Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. SCOTT ROSS [2001] ScotHC 89 (17th August, 2001)

[1] The appellant appeared for sentence at Dundee Sheriff Court on 19 March 2001 after previously pleading guilty to contravening section 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988 on two separate occasions, 8 November and 20 or 21 November 2000. The appellant already had a substantial criminal record, including previous convictions for analogous offences. He also had a long and unfortunate history of periods spent in custody, various non-custodial disposals having been tried and apparently failed to have any material influence on his pattern of offending. On this occasion the sheriff had before him extensive reports, including reports by a clinical psychologist, which suggested that sentence should be deferred for a short period in order to assess possible alternatives to custody. The sheriff, however, also had before him a report from the Remand Unit of H.M. Prison, Perth which contained allegations of serious misconduct on the part of the appellant, including an allegation of assault on another prisoner. The sheriff decided to hear evidence about these allegations and did so on 20 April 2001. Having heard the evidence, he held the allegations established and proceeded to impose sentences of 12 months and 15 months consecutively on the two contraventions of section 103 of the 1988 Act, backdated to 22 November 2000, and to admonish and dismiss the appellant in relation to the contraventions of section 143(1) and (2). The appellant appealed against sentence. His appeal first came before this court on 15 August 2001. Having heard counsel, we continued the appeal until Friday 17 August to obtain further observations from Crown counsel. Having heard those observations, we quashed the two sentences and substituted sentences of nine months on each of the contraventions of section 103, those sentences to be consecutive and backdated in the same way as the sentence originally imposed by the sheriff.

[2] The sheriff has given a very full report which explains his reason for adopting the procedure which he decided to follow. The appellant originally pled guilty on 5 March 2001. On that date, a number of reports were ordered, including a report from the unit manager at H.M. Prison, Perth. The report, which was produced for the hearing on 19 March, bears to be a report compiled under section 45 of the Criminal Justice (Scotland) Act 1980 in response to a request from the social work authorities for information as to the appellant's response to the present period on remand. Section 45 of the 1980 Act has been repealed, but the advocate depute pointed out that under section 207(4) of the Criminal Procedure (Scotland) Act 1995 the court is required to obtain from an officer of a local authority "or otherwise" such information as it can as to the offender's circumstances and submitted that the report was properly before the court under that provision. That is, we think, correct but we would observe that it might be appropriate for the prison authorities to reconsider the form, and possibly also the content, of such reports in view of the change of statutory provision. However that may be, the report presented to the sheriff contained the following passage.

[3] In his report the sheriff records that he had never seen a report from the Prison Service which was remotely similar to this one in terms of its negative quality. He goes on to say that it followed that the contents of the report would inevitably have a significant effect on his attitude to disposal, although it was fair to say that a custodial disposal was always uppermost in his mind, given the nature of the offences, the fact that they were repeated within a short timescale and the appellant's record. When the case called on 19 March, the solicitor who appeared for the appellant took issue with the terms of the report, denied that the appellant had been guilty of assault and denied any involvement in importation of drugs into prison. The sheriff says:

[4] The appellant's agent protested against this proposal but the sheriff took the view that he had no alternative but to enquire into the issues of credibility and reliability.

[5] When the hearing took place, on 20 April, evidence was led by the procurator fiscal acting, the sheriff says, as amicus curiae. The sheriff heard evidence from four members of the Scottish Prison Service at Perth, and records their evidence in detail in his report. We do not, however, propose to rehearse the evidence. One point only may be noted, namely that, according to one of the prison officers, the victim of the alleged assault declined to make a complaint about it and, for that reason, the incident was dealt with under prison discipline rather than being reported to the police. Having heard the evidence the sheriff held that the allegations contained in the report had been established and proceeded to impose the sentences to which we have already referred. He records, with reference to the terms of the appellant's note of appeal, that it had been argued that the prison report contained criminal allegations which required to be proved to the criminal standard but goes on to say:

[6] Counsel for the appellant submitted that the sheriff had erred in having regard to allegations of outstanding criminal conduct, namely the allegations of assault and involvement in drugs in prison. The course followed by the sheriff created difficulties for the appellant. The Crown had played a positive role in leading the evidence, which was unusual in itself, and if the appellant had given evidence he must have been liable to be asked about the allegations, although he had not been charged with any offence. The position was not dissimilar to that which arose when sentence had been deferred for good behaviour and there was an allegation that the offender had not been of good behaviour, but that allegation was disputed. In such cases practice varied, but the right course might be to defer sentence further until the outstanding allegations had been established or not. In any event, the evidence heard must have influenced the sheriff and therefore this court should consider sentence for itself. Counsel pointed out that the appellant had already served almost the equivalent of 18 months in custody, since he had been in custody from 22 November 2000. While it was difficult, if not impossible, to challenge the imposition of a custodial sentence, in view of the circumstances and the appellant's record, the length of the sentences actually imposed was challenged.

[7] The advocate depute, as we have mentioned, referred to section 204 of the 1995 Act but, having taken the opportunity to consider the question further, indicated that the Crown could not support the course followed by the sheriff in this case. The court could, as was illustrated by the case of McCartney v. H.M. Advocate 1997 S.C.L.R. 644, fix a proof in mitigation. He understood that the procurator fiscal's participation in the proof which had taken place was on the basis that he understood it to be a proof in mitigation. He accepted that, in all the circumstances, this court should reconsider the question of the appropriate sentence for itself.

[8] We can understand the difficulty with which the sheriff felt he was faced. It is not usual for reports to be placed before the court which contain such specific allegations of misconduct as are contained in the prison report which we have quoted. It is understandable that the sheriff felt concerned that he might be proceeding, or might appear to be proceeding, on the basis of allegations which the appellant denied. However, the course which the sheriff actually followed led to a hearing on evidence directed to establishing whether or not acts amounting to criminal offences had been committed, although the appellant had never been charged with those offences. The inquiry which was carried out was completely unlike any proof in mitigation which, in the normal case, is concerned only with the circumstances of the offence or offences with which the accused has already been charged. Further, the question whether or not the allegations of particular instances of misconduct contained in the prison report were true was strictly irrelevant the determination of the proper sentences for the offences which the appellant had been convicted and to the purpose of the report which was only to inform the sheriff of the prison authority's assessment of the appellant's reaction to the period in custody on remand, an assessment which had to be read along with the other reports and assessments which the sheriff had to take into account. The allegations in this case were not so critical to the question of the correct sentence for the offences to which the appellant had pled guilty as to require a proof to be held. The inquiry was in any event flawed because the appellant could rightly apprehend that he might prejudice his own position in any future criminal proceedings if he were to give evidence, given the participation of the Crown in the inquiry. In all the circumstances, we are satisfied that the procedure which the sheriff followed was inappropriate.

[9] We recognise that the situation facing the sheriff was difficult and that there may have been no completely satisfactory way of dealing with it. If such a situation should recur, however, we think that the sheriff should consider whether, bearing in mind the purpose for which prison reports are obtained, it really is essential that the truth or otherwise of any allegations of criminal conduct should be investigated: and if he concludes that the allegations are critical in relation to the proper disposal of the case, he should consider adjourning sentence until either there has been a prosecution or a decision has been taken not to prosecute.

[10] As we have already mentioned the appellant has a very bad record for analogous offences. The two contraventions of section 103(1)(b) with which we are concerned occurred within a very short time of one another. While there were opinions expressed that assessment for alternatives to custody might be undertaken, there already had been a substantial number of efforts to achieve some form of non-custodial disposal which would assist the appellant to avoid repeat offending. In all the circumstances, there was no realistic alternative to a custodial sentence. Having considered the whole relevant circumstances, however, we are of opinion that the sentences actually imposed by the sheriff were excessive and we decided that they should be reduced in the manner already explained.