Scottish High Court of Justiciary Decisons

ALAN JOHN HOWITT v. HER MAJESTY'S ADVOCATE [2000] ScotHC 16 (10th February, 2000)

This is the appeal of Alan John Howitt who was convicted in the High Court at Edinburgh on 8 May 1998, first of a charge of obtaining goods and services to the value of £76,210.54, having formed along with another a fraudulent scheme to obtain them without paying and intending not to pay for them; secondly, of a charge of the theft by appropriation of two mobile telephones while acting along with another; and, thirdly, of failing to appear for trial at the High Court at Edinburgh on 11 May 1987. He was sentenced to 5 years imprisonment on the first charge, to 6 months concurrently on the second and to 18 months consecutively on the third charge. The appellant's appeal against conviction was refused by a Court of Five Judges on 10 December 1999 and the appellant now appeals against the sentence of 18 months imprisonment in respect of the third of the charges narrated above. It is not suggested that the sentence should have been made to run concurrently nor that a non-custodial sentence would have been appropriate. The contention is simply that the period of 18 months imprisonment was excessive and in particular that the trial judge should have made allowance for the period of some 41/2 to 5 months which the appellant had spent in custody on remand.

The events which give rise to the matter go back a long way. The appellant was granted bail on 17 June 1986 and was cited to attend for trial in the High Court at Edinburgh on 11 May 1987. He did not do so and the trial against his co-accused proceeded without him. It is accepted that the appellant left for America after he had been served with the indictment, deliberately in order to avoid going to trial. In fact he was away from Scotland for a period of 10 years living in the United States where he formed a long-term relationship. The trial judge records that the trial which the appellant failed to attend occupied 8 days, that there were a large number of Crown witnesses on the Crown list and that many of them were called to give evidence. It is therefore clear that the appellant's failure to appear for trial must have caused substantial additional inconvenience and expense.

It is equally obvious, as the trial judge notes, that the appellant was remanded in custody on his return from America. He was taken into custody immediately on his arrival at Gatwick on 25 November 1997, this being done in order to avoid any possibility that he might escape justice again. In those very particular circumstances the trial judge did not consider that it was appropriate to backdate the sentence nor to make any allowance for that factor in selecting the sentence which he did. In the quite exceptional circumstances of this case, we are entirely satisfied that the trial judge was entitled to adopt that approach and we reject the criticism of the sentence on the basis that it was not backdated.

So far as the length of the sentence is concerned, it is plain that the trial judge had regard, as he was entitled to do, to the fact that the appellant had a string of previous convictions going back to 1964. The trial judge explains that they numbered about 78 offences in all, being a mixture of contraventions of the Road Traffic legislation and of offences of dishonesty. The trial judge notes also that the appellant had been released from one sentence only a couple of weeks before he embarked upon the course of dishonesty which gave rise to the offence of which he was convicted. In these circumstances we are satisfied that the trial judge was entitled to take the view that the appellant was a criminal with a long experience of crime and of the Courts who deliberately and successfully avoided standing trial for more than 10 years by leaving the country. The trial judge imposed a substantial sentence and such a sentence was entirely appropriate in respect of what was a most serious offence of this kind. We take the view that the sentence was not merely justifiable but indeed entirely merited. The appeal is accordingly refused.

LIN