There appears to be a change of thinking afoot in the Appeal Court and a five judge decision is imminent at time of press. Often it is too late to object to a warrant at trial, and a bill of suspension has to be raised if it is asserted the warrant was granted on the basis of insufficient information. Two recent cases hint at the court’s direction of travel.
In Cafferkey and Frew v HM Advocate  HCJAC 114 (26 February 2016, published 23 November), Cafferkey had been charged with drugs offences. Compatibility minutes were raised in relation to the recovery and inspection of a plastic tub found to contain Valium tablets.
Police had attended a road accident and saw the appellant was under the influence. Witnesses said they had seen him remove a tub from his vehicle and hide it in bushes. A search revealed the item. Objection was taken that no statutory power was exercised in retrieving it, nor had his permission been sought, and any resultant evidence was inadmissible. The Crown asserted the item had been abandoned. Refusing the minutes, the Appeal Court noted that the finding of the tub and contents did not involve any search of the appellant, his car or home, thus did not interfere with his ECHR or common law rights.
In HM Advocate v Millar  HCJAC 104 (6 March 2014, published 22 November 2016) the respondent had been charged with child pornography offences, committed for further examination and remanded in custody pending full committal. The procurator fiscal then decided it would be helpful to have photographs taken of the respondent’s hands to compare them with hands that appeared in the indecent photographs. Police officers attended at prison and took photographs which led to a report highlighting anatomical features, most of which were permanent, and a knuckle crease which was apparent depending on hand position.
A minute presented at first diet objected to the admissibility of this evidence, which had been secured without a warrant. The Crown argued that it was entitled to gather evidence at common law and on the basis of the petition warrant. While the respondent had been committed to prison, it was not full committal and the Crown could secure fingerprints and other evidence which did not require invasive procedures. The sheriff upheld the minute as he considered a specific warrant had been necessary.
On appeal the court accepted that the Crown did not intend to suggest the photographs depicted natural resting positions of the hands, which had required to be positioned for some of the photographs. They had been taken to facilitate later expert examination and avoid the need for experts to conduct a personal examination in prison, which could have involved manipulating fingers but would
not have been invasive.
The court allowed the Crown appeal, but pointed out it had been a lack of courtesy not to inform the defence in advance. They should have had the same courtesy extended as occurred in relation to an identification parade. The evidence gathered was however admissible and had been covered by the petition warrant.
Better late than never!
Lest readers think I have been sitting on these opinions for an inordinate time, the above cases and the next ones considered have all appeared since my last update. I appreciate that preliminary decisions are taken in cases which are otherwise sub judice, but the topics are important and ought to be reported either anonymously or in note form to assist the profession pending fuller reporting. As can be seen below, decisions can be taken in ignorance of an opinion of the High Court which is only known to the parties involved, yet may have more general ramifications.
Thus the seven judge opinion in Ashif v HM Advocate  HCJAC 100 (20 March 2014), was not published until 18 October 2016. The salient point is an important one and ought to have been made clear to practitioners much sooner than this, although I appreciate trial and perhaps other appellate procedures have meantime taken place in the case itself.
A regular feature in the service of most indictments is the service of a statement of uncontroversial evidence (SUE), designed to deal with certain matters which are unlikely to be disputed but if not agreed in a joint minute might require witnesses to be called. The procedure is available to both parties, although mostly used by the Crown. In response to a practice of such notices being uniformly challenged, s 258(4A) was added to the Criminal Procedure (Scotland) Act 1995 in 2004, whereby on application by a party, the court can direct that a challenge to a SUE be disregarded as unjustified.
At the appeal the Lord Advocate conceded that a SUE should not extend to essential facts which the libel alleged, and he no longer insisted on the paragraphs which covered the essential issues of the case, i.e. documents said to be false or fraudulent. The matter was disposed of by refusing the appeals in light of a revised statement which took out the offending paragraphs.
It would have been helpful to all of us to have had the bare bones of this decision two years ago. The new practice note covering first diets has highlighted the use of SUEs. Sometimes the court has only been aware of their existence when a (usually partial) challenge has been lodged by the defence. Most SUEs contain fairly innocuous material and challenges often are made in the face of late disclosure. I have only seen a few cases where the odd paragraph has been slipped in which has been properly challenged, such as “the accused has the nickname Psycho”! This is obviously a matter which ought to be established or otherwise by parole evidence, as we may have nicknames we are unaware of or do not answer to.
The decision in Clyde & Co (Scotland) LLP v Procurator Fiscal, Edinburgh  HCJAC 93 (22 July 2016, published 14 October 2016) highlights the problem. Difficulties arose in dealing with an application for a warrant to search a solicitors’ office because the sheriff was unaware that the assertion of legal privilege in the face of a search warrant had been considered by the Appeal Court in H, Complainers, 5 February 2016, which had not been published as proceedings had to be concluded although the opinion had been issued to the Crown as a party.
In short, had those from the Crown seeking the information been aware of the earlier decision, they might not have made the application; the petition seeking the warrant was misleading if not inaccurate. Certainly the sheriff would have been in a better position to deal with the request if the H opinion had been to hand. In the present case the solicitors had co-operated with police as far as they were able, and had provided copy documents. When the Crown made application for the search warrant the solicitors should have been afforded the opportunity to be heard, since there could be no suggestion that the material might be destroyed.
Lord Brodie, rightly critical of oppressive Crown procedures, had to deal with the matter as an emergency bill of suspension and suspended the warrant ad interim. As far as I can determine, the opinion in H, Complainers still has to be published; meantime we must make do with quotes from it in Clyde & Co.
Sentencing young offenders
It has been a feature of sentencing in recent times that account is taken for the impetuosity and immaturity of youth. A useful rule of thumb might be to think half of what an adult offender might have imposed when dealing with an accused under 21. In O’Hara v HM Advocate  HCJAC 107 (11 October 2016) the appellant, aged 19, had been convicted of statutory breach of the peace, assault and assault with intent to rape (Sexual Offences (Scotland) Act 2009, s 3). He was sentenced to four years’ detention with an extended period of four years.
He had been drinking and smoking cannabis before he and eight friends had gatecrashed a party and assaulted the householder by punching him repeatedly, before the third charge occurred. The sheriff described the incidents as a “prolonged sadistic attack with elements of humiliation, torture and degradation”; the Appeal Court did not demur. The social work report highlighted a lack of remorse and assessed a high risk of reoffending.
In the note of appeal it was said that the appellant had been 17 at the time, had not been in trouble since the offence in October 2014, was highly intelligent, in employment and had family support. The court referred to a line of authority back to Kane v HM Advocate 2003 SCCR 749, the protection for persons under 21 in s 207(1) of the 1995 Act, and the need to ensure regard for the best interests of the child and how they might be reintegrated into society. Concurrent sentences of 12 months’ detention for the breach of the peace and two years for each of the other charges were imposed, with a two-year extended sentence on the third charge.
Similarly in Finnegan v HM Advocate  HCJAC 88 (14 September 2016) the appellant had pled guilty to assault to severe injury and permanent disfigurement. He had assaulted a man in a public house, repeatedly kicking him on the head. He had to be restrained by the licensee. The victim was left with a facial scar and some psychological consequences. The sheriff, highlighting the potential for brain damage, imposed 18 months’ detention discounted from two years, which had been part served by the appeal.
It was submitted the appellant, 19 at the time, had attended the funeral of a friend who had committed suicide. He had been upset and taken too much alcohol afterwards. He had no previous convictions and had a good work record with supportive employers and family. The sheriff had not indicated why there was no other method of dealing with the case, as required by s 207(3) of the 1995 Act.
The sentence was quashed and a six-month community payback order imposed with 200 hours of unpaid work, discounted from 300 to reflect time spent in custody and the early plea. In addition, a compensation order of £800 at £50 a week was imposed.
In Lizanec v Procurator Fiscal, Edinburgh  SAC (Crim) 33 (1 November 2016) the Sheriff Appeal Court refused an appeal against conviction for dangerous driving where the appellant’s vehicle had crossed into the path of oncoming vehicles, causing a collision and injuries. The appellant had been admiring the scenery or the beautiful weather conditions and had failed to negotiate a sweeping right hand bend.
It was submitted on appeal that the circumstances pointed to careless rather than dangerous driving. The court accepted the sheriff had applied the correct test; the loss of concentration was more than momentary and occurred on a busy road. A careful driver would have been alert to the hazards and the appellant’s inattention led to a critical loss of control.
In Brown v Procurator Fiscal, Ayr  SAC (Crim) 32 (1 November 2016) the appellant’s conviction under s 127(1)(a) of the Communications Act 2003, for sending threatening Facebook messages, was quashed. The appellant and complainer had been in a relationship and had a child aged four at the time of the charge. The appellant had had limited contact but relations between parties had soured and the complainer had not encouraged any communication or contact.
The appellant then sent two messages to the complainer pleading for contact and that he wanted to see the child “if it kills me a will remember there is no bail or anything now”. The complainer reported the matter immediately to the police; she had been upset he had made contact at all. The appellant had been imprisoned but on his release had consulted solicitors in relation to contact; they were in contact with the complainer’s solicitors.
While the Crown argued that the second message had been threatening, the court took the view that neither message was menacing and the second one was no more than an expression of the appellant’s determination to pursue his quest for contact. It quashed the conviction.
In this issue
- FAI Rules: a guide to the consultation
- Saying sorry – is it enough?
- Repairing obligations for common parts
- Journal reader survey feedback report
- Reading for pleasure
- Tax: is your firm paying over the odds?
- Opinion: Judith Robertson
- Book reviews
- President's column
- Altered deeds? Mind the rules
- The clouds gather
- Turning points: employment law into 2017
- Policy and the public interest
- Above the minimum
- Where code meets custom
- Child orders: mind the gap
- EU law, a family affair
- People on the move
- Information age?
- The limits of free web access
- Tenant farming: the new guidance
- Insolvency: cross-border clashes
- Foul play on the agency front
- Scottish Solicitors' Discipline Tribunal
- Comm prop and the Holy Grail
- Leisure – the serious side
- New anti-money laundering support
- Law reform roundup
- Brexit: helping to shape the outcome
- Transition to Lockton – your questions answered
- Expertise plus: promoting a sector strength
- Paralegal pointers
- Time to look back – and forward
- Everything comes...
- Ask Ash