Scottish High Court of Justiciary Decisons

Paterson v. Procurator Fiscal [2002] ScotHC 74 (11 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord MacLean Lord Macfadyen Lord McCluskey	Appeal No: 292/02 OPINION OF THE COURT delivered by LORD MACFADYEN in NOTE OF APPEAL AGAINST SENTENCE by NORMAN STUART PATERSON Appellant; against PROCURATOR FISCAL, Dunoon Respondent: _______

 

 

Appellant: Shead; O'Donnell Vaughan

Respondent: N. Beynon, A.D.; Crown Agent

11 June 2002

1. The appellant was on 24 January 2002 convicted at Dunoon Sheriff Court of two charges of breach of the peace. The terms in which he was convicted were:

(1)	that on 12 November 2000 at 52 Cowal Place, Dunoon he did conduct himself in a disorderly manner, shout and swear, threaten the lieges with violence, brandish knives, and strike the door of the house occupied by Kenneth Fairgrieve, and commit a breach of the peace; and
(2)	that on 17 November 2002 at the same address he did conduct himself in a disorderly manner, shout, swear, brandish two knives or other similar instruments, threaten the lieges with violence, place the lieges in a state of fear and alarm, and commit a breach of the peace.

The Sheriff sentenced the appellant to six months imprisonment in respect of each charge, the sentences to run concurrently.

2. The grounds of appeal advanced by the appellant were:

(1)	that the sentence of six months imprisonment on each charge was incompetent, the maximum competent sentence being three months imprisonment on each charge; and
(2)	that the sentences imposed were in any event excessive.

When the appeal called on 26 March 2002 it was continued to enable the issue of the competency of the sentences to be heard by a bench of three judges.

3. The competency of the sentences imposed by the Sheriff turns on the proper application of section 5(3)(b) of the Criminal Procedure (Scotland) Act 1995, which provides as follows:

"Where a person is convicted by the sheriff of -

(b) a second or subsequent offence inferring personal violence,

he may, without prejudice to any wider powers conferred by statute, be sentenced to imprisonment for any period not exceeding six months."

Where that provision does not apply, the maximum sentence of imprisonment which the sheriff may impose is three months. It was common ground that the appellant had a number of previous convictions in respect of offences which inferred personal violence. The question therefore came to be whether the offences of breach of the peace of which the appellant was found guilty on this occasion could be regarded as offences "inferring personal violence" within the meaning of section 5(3)(b).

4. Mr Shead, who appeared for the appellant, advanced two submissions. The first was that, as a matter of fair notice (and in order to secure for the accused person his right to a fair trial under Article 6 of the European Convention on Human Rights), a charge could be regarded as inferring personal violence only if it was libelled as an assault, or if by means of some other form of words it was made clear that the charge was intended to be capable of attracting the application of section 5(3)(b). The second was that, in any event, the charges of breach of the peace of which the appellant had been found guilty did not infer personal violence, because no violence was averred to have been perpetrated on the person of a complainer. In seeking support for those submissions, Mr Shead cited three cases, namely Sproull v McGlennan 1999 SCCR 63, Hempill v Donnelly 1992 SCCR 770, and Youngson v Higson 2000 SLT 1441.
5. In Sproull, the charges were of breach of the peace, but included the libel that the appellants had assaulted the complainers, inter alia by kicking and punching them, to their injury. The argument advanced on behalf of the appellants in that case, founded on an interpretation of what had been said by the court in McMahon v Lees 1993 SLT 593 at 594I, was that the fact that the charges were charges of breach of the peace meant that they could not be regarded as inferring personal violence. That argument was rejected. Lord McCluskey, delivering the opinion of the court, said (at 66C-D):

"In our view, the correct starting-point is the language of the statute. In this type of situation, the question which the court has to address when faced with a plea of guilty, is whether or not the offence to which the appellant has pled guilty is one which 'infers personal violence'. We accept that an offence of breach of the peace does not in its nature necessarily infer personal violence: McMahon v Lees. But, in the present case, each appellant accepted that, among other things which he did, he assaulted another (or others) by punching, kicking and knocking the victim(s) to the ground, to the injury of the victim. These facts obviously infer personal violence whatever other words appear in the libel. In our opinion, it is clear that the appellants have each pled guilty to an offence inferring personal violence."

6. In Hempill the charge was one of attempting to pervert the course of justice by making threats of personal violence. The court held that the charge did not infer personal violence. The Lord Justice-General (Hope), delivering the opinion of the court, said (at 771E-F):

"... there is nothing in the charge to indicate that personal violence was used at any stage in the course of the incident which forms the basis of the charge. If there was to be personal violence, it lay in the future. The use of words involving threats to cause alarm or fear that personal violence may be used in the future does not imply that personal violence was used in the offence for which the appellant was being sentenced."

In Youngson the charge was breach of the peace, and the libel included an averment that the accused had threatened to assault a named complainer. That was held not to infer personal violence.

7. The Advocate depute submitted that an offence might infer personal violence even if no actual violence was done to the person of a complainer. He referred to Gordon's Criminal Law, third edition, paragraph 29.30, where it is said:

"It is also assault to menace B by a threatening gesture or by presenting or brandishing a weapon at him ... Verbal threats, unaccompanied by menacing gestures, do not constitute assault, although they may be criminal."

In the present case, he submitted, the libel of threatening the lieges with violence and brandishing knives was sufficient to constitute an offence inferring personal violence. He further submitted that there was no need, as a matter of fair notice, for the word "assault", or any other express averment identifying that the offence inferred personal violence, to appear in the libel. Sufficient notice of whether the offence inferred personal violence was given by the averments describing the actus reus.

8. In our opinion, section 5(3)(b) lays down the test by which the competency of a sentence of more than three months imprisonment must be judged. The matter must be tested by applying the language of the section to the facts of the case. When an accused person has pled guilty or been convicted, the relevant facts of the case are to be found in the libel to which he has pled guilty or of which he has been convicted. An offence will, in our opinion, infer personal violence if the libel, admitted or proved, discloses that violence was actually offered by the accused to the person of a specified complainer. Sproull is, in our view, a very clear example of an offence inferring personal violence, not only because the libel used the word "assault", but also because there were express averments of the use of actual violence on the persons of the complainers. It is not, however, in our view, necessary that actual harm be done to the person of the complainer. For example, it is an offence inferring personal violence to shoot at a person, but miss. A mere threat of violence will not, in our opinion, constitute an offence inferring personal violence (Hempill; Youngson), but an assault by physical menaces will. Since the question whether the statutory test is satisfied must be determined by reference to the acts specified in the libel of the charge of which the accused is convicted, we are of opinion that Mr Shead's submission that fair notice requires the use of the nomen juris "assault", or some other form of words expressly averring that the offence inferred personal violence, is not well founded. In our opinion, fair notice that section 5(3)(b) will apply is to be given by the language of the charge.
9. In our opinion, however, Mr Shead's second submission was well founded. Neither of the phrases in the libel on which the Advocate depute placed reliance was, in our opinion, sufficient to yield the result that the offences of which the appellant was convicted were offences inferring personal violence. The averments referring to the brandishing of knives fall short of inferring personal violence because it is not averred that in brandishing the knives the appellant was actually menacing any particular person or persons. The averments of threatening "the lieges" with violence do not infer personal violence (Hempill; Youngson). It follows, in our opinion, that section 5(3)(b) did not apply, and the sentences of six months imprisonment imposed by the sheriff were incompetent. Those sentences must therefore be quashed.
10. After our decision to the foregoing effect had been intimated, and after an adjournment, Mr Shead's argument in support of the second ground of appeal was heard by Lords MacLean and Macfadyen. Mr Shead submitted that any custodial sentence was in the circumstances excessive, and that the sheriff should have adopted an alternative disposal. He accepted that the charges were serious, involving as they did the brandishing of knives on two separate occasions. He pointed out, however, that the incidents had involved a dispute between neighbours, and that the other parties involved had now moved away from the area. There was therefore in a practical sense no risk of repetition. Although the appellant had a fairly substantial record of previous convictions, he had been released from his last prison sentence in July 1998, and had not (save for the present charges) been in trouble since. Mr Shead referred to the Social Inquiry Report, which indicated that the appellant now used very little alcohol and was drug-free. He had attended the Cowal Council on Alcohol, but the co-ordinator had assessed him as no longer requiring their services. The appellant was on a work placement with Argyll & Bute Council, from whom a favourable reference was produced. He had the chance of training as a fork lift truck driver. The Report had favoured a probation order with a condition requiring unpaid work in the community. Mr Shead submitted that that would be the appropriate disposal.
11. In our opinion, in all the circumstances referred to by Mr Shead, the appropriate disposal is a probation order for a period of one year, with a condition that the appellant perform 200 hours of unpaid work in the community. We accordingly quashed the incompetent sentences of six months imprisonment and imposed a probation order in those terms.