Scottish High Court of Justiciary Decisons

Tweedie v. Procurator Fiscal [2002] ScotHC 10 (26 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Sir Gerald Gordon	Appeal Nos: 2766/01 2767/01 2768/01 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL AGAINST SENTENCE by ROBERT TWEEDIE Appellant; against PROCURATOR FISCAL, Glasgow Respondent: _______

 

 

Appellant: Wheatley, solicitor advocate; Wheatley & Co.

Respondent: Beynan, A.D.; Crown Agent

26 February 2002

1. The appellant appeared in the District Court on three complaints which between them contained various charges of theft, theft by shoplifting and a drugs offence. On 6 September 2001 in relation to all three complaints he was made subject to a drugs testing and treatment order in terms of section 234B of the Criminal Procedure (Scotland) Act 1995 for two years. The case was continued to a review hearing on 4 October 2001 when the appellant was ordained to appear. On that date the court considered the written report by the supervising officer and continued the case for a further review hearing until 1 November 2001 when the appellant was again ordained to appear.
2. On 1 November 2001 it is recorded in the minutes of proceedings that the stipendiary magistrate considered reports and revoked the order. At the same time sentence was further deferred against the appellant until 29 November 2001 and a social enquiry report was called for. On 29 November 2001 the appellant was sentenced to a total of 90 days imprisonment in respect of the charges.
3. It was maintained for the appellant that the sentences were excessive, not least since the Judge had misdirected himself in revoking the order and had acted in excess of jurisdiction in doing so. The Crown accepted that this was so, having regard to the structure of the statutory scheme for such orders to be found in sections 234B to 234K of the 1995 Act. Such an order is made if the court is of the opinion that it is expedient to do so (section 234B). When it is made, it is to include a treatment requirement with a view to the reduction or elimination of the defender's dependency on, or propensity to misuse, drugs and also a testing requirement for the purpose of ascertaining whether he has any drug in his body during the treatment and testing period. In addition, the order requires that the offender shall be under the supervision of a supervising officer whose duties include reporting on the offender's progress to the court and on any failure by the offender to comply with the requirements of the order and determining whether the circumstances are such that he should apply to the court for variation or revocation of the order (section 234C). Section 234D provides that before making the order the court must explain to the offender the effect of the order and of the requirements proposed to be included in it, the consequences which may follow under section 234G if he fails to comply with any of those requirements and that an order may be made the subject of an application to the court either by the offender or the supervising officer for its variation or revocation (section 234E). But in such an event the court can only proceed to variation or revocation after hearing both the offender and the supervising officer (section 234E(3)). In section 234F provision is made, amongst other things, for the order to be reviewed periodically at intervals of not less than one month and for a written report from the supervising officer to be before the court, which report will include the test results and the views of the treatment provider as to the treatment and testing of the offender. At the review hearing the court, after considering the report, may amend any requirement or provision of the order. If the court considers that the treatment or testing requirement should be amended, it may not do so unless the offender expresses his willingness to comply with the requirement as amended.
4. Section 234G makes provision for dealing with breach of an order. Subsections (1) and (2) are as follows:

"(1) If at any time when a drug treatment and testing order is in force it appears to the appropriate court that the offender has failed to comply with any requirement of the order, the court may issue a citation requiring the offender to appear before the court at such time as may be specified in the citation or, it appears to the court to be appropriate, it may issue a warrant for the arrest of the offender.

(2) If it is proved to the satisfaction of the appropriate court that the offender has failed without reasonable cause to comply with any requirement of the order, the court may by order -"

impose a fine, or vary the order or revoke the order. It is further stated that for the purposes of subsection (2) the evidence of one witness shall be sufficient evidence.

5. We have been provided with information in a letter from the Drug Court Supervision and Treatment Team concerning the order made by the court in the appellant's case. It is clear from its terms that, notwithstanding the provisions of section 234C(1), the order was defective because, amongst other things, no treatment provider was specified. Furthermore, it would appear questionable whether at the date on which the order was made the court could properly have been satisfied that arrangements had been made for the treatment intended to be specified in the order, as is required by section 234C(3). The order, however, bore to set out certain requirements.
6. When the first review took place, the report of the supervising officer dated 3 October 2001 intimated that at the time when the order was made, a full assessment of the offender's suitability for such an order had not been completed. It was during the review period that the process of assessment continued. In the context of that assessment, steps had been taken to enable the appellant to begin a Community Day Programme at Phoenix House. By reason of positive tests results for illicit substances thereafter, a collective decision was taken to refer the appellant to the Glasgow Drug Problem Service for advice on whether the appellant needed medical assistance. Following on an initial appointment, there were indications that treatment by methadone would be a suitable treatment option. However, the assessment by the treatment providers had still to be completed, and it was not yet possible to confirm either the availability of treatment or to name the treatment provider. However it was hoped that "the treatment components/treatment providers" could be confirmed prior to the hearing and made available then by the supervising officer.
7. According to the report from the stipendiary magistrate, he was concerned at the number of tests that were proving positive and during the hearing he warned the appellant that at the next review, if the position in relation to the use of illegal drugs did not improve, the order would be revoked.
8. At the next review on 1 November 2001 the appellant attended. The magistrate was provided with a report from the supervising officer. In it he was informed that following the completion of the assessment by the medical treatment provider, the appellant had commenced his methadone treatment programme on 15 October 2001. The officer noted that drug test results conducted throughout the period under review showed positive for continued illicit drug misuse, although this was not unusual in the early stages of treatment by methadone as the initial prescription always started at a very low dosage and was increased gradually to find a safe level meeting the particular needs of the individual. It was anticipated that test results in the next review period would show a consistent move towards negative testing for non-prescribed substances. It was observed that with the exception of one failure to attend, the medical treatment providers noted no wider issues regarding the appellant's attendance or willingness to provide samples. Elsewhere in the report there was reference to fairly positive feedback from wider service providers with regard to the appellant's overall participation with the requirements of his treatment programme. In addition, a referral had been made to SACRO in order to obtain supported accommodation for the appellant. The current assessment of the supervising office was to the effect that the combined assessment of relevant treatment providers suggested that the then current treatment plan was best suited to address the appellant's "presenting drug related needs" and that no significant changes were sought to the treatment schedule at that stage. Related to that assessment was a proposed plan for the next period under review. Thus, the supervising officer in his report did not seek variation or revocation of the order. No reference was made to any specific failure to comply with any requirement of the order.
9. All that the magistrate tells us in his report about the reasons on which he based his decision, is that he regretted to say that on 1 November 2001 "the situation in relation to the use of illegal substances had not improved", and accordingly he revoked the order. No reference is made to any breach of any requirement of the order, let alone to proof that the failure to comply with the order was without reasonable excuse. He does not appear to have given any consideration as to whether the matter could be dealt with other than by revocation, notwithstanding the alternatives available to him short of revocation in terms of section 234G(2). It is regrettable that the magistrate proceeded as he did, more particularly standing the terms of the supervising officer's report before him on 1 November 2001 which clearly pointed to some positive signs of improvement following upon the start of methadone treatment some two weeks or so before. The purpose of such an order is to secure at least the reduction, if not the elimination of an offender's dependency on, or propensity to misuse, drugs.
10. In these circumstances we have concluded that the proper course to follow is to quash the custodial sentences imposed following upon revocation of the drug treatment and testing order, at the same time quash the order made on 1 November 2001 for revocation of the drug treatment and testing order and remit back to the magistrate to proceed as accords.