Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 38

HCA/2015/474/XC

Lord Justice Clerk

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

SCOTT DANIEL ROSS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Jackson QC, Mackintosh; John Pryde & Co, SSC

Respondent: I McSporran AD; the Crown Agent

29 April 2015

Introduction and general
[1]        This appeal raises an issue concerning the circumstances  in which a sheriff can decline to accept the basis of a plea in mitigation in the absence of proof.

[2]        On 28 January 2015, in the Sheriff Court at Inverness, the appellant pled guilty to charges that on 7 October 2014, at MacKintosh Road, he: (1) had a knife with him, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49; and (2) assaulted a police officer by pushing her to the ground to her injury.  He was sentenced to 1 year’s imprisonment in respect of charge (1) and 23 weeks imprisonment on charge (2).

The evidence of search
[3]        It should be noted at the outset that the case has an important distinguishing feature.  Prior to the plea being tendered, the sheriff had heard testimony in relation to the circumstances in which the police came to be at the locus and recovered the knife in charge (1).  This was in the context of an objection to the evidence of the search of the appellant; the legality of which was critical to proof of the charge. 

[4]        The police had gone to a block of flats in response to a report of a disturbance.  They had called at a first floor flat, whose occupier was complaining of her downstairs neighbour banging on her door and refusing to leave.  Whilst the police were there, the appellant and three males appeared at the door.  For a number of reasons, which are of no relevance to the appeal, they were suspected of possessing drugs.  In the course of the subsequent search, the appellant was seen to have a kitchen knife held behind his back.  The police seized his wrist and the knife was recovered.  The appellant ran off, later pushing over an officer who tried to stop him.  The officer struck her elbow and head on the ground, sustaining sundry cuts and bruises of a relatively minor nature.  At the conclusion of this evidence, the objection to the search was withdrawn.  The appellant then pled guilty. 

The plea in mitigation of proof
[5]        In the course of the plea in mitigation, it was said that the appellant and his friends had been invited to the first floor flat.  When they had entered the block they had encountered the neighbour, who had been outside her door, holding a knife and behaving in an aggressive fashion.  The appellant had taken the knife from her before continuing upstairs where he met the police.  He had, it was said, panicked, and ran off when the knife had been discovered.  No account was given to the police at the time that the appellant had disarmed an aggressive neighbour and still had the knife.  Rather, the appellant had been concealing the weapon.

[6]        The sheriff stated that he was not prepared to accept the account given in mitigation ex parte.  The minutes record that the court “directed” that evidence be led to support the plea in mitigation.  However, the sheriff reports that what was said in mitigation, although not contradicted by the Crown, was not agreed with them either.  As the sheriff put it in his report, the Crown was “agnostic” on the point.  The procurator fiscal depute had merely commented that, even if the appellant’s version were true, he was still guilty of the offence.  In view of the sheriff’s scepticism, he informed the appellant’s agent that, if he intended to rely on what was said in mitigation, then the appellant would have to lead evidence in support of it (see McCartney v HM Advocate 1997 SCCR 644 at 646).

[7]        After a short adjournment, the appellant’s agent called the first floor occupier, who confirmed that her female cousin had been staying with her.  This cousin had invited the appellant and the others to the flat.  The appellant gave evidence on his own behalf.  He stated that, on entering the block, he had met the neighbour, who was in an intoxicated state.  He had recognised her, but only as a drug addict from the centre of town.  She was carrying a knife and behaving in an aggressive fashion.  He had taken the knife from her and gone upstairs where he was challenged by the police. 

[8]        The neighbour was called to give evidence.  She said that she knew the appellant to say hello to.  She knew his name and he knew hers.  She had been concerned about people calling at her door.  She had opened it with a view to seeing what was going on.  She had taken a knife with her.  This had been removed from her by the appellant.  She described this knife.  When she was shown the knife which had been recovered from the appellant by the police, her immediate reaction was that it was not the same one.  She had described her own knife in different terms. 

[9]        The sheriff rejected the explanation in mitigation for three reasons.  First, it had not been given at the time, in circumstances where, if it had been true, he would have expected the appellant to have informed the police.  Secondly, there was a disparity about the degree to which the appellant and the neighbour knew each other.  Thirdly, there was the evidence that the neighbour’s knife was different from that recovered from the appellant at the scene.  Accordingly, the sheriff sentenced the appellant on the basis that he had arrived at the block of flats with the knife in his possession.  Given the appellant’s extensive previous convictions, which included 11 assaults and one High Court conviction for drug supply in 2011, the sheriff selected the custodial sentence.

Ground of appeal and submissions
[10]      The ground of appeal, for which leave has been given, is that the plea of guilty was tendered on the basis of a very limited narrative, following upon discussions between the procurator fiscal depute and the appellant’s agent.  It is said in the Note of Appeal that the depute had taken no issue with the mitigation advanced.  The manner in which this is phrased suggests that the context of the depute’s comment was in discussion with the agent.  At the Bar, however, it was said that the depute had indicated in open court that he took “no issue” with the mitigation.  This is not what was said in the written submission supporting the appeal (Act of Adjournal (Criminal Procedure Rules) 1996, rule 15.16(2)).  It is not entirely consistent with the sheriff’s report that the depute was simply agnostic.

[11]      The appellant complains that the sheriff erred in looking behind the plea which had, according to the Note, been discussed and agreed between the appellant’s agent and the depute.  The ground of appeal was effectively expanded in the written submission, whereby it was stated that it was inappropriate and unnecessary for the sheriff to look behind the appellant’s ex parte explanation.  The duty to ensure that the court had correct information lay with the prosecution.  As a consequence, a significant miscarriage of justice had occurred.  The evidence at the proof in mitigation ought to have been disregarded.  The dictum in McCartney v HM Advocate 1997 SCCR 644 (at 646), to the effect that the court could itself reject an ex parte statement made in mitigation, was inconsistent with that in Hughes v Donnelly 1994 SCCR 598 (at 600) whereby it was only if the plea were inconsistent with the Crown narrative, or disputed by the Crown, that this could be done (see also HM Advocate v Murray 2008 SCCR 276).  In this case there was no inconsistency or dispute.  The appellant’s failure to disclose the knife to the police had resulted in him being guilty of the charge, in that he could not have relied on the statutory defence (1995 Act, s 49(4)).  He could not have attempted to withdraw the plea.

[12]      It was stressed in oral submission that there would be significant practical difficulties in Sheriff Court practice, where agreed written narratives were rare, were the court to insist upon proofs in mitigation on matters with which the Crown “took no issue”.  Accused persons would be discouraged from pleading if this were the position.  It would be a recipe for uncertainty.

[13]      The advocate depute was asked to respond.  The sheriff had heard testimony about the circumstances of the search.  This was bound to have had an effect on his thinking.  The appellant had made no mention of recovering the knife from the neighbour at the time.  Were the sheriff to have accepted the appellant’s ipse dixit, there was a danger that he would have been sentencing upon an inaccurate basis of fact (HM Advocate v Bennett 1997 JC 49 at 54).

Decision
[14]      The circumstances in which it is appropriate for the court to hear a proof in mitigation are relatively clear.  In Renton & Brown, Criminal Procedure ((6^th loose-leaf ed) para 18-29.1), under reference to Hughes v Donnelly 1994 SCCR 598, McPherson v HM Advocate 1999 SLT 1374 and HM Advocate v Murray 2008 SCCR 276, the general principle is put thus:

“If the explanation offered by the accused in mitigation is inconsistent with his plea of guilty the court should refuse to accept it, and the case will then go to trial.  Where the explanation is consistent with the plea but differs from the account given by the prosecutor, and the matter cannot be settled by one side accepting, or at least not disputing, the other’s version, the court should offer the accused the opportunity of having a proof in mitigation.”

This summary is supported by Hughes v Donnelly 1994 SCCR 598 (LJC (Ross) at 600), in which the court decided that, in the event of materially inconsistent versions of fact being presented by the Crown and the defence, the court cannot prefer one rather than the other without hearing evidence.

[15]      In the ordinary case, a sheriff will normally proceed upon the basis of ex parte statements of fact contained in a plea in mitigation which are not manifestly absurd, do not contradict the plea of guilty or the Crown narrative of fact, and which are not disputed by the Crown.  That will be the position in the vast majority of cases.  However, that is not to say that the sheriff must do so in every situation.

[16]      In McCartney v HM Advocate 1997 SCCR 644, Lord Sutherland, delivering the Opinion of the Court, stated (at 646):

“As a general rule the court will accept what is said in mitigation in the absence of any specific contradictions by the Crown.  It may be, however, that the court itself ex proprio motu does not feel that it can accept what is said in the ex parte statement in mitigation and, if that be the position, that should be made clear to the defence in order that the defence may seek an opportunity of having a proof in mitigation.”

It is apparent from this dictum that, even if the Crown do not expressly contradict what is said in mitigation, if there is no agreement as to the narrative, then, if the circumstances justify such a course in order to sentence on the basis of accurate fact, it is open to the court, as a matter for its discretion, to advise the defence that the court is not prepared to accept what has been said in the absence of evidence in its support.  Here the sheriff was entitled to call for evidence rather than leave the appellant’s explanation out of account (Barn v Smith 1978 JC 17, LJC (Wheatley) at 20).  The sheriff had good reason for questioning the mitigatory explanation; notably the circumstances of the search about which he had heard testimony which prima facie significantly undermined its veracity.  There is nothing in either Hughes v Donnelly (supra) or HM Advocate v Murray (supra) that supports the proposition that, in the absence of direct contradiction by the Crown, a sheriff has no alternative but to accept a defence narrative of fact.  On the contrary, these cases endorse the principle that the court has power to require evidence when, in the exercise of its discretion, proof is considered necessary in order for the sentencing process to take place on a fair and proper basis.  Ultimately, having heard the evidence, the sheriff explained why he did not accept the appellant’s account.  His explanation is adequately reasoned and the appeal must be refused.