form the necessary suspicion and have reasonable grounds for action.