Criminal court: Hunted within the law?

End of an era

It was the end of an era at the Sheriff Appeal Court with the retiral of the first President of the court, Sheriff Principal Mhairi Stephen QC who signed off in typically robust style in Humphreys v Procurator Fiscal, Aberdeen [2022] SAC (Crim) 5 (19 April 2022).

The case was a serious road traffic matter where a motorist travelling north on the A90 was alarmed at the driving of an articulated lorry which swerved about the carriageway for around 20 miles. She followed the vehicle until it stopped at an industrial estate. Concerns that the driver might have been ill were quickly dispelled when he was seen to be drunk, and police were called.

He subsequently pled guilty to drink/driving with 98 micrograms in his breath compared to the 22 micrograms limit, and dangerous driving. He had a previous conviction for drink/driving, was on bail and had been drinking at the wheel. After obtaining reports the sheriff imposed a sentence of six months’ imprisonment (two months representing the bail aggravation), discounted from nine months for a plea at the outset, disqualification for three years and seven months and an order to resit the full test.

The minute failed to record the sheriff’s reasons why no disposal other than a short custodial sentence was appropriate in terms of s 204(3A) and (3B) of the Criminal Procedure (Scotland) Act 1995, and it was said the sheriff had not made these sufficiently clear. The appellant had previously served a term of imprisonment. While the court accepted the minute was incomplete, “there would be significant public concern if serious road traffic offenders and others including those convicted of domestic offending could escape punishment by way of a custodial sentence for entirely technical reasons”.

Sheriff clerks were warned to minute reasons given when the court imposes a sentence of 12 months or less (or indeed a first prison sentence), and the appeal was refused.

The case does bring into focus the poor relation summary criminal procedure is compared to all manner of civil casework including the oxymoronic simple procedure, and extradition matters where the judge signs each interlocutor. While most colleagues would not like to sign each procedural summary criminal interlocutor, mistakes are thrown up from time to time by the issuing of unsupervised minutes by the sheriff clerk.

Given the importance of the presumption against short sentences legislation, the wish to reduce summary jail sentences and the prospect of appeals against sentence or indeed conviction, should there not be a rule that judges sign the final interlocutor to ensure the minutes are in proper form and provide an accurate audit trail?

In a similar vein

The Sheriff Appeal Court, comprising the retiring Sheriff Principal D L Murray and Sheriff N McFadyen (who shows no signs of stopping), heard an appeal against sentence, Hutchison v Procurator Fiscal, Dundee [2022] SAC (Crim) 3 (9 March 2022).

The appellant pled guilty at an intermediate diet to struggling with and trying to assault a nurse at Ninewells Hospital on 20 April 2020, contrary to s 5(1) of the Emergency Workers (Scotland) Act 2005, and threatening or abusive behaviour including the uttering of sectarian remarks (the nurse had an Irish accent), contrary to s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

He had a long record for public order offences, police assault and racial or religious aggravations. He had little memory of the offences because of his intoxication, and his mental health had been affected by solvent abuse when he was 16. It was not suggested to the court that anything other than a custodial sentence would be appropriate. The sheriff selected a starting point of 10 months’ imprisonment, reduced to eight months in view of the early plea for the s 5(1), and four months consecutive reduced to three for the s 38(1), including one month for the religious aggravation, making an aggregate sentence of 11 months.

This sentence was appealed as it represented a headline sentence of 14 months’ imprisonment, which was incompetent as it exceeded the sheriff’s powers at summary level (cf at solemn level where the sheriff has power to remit to the High Court and can select a higher starting point: McGhee v HM Advocate [2006] HCJAC 87; 2006 SCCR 712). The sheriff had given different discounts for the two offences.

The sentence was quashed; in respect of the first charge eight months’ imprisonment reduced to six months was imposed. On the second charge the three months was allowed to remain, making a total of nine months’ imprisonment.

I do not understand why the sentences were consecutive since the matters arose out of the same species facti.

Paedophile hunters

Many of the solemn prosecutions which take place in Scotland sadly involve the sexual abuse of children by adults. Children are likely to be even more reticent about complaining to the authorities due to the position of power and trust which the perpetrator often holds or the guilt they harbour when asked to perform demeaning acts online, which are used for blackmail purposes to continue the abuse.

As a result police sometimes have used decoys to flush out adults posing as children in chat rooms, who are looking for opportunities to groom young people for online abuse or to arrange a meeting in person.

The cases of Quinn and Sutherland v HM Advocate [2019] HCJAC 61 (20 September 2019 but only published on 28 March 2022) are important as they deal with the activities of paedophile hunter groups who set up online profiles of children, in which adults inclined to engage in sexual communication with children may become enmeshed. Such groups will then attempt to arrange a meeting with the individual, which, if it takes place, will be streamed live on social media and the recordings then handed over to the police.

Challenges to the prosecutions were taken separately that the actings of the paedophile hunter groups were an “affront to justice”, the prosecutions amounted to oppression, and the accused’s article 8 ECHR rights had been infringed. The groups, it was alleged, had acted without required authorisation to operate covert human intelligence sources (CHIS) under the Regulation of Investigatory Powers (Scotland) Act 2000 (“RIPSA”) and accordingly the evidence was inadmissible.

Hitherto there was little Scottish authority in this area apart from Procurator Fiscal, Dundee v PHP [2019] SC DUN 39, although I recall throwing out a case about the same time where the hunters failed to meet up with the individual, went offline and lured him to Princes Street in Edinburgh where they subjected him to an apparent breach of s 38(1) of the 2010 Criminal Justice Act and broadcast his name and address to all their followers with consequent danger to the man and his family.

In fairness to the groups, they resorted to their own devices in the face of what they saw as police inaction or police being overwhelmed with cases; they wished to offer an “oven ready” vehicle for prosecution, warning off others who seek to prey on young, vulnerable and immature persons who may resort to chat rooms with their peers when trying to work out their own sexuality or feeling lonely.

The Appeal Court reiterated that evidence obtained by entrapment was evidence unfairly obtained: where an accused committed an offence he would not otherwise have committed due to pressure from or a trick perpetrated by the police, it would be excluded because such conduct would be regarded as grossly unfair (Jones v HM Advocate 2010 JC 255, paras 76 and 83). The court noted that security firms, shops, gamekeepers and neighbourhood watch schemes were all free to carry out their own investigations into criminal behaviour and report the results to the police or the Crown. Journalists too often run a story and publish the results of an investigation before submitting the results to the authorities, where the accused may belatedly come under the protection of the court prior to a trial (cf the “fake sheik” cases and the recent revelations about hip hop DJ Tim Westwood). None of these investigating individuals come under the ambit of RIPSA. The article 8 claims were dismissed as the paedophile hunter group’s decoys or other members were private individuals and if they strayed into criminality might be arrested and prosecuted; they would have no immunity from prosecution for breach of the peace or assault, or from a civil suit.

Where evidence from a private individual is secured by torture or gross misconduct it would be excluded, but such exclusion would only occur in rare circumstances: see R v L (T) [2018] 1 WLR 2060, Lord Burnett CJ at paras 31 and 32, which was quoted with approval.

Paedophile hunter groups are free to carry out their activities if their aim is to report individuals seeking to groom or meet young people. Usually at an early stage the decoy discloses they are under age so as to avoid entrapment, and a full audit trail of communications should be retained for disclosure to the authorities. If this action results in the group meeting an individual, no criminal acts or incitement to commit crime against the individual should take place and the matter should be reported forthwith to the authorities for such actions they deem appropriate to take.

Bail update

I have been back in court a bit recently, sitting as an old timer, and can report that although bail reforms are in the air, the Crown continues to oppose bail frequently but appeals on very few occasions. Remand numbers remain high; many accused who are convicted after a lengthy remand do not receive a custodial sentence; and many backdated sentences imposed are much lower and more proportionate than the time spent on remand.

The expected rush of bail reviews for those seeking release on a tag has not emerged yet on my horizon, but the process to impose an electronically monitored bail curfew and/or stay away order is very clunky.

If agents think bail will be opposed in a custody case and an electronically monitored bail order may be a clincher, get your orders in with the social work department early on as they seem not to be organised to turn them around same day. Particular difficulties arise where the accused is designed as being of no fixed abode. Any address subsequently proffered must be properly checked out to ensure it is a viable residence and not simply a postal address.

Appeal Court v Jury

We are constantly reminded that no case to answer submissions are all about sufficiency and not in any way about quality. Some blame must attach to the way in which the topic is treated in Renton & Brown’s Criminal Procedure.

In the summary section the issue is given little attention (para 21-27) and the case of Williamson v Wither 1981 SCCR 214 holds sway, the test being whether the evidence was sufficient and did not depend on whether it was thought by the judge to be acceptable. However, in the solemn section at para 18-75.1 the learned author refers to “one case which considered the basis on which a judge should deal with [a no case to answer] submission,” going on to quote at length from R v Galbraith [1981] 1 WLR 1039 at 1042 where the English Court of Appeal said the test involves considering “tenuous evidence or an inherent weakness”. While that is a more satisfactory basis, sadly it does not represent the law of Scotland, although paradoxically it may have to be factored in should judge-only solemn trials take place as is currently being mooted.

In the summary context the judge can readily repel a no case to answer submission on a mathematical sufficiency basis without thought to credibility or reliability, but then can suggest, if so minded, to the defence agent about to call the accused that the evidence cannot get any better and instantly acquit on a qualitative basis, thus avoiding a miscarriage of justice.

Not so in the solemn arena, as can be seen in HM Advocate v BL [2022] HJAC 15 (23 March 2022). In a two charge case involving lewd, indecent and libidinous practices and behaviour towards a brother and sister, the incidents allegedly occurred between 1979 and 1981. The female complainer could not recall being touched on the private parts, and the case involving her brother was much more serious.

The trial judge sustained a submission of “no case to answer”, being of the view that the case fell “into the rare category in which it was the responsibility of the judge” to decide that Moorov could not apply and the issue should not be left for the jury to determine.

The Appeal Court upheld the Crown appeal, stating: “it is not for the judge to conduct an intensive analysis of the respective accounts at the stage of a submission of no case to answer”. The court remitted the case to the judge to reconvene the jury immediately and proceed further.

On 25 March 2022 the jury unanimously found the charges not proven.