More Friday miscellanea [UPDATED]

(a) Drunkenness and mitigation

Thanks to Scott Wortley for drawing my attention to a Parliamentary written answer from the Justice Secretary on drunkenness as a mitigating factor in sentencing two days ago. The question and answer are as follows (click here for the original record):

Hugh Henry (Paisley South) (Lab): To ask the Scottish Executive whether being drunk is considered to be a mitigating factor in determining sentences.

Kenny MacAskill: High Court Judgments since the 1980s have made clear in common law that alcohol should not be regarded as a mitigating factor in crimes. The time is now right to review whether that message from the High Court is being heard clearly and consistently enough by those who have contact with or are involved in the criminal justice system. We are considering what measures may be necessary to make it explicit that being intoxicated at the time of the commission of an offence should not be submitted as a mitigating factor at the point of sentence.

It is not clear whether anything in particular has prompted this, and it is doubtful that there is any need for some kind of explicit rule. Apart from anything else, it is easy enough to imagine exceptional cases where intoxication could clearly be part of a plea in mitigation (imagine, for example, a case where someone inexperienced with alcohol has got drunk, committed some minor crime out of character and been so shocked by his actions that he has renounced alcohol and become a teetotaller?) A decision to “make it explicit” that intoxication is not mitigatory might be criticised as more a case of being seen to be doing something (compare this earlier post) rather than actually making a difference. (But it would be wrong to be churlish at this stage - a review can do no harm and is always to be welcomed.)

[Update (14/12): Thanks to FS (in the comments section) for drawing my attention to an earlier spat between Joe Beltrami and Mr MacAskill on this subject. For more details, see the BBC News website, and a rather mischievous exploration of Mr MacAskill's motives by Brian Monteith appears in the Evening News (scroll down to the second item).]

(b) Appealing a sentence, forty years on

Reid v HM Advocate [2007] HCJAC 70, published on the Scotcourts website today, is an (unsuccessful) appeal against a sentence imposed forty years ago. This was Mr Reid’s first such appeal – it is not a second appeal by virtue of a reference by the Scottish Criminal Cases Review Commission. As such, it is probably some sort of record. (The normal time limit for lodging an appeal against sentence is two weeks, but that can be extended by the court under s111(2) of the Criminal Procedure (Scotland) Act 1995.)

Mr Reid had pled guilty to culpable homicide on the basis of diminished responsibility in 1967 and was committed to the State Hospital in Carstairs. He now sought to argue that the original hospital order should be quashed and a life sentence substituted in his place. That may seem an unusual contention, but the point was that his efforts to seek release from hospital had failed, and a life sentence would allow him to seek release by way of the Parole Board instead. Those circumstances themselves, of course, are merely the motivation for an appeal and not a basis for one, and it was always going to be difficult to persuade the appeal court that the initial order (pronounced without opposition) was a miscarriage of justice.

(c) Provocation and confusion

Touati and Gilfillan v HM Advocate [2007] HCJAC 73, published on the Scotcourts website yesterday, is an appeal against two convictions for murder. One of the appeals succeeded and the court has continued the appeal to allow the Crown to address it on the appropriate disposal. (The court has said it is minded to substitute a verdict of culpable homicide, but it may be that the Crown will want to seek permission for a retrial.)

The reasons for the appeal succeeding are complex, involving the correctness of the trial judge’s directions on a number of interrelated issues. In particular, the trial judge’s directions on provocation are criticised (see paras 30 and 31). In fairness to the trial judge, the difficulties there appear to be largely a result of the decision in Drury v HM Advocate 2001 SLT 1013. The appropriate directions have now been clarified by Gillon v HM Advocate 2007 JC 24, but that decision came some time after the trial in this case.