Criminal court: Long road against addiction

Drug deaths

The long awaited final report by the Scottish Drug Deaths Task Force was published in July during the parliamentary recess. It is modestly entitled Changing Lives. It lists the obvious steps which need to be taken to avert the crisis, but indicates a five-year programme before there will be a level playing field that can be funded and delivered, of early interventions, 24/7 crisis support, proper counselling and the availability of short term residential detox centres.

Just in time for this column came the figures for drug deaths in Scotland, down slightly for the first time in eight years to 1,330 from 1,339 the previous year. Scotland continues to have the highest recorded drug deaths for any country in Europe and almost four times the UK average.

Trying to save the lives of addicts is hard work, as I know from operating drug treatment and testing orders since 2002. Suddenly, just as things were getting back to normal after the COVID lockdown, I now find ordering a DTTO assessment is not possible at the court I am back sitting in.

It is another example of the sentencer not being able to consider non-custodial options, whether punitive or supportive, in certain courts despite these being advertised in the Criminal Procedure (Scotland) Act 1995, because they are not available in your postcodes.

Lest we forget in these problematic times, in my view you are only two or three bits of bad luck from ending up homeless. Redundancy, rent arrears or mortgage foreclosure leading
to the breakdown of relationships can result in sofa surfing with friends until you are shown the door and wake up one morning in a homeless hostel or apparently safe alcove with your few possessions stolen.

Most people need professional help to get out of this rut and away from blanking out the despair through drink and drugs. Regular face-to-face counselling with testing, whether statutory or voluntary, is the best way forward, with residential detox units like the overstretched Ritson Clinic in Edinburgh accessible locally throughout Scotland.

Progress can be slow and patchy, but the success stories keep you going. As addicts regain some stability and health, long suffering partners, family and friends may take them back into their community. We need these options now if progress is to be made
on this front.

Corroboration – are you still out there?

Last year I had to complete a census form for a property in England. The only extra question asked was what type of heating you had. Little did they know how important data on the number of gas boilers would be 12 months on. By comparison, the recent Scottish census crammed all sorts of extra questions in. In the same vein, the recent not proven consultation added questions about abolishing corroboration and jury trials.

Sadly, very few professionals contributed to the process and the professional bodies’ responses seem to have been drowned out by other groups. Any professional outrage about the abolition of 

corroboration must be set against the steady whittling away over the last 40 years of the standard set in Morton v HM Advocate 1938 SLT 27.

Here are some recent cases of where we are:

Campbell v HM Advocate [2020] HCJAC 47 (27 October 2020, but published only on 5 July 2022) described a scene of domestic violence after the complainer was assaulted in the house by her partner smashing a bottle over her head. She managed to leave the flat and crawled for help, knocking on various doors without success. Some residents opened their doors but closed them again. The appellant, who had run off after the incident, returned and said “Hello, what have you done? Come back to the flat honey.” She told him to keep away and that she was not forgiving him this time. A neighbour had called the police. Later the complainer said in the appellant’s presence: “You’ve really hurt me this time.” He did not reply. Another neighbour later noticed a trail of blood from the appellant’s flat leading up the landing. The appellant gave evidence denying involvement and said the complainer must have injured herself in the house. The sheriff directed that it was for the jury to decide whether to infer from the appellant’s silence that he was impliedly admitting what had been said about him.

The Appeal Court in refusing the appeal held there had been no misdirection and in any event the assault was adequately corroborated by the injuries which the complainer was suffering, and from the observations of the neighbours and the appellant standing over the complainer on his own when police arrived with the trail of blood leading back to the flat.

In a similar vein, in CR v HM Advocate [2022] HCJAC 25 (28 June 2022) the court refused an appeal where various statements made by the accused to witnesses were deemed sufficient to corroborate the evidence of the complainers. It reiterated long established authority that equivocal statements may be sufficient if capable of providing support for or confirmation of, or they fit with, the principal source of evidence on an essential fact. There was more detail than the reply “I did it in self-defence”, which is sufficient for at least a case to answer or a jury deliberation.

Finally, in WM v HM Advocate [2022] HCJAC 28 (14 July 2022), which related to charges involving an assault on the appellant’s young son, and assault and failing to seek appropriate, timely and adequate medical aid for another son, the primary evidence came from a joint investigative interview with the first child when aged six. The corroboration came from comments made by the appellant in phone calls between him and the child’s mother when the appellant was on remand. The jury were directed that it was for them to determine the significance of what was said in the phone calls and that the conversations had to be taken as a whole. In refusing the appeal, the High Court said the evidence of the conversations taken as a whole was clearly capable of providing support for the primary evidence in the case.

Road traffic sentencing

Maximum penalties for causing death by dangerous driving were increased on 28 June 2022 from 14 years’ imprisonment to life imprisonment.

Against that backcloth, the Appeal Court considered a sentence appeal in Moorhouse v HM Advocate [2022] HCJAC 22 (27 May 2022). The appellant was sentenced to 12 months’ imprisonment in the sheriff court following an early plea to a charge of causing death by driving without due care and attention, contrary to s 2B of the Road Traffic Act 1988. The sentence had been discounted from 18 months. The appellant had been driving an HGV gas tanker and was behind a tractor when negotiating a Y junction. He moved out when his view was obstructed by the tractor and collided with a car which had right of way. The car driver had no chance to avoid the lorry, sustained multiple injuries and died a short time later.

The appellant was 61 years of age at the time and, while he had a previous conviction for using a mobile phone while driving in 2013, he had no other convictions. He had a good employment record, a pro-social lifestyle and was on medication for his circulation and cholesterol level.

The sheriff accepted that the sentence was at the lower end for the offence. The appellant was also disqualified for 46 months. By the appeal stage he was 64, no longer held an HGV licence and while he had health problems was fit to carry out unpaid work. It was submitted it was a momentary mistake and he had displayed deep remorse and regret.

The appeal was refused. The court’s view was the collision was a serious one with devastating consequences. The appellant was an experienced driver and should have appreciated the risk in driving across the opposite carriageway without having a proper view. The court considered the standard of driving fell not far short of dangerous. A custodial sentence was amply merited in view of the high level of culpability and the terrible consequences.

Sheriff Appeal Court – the new team

Last time I mentioned cases largely decided by members of the court who have since retired. In AM v Procurator Fiscal, Airdrie [2022] SAC (Crim) 6 (24 May 2022) their Lordships considered the vexed question, where someone had a knife in a public place with the intention of using it to commit suicide, might this amount to a reasonable excuse under s 49(4) of the Criminal Law (Consolidation) (Scotland) Act 1995?

The appellant had a long history of mental illness, had recently been discharged from hospital and had phoned NHS 24 that day after feeling a turn for the worse. They became concerned and contacted police, who found the appellant near to a high school with his arms raised, knife in one hand and phone in the other, still talking to NHS 24. He was compliant when police intervened.

Their Lordships had no difficulty in refusing the appeal in all the circumstances, due to the knife being waved near to a school. The real question is, why did this case not go down the psychiatric route at the outset rather than the criminal one?