Jury riders - and a fine mess

Posted yesterday on the Scottish courts website (but apparently issued last week), a report of some very peculiar procedures. The case is HM Advocate v Tracey [2007] HCJ 14.

What seems to have happened in this case is as follows. Mr Tracey was charged with having unlawful sexual intercourse with DM, who was under the age of thirteen, on a “number of occasions”. He pled guilty as libelled, and both he and the judge signed that plea. Thereafter, the Crown and his solicitor explained that there was a dispute as to some facts which would be relevant to sentence, particularly his knowledge of DM’s age and whether or not he had intercourse with her on a third occasion after being told of her age.

Since neither of these facts had the slightest bearing on whether Mr Tracey was guilty of the offence or not, the proper course of action might have seemed obvious: either (a) the Crown would have to accept Mr Tracey’s claims for the purposes of sentencing or (b) a proof in mitigation would have to be held, before a judge sitting without a jury. And a proof in mitigation was exactly what the advocate depute and Mr Tracey’s solicitor asked for.

But the judge, Lord Turnbull, was having none of this. He took the view that these were matters for a jury to decide – seemingly by attaching a rider to their verdict – and directed that a plea of not guilty be recorded. The case called for a continued preliminary hearing before Lady Dorrian and finally went to trial before Lord Uist. When the Crown case had closed, Mr Tracey’s agent explained that he intended to call no evidence and that he would be inviting the jury to convict his client.

Unsurprisingly, this peculiar spectacle of a “trial” appears to have caused Lord Uist some concern (not that Mr Tracey’s agent can be criticised in any way). After legal debate, he issued an opinion to the effect that (a) it was doubtful that Lord Turnbull had any power to annul Mr Tracey’s original plea once it had been signed but even if he did, (b) juries should not be invited to add riders to their verdict (meaning that the jury could do nothing useful in this case) and that (c) the matters in dispute between the Crown and defence were a matter for him – which he would determine on the evidence already led – and not for the jury. A plea of guilty was then tendered and the advocate depute moved for sentence, which will take place at a later date.

(All this is procedurally very difficult. Lord Uist takes the view that the initial guilty plea, once signed by Mr Tracey and the judge, "constituted a conviction which could be removed only by being quashed on appeal" (para 7). But if that is true, then surely Mr Tracey was not entitled to plead guilty after the trial, having already been convicted of the offence? And can a sentence still competently be imposed on the first conviction given the proceedings thereafter? Perhaps thankfully, no argument along these lines was made.)

Lord Uist reviews the authorities on jury riders in some detail, and his opinion on this neglected topic is well worth reading. In addition, it might be observed that Lord Turnbull’s initial actions seem incompatible with the case law on pleas in mitigation. In that regard, the appeal court has said that an accused is, in mitigation, entitled to deny any statements made by the Crown unless his denial is inconsistent with his plea of guilty or is manifestly false given other admissions which he has made (Galloway v Adair 1947 JC 7). Mr Tracey’s claims would not have come close to falling foul of that rule.

Update (11/01): Mr Tracey was today sentenced to 21 months' imprisonment and placed on the sex offenders register. See this post.

Short-term sentences and short-term problems

From the BBC News website today, a report of a sheriff livid at not being able to impose a longer custodial sentence. Sheriff Liddle sentenced two youths to 72 days in custody for an unprovoked attack on a stranger, remarking:

"You two are young thugs, nothing more, nothing less. I tell you this, right here and now, you are lucky this charge was not brought on indictment, because if it had been that would have allowed me to pass the custodial sentence this case deserves. I can't because you are first offenders and it is on summary complaint. The maximum I can sentence you to is three months, which is woefully inadequate. Worse than that, I can't even do that, because you are entitled to a discount for the early plea."

They were lucky in more ways than one. Thirteen days from today, on the 10th of December, the sentencing powers of sheriffs in summary cases are to increase to twelve months’ imprisonment (click here for the order implementing the relevant section (43) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007). Had proceedings against these accused been taken at a later date, matters could have been rather different.

“Retrospective” use of these sentencing powers would not seem to be contrary to the ECHR. Although article 7 prevents courts from imposing “a heavier penalty… than the one that was applicable at the time the criminal offence was committed”, that does not seem to be relevant here unless the crime concerned is one which cannot be prosecuted on indictment: if it is, penalties of 12 months (or more) would always have been “applicable”.

But full retrospectivity would probably have led to all sorts of distortions and difficult calculations about how and when to prosecute cases and whether to tender or accept pleas – and no doubt, appeals from aggrieved persons sentenced just after the 10th of next month. Accordingly, the implementing order makes transitional provisions (see article 12): the increased sentencing powers are only to be available in cases where a first calling took place on or after the 10th, or there has been no first calling but a warrant was granted on or after that date. All is not lost to armchair commentators who look for trouble, however: interesting questions may arise in respect of any proceedings which are commenced before the 10th but abandoned and restarted de novo at a later date.

Trial within a reasonable time: a subtle shift?

One of the guarantees under article 6 of the ECHR – which led to rather more litigation than Scots lawyers expected prior to the Scotland Act 1998 – is the right to trial within a reasonable time. That right runs, according to the European Court, from the time at which the person is “charged”. A charge, for these purposes, has been defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (Eckle v Federal Republic of Germany (1983) 5 EHRR 1, at para 73).

In practice, the Crown has tended to accept that for ECHR purposes, a “charge” occurs when the police put an allegation to a suspect while he is being interviewed (see, e.g., Dyer v Watson [2002] UKPC D1, at para 96 per Lord Hope of Craighead). That concession, arguably, goes further than is required by the ECHR (see Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68), and the opinion issued in Burns v HM Advocate [2007] HCJAC 66 last Thursday casts some further doubt on it.

In Burns, the appellant was initially interviewed by police officers in England, and the case papers were subsequently sent to Strathclyde police. The appeal court was not prepared to entertain the suggestion that the article 6(1) clock had started to run when allegations were put to him during his interview in England. Other considerations aside, the police officers could not be regarded as the “competent authority” (although the court did acknowledge that the position might be different had the English police been acting at the request of Scottish officers).

What is interesting is that the court does not seem prepared to endorse the concession which has been previously made by the Crown as to the starting point for the article 6(1) guarantee. Counsel for the appellant submitted that “[h]ad what was said to the appellant by Metropolitan Police officers in February 2003 been said to him by officers of Strathclyde Police at that time, it was clear that he would then have received official notification for the purposes of the Convention” (see para 6). But the Lord Justice-General avoids endorsing this claim, saying only (at para 10):

“it has been accepted both in Scotland and in England and Wales that that initiation can take place before the formal commencement of criminal proceedings by the public prosecutor. In Scotland, the formal charging, in the domestic sense, of a suspect by a Scottish police officer will, ordinarily at least, constitute an official notification given by the competent authority of an allegation that the individual has committed a criminal offence.”

Does this mean that the prior concession was wrong? The difference is important: in Dyer v Watson, for example, the Crown conceded that the article 6(1) clock started to tick for Watson and Burrows when they were interviewed on the 28 January 1999. But they were not charged by the police on that occasion, and the next alternative date which might be regarded as the date of a “charge” would seem to be April 2000 when proceedings were commenced by way of summary complaint. If that was the starting date, the article 6 arguments they made a matter of weeks thereafter (which succeeded before the High Court but were later overturned by the Judicial Committee) would never have got off the ground.

It would be dangerous to read too much into what is at most, an obiter omission (if such a thing exists) – but the point may arise again before long.

Some Friday miscellanea

When this blog started, one concern was that there might not be enough newsworthy criminal “events” to keep it going. Instead, an unexpected blizzard of decisions and announcements has resulted in far more posts than I expected. Things may have quietened down for a bit (famous last words...), so here’s a few points that were omitted from recent posts to keep their length manageable and in an attempt to avoid boring readers:

(a) So long to reforming criminal law defences?

The new projects handed to the Scottish Law Commission (see previous post) probably mean that the Commission’s proposed reform of provocation, self-defence, coercion and necessity (see pp22-23 of the Seventh Programme of Law Reform) will be left on the back burner. That may be no great loss, however, as the case for undertaking that reform is obscure. In its Seventh Programme, the Commission said that:

“The main impetus for our review comes from the state of the current law on provocation. In Drury v HM Advocate [2001 SLT 1013] the court accepted not only that the law required reform and clarification but also that legislation was the best mechanism for changing the law.”

But it is difficult to find any basis for that claim in Drury. All that happened there was that two of the five judges said that if there were to be a major reform of the law of provocation, that would be a matter for Parliament and not the court (see Lord Nimmo Smith at para 9 and Lord Mackay of Drumadoon at para 3). No views seem to have been expressed on whether reform was actually necessary. It is true that, as the Commission notes, the decision in Drury is controversial – and I am flattered to be one of a number of writers cited in support of that claim – but critics of Drury have been primarily concerned about the definition of murder offered in that case rather than the actual rules of provocation set out there. (The High Court has since made a start on tidying up some of the problems left by Drury, in Gillon v HM Advocate 2007 JC 24.)

(b) The slow wheels of justice

The latest temporary sheriffs case, Dickson v HM Advocate; McNaughton v HM Advocate [2007] HCJAC 65 (see earlier post) has taken an extraordinary length of time to come to a conclusion given that the convictions occurred in 1999. Originally, three appeals on the point were associated together, but the appellant in one case died before the current decision. (It has been possible since the Crime and Punishment (Scotland) Act 1997 for appeals to be continued posthumously, but that was not done here.)

Dickson abandoned his appeal against conviction (but not against sentence) in 2005. Why this happened is not clear, but if he was under 18 at the time of the conviction – his age is not specified – then his conviction would have become spent in 2004 (in accordance with the Rehabilitation of Offenders Act 1974). His sentence, however, has not been served in full, because he was granted interim liberation as far back as July 1999. The idea that someone could be returned to jail to serve out a sentence for a spent conviction seems at least peculiar (so much for the theory of rehabilitation), but there appears to be nothing to prevent it. In the opinions issued last Thursday, the appeal court made no order as regards that sentence.

(c) English cases as precedent in the Scottish courts

In Dickson v HM Advocate, one argument advanced by Dickson and McNaughton was that the Human Rights Act 1998 should be given retrospective effect, a proposition which was rejected initially by the House of Lords in R v Lambert [2002] 2 AC 545. Subsequent decisions of that court have cast some doubt on the correctness of Lambert but have consistently taken the view that it should be followed for reasons of judicial precedent.

Lord Hamilton, in delivering the leading opinion of the Dickson court, is not prepared to expressly endorse R v Lambert as correct. Instead, he takes the view that, although not binding on the High Court, it should be followed because (a) there are “respectable arguments” in its support and (b) it would be undesirable for the Scottish and English courts to interpret the Human Rights Act 1998 differently. In the circumstances, he regards a “fresh interpretative exercise” as inappropriate (see para 27).

While that position is attractive, it has the curious – and somewhat troubling – result that a court unconstrained by binding precedent seems to have declined to rule directly on a point of law which was argued before it and was crucial to the determination of the case. Here, the High Court is not in the same position as the House of Lords in the post-Lambert cases on retrospectivity, because that court treats prior decisions of its own as “normally binding”: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. By contrast, the High Court’s obligation is not to treat such decisions as “normally binding”, but instead to give them “great respect” (see Dickson, at para 27).

Law Commission: new criminal justice project

Earlier today, the Scottish Government announced that it has asked the Scottish Law Commission to carry out a “series of studies… aimed at ensuring an appropriate balance between the rights of the accused and the ability of the Crown to prosecute in the public interest”. The Commission has been asked to look at the following issues:

• Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and rights of appeal against such
• The principle of double jeopardy, and whether there should be exceptions to it
• Admissibility of evidence of bad character or of previous convictions, and of similar fact evidence
• The Moorov doctrine

This may mark a change in the relationship between the Commission and the Scottish Government regarding criminal law reform. In the last five years, the Commission has published two major reports on criminal law (on the age of criminal responsibility in 2002 and insanity and diminished responsibility in 2004), neither of which has resulted in legislation.

By contrast, the Government has announced that there will be a Rape and Sexual Offences Bill next year even though the Commission’s report on that topic has not yet been published, and the Government seems determined to press ahead even more swiftly in this case.

The timescale proposed for the new project is unusually short: a report on judicial rulings and appeal rights is expected by the summer of next year. By comparison, the Report on Insanity and Diminished Responsibility was published in July 2004 after a reference from the Scottish Ministers in September 2001, while the Report on Age of Criminal Responsibility was published in January 2002 following a reference in October 2000.

A mere matter of months (bear in mind that the Commission still has not finalised its report on rape and sexual offences) would be a remarkably tight timescale for a discussion paper, let alone a full report, assuming that is what the Government’s statement means. If Professor Maher, whose term of office expires in August 2008, was hoping for a period of some respite after completing the lengthy and complex rape and sexual offences report, it seems he likely to be disappointed.

If a full report is intended, then it is difficult to see how this can be achieved while maintaining the Commission’s normal full and careful approach to law reform. The previous Executive tried to do law reform quickly via its Expert Group on Corporate Homicide (which met a grand total of five times in as many months before reporting). The report produced by that Group, which was nowhere close to an adequate basis for legislation, should be a warning to anyone who believes that high-quality law reform can be carried out swiftly.

In that case, the surprising decision that corporate homicide was really, after all, a reserved matter allowed the Executive to play a get out of jail free card and piggyback onto proposed English legislation rather than wrestle with the problems left by the Expert Group’s unsatisfactory report. The Commission, of course, is a very different body and may be better able to adjust its workings and resources accordingly - but if not, there will be no such card available this time round.

Update (22/11): Readers may be interested in a post added today to Scots Law News, which makes a similar, but more detailed, point about the timescale proposed for this project.

Temporary sheriffs: what were we worried about?

Over eight years ago, on the 11^th November 1999, the appeal court ruled that proceedings before temporary sheriffs were incompatible with article 6 of the European Convention on Human Rights – and, in turn, with the Scotland Act 1998 (Starrs v Ruxton 2000 JC 208). The far-reaching consequences of that decision need not be rehearsed here.

The issue rumbles on, however, and last Thursday, yet another decision on temporary sheriffs was issued by the appeal court. The case is Dickson v HM Advocate; McNaughton v HM Advocate [2007] HCJAC 65, a decision of a Full Bench. Dickson and McNaughton were both convicted following proceedings before temporary sheriffs in 1999, but before the Scotland Act 1998 came into force.

Instead of relying on that statute, they advanced two arguments. These were, first, that the Human Rights Act 1998 should be given retrospective effect (a proposition already rejected in the English courts, but on which some doubt has been cast since) and secondly, that the proceedings against them were vitiated because of the common law requirement of independence and impartiality.

Both of these arguments are rejected in the leading opinion of the Lord Justice-General, and his treatment of the first raises some interesting questions about the proper approach of the Scottish courts to decisions of the House of Lords as precedent.

More significant, however, is the alternative reason the court offers for refusing the appeals, which is set out in Lord Macfadyen’s opinion. Under section 6(2) of the Human Rights Act 1998, the general rule that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right” does not apply if the authority “could not have acted differently” because of primary legislation (section 6(2)(a)), or if the authority was “acting so as to give effect to or enforce” primary legislation which was incompatible with the Convention and could not be read so as to make it compatible (section 6(2)(b)).

Where one of these two “defences” is available, the rule that the Lord Advocate has no power to do an act incompatible with Convention rights is also disapplied (section 57(3) of the Scotland Act 1998).

An argument based on section 6(2)(a) failed in Starrs v Ruxton, on the basis that there was no piece of primary legislation which required the procurator fiscal to proceed with the trial in that case. Subsequently, an argument based on section 6(2)(b) failed in Millar v Dickson 2002 SC (PC) 30, where Lord Clyde (at para 84) said it was “too strained a construction… to say that proceeding with a case before a temporary sheriff is giving effect to the power to appoint temporary sheriffs”.

But, according to Lord Macfadyen, the problem was simply that the Crown advanced the wrong argument each time. Proceeding before a temporary sheriff was “giving effect” to the statutory provision conferring criminal jurisdiction on such sheriffs (not the provisions regarding their appointment, which had been founded on in Millar v Dickson). Accordingly, such proceedings were not unlawful in terms of section 6 of the Human Rights Act 1998.

And that, in turn, must mean that proceeding before temporary sheriffs was never actually outwith the Lord Advocate's powers in terms of section 57 of the Scotland Act 1998. The logic of this position is attractive – but it does seem to mean that much of Starrs v Ruxton onwards was a fuss about nothing. (This doesn't mean, of course, that temporary sheriffs were actually compatible with the ECHR, only that the changes necessitated by the Convention could have been brought about in a much more orderly fashion.)

Oops.

Cross-border jurisdiction

Yesterday, Peter Tobin appeared in Linlithgow Sheriff Court court charged with the murder of Vicky Hamilton, who disappeared in 1991 (a report is on the BBC News website). While Vicky Hamilton was last seen in Scotland, the court proceedings follow the discovery of her body at a house in Kent, meaning that two different jurisdictions are, in some form at least, involved in the case.

By statute, the Scottish courts have jurisdiction over homicides committed by British subjects outside the United Kingdom (Criminal Procedure (Scotland) Act 1995, s 11(1)). However, that provision does not give them jurisdiction over homicides committed in other parts of the United Kingdom. The position is similar in England, where statute also provides for extra-territorial jurisdiction over British subjects but no such jurisdiction in respect of other parts of the UK (Offences Against the Person Act 1861, s 9).

The cross-border problems resulting from these rather unsatisfactory statutory rules have been discussed extensively by Michael Hirst (see, amongst other publications, his book Jurisdiction and the Ambit of the Criminal Law (2003), 227-230). As Hirst notes, the issue seems to have been ignored in Robert Black’s 1994 trial, in Newcastle, for the murder of three girls. Black was a delivery driver working between London and Scotland. Two of his victims had been abducted in Scotland, and it was unclear where they had died. For whatever reason, the defence did not argue the jurisdictional point and Black was convicted of all three murders.

Whether the issue is actually a live one in respect of further proceedings in Peter Tobin’s case will depend on the evidence available to the Crown, which is not something on which it would be appropriate to speculate. If the matter does become the subject of argument (and again depending on the terms of any indictment) some reliance may be placed on Laird v HM Advocate 1985 JC 37, where the result of a fraudulent scheme (the payment of money) took place in England. The appeal court said that if steps which were required to bring that fraudulent plan to fruition and played a material part in the operation took place in Scotland, the Scottish courts would have jurisdiction. While the court was concerned only with fraud, there is no obvious reason why this reasoning should not be of broader application.

From bicycles to mannequins

Earlier today, Robert Stewart, who had the dubious distinction of being the subject of the first item on this blog, was sentenced to three years on probation for committing a breach of the peace by having sex with a bicycle in a hostel room. A report is available on the BBC News website.

As a postscript, it may be noted that judicial consideration of such activities is not peculiar to Scotland. Last week, in the case of State v Plenty Horse 2007 SD 114, the Supreme Court of South Dakota had to decide whether a man who had sex with a mannequin in an empty room (empty until the security guard entered, that is) was guilty of indecent exposure. The answer was no: those who want to know why can download a six-page PDF opinion from the South Dakota Unified Judicial System website.

Murder: no safety in numbers

The High Court’s opinion in HM Advocate v Purcell [2007] HCJ 13 has been issued today. This important decision on the law of murder follows a no case to answer submission made by counsel for Mr Purcell, who was accused of having committed murder by driving a car so recklessly that he hit and killed a young boy.

In an unusual move, the submission was dealt with by a bench of three judges. It has been suggested elsewhere that this might have been linked to the furore which followed the recent decision of Lord Clarke, sitting alone, to uphold a no case to answer submission in the World’s End case (see Scots Law News # 687).

The court’s opinion was published earlier today. In a careful review of the authorities, Lord Eassie resolves what might have been seen as the one major outstanding question on the mens rea of murder in Scots law: can a person be said to be “wickedly reckless” if they had no intention even to cause physical injury to the victim?

As a measure of the uncertainty surrounding this question, it might be noted that conflicting views are expressed in Gordon’s Criminal Law on this point (compare paras 7-18 and 23-17), while the two standard student texts also take diametrically opposed views: Jones and Christie, in Criminal Law, take the view that an intention to cause physical injury is required, while McCall Smith and Sheldon, in Scots Criminal Law, take the view that it is not required.

Both these pairs of authors, remarkably, cite Hume as their authority for their differing conclusions. In this writer’s view, it is Jones and Christie who read Hume correctly, and that accords with the conclusion reached by the Purcell court, which upheld the submission of no case to answer. (Thereafter, Mr Purcell pled guilty to culpable homicide and was sentenced to 12 years’ imprisonment.)

Some observations remain, however, which have a bearing on the procedure adopted in this case. The most important is that no reference was made to Brennan v HM Advocate 1977 JC 38. Brennan is commonly thought of simply as a decision on the defence of voluntary intoxication (or, rather, the lack of such a defence). However, much of the court’s decision actually turned on the mens rea of murder – and as a decision of seven judges, it deserves to be taken seriously on this point.

Brennan appears to have decided that if a person voluntarily becomes so intoxicated so as to suffer a “total alienation of reason”, and thus incapable of forming any mens rea at all, they can nevertheless be convicted of murder. And the reason for this outcome? Becoming grossly intoxicated itself demonstrates wicked recklessness. (See Brennan, at 50-51 and Jones and Christie, Criminal Law (3rd edn 2003), paras 8-60 and 8-61.) If wicked recklessness can be demonstrated in this way, it is difficult to accept the conclusion of the Purcell court.

Importantly, it is possible to interpret Brennan differently. Nevertheless, it is disappointing that the point is not addressed in the Purcell court’s opinion, and equally that the court did not refer (and presumably was not itself referred) to para 7-18 of Gordon’s Criminal Law.

This demonstrates the limitations of the procedure adopted by the Purcell court. Appellate courts are likely to produce better decisions not principally because of the larger number of judges that sit on them (although that may help), but because such courts have the benefit of being able to revisit an earlier decision and refine the arguments and reasoning presented there.

Those who can examine someone else’s reasoning, build on it and criticise it, have a rather easier job than those who addressed the question before they did, a point which should not be lost on academic commentators. Convening larger benches in the middle of a trial, with all the time constraints that entails, creates no such advantage and is not a substitute for normal procedures. As Lord Eassie says in his opinion (at para 19), it is regrettable that the point of law before the court was not raised as a preliminary matter before the trial had started.

Update (29/3/08): Regarding the above comments about Brennan, see now this more recent post about voluntary intoxication as a defence to rape.

More guidelines, and a remarkable injustice

Within a few hours of the previous entry on this blog, speculating that the appeal court might make more use of its power to issue sentencing guidelines in the future, the court has issued an opinion doing just that. (Recommended Lottery numbers may appear here later.) The case is Spence v HM Advocate [2007] HCJAC 64.

Spence refines the guidance on sentence discounting for guilty pleas originally formulated in Du Plooy v HM Advocate 2005 JC 1. Two main points arise from the case.

(a) Contrary to the view taken in Roberts v HM Advocate 2005 SCCR 717, it may in fact be appropriate to give a discount for a “restricted” plea of guilty which is not accepted by the Crown but is, in effect, accepted by the court in its verdict: most obviously in a murder trial where the Crown rejects a plea of guilty to culpable homicide but that is the verdict returned by the jury.

(b) The guidance offered in Du Plooy – that discounts should “not normally exceed a third of the sentence which would otherwise have been imposed” – is expanded and refined. The full guidance is found in paras 14-15 of the Lord Justice-General’s opinion. Briefly, it sets out a usual discount of one-third for an accelerated guilty plea under section 76 of the 1995 Act, a discount of one-quarter for a plea at a first diet or first preliminary hearing, and a discount of one-tenth or less for a plea at the trial diet.

None of this was of any value to Mr Spence himself, however. Although, prior to his trial for murder, his agents had asked whether the Crown would accept a plea of guilty to culpable homicide (and had been rebuffed), no such plea had ever been formally tendered. Accordingly, the appeal court said, there was no basis for a discount despite the jury having returned a verdict of culpable homicide. In fact, in sentencing him, the trial judge had erred in “taking into account” his agents’ efforts to persuade the Crown to accept his plea. The appeal court went on to conclude that the sentence imposed had actually been inadequate and increased it from eight years in a Young Offenders Institution to ten.

This outcome is disturbing, to say the least. Although the appeal court unquestionably has the power to increase a sentence on an appeal by the accused, leave to appeal has been required since 1995. Logically, this should render such increases rare at the very least (see Hendry v HM Advocate 2006 JC 129, at [6] per Lord Justice-Clerk Gill). If the appeal court persists in exercising this power, it has the absurd result that an accused who lodges a appeal against sentence is at no risk of having his sentence increased if his appeal is hopeless (because leave will be refused and the appeal will proceed no further), but if a judge of the High Court decides that his appeal is arguable and grants him leave to pursue it, suddenly he is at risk of his sentence being increased. That cannot be just.

Sentencing guidelines: a new development?

Since 1995, the High Court has had the power to pronounce “sentencing guidelines” in appropriate cases, under section 118(7) of the Criminal Procedure (Scotland) Act 1995. However, the power does not appear to have been explicitly used until 2003, when the appeal court offered guidance on the appropriate discount for a plea of guilty (Du Plooy v HM Advocate 2005 JC 1) (although thanks to Fiona Leverick for pointing out that in Ogilvie v HM Advocate 2002 JC 74, the appeal court offered "sentencing guidelines" in respect of downloading indecent photographs of children from the internet without referring directly to section 118(7)).

Last week, the power was explicitly used for the first time in respect of a substantive offence. In Zhi Pen Lin v HM Advocate [2007] HCJAC 62, the court invoked section 118(7) in order to say (at para 13) that “the appropriate starting point for… "gardeners" involved in relatively large scale operations [of cultivating cannabis] will ordinarily be in the range of 4 to 5 years' imprisonment”.

Until relatively recently, that was a range of sentences open only to the High Court, but sheriffs' sentencing powers in solemn cases were increased from three to five years on the 1st May 2004. (This implemented section 13 of the Crime and Punishment (Scotland) Act 1997: it is not only section 118(7) which has had to wait some time for practical effect.) It may be that the vastly increased number of judges who can now impose relatively long sentences of imprisonment will encourage the appeal court to make more use of its power to issue sentencing guidelines.

That is not the justification offered directly by the appeal court in Zhi Pen Lin, which refers instead (at para 10) to “a degree of disparity, at least in the High Court, in the sentences so far pronounced on persons convicted of relatively minor involvement in such activity”. However, the fact that many future "gardening" prosecutions may take place in the Sheriff Court (see the examples given at para 9 in Zhi Pen Lin) means that it would be impossible to end such disparities by means of informal discussions between the relatively small number of High Court judges. Whether this means that more extensive use of section 118(7) can be expected in future remains to be seen.

Contempt, again

Contempt of court seems to be flavour of the week. Yesterday, a Full Bench of the High Court issued opinions in Robertson v HM Advocate; Gough v HM Advocate [2007] HCJAC 63. The leading opinion, delivered by Lord Justice-Clerk Gill, is an important review of the law of contempt and the attendant procedure.

(One of the cases under consideration involved four findings of contempt against Stephen Gough, the celebrated "naked rambler" who repeatedly insisted on appearing nude in court. Those wishing to follow Mr Gough's exploits should head over to the Scots Law News blog, where at present approximately one in every 20 of the near-700 entries on the blog details a particular chapter in his travails. A search for "Gough" on the home page will bring up a handy chronological summary.)

Three significant points arise from the opinions:

(1) It is not necessary for a presiding judge to remit an alleged question of contempt to a colleague provided it is clear that the contempt is not directed at the judge personally (see para 82). That "overrules" a note issued by the then Lord Justice-General (Cullen) in February 2004 suggesting that questions of contempt should normally be remitted to a second judge. The ECHR jurisprudence on which that note was based has since moved on, and it is significant that the course suggested in Lord Cullen's note does not appear to have been followed in respect of any of Mr Gough's contempts, the earliest of which was in November 2005.

(2) Lord Gill states that for cases where the relevant facts are in dispute (a problem which did not arise in these cases), a detailed code of procedure needs to be "devised urgently". It appears that this will be done by the court itself, "by Act of Adjournal after the usual process of consultation with the Rules Councils" (see para 102).

(3) There is a useful discussion of the nature of contempt of court which will doubtless be of relevance to Mr Anwar's case (see previous blog entry), but does not preempt the questions raised by Lord Carloway there. On the one hand, Lord Gill relies on Petrie v Angus (1889) 2 White 358, where Lord Justice-Clerk Macdonald referred to the "power and, indeed... the duty of the court, in order to protect the dignity, quietness, and regularity of its proceedings, and to prevent defiance of its orders". Such a power and duty does not seem readily applicable to actions outside the courtroom after the jury's verdict is returned. But at the same time, Lord Gill also refers (at para 29) to conduct that "wilfully challenges or affronts the authority of the court", which on one reading could cover such actions.

An aside: All five members of the court were clearly frustrated by the extent to which counsel relied on Article 6 of the ECHR in submissions. Lord Gill, in particular, acerbically remarks (at para 64) that "[i]t seems at times that contemporary practitioners believe that the Convention introduced the principle of fair trial into Scottish criminal procedure. Scottish criminal procedure is founded on that principle."

An unprecedented contempt case

About two weeks ago, Lord Carloway indicated that he was considering whether comments made by the solicitor Aamer Anwar to the media after Mohammed Atif Siddique’s conviction for terrorism offences might have been a contempt of court. Today, he has announced that he is remitting the matter to the High Court in Edinburgh for a decision. His full reasons have been published on the Scotcourts website.

The case seems unprecedented, focusing as it does on comments made (a) outside the courtroom and (b) after the jury's verdict was returned, thus avoiding any question of prejudicing the trial itself. In theory, “slandering” or “murmuring” judges in such circumstances can be a crime, although there is no reported prosecution for the offence since 1870, when a disgruntled coal-merchant sent letters to the Lord Chancellor and Home Secretary falsely accusing his local sheriff of corruption (Alexander Robertson (1870) 1 Couper 404).

But Mr Anwar did not make any allegations of that sort, and this case is not as simple as that. It revolves around a variety of claims made by Mr Anwar after the jury’s verdict (his press release is quoted in full in Lord Carloway's reasons), which Lord Carloway said appeared to be in part untrue and misleading, an “unjustified attack on almost every area of the trial process, other than the defence”, “an attack on the independence of the Advocate Depute” and “an attack on the fairness of the trial and thus presumably an attack on the Court itself”.

Significantly, there is no suggestion that a private individual who made similar statements could have been in contempt of court – so no doubt the media committed no contempt by reporting Mr Anwar’s remarks. Instead, the possible contempt turns on his status as a law agent and the duties which he owes to the court by virtue of that status.

Although Lord Carloway could have chosen to press matters no further, it would clearly have been inappropriate for him to have personally decided that there had been a contempt given that the remarks could be taken as an attack on him directly. For that reason, a remit to another judge (or possibly judges) was inevitable once he had decided not to let the matter rest. Just as importantly, the scope of the law here remains unclear. As Lord Carloway puts it:

“…there may be wider issues which, for the sake of clarity to the legal profession and the media, may require consideration. If agents are to make public statements in cases in which they are instructed, to what extent are they entitled, with impunity, to include material in these statements which is: (i) untrue; (ii) misleading; (iii) personally critical of jurors, witnesses and their professional colleagues; or (iv) of a political nature unconnected with the case? Furthermore, is an agent instructed in a case entitled to hide behind the cloak of his client by maintaining that such statements emanate from or were instructed by that client? Is he entitled to prepare such statements and escape scrutiny by arranging for them to be delivered by a third party, such as a friend or relative of the client?”

It seems unlikely that anyone would claim that a solicitor has a right to do all these things, but treating them as contempts of court could have a dangerously chilling effect on freedom of speech. There is little light to be shed on Lord Carloway's questions by the existing case law on contempt, and so the court's final determination will be eagerly awaited.

P.S. One intriguing bit of trivia: the copy of Mr Anwar’s press release lists his qualifications as “MA(Hons), Dip RCR, LLB, Dip LP, NP”. An impressively full set of qualifications, not unusual for a lawyer, with the exception of the “Dip RCR”. So far, extensive research (i.e. Google) has thrown up only the Royal College of Radiologists’ Diploma in Obstetric Ultrasound as a possibility. Alternative suggestions on a postcard please.

The bicyclist and the sex offenders' register

According to a recent report in the Telegraph, a man by the name of Robert Stewart has been convicted of breach of the peace and placed on the sex offenders' register after being found by two cleaners having sex with a bicycle in a hostel room. Or, in the words of the Telegraph, "trying to have sex with a bicycle". So presumably he was unsuccessful (unlike Karl Watkins, whom the Telegraph reminds us "was jailed for having sex with pavements" in 1993), but quite what the test of failure is is unclear.

So what does this mean? For example, is it - as posters on some websites have been suggesting - now an offence to use a sex aid in a Scottish hotel room? (Thanks to one correspondent for the disturbing image of an Ann Summers-Halfords collaboration.)

Well, the Scottish offence of breach of the peace requires "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community... conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person" (Smith v Donnelly 2002 JC 65, para 17). So, two thoughts:

• For someone to commit breach of the peace in a "private" place, it must be shown that they were likely to be discovered (see, e.g., Thompson v Macphail 1989 SLT 637). Here, that seems to have been established by Mr Stewart's failure to respond when the cleaners knocked on the door several times. (Exactly what he should have said to them to indicate that they would be better off not entering is another question.)
• Even if the likelihood of discovery is established, the conduct must still be shown to be sufficiently alarming. Most solo or consensual sexual activities probably fall far short of that standard, at least where the accused is trying to keep their actions private. And it's not even clear that sex with a bicycle in a hostel room meets it either. Confusing, yes. Alarming, maybe. But does it "threaten serious disturbance to the community"? How likely is that?
  

Not that this really answers the question of how you actually do have sex with a bicycle, but that's probably just as well. And if you don't have a bicycle, you're not immune from prosecution: the BBC has a report this morning of a man convicted for "simulating sex on a pavement" in Galashiels, and going further back, "simulated sex with a traffic cone" in Edinburgh. Perhaps reassuringly (but probably not), the latter offence appears only to have come about because no-one would sell the accused their trainers.