Scottish High Court of Justiciary Decisons

Appellants Gill and Craig: J Scott, solicitor advocate; Capital Defence (for Jacqueline Doyle & Co, Glasgow)

Appellant Montgomery: Jackson QC, MC Mackenzie; Barony Law

Respondent: McSporran AD; Crown Agent

7 October 2010

(1) The Sentences
Each appellant pleaded guilty at Glasgow Sheriff Court to a contravention, or contraventions, of section 111A(1A) of the Social Security Administration Act 1992 by knowingly failing to give prompt notification of a change of circumstances, which she knew affected her entitlement to benefits. In each case the appellant ought to have advised the Department of Work and Pensions that she had obtained employment and was thus earning. The maximum penalty for a contravention of the section is seven years imprisonment on indictment (sub-section 111A(3)) but twelve months if prosecuted summarily (Criminal Proceedings etc. (Reform) (Scotland) Act 2007 s 45) as all the present appeals were.

(a) MS GILL
Ms Gill pleaded guilty on 16 September 2009 to one offence; libelled as occurring only on one day, namely 13 February 2005. She had received £9,500 of Income Support to which she was not entitled. On 9 December 2009 she was sentenced to two months' imprisonment, discounted for the early plea from 3 months.

Her personal circumstances were that she was aged 29 and had recently broken off a relationship. She normally lived with her six year old son but, because of developments associated with the offence, he had gone to live with his father meantime. Although no previous convictions were libelled against her, the Social Enquiry Report revealed that Ms Gill had been fined for a road traffic offence, had other road traffic matters outstanding and had also attended a Diversion from Prosecution scheme for shoplifting.

The Social Enquiry Report described Ms Gill's difficult upbringing, with her mother having mental health problems and her father struggling with alcohol dependency. This culminated in Ms Gill becoming involved in an abusive relationship with a boyfriend and with drug experimentation in her late teens. Despite leaving school without any qualifications, she did achieve some success at college, gaining a Certificate in Care and obtaining some work looking after persons with learning difficulties. It was this paid sessional work that she had failed to declare.

Ms Gill had sought assistance for her depression since being charged with the offence. She had, by then, become addicted to diazepam and dihydrocodeine but, in February 2009, had referred herself to the local addiction services. She was placed on a methadone programme. Because of significant progress prior to the sentencing diet, Ms Gill was assessed as at low risk of re-offending. She was repaying benefits at the rate of £15 per week.

(b) MRS CRAIG
Mrs Craig pleaded guilty to two charges on 24 May 2010. Her offences had taken place between July 2006 and February 2009 and had resulted in her obtaining £7,403 of Housing Benefit and £6,989 of Income Support to which she was not entitled. On 18 June 2010 she was sentenced to 135 days imprisonment (41/2 months), discounted from 180 days (6 months) for an early plea.

Mrs Craig's personal circumstances were that she was 56 years old. She was unemployed at the time of sentencing. She came from an impoverished background. She had had an uneventful education. She had married in her late teens but had been divorced for many years. She had two adult daughters. She had suffered from depression for some fourteen years. More recently, Mrs Craig had become stressed because of one of her daughter's health problems. She had begun to drink excessively. She accepted responsibility for the offences, having continued to claim benefits in order to subsidise herself and to pay for a recently purchased car. The Social Enquiry Report recorded her offending, no doubt accurately, as "deliberate, pre-meditated and financially motivated". Despite the absence of any previous convictions being libelled, the Social Enquiry Report noted that the appellant had acquired three recent convictions in the form of road traffic offences, including a breathalyser charge, and theft by permitting friends to obtain goods in the shop where she worked without paying for them. She was assessed as at moderate risk of re-offending. Mrs Craig had repaid some £253 by the time of the sentencing diet and was continuing to do so at the rate of £13 per week.

(c) MRS MONTGOMERY
Mrs Montgomery pleaded guilty on 4 November 2009. Her offence was said to have occurred on a single day. She had acquired Disability Living Allowance of an amount unspecified on the complaint. This was agreed as totalling £17,189. On 3 March 2010, the matter having been continued pending a Tribunal determination on the amount of illicit benefit gained, she was sentenced to five months' imprisonment, discounted from eight months for the early plea.

Mrs Montgomery was aged 57, married with three adult children. She comes from a relatively supportive and stable family background. She had been in regular employment until recent events. She had undertaken cleaning work and failed to declare it. Meantime, she had been receiving Incapacity Benefit for arthritis. She too has suffered from depression but has had no alcohol or drugs issues. Her husband had recently undergone surgery for prostate cancer. The appellant was not in any significant financial difficulties at the time of the offence. The appellant was repaying the benefit at the rate of some £70 per month. She was remorseful and assessed as at low risk of re-offending.

(2) Precedent
When the appeals of Ms Gill and Mrs Montgomery called before two judges on 11 July 2010, the court noted that there were guideline cases in England dealing with this category of offence (R v Stewart [1987] 1 WLR 559; revised in R v Graham [2005] 1 Cr App R (S) 115). The court remitted the appeals to a bench of three judges to hear the merits of the individual cases, and that of Mrs Cairns which was added to the roll at a later date, and to consider issuing guidelines for sheriffs hearing similar cases in terms of sub-section 189(7) of the Criminal Procedure (Scotland) Act 1995.

The court was referred to several Scottish cases, most of which are summarised in Morrison: Sentencing Practice. It is not unreasonable to comment that there has been a divergence in view between differently constituted sentencing courts. For example, in Ahmed v HM Advocate [2002] GWD 39 - 1291, Morrison para F13.0004, (Lords MacLean and Sutherland) a discounted sentence of 18 months was considered reasonable for a £21,329 Housing Benefit fraud committed by an ill 60 year old man. Similarly, in Macrae v HM Advocate 1987 SCCR 712 (Lord Justice-Clerk (Ross), Lords Dunpark and McDonald) a sentence of nine months imprisonment on a 52 year old convicted of a £3,500 benefit fraud was upheld, even although the appellant had no previous convictions and a good work record. However, in Downie v HM Advocate 1999 SCCR 375 (Lords Prosser and Milligan) and Allen v McFadyen [2002] GWD 6 - 191; Morrison para F13.0004.2 (Lord Marnoch and Sheriff Principal Bowen QC), sentences of 240 and 300 hours community service for respectively a £11,000 benefit fraud by a 49 year old female and a £4,750 Housing Benefit fraud by a woman with two young children were deemed sufficient. Even more divergent, in Easton v Procurator Fiscal, Falkirk, 14 August 2009, unreported (Lord Osborne and Sheriff Principal Lockhart), a discounted sentence of eight months for two charges involving a combined total of £18,939 of Jobseekers Allowance and Housing Benefit was quashed. The appellant was a 48 year old female. The substituted sentence was one of probation with a condition of 240 hours unpaid work in the community. Furthermore, in Wilson v Procurator Fiscal, Paisley, 18 December 2008, unreported, (Lords Clarke and Hardie) a 53 year old had a custodial sentence quashed and a 300 hour CSO substituted. The amount of the benefit was not specified in the Opinion.

The court was also referred to cases from England. These were notably, first, the Court of Appeal guideline case of R v Stewart (supra), which involved some nine appellants or applicants. Lord Lane CJ examined sundry statistical data before expressing the view that, in some cases of benefit fraud, imprisonment was unavoidable. Participation in organised frauds on a large scale could expect to attract sentences of in excess of two years. Otherwise, sentence would depend on an almost infinite variety of aggravating and mitigatory factors. These factors are all perhaps obvious and need not be repeated here. The Court of Appeal's statement that the Court required to ask whether a custodial sentence was really necessary and, if so, whether a direct alternative in the form of community service might suffice, accords with the statutory restriction on imposing imprisonment in Scotland (ie 1995 Act ss 204(2), 207(3) and 238). The court did suggest that "a short term of up to about 9 or 12 months will usually be sufficient in a contested case where the overpayment is less than, say, £10,000". However, it is not entirely clear from the report whether such a custodial term was being selected as a norm for that level of gain.

In R v Graham (supra) the Court of Appeal looked again at R v Stewart. It expressed the view that, contrary to what Lord Lane CJ might have been thought to have said:

"... such offences are easy to commit and difficult and expensive to detect ... social security fraud is increasingly prevalent. ... there will be cases in which courts will be justified in taking the view that a sentence should contain a deterrent element" (Owen J at para 9).

The £10,000 figure was upgraded to £20,000.

The English Sentencing Guidelines Council has produced a "Definitive Guideline" on "Sentencing for Fraud - Statutory Offences". Leaving aside the many aggravating and mitigatory factors which may exist, the table for benefit fraud, so far as relevant to the present cases, includes the following:

(3) Submissions
Based upon the Scottish and English authorities, it was submitted that the sentences imposed upon each appellant were excessive and inappropriate. The essential contentions were that non-custodial disposals should have been selected. In relation to Ms Gill, it was also said that her condition had improved since her release on interim liberation after only one night in custody. On 10 June 2010, she had been given a place at the Phoenix House Glasgow Adult Residential Service, a long term substance misuse rehabilitation unit, where she was expected to remain until 10 December 2010. She had, with assistance, weaned herself off all illicit drugs, including methadone; this being confirmed in a report dated 2 September 2010. She had continued to see her son and was working towards caring for him again when she completed the Phoenix House programme.

Mrs Craig had not taken up an offer of alcohol counselling as she was tackling this herself with the support of her general medical practitioner. She had a daughter studying nursing at Glasgow Caledonian University, whose three year old child was cared for by Mrs Craig in term time or when her daughter was on a nursing placement. Although it was accepted that, were the English Guidelines to be used, the starting point for her sentence would have been higher than that selected by the Sheriff, her personal and other mitigatory circumstances would have reduced the starting point. She too had been given interim liberation and it was said that it would not be appropriate to return her to custody.

On behalf of Mrs Montgomery, it was argued that Guidelines "provide a structure for, but do not remove, judicial discretion" (HM Advocate v Graham

[2010] HCJAC 50, Lord Justice-Clerk (Gill) at para [21]). The court could still impose a sentence outwith the sentencing framework set out in any Guidelines. This appellant was not in good health, nor was her husband, who still required to undergo radiotherapy. Her experience of one night in prison had been a terrifying one. She was repaying the benefit obtained and hoped to do so in larger amounts, once the loan over her house had been paid off; an event shortly to occur. Having regard to her otherwise blameless life, a non-custodial disposal ought to have been selected.

The Advocate Depute reminded the court that the crown had not sought any guidelines for this category of case. It was a matter for the court to decide whether or not to accept the English Guidelines. They did seem to suggest that for the levels of benefit under consideration in these three cases, custody was an appropriate disposal.

(4) Decisions
The court is conscious of the divergence in sentencing practice apparent from the cases cited. It does consider that, therefore, sentencing guidelines are required. The court agrees with the general statement of Lord Lane CJ (supra) that a case involving organised benefit fraud perpetrated by several participants will almost inevitably attract custodial sentences in excess of two years imprisonment. It also agrees with his opinion that custodial sentences of up to 12 months will usually be sufficient in a contested case where the overpayment is less than (now) £20,000. That is on the assumption that what Lord Lane is referring to is a maximum for such an offence. The court also concurs with the view of Owen J that benefit frauds generally, and the related statutory offence in issue here, are easy to commit and both difficult and expensive to detect. In many cases, where a significant sum is involved, the sentence ought to contain a deterrent element.

Care must be taken when considering formal Guidelines from England, even in relation to United Kingdom statutory offences, because of divergent sentencing powers and practices in the two jurisdictions. For example, the Scottish courts do not have the power to suspend prison sentences, a common feature in English sentencing practice. Furthermore, the Scottish courts now have to keep in mind the presumption against short sentences of imprisonment; that is to say those of three months or less (Criminal Justice and Licensing (Scotland) Act 2010 section 17, amending section 204 of the Criminal Procedure (Scotland) Act 1995). Nevertheless, the court is content with the view of the English Sentencing Guidelines Council that, for an offence involving less than £5,000 of gain, a Community Service Order may be taken as a norm, being a direct alternative to a custodial sentence for an offence at the higher end of the range. A fine or other non-custodial disposal, not being a direct alternative to custody, may be seen as reasonable for offences in the middle of the range (£2,500). The court does not consider that a short custodial sentence (less than three months) ought to be regarded as appropriate for offences in the range of £5,000 to £20,000. At the lower end of this range, a Community Service Order may again be appropriate as a norm, as a direct alternative to custody. But where the offence is in the higher reaches of the range, the court would expect a significant custodial sentence to be imposed in the absence of quite exceptional circumstances. Offences above the level of £20,000 might attract penalties only available in solemn proceedings.

Keeping these generalities in mind, and also recording that each case will, of course, depend upon its own facts and circumstances of a mitigatory or aggravating character, the court must turn to consider each of the three appeals. Each involves an appellant who has little, if anything, by way of previous convictions. Such convictions as there are appear to be of marginal significance in the context of the present offences. None of the appellants has been sentenced to a period of custody before. Each appellant has been able to advance significant mitigatory circumstances in the form of background family, health or economic considerations. Nevertheless, Mrs Craig and Mrs Montgomery acquired almost £15,000 and in excess of £17,000 of benefits respectively. Despite the mitigatory factors presented in each case, the court considers that only a significant custodial sentence is appropriate for such levels of illicit gain in the absence of quite exceptional circumstances, which do not exist in either case. By significant, the court considers that a starting point of at least six months would be appropriate. In each of these appeals therefore, the court considers that the Sheriff has selected a sentence which is appropriate, in its rejection of a direct alternative to custody, and cannot be said to be excessive in terms of length of custodial term. The appeals of these two appellants must be refused.

The appeal of Ms Gill raises a more difficult issue. The amount of benefit obtained was slightly less than £10,000, which is a lower level of gain than in the other two appeals. Nevertheless, the court considers that, despite there being, once again, strong mitigatory factors, a sheriff would be entitled to take the view that a significant custodial term alone was appropriate even for this lower level of gain. The problem which this court faces is that the term selected by the sheriff was one of only two months. As has already been observed, the court does not consider that such a short term is appropriate for an offence of this type and level of gain. It has considered whether it should increase the term imposed, to one where the starting point is above the six month level referred to above. However, it has reached the conclusion that this would not be a reasonable course of action, especially as it has been impressed with the steps taken by Ms Gill to address her considerable problems since the sentencing diet before the sheriff. The court can see no advantage, in terms of punishment, deterrence or protection of the public, in subjecting Ms Gill to such a short term of imprisonment. As a direct alternative to custody, therefore, it will, if Ms Gill consents, substitute a Community Service Order of 240 hours.