There have been a healthy number of appeal cases reported since my last article, so I will try and do justice to as many as I can within the editor’s wordcount. As ever there are a few themes.
I don’t think many of us understood the significance of s 288BA of the Criminal Procedure (Scotland) Act 1995 when it was introduced as a late stage amendment to the Criminal Justice and Licensing (Scotland) Act 2010. For a long time it seemed to involve prejudicial material which for one reason or another could not form part of a charge and after such evidence as there was had been led it was withdrawn from the libel by the prosecutor.
More recently dockets have had a corroborative sting in their tail. In HM Advocate v Adams  HCJAC 19 (30 August 2019; published 16 March 2021) the respondent had been indicted on five sexual offences, including rape against the same complainer covering a period from 1999 to 2011. The docket narrated that he had been charged at Liverpool Crown Court in February 2017 with a penetrative sexual assault and rape, allegedly in January 2016. His guilty plea to the sexual assault but not the rape was accepted. Their Lordships ruled that this was entirely proper. There was no element of forcing the respondent to reveal the previous conviction unless he did not accept his guilt of the matter. Reference was made to Lord Ericht’s decision in the unreported case of HM Advocate v Murdoch (28 August 2018), which appears to be essential reading. Time for another edition of SCCR unreported decisions.
In SB v HM Advocate  HCJAC 11 (21 January 2021) the appellant had been charged with a variety of historic physical and sexual offences involving two vulnerable teenage girls. A co-accused was acquitted and the appellant faced two charges of indecent assault and rape arising between 2003 and 2006. A docket narrated other sexual acts, including rape involving the complainers, between 2006 and 2017 at loci in Scotland and England. The trial judge referred to the docket in his introductory remarks; before his charge the jury were given a clean copy of the indictment with the remaining charges and without the docket. Nothing was said about the docket in his directions. The court did not accept that the jury were left with the impression that the docket referred to further charges against the appellant and held there had been no misdirection.
Corroboration to supplant defence of consent
The circumstances of two charges of sexual assault were considered in AA v HM Advocate  HCJAC 9 (9 February 2021). In the first the complainer was intoxicated and in the second she was asleep. The charges proceeded on a Moorov basis and the appeal focused on an alleged misdirection in relation to the first charge by failing to address the issue of reasonable belief in consent. This would involve establishing absence of belief by corroborated evidence. The trial judge was of the view that reasonable belief was not a live issue. The Appeal Court confirmed this and refused the appeal. The need for “formal proof” did not arise where reasonable belief could not be inferred because the complainer showed signs of obvious intoxication (Maqsood v HM Advocate 2019 JC 45 at para 16).
Since the inception of the Scottish Sentencing Council, and indeed before, I have the feeling that sometimes the Appeal Court seems to battle with sentences that are perhaps too long and tries in a small way to reduce prison numbers which are increasingly held up by long-term prisoners serving very long sentences.
In HM Advocate v Jones  HCJAC 8 (2 February 2021) the respondent pled guilty by s 76 letter of driving a single decker bus dangerously on a country road, at speed and repeatedly on the wrong side of the road. His bus collided with an oncoming car, killing the husband and wife occupants. Four bus passengers were also injured, one seriously. The Crown appealed the sentence of four and a half years, reduced to three on account of the plea.
The respondent had made an admission and apology at the outset. While driving too fast for the conditions, he had not exceeded the speed limit. He might have been dazzled by the sun prior to the collision. He had previous convictions for speeding and careless driving. He had expressed genuine remorse and had caring duties for his wife. The sentencing judge assessed the case as falling at the high end of level 3 of the Sentencing Council for England & Wales Definitive Guidelines. While the Crown argued for a higher sentence, the court did not regard the sentence as outside the range which any judge would have considered appropriate. The main factors in relation to speed were the weather and the locus. The English guidance, while a useful check, was not applicable in Scotland and should not be followed with slavish adherence.
HM Advocate v Gatti  HCJAC 7 (2 February 2021) was heard on the same day by a slightly different bench. The respondent, when aged 20, had caused death by driving at an excessive speed (42-47mph) in a 30 mph zone, on the wrong side of the road, having consumed alcohol, and colliding fatally with a 15-year-old female pedestrian. He was sentenced to four years six months’ detention, reduced from six years for the plea, with nine months consecutive for attempting to pervert the course of justice by leaving the scene, concealing the number plates, and trying to avoid the determination of his alcohol level. Once traced, he co-operated with the police, saying he had panicked after the accident. He was previously of good character, had expressed remorse and had only recently passed his driving test.
The Crown submitted by reference to the English guidelines that sentence should have been categorised in level 1, not level 2, attracting between seven and 14 years. The court reiterated what was said in Jones and that an overanalytical approach should not be applied to the guidelines. The judge had taken account of the respondent’s youth and immaturity and had correctly considered a level 2 sentence was appropriate. A level 1 sentence was for a very serious offence, the sort which had caused Parliament to increase the maximum penalty to 14 years.
A third Crown appeal was however successful in HM Advocate v JB  HCJAC 16 (10 March 2021). The respondent pled guilty on indictment to two sexual offences involving girls under the age of 13. One charge involved sending sexually explicit messages (grooming) and the other a sexual assault. The sheriff imposed a community payback order with a three year supervision requirement. The court took issue with the criminal justice social work report where the respondent had blamed a victim, and which concluded he had a pattern of “misinterpreting the innocent behaviour of young female children”, casting him as a victim of his own “lack of internal controls” rather than as an exploitative and manipulative offender. The sentence was quashed and 12 months’ imprisonment imposed, reduced from 18 months for the plea, resulting in the sex offenders’ notification arrangements being increased from three to 10 years.
A regular accused would often be described rather insensitively by his agent as “not the sharpest tool in the box”, or more correctly as having learning difficulties. This might not prevent the client from being able to calculate the payout on a 10p Heinz 57 accumulator at the bookmakers, or subtract from 501 at darts. With these transferable skills many appeals have been insisted on, and a number have shown the numerical and logical limitations of the judiciary by comparison in the dark world of backdating sentences.
I was attracted to Anderson v HM Advocate  HCJAC 18 (2 March 2021), as among other charges to which the accused pled guilty were shipbreaking with intent to steal. He was also charged with possession of a knife in a public place, both aggravated by being committed while subject to an undertaking to appear at the JP court.
These crimes attracted sentences of 15 months’ imprisonment, discounted from 18 months, to run concurrently from the date of imposition, 16 December 2020 as the accused had originally been bailed on those matters. Two subsequent bail contraventions were also charged for which the accused had been remanded. The sheriff decided that the first bail offence merited 90 days’ imprisonment, discounted to 75 days, and the other 120 days, discounted to 100 days. These periods would reflect the amount of time spent in custody since 18 August 2020, so the appellant would be admonished. This was contrary to the principles set out in Boyd v HM Advocate 2011 SCCR 39, that the sentencer should backdate the sentence to the proper date, or if this was not possible, double the time served on remand to equate to the “good behaviour” regime implicit in a short custodial sentence.
Surprisingly, the Appeal Court did not backdate the totality of the sentences to 18 August as it wished to reflect the consecutive element adopted by the sheriff. It agreed to allow the consecutive sentences of 75 and 100 days to run from 18 August, giving a nominal release date of 13 November, to which was added a cumulo sentence of 15 months’ imprisonment for the substantive offences to run from 13 November rather than 16 December 2020.
Section 275 applications
There are two cases of note this month, each with a different angle from recent cases on s 275 of the 1995 Act.
In RR, Petr  HCJAC 21 (7 October 2020; published 18 March 2021) the petitioner was the complainer in a rape case who had not been aware of a s 275 order having been granted. She was only told months later when the Crown sought to precognosce her. She sought to reduce the order as being “wrong, unjust and contrary to law”. The right of the complainer to intervene in such cases was unnecessary if correct procedures were followed, and the Crown was instructed to review the s 275 application in light of the representations received. The court was clear that the legislation was drafted in such a way that the complainer should be contacted by the Crown as a matter, of course, to seek her views in order that any such application could be considered taking these into account.
In a related theme, in Darbazi v HM Advocate  HCJAC 10 (3 February 2021), a case involving digital penetration contrary to s 2 of the Sexual Offences (Scotland) Act 2009, after sundry procedure during which a defence statement was lodged stating that the appellant was not the perpetrator, a change of agency took place. On the adjourned trial diet a defence of consent was tendered but was refused by the sheriff as too late. The appellant was convicted but the Appeal Court quashed the conviction as, notwithstanding the lateness of the application, the refusal amounted to a miscarriage of justice by precluding the appellant from leading his defence (possibly allowing the Crown to cross-examine on the earlier defence statement).
There are not many cases about bail, so Russell v HM Advocate  HCJAC 24 (24 March 2021) is welcome. The petitioner sought redress for the sheriff not considering his application for review of bail. The petitioner had appeared on 6 May 2020 and had been refused bail. At some stage he appealed the refusal to the Sheriff Appeal Court but the application was refused. Subsequently an application for review of bail by the sheriff was refused as incompetent. Trial was adjourned due to COVID; an application for review of bail was deemed incompetent. On a referral by the Sheriff Appeal Court, the High Court disagreed with the sheriff that he was bound by HM Advocate v Jones 1964 SLT (Sh Ct) 50 at 51 or Ward v HM Advocate 1972 SLT (Notes) 22. It remitted the case to the sheriff to deal with, stating that the reference in Renton & Brown, para 1.20.1 was inaccurate and the approach in para 4.1.5 of the Criminal e-Bench Book was to be favoured. Where a review of bail is sought, the sheriff can deal with the matter, unless the initial order was granted on a successful appeal.
COVID has delayed and frustrated many things, such as my return to the golf course to right a bad swing I have had for the last 50 years. I understand as the criminal justice system gets back to normal, “current” cases should be cleared by 2025 and community payback hours worked off by 2027, which may be a talking point at the Holyrood election in 2026.
Meanwhile in CS v HM Advocate  HCJAC 6 (29 January 2021) the appellant was aggrieved that he was still being prosecuted on indictment for allegedly having a knife in his possession in Paisley in March 2019. He was granted bail after full committal and indicted to a first diet in January 2020. The matter was adjourned on defence motion for further investigations; at the continued diet trial was fixed for 27 February, a diet adjourned on defence motion due to the non-availability of a witness. A diet fixed for 4 May could not take place due to the lockdown and new diets were fixed administratively for 31 July and 23 October 2020. The 12 month time bar was initially extended by agreement to 8 May, and then by the Coronavirus (Scotland) Act 2020 to 8 November 2020. At a hearing on 30 October the sheriff extended the time limit to 15 January 2021 when it was anticipated remote jury trials would have started.
At appeal the defence submitted the sheriff had insufficient information before him on which to adjourn the case in terms of Swift v HM Advocate 1984 JC 84. Their Lordships concluded the circumstances that had arisen were no fault of the Crown, and arrangements to restart jury trials as soon as practicable had been publicised by the Scottish Courts & Tribunals Service, which had worked with the Law Society of Scotland and Faculty of Advocates. The sheriff had acted correctly and with sufficient reason to extend the time bar in terms of Swift and HM Advocate v Early 2007 JC 50. It was noted earlier adjournments had been at the instance of the defence.
The Sheriff Appeal Court dealt with Wishart v Procurator Fiscal, Kirkcaldy  SAC (Crim) 1 (1 December 2020), which arose from a road traffic trial before a justice of the peace. The appellant had allegedly sped off after a collision and was charged with failing to stop etc. There were no eyewitnesses but CCTV evidence had been recovered. The footage was led without objection. A certificate under s 283 had been served and not objected to. It was quite clear the CCTV footage gave a location and time. The court was content the CCTV disc had been properly served. Even if that procedure had been flawed, there was ample evidence from the witnesses led.
Finally… a work in progress
I read the petition to the nobile officium, Procurator Fiscal, Kilmarnock v Motroni  HCJAC 17 (3 March 2021), with horror. A stated case has been requested. All I will say at this stage is that it is important for agents and judges to scrutinise libels at the outset, and if anything dodgy jumps up like the Crown seeking extraterritorial jurisdiction in Italy (other than in a docket), the point should be taken then and there in terms of s 144(4) of the 1995 Act, or its solemn equivalent, otherwise anything might happen!
Frank Crowe, Sheriff At Edinburgh
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- Tax: Budget briefing
- Immigration: When human rights meet national security
- Scottish Solicitors' Discipline Tribunal
- When the “twa kingdoms” collide
- In-house: People-centred, remotely