Scottish High Court of Justiciary Decisons

JASON ROBERT SPROULL AND SCOTT JAMES BAKER v. PROCURATOR FISCAL, KILMARNOCK [1998] ScotHC 17 (1st December, 1998)

The appellants both appeared on the same complaint in the Sheriff Court of North Strathclyde at Kilmarnock. The charge which they, along with Derek McKerrell, faced was in the following terms:

In response to this charge Sproull offered to plead guilty to a restricted charge in the following terms:

Baker also offered to plead guilty to a restricted charge which, however, acknowledged that he had played a larger part in the incidents. His plea was to a charge in the following terms:

The pleas in these terms were tendered and accepted on 2 October 1998 and each appellant admitted previous convictions. In each case the schedule of previous convictions included a conviction for assault. Sproull was convicted on 6 February 1995 of that offence in Renfrew District Court. Baker had three convictions for assault, on 10 October 1990, on 18 February 1992 and on 17 June 1996.

In the light of the convictions of the two appellants, the sheriff stated that it appeared to him that each appellant had pled guilty to a breach of the peace which included assault and that therefore, since each appellant already had a conviction for assault, each was liable to a sentence of six months imprisonment. He narrates in his Report, however, that the procurator fiscal and agents appearing on behalf of the three accused submitted that the court was dealing with a charge of breach of the peace. The sheriff imposed sentences of imprisonment of four months upon each of the appellants, in view of the gravity of the offence to which he had pled guilty.

In each of these appeals, the appellant contends that the sentence imposed was incompetent. The submission is that the sheriff had exceeded the maximum sentence available to him on summary complaint in this type of case, a sentence of three months imprisonment: section 5(2)(d) of the 1995 Act. While it was accepted that any offence of assault recorded in the schedule of previous convictions was "an offence inferring personal violence" within the meaning of section 5(3)(b) of the Criminal Procedure (Scotland) Act 1995, it was submitted that the offence to which each appellant had pled guilty on 2 October 1998 was not "an offence inferring personal violence" within the meaning of the section. The submission came to be that, because (as the procurator fiscal himself had accepted before the sheriff) the offence to which each appellant had pled guilty concluded with the words, "and did commit a breach of the peace", it followed that the offence should be characterised by that nomen juris. It was therefore not an assault. In this context we were referred to McMahon v. Lees 1993 S.L.T. 593. In that case the accused had seven previous convictions for assault. He pled guilty to a charge that he had committed a breach of the peace in respect that he had conducted himself in a disorderly manner, shouted and sworn, chanted gang slogans, challenged police officers to fight and threatened them with violence. The sheriff having concluded that the offence to which the appellant there had pled guilty was one which inferred personal violence in terms of section 290(b) of the Criminal Procedure (Scotland) Act 1975 - now replaced by section 5(3)(b) above - sentenced the accused to six months imprisonment. On appeal, the High Court held that the sentence was incompetent. The ratio was said to be contained in the Opinion of the Court delivered by the Lord Justice General, at page 594I:

Reference was also made to Sharp v. Tudhope 1986 S.C.C.R. 64, although no separate or other point fell to be made in relation to that decision. It was submitted for the appellants in the present case that, although the offence to which the accused in McMahon had pled guilty was described as a breach of the peace, the narrative contained the specific charge that the accused had threatened police officers with violence. It was submitted that to threaten a person with violence in the terms set forth in that complaint was to assault that person and that therefore the court in McMahon v. Lees was considering an offence which included an assault. Nonetheless the court had held that the complaint in that case was not to be read as alleging an assault inferring personal violence. The court had so decided simply and essentially because the conduct averred had been characterised in the complaint as a "breach of the peace". It was further submitted that if the court did not consider that McMahon v. Lees should be followed, or indeed if it could only be narrowly distinguished, then it would be appropriate to have the present appeal referred to a bench of three judges.

In response, the Advocate depute drew the court's attention to section 138(4) and Schedule 3 to the 1995 Act, paragraph 2 which restates the familiar principle that no particular nomen juris has to be specified in a complaint if the facts set forth are relevant and sufficient to constitute an offence punishable on complaint. The nature of the crime fell to be determined by reference to the facts set forth. He also referred to Dyce v. Aitchison 1985 S.C.C.R. 184. In that case the complaint concluded with the assertion that the narrative, if proved, would constitute the crime or offence of "contempt of court", when in fact there was no such crime known to the law of Scotland. The opinions made it clear that the correct approach was to examine the facts averred in the libel; it would be found that these facts would support findings in relation to two offences, the offences of breach of the peace and of assault. This case had not been referred to in McMahon v. Lees. However, McMahon v. Lees fell to be distinguished because there was no personal violence libelled in the McMahon case and that appeared to be of crucial importance in the reasoning of the court.

We are not persuaded that it is necessary to refer this matter to a bench of three judges. This is the type of appeal which, by statute, is now appropriate to be determined by a bench of two judges. Nor have we found any difficulty in dealing with the point of competency. In our view, the correct starting point is the language of the statute. In this type of situation, the question which the court has to address when faced with a plea of guilty is whether or not the offence to which the accused has pled guilty is one which "infers personal violence". We accept that an offence of breach of the peace does not in its nature necessarily infer personal violence: McMahon v. Lees. But in the present case, each appellant accepted that, among other things which he did, he assaulted another (or others) by punching, kicking and knocking the victim(s) to the ground, to the injury of the victim. These facts obviously infer personal violence whatever other words appear in the libel. In our opinion, it is clear that the appellants have each pled guilty to an offence inferring personal violence. The person violence consists in punching and kicking and knocking another human being to the ground, to his injury. That behaviour is also properly characterised as an assault both in the pleas recorded, and indeed in the complaint which each appellant faced. We are surprised that the Crown chose to include in the one libel two distinguishable factual matters which would normally be treated as constituting separate offences, namely assault on the one hand and breach of the peace on the other. Nonetheless, it is the substance of the matter at which the court must look. We should also note that, these pleas having been recorded, it was for the sheriff to determine whether or not the offences with which he had to deal fell within the terms of section 5(3)(b). The procurator fiscal's statement that he understood that the offence was "a breach of the peace" did not prevent the sheriff from considering that it was an offence inferring personal violence. In our opinion, the reasoning in the opinions of the judges in Dyce v. Aitchison is applicable in the circumstances of the present case. McMahon v. Lees is to be distinguished, on the basis that the court there did not see itself as dealing with an offence which inferred personal violence. That is entirely different from the situation which the sheriff faced in relation to the present appellants.

In these circumstances the argument as to incompetency is, in our opinion, unsound. We therefore proceed to deal with the second branch of the appeal in each case, relating to the sentence imposed.

As narrated earlier, the appellant Jason Robert Sproull pled guilty to an assault upon George Murray Anderson, the assault carried out by repeated punching and kicking him on the head and body, knocking him to the ground to his injury. From the sheriff's narrative it appears that others attacked Anderson, and another man called Morton, at an earlier stage and that the appellant Sproull became involved towards the end. It appears that he tried to calm the situation down after Anderson had assaulted the girlfriend of the appellant. Sproull lost his temper and joined in. That is narrated as part of the plea-in-mitigation by the sheriff, and we are given to understand that the procurator fiscal accepted that that was the way in which this appellant had become involved. In considering the appropriateness of the sentence of custody which was imposed, we have been asked to have regard to a number of matters. First of all, the appellant has been employed ever since leaving school at the age of 16. He lost his job as a result of his conviction on this offence but has now received an offer of a new job with the employer with whom he served his apprenticeship. He has repeatedly and apparently sincerely expressed his regret at being involved in this matter. The social enquiry report, as we were told, does indeed indicate that he has a good personal assessment, and his criminal record is a very minor one. He has been in custody for one week since his conviction. Furthermore, this offence took place in August 1997 and he has been out of trouble since.

There are substantial differences between his case and that of Baker and, having regard to the background of this appellant and his limited involvement in the matter, we have come to be of the view that it was inappropriate for the sheriff to impose a custodial sentence. It was not the only appropriate method of dealing with him. We shall therefore quash that sentence and in its place impose a fine. We were informed from the bar that the appellant would be able to pay a substantial amount per week. We have decided that the appropriate sum is £400 and that that will be payable at the rate of £25 per week.

In the case of Scott James Baker, he pled guilty to assaulting Mr Morton as well as George Murray Anderson and it is clear from the sheriff's narrative of the matter that he, Baker, was involved at a much earlier stage and then became involved in the assaults upon both Morton and Anderson. Not only that, but when the sheriff came to consider sentence he had before him Baker's very substantial criminal record. That included some eight breaches of the peace and three charges of assault. It also included a custodial sentence of six months imposed for breach of a community service order which in turn had been made in respect of a conviction for assault at Kilmarnock Sheriff Summary Court on 17 June 1996. Having regard to his part in the whole incident and two assaults and having regard to that criminal record, we are satisfied that the decision of the sheriff to impose a custodial sentence upon Scott James Baker was one that was well within the ambit of his discretion we see no reason to hold that the period selected was excessive. We shall, therefore, refuse the appeal by Baker.