Scottish High Court of Justiciary Decisons

JAMES ANTHONY MACK v. HER MAJESTY'S ADVOCATE [1999] ScotHC 75 (23rd March, 1999)

The appellant was convicted on a charge of attempting to pervert the course of justice. His conviction was on the 12 January 1996. He was sentenced to eighteen months' imprisonment as from that date.

We have today refused his appeal against conviction and accordingly we now require to deal with his appeal against sentence, which is the subject of certain additional grounds of appeal which were lodged for this court to consider and which we allowed previously to be received.

So far as the circumstances are concerned, it is sufficient to say that they were concerned with the citation of the appellant as a witness in a High Court trial. The gravamen of the charge was that having had due citation in respect of that matter he avoided giving evidence and so attempted to pervert the course of justice.

Mr McBride who appeared on the appellant's behalf today, informed us about the trial itself. He told us that the appellant who was a material witness had not in fact been precognosed but he had supplied a police statement. Having been arrested by the police he attended at the trial and spoke to the terms of his police statement. He was not cross-examined in regard to that matter. In the event the trial did not proceed to a conclusion because, due to the fact that other witnesses whose evidence was critical to the success of the Crown case did not speak to the terms of their police statements, the Crown was obliged to withdraw the libel. In the circumstances, therefore, Mr McBride said that in the end of the day what the appellant had done had not frustrated the object of his being cited as a witness.

The next matter to which Mr McBride referred us was the history of custody so far as concerned the appellant. He was arrested on 15 September 1995 and he was in custody from then until the end of his trial when, as we have already said, he received a sentence of eighteen months as from that date, 12 January 1996. He was in custody until 31 January 1996. Accordingly, he spent some four and a half months in custody. In passing we would note that the sheriff pronounced the sentence he did on the basis of taking into account the fact that the appellant had been in custody prior to the date of imposition of the sentence.

Mr McBride went on to point out that the appellant had timeously appealed. For various reasons his appeal against conviction and sentence was not heard until the present date. There had been various counsel representing him, and at one stage the court was satisfied that transcripts of evidence should be called for. During that period, which was some three years since the end of the trial and the time when the sentence was imposed, he had not been in any trouble with the authorities. He had been in employment for approximately two and half years. He was earning a steady wage of £140 per week with his brother in Arbroath. He now had two children, the earlier one was now 12 years of age and the younger one was 13 months. He lived with them and his wife. He had duly attended the court on a number of occasions during the progress of his appeal.

In these circumstances Mr McBride invited us either to take the view that a custodial disposal was no longer appropriate or alternatively to quash the sentence and to impose a shorter sentence which would take fully into account the time already served by the appellant.

We consider that having regard to the nature of the original offence with which the sheriff was concerned, the fact that a very substantial period of time has elapsed since the original sentence, and that during that time the appellant has not been in trouble and has obtained steady employment it is appropriate for us to take a different view in regard to the sentence from that taken by the sheriff.

Having regard to all these factors, what we propose to do is to quash the sentence of eighteen months' imprisonment and to substitute for that a sentence of nine months which we shall backdate to 15 September 1995.