Scottish High Court of Justiciary Decisons

Reid v. Procurator Fiscal [2002] ScotHC 108 (28 August 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Cameron of Lochbroom Lord MacLean	Appeal No: 797/02   OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST SENTENCE by DONNA MHARI REID Appellant against PROCURATOR FISCAL, INVERNESS Respondent _______

Appellant: Bovey, QC, Blair; Grigor & Young, Elgin

Respondent: Bell, QC, AD; Crown Agent

 

28 August 2002

1. The appellant Donna Marie Reid appeared at Inverness Sheriff Court on 25 March 2002 and pled guilty to the following amended charge:

"that on 28 July 2001 at HM Prison, Porterfield, Inverness you Donna Mhari Reid did supply a controlled drug, namely Diamorphine, a Class A drug specified in Part I of Schedule 2 to the Misuse of Drugs Act 1971 to another or others, namely Barrie George Morrison, in contravention of section 4(1) of the aftermentioned Act: contrary to the Misuse of Drugs Act 1971 section 4(3)(a)."

2. On the date libelled the appellant visited Barrie George Morrison at Porterfield Prison where he was a prisoner. After the visit Morrison was searched and found to be in possession of a small amount of diamorphine. The CCTV footage of the visit showed the appellant handing something to Morrison. The appellant was interviewed by the police. She admitted the offence.
3. The solicitor for the appellant told the sheriff that the appellant was in a relationship with Morrison which she intended to continue after his release. His earliest release date would be in about June 2003. The appellant had had a drug problem but was determined not to abuse drugs further. She was expecting a child, of whom Morrison was the father, in about May 2002. She intended to resume cohabitation with Morrison after his release, provided that he gave up his drug habit. She accepted her responsibility for the offence. She had yielded to the temptation of supplying the drug under pressure from Morrison.
4. The solicitor for the appellant invited the sheriff to impose a probation order. The sheriff had before him a social enquiry report on the appellant which noted under the heading of "Attitude Towards the Offences" the following:

"She advises that Mr Morrison had, prior to remand, been heavily dependent on heroin and while in Porterfield he had told Ms Reid that he was having a hard time without the drug and emotionally blackmailed her, saying that if she loved him she was to supply him with heroin. This she did."

Under the heading "Assessment" the report stated inter alia:

"She impresses as rather an immature 21 year old who is presently finding it hard to cope with her present responsibilities in respect of being a householder and soon to be parent. She is fully aware of the serious nature of the offences and although she does not blame her boyfriend, it seems evident that he put Ms Reid under duress to act in the way she did."

5. The sheriff decided to impose a probation order, but subject to a condition that the appellant should not visit Morrison while he was in prison. The appellant agreed to the making of the probation order and to that condition. The sheriff then imposed the order, subject to that condition, for a period of two years.
6. Since the probation order was imposed the appellant has given birth to the child.
7. Counsel for the appellant has said to us that, before imposing the probation order, the sheriff told the appellant's solicitor that the matter of the condition was not open for discussion. There is no reference to this allegation in the ground of appeal and it is therefore not dealt with by the sheriff in his report. In view of this, we disregard this point. However, counsel for the appellant does accept that the sheriff's attitude to the matter is accurately set out in his report.
8. The appeal is taken against the imposition of the condition on the ground that by preventing visits between the appellant and Morrison, the condition will inhibit the maintenance and development of her relationship with him and, in due course, the development of a family relationship between herself, Morrison and the child.
9. Counsel for the appellant submitted (1) that article 8(1) of the Convention required the sheriff to respect the private and family life of the appellant; (2) that the condition constituted an interference with that right; and (3) that the condition was disproportionate to the aim that it sought to pursue. In the course of the hearing, that submission came to be simply that the condition was disproportionate.
10. It is apparent that the sheriff considered that a non-custodial disposal such as probation could succeed only if the appellant did not visit Morrison while he was in prison. In the light of the social enquiry report, we agree with that view. Both the probation order and the condition therefore stood or fell together. If the submission for the appellant had been well-founded, we would have had to consider other sentencing options.
11. In our view, however, the appeal against the condition is without merit. Since the appellant was a first offender and was pregnant at the time of the hearing before the sheriff, a probation order was an appropriate disposal in the circumstances of the case. Having regard to the immaturity of the appellant, her susceptibility to pressure from Morrison and her own personal struggle against a drug habit, we consider that the condition imposed was conducive to the appellant's welfare and gave the probation order some prospect of succeeding. It assisted the appellant to keep away from drugs and from pressures from Morrison to commit crime. The condition was reasonable and in her best interests. In our view the sheriff's disposal of the matter was humane and thoughtful.
12. We shall refuse the appeal.