Latest criminal cases, on sentencing; evidence; entrapment; inadequate representation; search warrants

As any fule know, in the words of Nigel Molesworth, the maximum sentence for breach of the peace is three months imprisonment. This is one of the reasons that a Police (Scotland) Act charge (max nine months) will sometimes mutate on the morning of a busy trials court into our old chum, the two-cop breach. Except that it is not.  In terms of sec 5(3) (b) of the Criminal Procedure (Scotland) Act 1995 it is provided that notwithstanding the general limit of summary imprisonment of three months, up to six months is competent where a person is convicted of “a second or subsequent offence inferring personal violence.” This came up for consideration in the case of Paterson v Webster 2002 GWD 23-745 where concurrent sentences of six months had been imposed. The appeal court held that this was inapplicable, since the offences in question as charged did not infer personal violence. This was in spite of averments in the complaint of brandishing knives and threatening the lieges with violence, it being held that there was no averment of any particular person being menaced with the result that no fair notice of the applicability of the subsection was given. Accordingly it would seem that the only breach likely to attract the higher tariff is one which is virtually charged as an assault.  Further, it should be noted that what is important is what is said in the charge rather than what may come out in the evidence or the prosecutor’s narration. Still on the mechanics of sentencing, Lynn v Howdell 2002 GWD 21-714 contains a warning about courts making a period of unpaid work for the community a condition of a probation order. A period of six months probation with a condition of 80 hours work was appealed successfully on the basis that in terms of sec 229 of the 1995 Act 12 months is allowed for completion of community work and that if the period of probation was only six months no order beyond that period could be made. In practice this seems to mean that any probation order with a work condition will have to be for at least 12 months, even although Lord Marnoch reserved his position as to whether or not the provision in sec 229(5) that the 12 month period was subject to “any necessary modifications” was habile to shorten the period to coincide with the probationary period. One has to conclude that this is another good reason for reverting to the original general practice of keeping probation and community service quite separate. Next, McPherson v Spiers 2002 GWD 17-565 clears up something about which doubt has been expressed before. This arises out of the Crown’s practice, for reasons of fairness, of charging driving while disqualified on a separate complaint to, say, theft of a motor vehicle committed on the same day. Did this entitle the court to pass separate sentences exceeding in cumulo the six months which would otherwise be the limit? No, said the Appeal Court, the charges fell to be treated as though they were on a single complaint. Finally, Rennie v O’Donnell 2002 GWD 20- 697 raises an interesting point about the sheriff court’s ability to deal in a regionally-specific way with particular offences. The one in question here was of driving while disqualified and a three months sentence of imprisonment had been imposed, the court holding that there were no mitigating circumstances and that the view in that particular jurisdiction (Ayr) was that the way to make sure that driving bans were heeded was to impose sentences of imprisonment if they were not. In allowing the appeal, the court held that there could be no policy decision in any sheriffdom with regard to such offences and that every case had to be treated on its own merits. Effectively this means that where there is a perception by the bench that a particular crime is especially common, no warning can be given that is likely to be dealt with severely in the hope of thereby reducing offending through deterence. Further, one recollects the difficulties caused some years ago in a two-sheriff court where one took the view that drivers a good bit over the limit should be dealt with by an increase in the period of disqualification while the other preferred a much larger fine. Presumably for them to have put their heads together would have involved the formulation of an impermissible policy. It should be noted, however, that this does not preclude the High Court giving a general indication about the sort of sentences that are appropriate in certain classes of case. This was done, for example, in relation to the downloading of obscene images of children and to take another instance, more or less at random, one finds in Catherine Findlay v P.F.Edinburgh(unreported) Lord Cameron of Lochbroom saying “…using a motor car as a weapon to injure someone is undoubtedly very serious and of a kind which merits a custodial sentence in the ordinary course.”

Criminal evidence

Turning to criminal evidence Pupkis v Thomson 2002 GWD 17-554 reaffirms the law about the evidential value of a witness’s prior statement which is not adopted by that witness in his testimony. While such a statement is available as a check on credibility it cannot be used as substantive evidence by way of the hearsay evidence of the officer who took that statement. The idea of adopting a statement which one cannot remember making (one says) is an interesting one: whether the usual formula adopted by prosecutors is worth much (You would not lie to the police would you ? – No – So what you told the officer at the time must be true?- Don’t know) remains in doubt. So far as the question of fresh evidence to be founded on in an appeal against conviction is concerned, Binnie v HMA 2002 GWD 22-725 clears up some questions about the form in which this should be. A witness subsequently was claimed to have said that his evidence at the trial was false and to have given a statement to that effect but to have refused to sign an affidavit. It was held that a precognition, being the precognoscer’s account of what a person was said to have said, was insufficient for the purposes of sec 106 of the 1995 Act. It was observed that while good practice might prefer a sworn statement there were other forms which might be acceptable, such as a video recording of a televised interview or a book written by the witness.


The nature and consequences of entrapment were considered by the appeal court in Brown v HMA 2002 GWD 18-593. Essentially, entrapment occurs when someone is pressured by the state into committing a crime which would not otherwise have been committed. Lords Philip and Clarke in particular distinguished between oppression and entrapment.  In the former case it was necessary for there to be such a degree of prejudice that it could not be removed by a direction from the presiding judge. In the latter, there was an abuse of process so fundamental that there was no need to investigate the question of prejudice. All of the judges referred with approval to what was said in the English case R v Loosely [2001] WLR2060. The position would seem to be that oppression is a plea in bar of trial and as such should be raised and proved by the defence. Unfortunately the case is not as clear a guide as it might have been had the defence raised the question of entrapment properly, the way the matter was put before the appeal court being that by the time the evidence was completed it should have been apparent that this might have been a case of police entrapment and that question should have been left to the jury, a submission which was not successful.

Conduct of a defence

The conduct of a defence, and whether or not it constituted a good ground of appeal, came up again in  Winter v HMA 2002 GWD 19-621 where it was successful in respect of two of the charges on which the appellant had been convicted. It was held that the appellant’s counsel had failed to put forward a defence which had been instructed in a way that went beyond a reasonable judgment about tactics. It is probable that anyone involved in defence work will wish to read the case carefully!

Search warrants
The question of search warrants was considered in a case reported under the name of Advocate’s (Lord) reference O1 of 2002 at 2002 GWD 24-763. The sheriff had held that a search pursuant to a warrant was irregular in as much as the police had with them and helping them a civilian employee, who, the defence argued, was not authorised to search, with the result that evidence resulting from the search was not admissable. The case in question involved the alleged possession of indecent photographs of children and the civilian in question was a member of the computer forensic unit there to assist the head of the unit.   The first question posed by the reference was whether the sheriff erred in upholding the defence objection and this was answered in the affirmative. The third question sought guidance as to the extent to which persons who were not police officers might participate in a search under warrant without detriment to the admissability of evidence recovered. The court, under reference to Hepburn v Brown 1998 JC63 confirmed that other people could assist police officers where a warrant authorised a search and that the level of assistance which could be provided depended on the circumstances of each case. Here the person referred to was judged to be merely acting under the directions of the head of the unit. Accordingly the law would appear to be that provided the principal actors in the search are police officers, subsiduary assistance is quite in order.

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