There has been uncertainty over the years whether the admissibility of evidence seized under a valid search warrant may nevertheless be challenged by a preliminary issue minute or by bill of suspension.
The pending five-judge bench case I mentioned in December’s Journal is reported as AS v HM Advocate  HCJAC 126 (23 December 2016). It confirmed that where the challenge to the warrant directly relates to the actings of the judicial office holder in granting it – for example, that it was incompetent to grant such a warrant, or the information proceeded on could not suffice to meet the test for granting the warrant, the appropriate course is a bill of suspension. However, where it is accepted the judge was entitled to grant the warrant on the information placed before them, but it is argued that the actings of the police or Crown before, or even after, the grant would make it unfair to admit the evidence (that is, extrinsic to the warrant procedure), that is a challenge which should be resolved by preliminary procedure under s 71 of the Criminal Procedure (Scotland) Act 1995 or the equivalent summary procedure. Allan v Tant 1986 JC 62 and the bill of suspension procedure only applies to cases in which the challenge is to the granting of the warrant on error of law grounds (described as something intrinsic to the warrant procedure).
In the case before the court, where search had in fact taken place without a warrant, the Crown position was that the police officer in charge deemed the situation an urgent one and his suspicion that he needed to act to prevent drugs being redistributed was a reasonable one, that any occupant of the premises concerned would have “picked up” on police surveillance, and that it being a Sunday it would take several hours to obtain a warrant. The court agreed with the sheriff who had determined the matter under preliminary procedure that the actions of the police were urgent and justified.
Coincidentally, the Sheriff Appeal Court had been considering McMillan v Procurator Fiscal, Paisley  SAC (Crim) 2 (13 December 2016), which involved a bill of suspension challenging the grant of an initiating warrant of the type annexed to a summary complaint. The court said that the suspension of a warrant granted by a sheriff exercising his administrative powers remained subject to the jurisdiction of the High Court: McWilliam v Harvie  HCJAC 29. While bills of suspension can competently be heard by the Sheriff Appeal Court arising from some aspects of summary procedure, the initiating warrant stage occurs before summary procedure has commenced and involves the prosecutor’s motion being placed before a judge of the court, not before the court of summary jurisdiction itself. Often these applications are considered in chambers, but in fact many are granted in court where no appearance has been entered and the proceedings are deemed not to have commenced. A similar situation arises as indicated above in relation to search warrants, which in most cases are sought prior to the institution of proceedings.
Sentencing in child abuse images cases
In HM Advocate v Wood  HCJAC 2 (17 January 2017) the Appeal Court heard three appeals relating to charges involving the making and possession of indecent images of children, and took the opportunity to consider whether the guidelines in HM Advocate v Graham 2011 JC 1 required amendment in light of the Definitive Guideline on Sexual Offences, issued by the Sentencing Council for England & Wales in December 2013.
This is a topic on which the court first gave guidance in Ogilvie v HM Advocate 2001 SCCR 292, after which Parliament increased the penalty on indictment to 10 years’ imprisonment. At that time such images were categorised in terms of severity by reference to a nine-point COPINE scale which contained some levels not deemed to be criminal. By the time of Graham, more comprehensive English guidelines, dating from 2007, were available. Since then the categorisation of indecent and obscene images has changed from a five-point scale. The current English guideline (2013) places such images into three categories: A – penetrative sexual activity, sexual activity with an animal or sadism; B – non-penetrative sexual activity; C – other indecent images, not falling into the first two categories.
In Wood’s case he was aged 65, retired, with no previous convictions, and was the carer of his partner who had multiple health problems. His computer was found to contain a total of 145 moving and 459 still images at category A, 51 moving and 399 still at category B, and 40 moving and 985 still at category C, downloaded over two-and-a-half years. They depicted children of both sexes although mainly girls aged from three to 14. Wood offered no explanation other than his sexual gratification; the background report indicated he showed little empathy for the victims. He was assessed as low risk and suitable for a community disposal.
He could receive treatment in custody and on release as part of extended sentence licence conditions. He had pled guilty at an early stage.
The second appellant, Tennant, had also pled guilty by s 76 procedure. He was retired, aged 65 and now separated. His computer revealed 46 category A images, 26 of them moving, 13 in category B and 42 in category C, downloaded and retained over almost six years. After arrest he attended a 10-week “Stop it Now” course; he was assessed as medium risk of reoffending but low risk of sexual recidivism. In the background report he said he had become desensitised to “mainstream pornography”. He blamed his difficulties on having to care for his father with dementia; it was suggested that any empathy he had for the children in the images was superficial.
McLean, the third appellant, pled guilty at a first diet to making images over a period of two years. Aged 30, he lived with a girlfriend who had a 10-year-old daughter. He had theft and road traffic convictions. Two laptops in his home revealed 338 images in category A (all but six were moving), 147 (all but 10 moving) in category B and 243 (71 moving) at category C, of young boys and girls. He was assessed as lacking insight into his offending and attempting to justify it, and deemed a low risk of general offending but medium risk of sexual offending. If imprisoned, post-release supervision would be required.
In each case, the sheriff considered that only a custodial sentence was appropriate but that the period of licence involved in a conventional sentence, coupled with any work carried out in custody, would be insufficient in which to carry out the work, notably that of the Clyde Quay Project, necessary to protect the public from serious harm. Accordingly, extended sentences were imposed: for Wood, three years four months with a custodial element of 16 months, discounted from 24; for Tennant, three years eight months with an eight-month custodial element, discounted from 11; for McLean, three years nine months with a nine-month custodial element, discounted from 12.
The 2007 English guidelines suggested a custodial sentence of six months to two years for possession of the most serious images. For category A in the 2013 guidelines, this range was increased to six months to three years. However, where there was sufficient prospect of rehabilitation, a community order could be a proper alternative. Aggravating features included a high volume of images, a lengthy period of possession, the existence of moving images, deliberate searching for images and a large number of victims. Mitigating features included a lack of previous convictions, remorse, previous good character and steps taken to address the offending.
In each case there was no proper statutory basis for an extended sentence, which in terms of s 210A of the 1995 Act was only competent where ordinary release on licence would be inadequate to protect the public from serious harm. None of the appellants fell into that category. Each however had possessed a significant quantity of category A images. While a community payback order with supervision would have been appropriate in Wood’s case, the court noted he was due for release in March 2017. Similar remarks were made in respect of Tennant, who was on interim liberation. McLean was due for release on 31 December 2016; the court suggested that his custodial element was unduly lenient. In the event the court refused the appeals in respect of the custodial sentences, as they expected these terms to act as sufficient discouragement in the future, and suggested future consideration be given by the authorities to the utility of combining a period of extended sentence with a custodial element in such cases.
This topic, which is central to the prosecution of many assault cases, particularly those of a sexual nature, was revisited in Wilson v HM Advocate  HCJAC 3 (29 November 2016). The appellant had been convicted at a sheriff and jury trial of contraventions of ss 2 and 3 of the Sexual Offences (Scotland) Act 2009 which involved the sexual assault of the complainer, including digital penetration of the vagina, while she was asleep and under the influence of alcohol. She had been at a party on a Friday and had accepted an offer from her friend to stay overnight. The appellant was the friend’s partner.
The complainer fell asleep on the livingroom floor. She recalled coming round and being touched sexually. She had been unable to move and had fallen asleep, but later woke up and was aware of being penetrated perhaps by fingers, and when she awoke a further time found the appellant on top of her. When she finally woke she felt sore in the vaginal area; she texted her boyfriend to collect her but did not mention the incident, thinking he would have reacted badly and attacked the appellant. She spoke to her friend but did not mention the incident as she wanted to leave the flat. She went home to her mother’s but went to her room without speaking. The next evening the complainer had a Facebook conversation in which the appellant was involved but there was no mention of the assault.
Eventually on the Sunday afternoon the complainer arranged to meet her best friend, at a neutral location away from their mothers, and told her about the incident. She was crying and became hysterical. At trial she was not cross-examined. The appellant admitted consensual contact with the complainer and assumed he had inserted his fingers into the complainer’s vagina. He said the complainer had not been asleep, but the last person to leave the party had noticed both the complainer and appellant asleep.
The appeal focused on the sufficiency of evidence, the sheriff’s directions on distress and that the complainer’s statement to her best friend had been more than 30 hours after the event.
The jury had been given reasons why the complainer had not confided in her boyfriend, the appellant’s partner or her mother before speaking to her best friend. While the earlier witnesses noticed no distress, her mother thought her daughter’s behaviour had been abnormal. There was evidence of the effects of alcohol and sleep, and of a significant age gap between the complainer and appellant with no prior intimacy. In these circumstances the court was satisfied as to the sufficiency of the evidence and that the evidence of distress was admissible as potentially corroborative.
Additional online copy: successive complaints
Since its inception just over a year ago the Sheriff Appeal Court has issued 37 criminal opinions. In many cases the issue of a written judgment is unnecessary, particularly if the appeal is unsuccessful and the circumstances are unremarkable. Where opinions are published, there is usually a point of wider importance than simply to notify the parties. However, a reading of Laing v Procurators Fiscal Kirkcaldy and Dundee  SAC (Crim) 22 provides very little information other than that the appellant had committed offences in two sheriff court areas and ended up in prison after being made the subject of a community payback order.
Enquiries with Justiciary Office revealed details of the various charges and sentences as follows. The appellant was 36 years of age with a record of previous convictions. He was accused of various offences occurring on 22 August 2015 and appeared from custody at Kirkcaldy Sheriff Court. He pled guilty in February 2016 to charges of driving while unfit due to drink or drugs, dangerous driving and struggling with the police (each aggravated by being in breach of bail). After obtaining reports he was sentenced in March 2016 to 11 months' imprisonment (discounted from 12 months) on the first of these charges and 14 months’ imprisonment (discounted from 15 months) on the other two.
In the interim the appellant had appeared at Dundee Sheriff Court charged with a variety of public order offences committed on 7 September 2015. He admitted on 23 September being drunk in charge of a two-year-old child, two assaults, a contravention of s 38(1) and struggling with police. Ultimately on 20 January 2016 a community payback order was imposed and he was ordered to carry out 100 hours’ unpaid work. On 15 April 2016, no doubt in light of the Kirkcaldy sentences, the CPO was revoked and a sentence of seven months’ imprisonment was imposed, discounted from 10 months for the early plea, three months being attributed to the accused having been subject to two bail orders at the time.
The appeal court noted that the Kirkcaldy sentence was the first for imprisonment the appellant had received, and quashed the sentences as excessive. It substituted 11 months’ imprisonment (discounted from 12 months, with two months attributable to the bail aggravation) for dangerous driving and the police offence and eight months (discounted from nine) for driving while unfit. The court quashed the Dundee sentence as the appellant had not been in breach of the CPO, more overtaken by events. The court allowed the CPO to continue to enable the appellant to complete the 25 hours of unpaid work he had remaining.
The case is a useful one when dealing with accused involved in various matters over a short period of time involving different courts.
In this issue
- Miller, Brexit and BreUK-up
- Power to the people?
- Prerogatives, Parliament and the constitution: plus ça change?
- Decisions in high places
- Reading for pleasure
- Journal magazine index 2016
- Opinion: Callum Sinclair
- Book reviews
- President's column
- Have you heard of ScotLIS?
- People on the move
- Article 50: the final say
- Where courts fear to tread
- "Wake up": how young lawyers see the future
- How healthy is our legal aid system?
- Challenging assumptions
- Planning to deliver
- Contact and the fear factor
- And the bill goes to...?
- Pakistan to join Child Abduction Convention
- Dress to impress?
- Handcuffing of prisoners and article 3
- Turning up the heat on workplace change
- Scottish Solicitors' Discipline Tribunal
- Not just for the green welly brigade
- Five by five
- Law reform roundup
- Relief over pensions and bankruptcy ruling
- Helpline plus
- Spill the beans on legal aid fraud
- The art of bringing the good news
- Cybercrime: how are you protected?
- Ask Ash
- One year rule becomes three
- From the Brussels office