Ending short sentences: impact on the courts

Presumption against short sentences

The Scottish Government has announced its intention to legislate in the current session to increase the length of sentence for which there is a presumption against imprisonment. Section 204(3A) of the Criminal Procedure (Scotland) Act 1995 was inserted in 2010 to create a presumption against sentences of three months or less. The Government at that time indicated its wish for a presumption against sentences of six months or less but after debate settled for three months. The provision allows the period to be increased by statutory instrument. Both the Liberal Democrats and Green Party have expressed support for an increase.

The present proposal follows a consultation last year and the initiative arises from the Scottish Prisons Commission chaired by Henry McLeish, which reported in 2008. That committee was impressed by legislative steps taken in Finland and other countries which led to significant drops in numbers of persons incarcerated and resultant increases in numbers given alternative community sentences.

Although the existing presumption has had limited effect on prison numbers, the Scottish prison population has declined in recent times from 8,000 inmates to about 7,500. The wish is to reduce numbers to about 5,000, as Scotland currently has one of the highest rates in Europe of incarceration per 1,000 population. A significant reduction would enable older prisons to be closed and money diverted at least in part to fund community alternatives.

In my experience if the period is significantly increased the following steps will require to be taken:

• There will be a need to supply at least double the number of social work reports. At the moment a level 1 community payback order requiring up to 100 hours of unpaid work can be imposed without the need for a court report. Higher tariff cases will inevitably require reports to enable the sentencer to access longer orders and such specialties as drug treatment and testing or restriction of liberty orders.
• Community orders of six months’-plus duration benefit from regular court reviews with progress reports, otherwise offenders lose interest and by the time a breach report is submitted the momentum for change may have been lost. Sentencing will cease to be a finite event and more an ongoing process monitored by the court as well as those providing the community option.
• Review courts should take place at more convenient times of day than first thing, which often coincides with offenders having to attend a chemist for daily dispensing of prescribed medication. Such reviews might better take place in a round table setting where progress is assessed, praise and encouragement given or steps taken to set goals for improved performance. Those found in breach can be transferred to court for re-sentence if need be. A major review of court programming should take place, allowing summary trials to start earlier and avoid the two hour-plus wait witnesses regularly face before any evidence is adduced.
• Community orders have to be seen to be of benefit to communities if the public are to buy in. Most community sentence completion reports I receive merely contain the hackneyed phrase “performed physical work of benefit to the community”. I am aware of the much praised Liberton Cemetery project where offenders have lifted and reset gravestones knocked over by vandalism or which have simply fallen with time. Only recently I read of an offender who was keen to continue this work voluntarily after being thanked while on the project by a grateful relative visiting a grave.
• Training for all professionals involved, not least sentencers, will be essential: managing court orders to a successful conclusion involves a different sentencing mindset. It can be satisfying, but equally can be disappointing; but, harnessing the various statutory and voluntary options and tying in with the NHS, significant improvements in offenders’ lifestyles can be made to tackle underlying problems of substance abuse, mental illness, homelessness and alienation.

Defective representation

Two recent cases with different outcomes highlight the criteria which have to be met for a successful appeal. Fifteen years ago, in the wake of Anderson 1996 JC 29, such appeals coupled with fresh evidence were fairly common; however recent decisions have highlighted the height of the bar which constitutes the miscarriage of justice test.

In Rodger v HM Advocate [2017] HCJAC 65 (24 August 2017) the appeal was unsuccessful. The appellant and his co-accused were convicted of following a group of people in their car, after which the co-accused pointed a gun at them. Various appeals were unsuccessful but eventually the Scottish Criminal Cases Review Commission took up the appellant’s case after the co-accused’s phone was recovered from the police and found to contain a photograph of the complainers’ car. It was alleged that the co-accused had had a phone in his hand, not a gun, and the appellant’s representatives had failed in not following up whether any contemporaneous photographs were on the phone.

The police had apparently found nothing of significance on the phone at the time. Any pre-trial defence requests to view the item might have resulted in the photograph being used to bolster evidence that the co-accused was at the scene, as evidence of identity was thin and he had raised the possibility of alibi. The appellant had indicated he did not wish to give evidence at his trial or incriminate his co-accused. The court did not accept there had been a failure to present a significant line of defence. Ultimately the production of the photograph did not preclude the presence of a gun at the scene. 

By contrast, in BK v HM Advocate [2017] HCJAC 68 (13 September 2017) the court quashed convictions on charges of lewd, indecent and libidinous practices and behaviour and sexual assault. The appellant and his wife had been registered foster carers for more than 30 children over many years. The appellant alleged his legal representatives had failed to have disclosed medical and social work records relative to the complainers, and the solicitor advocate at trial had failed to lead evidence of his following a protocol for foster carers which precluded a carer being alone with a foster child, which information had specifically been provided by the appellant in advance. This line was significant as it suggested the complainers were lying and had colluded; the room in which the offences were said to have occurred was in a busy part of the house where seclusion with the appellant was not likely. The court also held that defence precognitions of the appellant’s family had been wholly inadequate, as proper enquiry could have revealed this important defence line. The conduct of the defence deprived the appellant of his right to a fair trial, there had been a miscarriage of justice and the convictions were quashed. 

Desertion: prejudicial remarks

Two recent appeals centred on prejudicial remarks made by witnesses alluding to the accused’s previous convictions or bad character. The same bench dealt with both appeals, Jackson v HM Advocate [2017] HCJAC 72 and Cameron v HM Advocate [2017] HCJAC 74 (29 and 31 August 2017 respectively). Jackson was charged with the murder and subsequent dismemberment of his victim. There was a drugs background and when he was seen first by police he was under the influence of drugs and made incriminating remarks before the victim’s body was discovered. The other significant evidence came from his ex-wife, who was known to have a volatile disposition and mental health problems. Her police statement was full of information about other serious crimes the appellant had admitted carrying out. The appellant had asked the witness to visit him prior to his arrest, and made a detailed admission of the circumstances of the victim’s death. 

The advocate depute was careful to avoid the witness straying into irrelevant areas. Cross-examination was robust and the witness complained counsel was “abrupt” and “snipey”. A robust line was maintained and the judge had to warn the witness about her conduct. After a break she then referred to past crimes the appellant had committed and how he was cruel to and skinned cats.

Defence counsel moved for desertion pro loco et tempore but this was refused. The co-accused opposed the motion as she had been remanded for over a year and wished her trial concluded. The judge directed the jury to ignore the witness’s “wholly unsubstantiated allegations” in her outbursts. The court indicated the judge had a wide discretion to do what was best and fairest in the circumstances. Most of the successful appeals in this context had arisen through improperly framed questions by the prosecutor, or over-zealous police witnesses. In this case cross-examination had been provocative and, although not calculated to insult or intimidate, was potentially upsetting. In spite of obvious dangers counsel maintained his line. It was a tactical decision and the consequences of such could rarely lead to desertion of the diet. 

Similarly in Cameron, the appellant was charged with serious assault involving a metal pole and a knife. After a row on a stairwell involving his partner, the appellant had sought out the complainer who was walking away when he was stabbed. Evidence was given by a neighbour and corroborated by the complainer. During cross-examination it was put to the complainer that he had introduced the knife and had been injured in the resultant struggle. This was denied emphatically, the complainer adding it was the appellant’s “third knife crime”. A defence motion to desert the trial was refused as the sheriff was not satisfied matters were so compromised that desertion became imperative. After discussing with parties, he did not specifically refer to the remark in his charge but gave a general direction to ignore irrelevant information not related to the date of the offence. It transpired the appellant’s record was mostly for dishonesty with only one knife conviction. Parties had decided against entering a joint minute. 

The test in Fraser 2014 JC 115 was repeated, that any such remarks by a witness must have so compromised a fair trial that desertion became inevitable to avoid a miscarriage of justice. “A defence representative may have to accept the consequences of his or her line of questioning and the tone in which it is delivered when accusing a witness of a criminal act.” The appeal was refused. 

Breach of the peace

A recent helpful case, a successful appeal from the Sheriff Appeal Court, reminds us that there are limits to the otherwise all-enveloping prosecution tool of breach of the peace. 

In Wotherspoon v Procurator Fiscal, Glasgow [2017] HCJAC 69 (23 August 2017) the appellant was convicted of a breach of the peace on four occasions over a seven month period which read “stand in your house in full view of the lieges whilst wearing female underclothing [a white bra worn with trousers and a bare chest] rub your nipples and place the lieges in a state of fear and alarm”. Witnesses described what they saw as making them “uneasy” and “concerned”; they felt it “strange”, confusing and “weird”. When detained the appellant readily admitted “If it’s what I think it’s about, it’s because I’ve been wandering about in a bra.” There was no finding of alarm. While the Appeal Court considered his conduct exhibitionist, provocative and even perverse, none of those descriptions rendered it criminal and the circumstances failed the test in Smith v Donnelly 2002 JC 65, that a breach of the peace must be severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.