Criminal court: Court declines rape sentence guidelines

Sheriff Crowe had his finger on the legal pulse for a decade, charting important developments in criminal law, demystifying the internal workings of the law and providing incisive commentary on important appeal decisions.

He might properly be described as an institution in the Journal. He also took a keen interest in supporting and assisting young lawyers on their career paths. He and those before him, referred to in his final article (Journal, December 2022, 26), will be hard acts to follow.

I am grateful to Sheriff Crowe for introducing me then, and flattered that he saw me as someone who might follow in his footsteps. I don’t know about his description of me as having encyclopaedic knowledge, but solicitors appearing before me are occasionally provided with some authorities “they may wish to consider and address me on”.

It is perhaps more accurate that over the years I have built up experience in the use of resources for research. What is important is knowing where to find appropriate guidance and the basis for legal argument. One place is Renton & Brown. Other resources, constantly updated, are the Jury Manual and Preliminary Hearings Bench Book, freely available on the Judiciary of Scotland website; legal search engines such as Linets; and of course for those employed by the Crown, a wealth of information on their intranet.

For my first article, I had a sense of déjà vu when reading some recent opinions from the High Court and Sheriff Appeal Court, and so will write about some areas of the law revisited.

Sentencing in rape cases

In HM Advocate v LB [2022] HCJAC 48, the Crown took up an invitation issued by the High Court almost 10 years ago in HM Advocate v Cooperwhite 2013 SLT 975, to address “in a suitable case in the future” the significance to sentence of a pre-existing, or existing, sexual relationship contrasted with a stranger rape.

In Cooperwhite, the High Court had anticipated an opportunity for guidelines to be given in terms of the Criminal Procedure (Scotland) Act 1995, s 118(7). That was denied then, as the possibility of issuing guidelines had not been canvassed with the parties and the court did not hear submissions on the general points of principle involved. The court was looking to be addressed on the position in “the jurisdictions in the Commonwealth and beyond”.

Fast forward to 2022, and the Crown in LB, over three unduly lenient sentence appeals, endeavoured to convince the High Court that there was an urgent need for a guideline decision in relation to sentencing for rape.

Given that we now have the Scottish Sentencing Council (“SSC”), which has commenced work in this area, the urgent need for a guideline decision from the High Court is not immediately clear, and ultimately was not clear to the court.

At para 117 of its opinion the court, having detailed at a previous hearing what it required to be addressed on, said: “The statistical evidence produced by the Crown here is sparse and the other evidence relied upon largely relates to comparative jurisdictions. The statistical evidence consisted of a table showing the mean sentence for all cases of rape over a 10 year period. There was no attempt to break these statistics down, or to present cases comparatively by means of common features such as number of complainers; rape of domestic partners; a background of abusive and controlling behaviour; the use of physical force; planning; breach of trust; particular vulnerabilities such as age, disability or being asleep; and other aggravating – or mitigating factors (e.g. youth) so that the impact of these factors within the sentencing process might be identified.”

Essentially, the Crown’s timing was the problem here, having accepted the 2013 invitation just too late. As stated in the opinion at para 123, “Scottish courts have extensive experience and collective knowledge of sentencing” for this offence. No pressing problem in sentencing terms was identified by the Crown.

With the advent of the SSC, there is now a purpose built organisation to “conduct meaningful public consultation so as to provide a proper evidence base for its recommendations”. It “is in a far stronger position than the court to engage in a robust comparative analysis drawing on appropriate methodology and scholarship” (para 124).

The Council is of course a separate body from those issuing guidelines in England & Wales. Such guidelines can be looked at, if only to provide “a useful cross-check” (para 122). The court acknowledged that decisions in those jurisdictions “may help specific aspects of sentencing and the impact thereof”, confirming the position in a number of previous authorities. The literature review published by the SSC contained nothing to suggest that Scotland was significantly out of sync with England & Wales or the Republic of Ireland.

Undue leniency (1)

However, the Crown did succeed in convincing the court in two of the three appeals that the sentences were unduly lenient, being outwith the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate: the test in Bell v HM Advocate 1995 SCCR 244.

LB had pled guilty to offences against three former partners over a five year period – three of assault, one to injury; three of rape; two of threatening and abusive behaviour; two of a course of abusive behaviour; and one of sexual assault. Concurrent sentences were imposed resulting in a cumulo 45 months. The judge was persuaded that LB’s emotional immaturity was “the single underlying cause of his offending”. He did not impose an extended sentence, but did impose a sexual offences prevention order.

In finding the sentence unduly lenient, the court described the case as serious, pointing out the lengthy pattern of abusive and controlling behaviour, encompassing both physical and sexual violence. The complainers were vulnerable, and in one case a photograph was taken after an attempted oral rape. Although the judge had correctly considered the SSC’s Sentencing of Young People guideline, given that LB was under 25, the criminal justice social work report (“CJSWR”) did not identify that lack of maturity was a significant element. 

There was a lack of information available to the judge on the impact of diagnoses of ADHD, ADD and ODD. The CJSWR categorised LB as manipulative and controlling.

Accordingly, the judge did not have an evidential basis to come to the conclusion he did. He had indulged in speculation, and given insufficient weight to the CJSWR which highlighted LB’s feeling of entitlement to sex because he was in a relationship. The totality of the information before the judge pointed to violent, controlling and abusive behaviour “which was the hallmark of the respondent’s attitudes to the complainers” (para 37). The judge had not recognised that LB presented a risk of serious harm to the public. The sentence imposed meant that LB would be treated as a short-term prisoner, entitled to release on licence on serving half of his sentence. The period of licence was insufficient to protect the public from serious harm.

The High Court quashed the sentences and imposed a cumulo extended sentence of eight years, with a custodial part of six years reduced from eight to reflect the guilty pleas. This still recognised a limited opportunity for rehabilitation in terms of the Sentencing of Young People guideline, and was less than might have been imposed on a mature adult.

No SOPO was imposed. The judge did not have or request the detailed information to properly consider such an order. He would have needed the detailed information such as would commonly be supplied when the police make an application for a civil order, including a risk assessment. There was no reference to a SOPO in the CJSWR.

Although not setting out any specific procedure to be followed in considering a SOPO, the court, at para 46, stated that there must be adequate information to justify the making of an order, in particular as to the need for the order, and the suitability, proportionality, and practicality of the conditions. Here an extended sentence with post-release supervision allowing continuation of work carried out while in custody was likely to give the respondent a better prospect of rehabilitation than a SOPO.

Undue leniency (2)

In the second appeal allowed, the respondent (JI) had been convicted of three offences against two former partners; these included indecent assault, common assault and rape. As far as one complainer was concerned, the charge of which the respondent was convicted did not fall within a pattern of abuse; however with the second there was a pattern of violent behaviour, including rape where he had set out to overcome her resistance by force.

The sentencing judge had described the offences as the “product of specific aspects of his relationships with the complainers”, in particular the second, “which caused him to act in ways which he was not otherwise generally inclined to behave”. The court had difficulty in understanding what that meant; JI alone was responsible for his behaviour, and the judge had given insufficient weight to that complainer’s vulnerability.

When selecting the custodial period, the judge “overestimated the element of an ordinary determinate sentence which is normally included for public protection”. He took into account the motivation of one complainer in contacting the other and renewing her complaint to the police, but did not say how he did this or the impact on the sentences imposed: he should have focused on JI’s actions and the fact that he committed serious offences.

Accordingly, the court found the sentences on two of the charges to be unduly lenient, as well as the effect of sentences being concurrent. The sentences were quashed and eight years cumulo imposed.

The sentences which were unduly lenient had been imposed by the same judge; this did not suggest a “systemic” sentencing issue which might support the Crown’s argument for a guideline judgment.

To adjourn or not to adjourn

The decision on whether to adjourn a trial or not is always an anxious one. It is fact sensitive. It has been considered on appeal many times.

In PF Glasgow v McIntyre [2020] SAC (Crim) 007 at para 15, the Sheriff Appeal Court (“SAC”) reminded us “that there requires to be a balancing of the various interests involved, these being prejudice to the prosecutor; prejudice to the accused, and prejudice to the public interest in general”.

The classic test can be found in Tudhope v Lawrie 1979 JC 44 at 49: “There can…. be no doubt that it lies within the power of a sheriff to refuse to grant an adjournment of a diet with the consequences… that an instance may fall and a prosecution brought to an end. But at the same time this is a power which, in view of the possible consequences of its exercise to parties and to the public interest, must be exercised only after the most careful consideration, on weighty grounds and with due and accurate regard to the interests which will be affected or prejudiced by that exercise”.

Adjournment on Crown motion was revisited by the SAC in PF Glasgow v Cooper [2022] SAC (Crim) 8, a Crown bill of advocation. The charges were (1) sexual assault in terms of s 3 of the Sexual Offences (Scotland) Act 2009, and (2) common law assault.

Confirming that the sheriff was entitled to refuse the motion, and thereafter to desert simpliciter, the court set out what is expected of the Crown in the lead up to a trial, and when such a motion is made. Its words should be seen as minimum standards for the Crown, as well as a warning of the potential consequences of failing to meet these.

Against a background of a previous joint motion and a previous Crown motion to adjourn, a further motion was made at trial on 4 August 2022 on the basis that the complainer had intimated that she and other Crown witnesses, all serving soldiers, had been deployed abroad and were unavailable. No further information was provided.

The respondent, also a soldier, had been subject to a special bail condition for a year and could not be deployed until proceedings were concluded.

The Crown submitted that the sheriff had failed to have any regard to the complainer’s interests, focusing entirely on the Crown’s failures.

A sheriff’s decision can only be overturned where the decision is one that no reasonable court could have reached. The decision is primarily for the court at first instance.

The SAC made it clear that the sheriff’s reasoning should be tested by reference to what was known to him at the time of his decision, not what the Crown might later disclose in a bill of advocation or submissions on appeal. There were gaps in information in the bill; only some of these could be filled during the hearing.

The Crown is likely to be in difficulty with a motion to adjourn where systemic error can be established. While recognising that it may prove difficult if not impossible to identify systemic error from one case, at para 15 the SAC said that it was possible to identify general themes which, if not systemic, were potentially so, namely:

(1) The Crown should be ready to proceed with a trial at the first trial diet. In the SAC’s words, “It is not a dress rehearsal.” Having discussed the case at a pre-intermediate diet meeting, there should be a frank disclosure of anticipated problems at intermediate diet. Continuations of that diet should be rare.

Here, the SAC criticised a “lackadaisical approach to providing proper information to the sheriff on the citation of witnesses” which “continued to the second intermediate diet”. It was “still in the dark about the true position on… Crown preparations for the second trial diet”.

(2) At the third trial diet, the sheriff was presented with a fait accompli. Around a month before, the Crown knew there were witness attendance issues, but left it until the trial to move to adjourn, rather than seeking earlier adjournment and potentially freeing up valuable court time.

(3) No explanation was given to the SAC as to why it took until the third trial diet to apply for special measures for the complainer; there was no suggestion that her requirements had changed. The application stated that the complainer had been cited, “which the drafter must have known to be untrue”.

At para 16 the SAC commented on pandemic related challenges to the justice system, which resulted in a recovery programme involving use of additional scarce public resources. For these to be used effectively, the Crown had to play its proper part.

The seriousness of the charge or charges is a factor, but as the SAC put it, “should never be treated by the Crown, even if subconsciously, as a useful card to be deployed just to excuse wholesale failures in a prosecution”.

Reading between the lines, an adjournment might well have been considered appropriate if full information “about the attitude of the complainer and the prejudice she has suffered due to the failings by the Crown” had been made available to the sheriff when the motion was made.

I will conclude with the further words which the court had for the Crown at para 18: “It is not in the interests of justice that the Crown makes submissions in a slipshod manner to the court at first instance in the knowledge that it can all be resolved on appeal.”