Act: J Scott QC (sol adv); Capital Defence

Alt: Erroch AD; the Crown Agent

21 January 2014

Facts and Sentence
[1] On 11 September 2013, at Haddington Sheriff Court, the appellant, who is aged 35, pleaded guilty, at a continued pleading diet, to a complaint which libelled a contravention of section 4(2)(a) of the Misuse of Drugs Act 1971 by way of cultivating a controlled drug, namely cannabis. On 5 June 2013, 18 cannabis plants had been found growing in a bedroom at his flat in Musselburgh. There were transformers, fans, extractors, a tent cover and scales, all described by the respondent as "not the most sophisticated system". Only 3 of the plants were mature. They had an estimated value of £450. The discovery had been made following a leak of water into the downstairs flat, which had prompted a forced entry by council employees assisted by the police.

[2] The appellant has a significant criminal record. He was convicted of a directly analogous offence in 2011 in respect of which a Community Service Order of 120 hours had been imposed. In addition, he had 5 previous convictions for possession of drugs, for which fines of up to £175 had been imposed. He had served custodial sentences for road traffic offences in 2004 (driving whilst disqualified and without insurance) and for an assault to severe injury in 1997. Although omitted from the schedule, the appellant disclosed the existence of a High Court conviction for another assault to severe injury in 1998, which attracted a four year sentence.

[3] Following upon the commission of the directly analogous offence, the appellant, who had been a council tenant for 12 years, had been made the subject of a short term tenancy to enable him to demonstrate that he would commit no further offences. Almost as soon as his permanent tenancy was reinstated, the appellant committed the present offence.

[4] A Criminal Justice Social Work Report disclosed that the appellant has a daughter from a previous relationship. She is now 17 and the appellant has recently re-established contact with her. A second relationship, which occurred briefly between prison sentences, produced a son. He was born on 17 November 1998 and is therefore now aged 15. He has lived with the appellant since he was an infant, with the exception of the periods when the appellant was in prison. A third relationship, which is of 5 years duration and with his present girlfriend, has produced a third child; another son, aged 2. It was said to be the intention of the appellant and his girlfriend to live together, but that does not seem to have happened. They retain separate local authority tenancies in the same street, but neither of the flats is said to be of sufficient size to accommodate the appellant, his girlfriend and the two boys. It has not escaped the attention of the court, however, that, when the cannabis was discovered, neither the appellant nor his teenage son were in the appellant's flat. Rather, they were staying overnight at the girlfriend's home.

[5] The appellant left school at 15 and started work in his father's plastering business. This came to an end when his father sold the business and moved to Spain. The appellant has not worked since 2010, when he was diagnosed with epilepsy. He also suffers from depression. When in custody in the late 1990s, he was introduced to heroin. He now attends the Gateway Substance Misuse Clinic and is prescribed an "opiate substitute", namely subutex. He maintained that he grew cannabis to avoid his old drug associates and to keep him from returning to heroin.

[6] Although he did not require to do so, the sheriff obtained the CJSWR, but, in relation to any impact on the appellant's teenaged son, it simply recorded that a custodial sentence would have implications for the boy and that the child welfare team had been alerted to the existence of the court diet. It did not detail what the implications might be. The sheriff was given no information on this. However, he assumed that, if no family member or other suitable adult were able to look after the child in the period whilst the appellant was incarcerated, a short term fostering arrangement would be put in place. No doubt that is so. The court was told that, after the appellant had previously been imprisoned, the child had lived with his (the child's) mother, but she had proved seriously inadequate as a carer and the appellant's mother had assumed custody of the child. The mother had not been working at that time, but now she was. The appellant had several sisters in the neighbourhood, but none was said to be able to look after the boy, even for a short time.

[7] The CJSWR recommended a Community Payback Order with unpaid work. It did note, however, that the appellant was aware that the offence could attract a custodial sentence, given his record. On 9 October 2013, the sheriff sentenced the appellant to 4 months' imprisonment, discounted from 6  months in recognition of the early guilty plea. The sheriff reasoned that "the custody threshold had been met". The offence had necessitated a "considerable degree of planning" and demonstrated "a cynical disregard for the criminal law". The sheriff recognised that the appellant was the carer of his son. In a supplementary report following the grant of leave to appeal at second sift (infra), he stated that he had taken into account that the child would be adversely affected by a sentence of imprisonment. He also observed that the offence had been committed in the family home, where the child was said to have been living. This was, in itself, a cause for concern and "at best, constituted behaviour which did not set a good example and, at worst, exposed the child to risk of harm". The sheriff reached the conclusion that a custodial sentence was appropriate taking into account the public interest as well as that of the child.

Ground of Appeal
[8] The Note of Appeal advanced the proposition that the sentence was excessive in that the sheriff had failed to give sufficient weight to: the small and unsophisticated nature of the cultivation; the positive terms of the CJSWR; and the implications for the appellant's son. There was still no specification of what these implications might be.

[9] Leave to appeal was refused at first sift. An opinion from a solicitor advocate supported the appeal without expanding upon the statement that the ground of appeal was arguable. At second sift, leave to appeal was granted partly on the basis that, although the sheriff had stated that he had taken the child's interests into account and balanced it with the public interest, he did not say what the consequence for the child might be or how the balance had been performed. The second sift judges considered it arguable that the sheriff had failed to consider whether the child's rights under Article 8 of the European Convention had been engaged by the sentencing process (see also UN Convention on the Rights of the Child, Art 3). It was said that it was "separately arguable" that the sheriff had failed to place sufficient weight to relevant and traditional sentencing considerations regarding the son. Reference was made to HH v Westminster City Magistrates Court [2012] UKSC 25, Judge CJ at paras 126-131 and R v Petherick [2012] EWCA Crim 2214, per Hughes LJ. It was noted that it was arguable that the guidance in England ought to have been followed by the sheriff.

Submissions
[10] The appellant argued that the sheriff had erred in finding that the gravity of the offence and the appellant's previous convictions outweighed the mitigating factors, including the fact that the appellant was the sole carer of his (then) 14 year old son. The sheriff had failed to give sufficient weight to the effect that a custodial sentence would have on the appellant's son. The CJSWR was almost silent as to the consequences for the child, were a custodial sentence to be imposed, except to note that the local authority child welfare team had been notified. The CJSWR had failed to provide adequate information on the potential impact of disposals on the appellant's family, including any children, contrary to guidance issued by the Government (National Outcomes and Standards for Social Work Services in the Criminal Justice System - Criminal Justice Social Work Reports and Court-Based Services Practice Guidance (Scottish Government, 2010) p 19). The sheriff had not been able to consider fully the interests of the child. The sheriff ought to have instituted further inquiries.

[11] After sentencing, but prior to the grant of interim liberation on 15 October 2013, the appellant's girlfriend had looked after his son, but this was said to have been "very much a short-term arrangement". Reference was made to the cases cited by the second sift judge and to Loureiro et al: Child and Family Impact Assessments in Court (Families Outside, November 2009) and Loureiro: Perspectives of Children and Young People with a Parent in Prison (Commissioner for Children and Families Outside, March 2010). There was also reference to the impact of prison sentences on children outlined in Scottish Commissioner for Children and Young People: Not Seen Not Heard Not Guilty (2008) (at 22-29) and the review of that publication (2011) (at para 3.2). Primacy of importance had to be accorded to the interests of a child affected by decisions. It was not a factor of limitless importance, but it must rank higher than any other (Lord Kerr in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 (at para [46]); see also Hibbard v HM Advocate 2011 JC 149, Lord Carloway at para [14]).

[12] The CJSWR had assessed the appellant as suitable for a community based disposal, and in particular unpaid work in the community. He had spent 6 days in prison before being granted interim liberation. An e-mail from his consultant psychiatrist dated 20 January 2014 advised that a custodial sentence would undermine the appellant's recovery from addiction and the improvement which there had been in his mental health (depression). In all the circumstances, the appellant contended that a community based disposal would be appropriate in place of the custodial sentence.

Decision
[13] When addressing the specific impact on the domestic law of a human right expressed in one of the Articles of the European Convention, it is important to keep in mind that these rights are:

"mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law ... [T]he protection of human rights is not a distinct area of law ... but permeates our legal system" (Osborn v The Parole Board [2013] UKSC 61, Lord Reed at para 55).

Article 8 (right to respect for private and family life) tends to be reflected in, for example, the laws of reparation, family and the constitution and Article 5 (right to liberty) is implemented through several areas including the law relating to sentencing (ibid).

[14] Where the Convention is founded upon, the court will require to ask itself whether Scots law is compliant with the Convention. If it is, the important question is whether what occurred in the case was compliant not with the Convention as a generality but with the particular provisions of the implementing domestic law (ibid paras 56 and 57).

[15] In this case, which is concerned primarily with the deprivation of the appellant's liberty, the terms of Article 5 fall to be considered. They provide that "No-one shall be deprived of his liberty save ... [in the case of] (a) the lawful detention of a person after conviction by a competent court". This provision is reflected in domestic law and the appellant was dealt with competently under the recognised laws of criminal procedure and sentencing.

[16] The second concern surrounds Article 8. It is worth considering first, thus, whether its terms are also reflected in domestic law. Almost all offenders will have a private and family life, home and correspondence. It is almost inevitable in every case that a prison sentence will interfere with these elements and with the private and family life of others, including dependent children. However, current sentencing practice already requires the court to take these elements into account, where appropriate, when determining whether to incarcerate an offender (see eg Nicholson: Sentencing (2^nd ed) paras 9-33/34). Furthermore, the general practice, and one which is given statutory force where the offender is under 21 or has not previously served a jail term or where a sentence of 3 months or less is contemplated, is that imprisonment or detention should only be imposed where no other method of dealing with the offender is appropriate (see eg Criminal Procedure (Scotland) Act 1995, ss 204(2), 207(3), and 204(3A)). That accords with the Article 8.2 provision that there should be no interference with the exercise of the general right to respect for private and family life, home and correspondence in Article 8.1 except:

"such as is in accordance with the law and is necessary ... in the interests of ... public safety ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

[17] The imposition of a prison sentence will have, as its purpose, one of the objectives in Article 8.2. Given that, as already noted, almost all offenders will have a private and family life, it is hardly necessary to ask questions such as whether Article 8 is engaged. The issue will always be a balancing one of whether incarceration is "necessary" in terms of the Article, having regard to the proportionality of such a disposal in all the circumstances. As was said in R v Petherick (2013) 1 Cr App R (S) 116 (Hughes LJ at para 18), the area where careful judgment may be needed is when considering this proportionality.

[18] If it is contended that incarceration is not necessary (proportionate) in terms of the offender's Article 8 right, it is, in the first instance, for the offender to place before the court such material as he deems fit to demonstrate the level of potential interference with his private or family life. Equally, where interference with another person's rights is being advanced as a mitigatory feature in the sentencing process, it still remains for the offender to advance any case that a sentence of imprisonment will interfere to a particular extent with the private or family life of that other person. No doubt the level or detail of interference may be stated in a CJSWR in terms of the national guidelines (supra), but it is the offender who is best, if not uniquely, placed, to inform the court of his personal circumstances and, at least ordinarily, of the personal circumstances of others who may be affected. The court has a very limited inquisitorial role in that regard and a CJSWR may not have been required (as in this case) or requested.

[19] Given that the principles and practice of sentencing law are thus compatible with the terms of Article 8 as a generality, the only remaining question is whether the sentence in this case was inappropriate or excessive in domestic terms having regard to all the circumstances, including the interference with the child's private or family life. Put another way, does the sentence amount to a disproportionate interference? The court agrees with the dictum in R v Petherick (supra Hughes LJ at paras 22-24) that it is "where the case stands on the cusp of custody that the balance is likely to be a fine one". That balance may tip in favour of a non-custodial disposal where the rights of a third party, such as a family member, will be adversely affected. However, the degree of disproportionality is "inevitably progressively reduced as the offence is the graver" (ibid para 23).

[20] In relation to the length of a sentence, the court is content to endorse the particular view in Petherick that, where custody:

"cannot proportionately be avoided, the effect on children or other family members might (our emphasis) afford grounds for mitigating the length of sentence, but it may not do so. If it does, it is quite clear that there can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges" (ibid para 24).

It is important to emphasise the word "might". Where a sentence of imprisonment of a particular length has been imposed on the basis that it is necessary to satisfy the requirements for retribution, deterrence and protection of the public, it will only be in rare situations that the sentence can be described as a disproportionate interference with the rights of others.

[21] In the appellant's case, it is of some significance to note that it might be anticipated that the imposition of a 4 month sentence will normally result in the offender serving no more than one half of that period (ie two months) in custody in terms of section 1(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. He may be released on a home curfew licence before that (ibid, ss 3AA, 12AA). The sentence selected then is one which will involve a relatively short period in prison. Any interference with the child's private or family life would be temporary and barely more than many children are faced with when their parents require to separate from them for a number of different reasons including employment. Furthermore, the description of the appellant as the sole carer of this teenaged child is a little misleading, when he is effectively living in a family group with the appellant, his girlfriend and the boy's half-brother. The appellant accepted that he shared child care responsibilities with his girlfriend. In addition, the child has an extended family in the immediate vicinity, including several aunts and his grandmother, who has looked after him for a much longer period in the past, even if he has little memory of that. It should be added in this context that the court was not persuaded that there would be any likelihood of the child requiring short term fostering apart from the extended family.

[22] In all these circumstances, where any interference is so minimal, the court is unable to fault the sheriff in holding essentially that any interference with the child's Article 8 right is relatively easily outweighed by considerations of the public interest in ensuring that the societal requirements of sentencing, including retribution and deterrence, are met. The court also has some sympathy with the sheriff's view that the appellant had blatantly ignored at least one aspect of the criminal law by repeating his previous conduct as soon as he re-secured his tenancy.

[23] Nevertheless, in determining whether a custodial sentence was appropriate, the court does not agree that imprisonment was required as part of a ladder of penalties increasing in severity in order to secure compliance with the law. In that connection, the court would be reluctant to endorse the view that the growing of a relatively few cannabis plants against the background of the appellant's record amounted to a "cynical disregard for the criminal law", at least as expressed in such general terms. Apart from the analogous offence, the level of the appellant's offending over the past decade has been relatively minor, if repetitive. He has now spent a short period in custody in respect of this offence and the court has the view of a consultant psychiatrist on the effect of custody on the appellant himself in the context of his efforts to improve his mental health and drug dependency. In all these circumstances, the court has reached the view, not without considerable hesitation, that the selection of imprisonment can properly be regarded as excessive. It will quash that sentence and substitute a Community Payback Order with a condition of 240 hours unpaid work in the community.