Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 54

HCA/2015/003465/XC

Lord Justice Clerk

Lord Menzies

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

DANIEL ROSS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  C M Mitchell;  Beaumont & Co

Respondent:  I McSporran, Sol Adv, AD;  Crown Agent

14 June 2016

[1]        In this case it was suggested that there was insufficient evidence to establish that the comparative fingerprint came from the appellant on the basis of the inability of police officers to identify him.  We disagree.  Crown Production 17 of the Livescan fingerprint form in the name of a Daniel Ross gave a date of birth and other details corresponding with that of the appellant.  The scan is recorded as having taken place at 2238 hours at St Leonard’s Police Station on 23 December 2015 by PC McDougall and PCSO Trevis who spoke in evidence to taking that recording.  They both spoke to the system in operation within the police station as to the taking of fingerprints and entering the material for Livescan purposes.  In order to transfer the scanned image to the database PC McDougall required to enter a password.  Both witnesses said they would not be able to identify the individual to whom the form related but that person was someone who had been processed through the police station and arrested.  The charges which had been preferred against that individual are recorded on the form and accord with the charges made against the appellant at St Leonards earlier that night.  Police officers identified the appellant as having been interviewed at St Leonards Police Station that evening, during which interview he confirmed his name, address and date of birth, all of which coincide with those on the fingerprint form.  The interview concluded at 2102 hours when the appellant was cautioned, charged and arrested.  The sheriff considered that from these facts there was sufficient to entitle the inference to be drawn that the comparison prints on Crown Production 17 were indeed those of the appellant.  We agree with the analysis of the sheriff.

[2]        It was suggested that even if the evidence was sufficient to establish that the comparison prints related to the appellant, the finding of his fingerprint on the mirror of the car was insufficient to prove that he was the perpetrator of charge 1.  Again we beg to differ.  The keys were taken from the house and must have been used immediately to remove the car.  The theft occurred between 10pm on 17^th and 8.30am on 18^th.  The car was recovered by lunchtime on the 18^th.  It was undamaged and locked, suggesting that it had been removed and then abandoned by someone in possession of a true key.  The appellant’s fingerprint was on the driver’s side of the rear view mirror.  There is no innocent explanation for its presence.  That the appellant was the thief is not the only possible explanation but it is an inference which it is entirely reasonable to draw.  We should acknowledge that Miss Mitchell recognised that the case of Colin Reid 2016 HCJAC 41 presented some difficulty to her argument having regard to the whole circumstances of this case. 

[3]        There is a further ground in relation to these charges relating to the directions given by the sheriff.  He directed the jury as to the taking of the fingerprints and it is argued that he should have left the matter to the jury.  However it appears that the sheriff having ruled on the matter, the defence concentrated on the inferences which might be taken from the finding of the print rather than challenging whether the inference that it was the appellant’s print could be drawn.  Therefore by the time of the charge this was not a live issue requiring further discussion or direction.  However, even if it could be viewed as a misdirection, it was of a most technical kind and could not in the circumstances constitute a miscarriage of justice.  The likelihood of the jury failing to draw the inference was vanishingly thin and there is no other reasonable inference which may be drawn. 

[4]        In relation to charge 7, the Crown for reasons which we fully understand, did not support the conviction.  On the matter of sentencing, the sheriff imposed sentences totalling three years and 20 weeks dating from the time of sentencing.  These were reduced from a total of 60 months to account for the overall effect of the sentence imposed and for the fact that the appellant had spent ten and a half months in custody.  Miss Mitchell relied upon the appellant’s age.  He was 17 at the time of the majority of the offences, 18 for the remainder and is not yet 20.  She also relied upon his unfortunate background which is referred to in detail in the social enquiry report although it was submitted that there were seeds of hope.  The sheriff had recognised the appellant’s young age and difficult childhood but explained that he considered that there were aggravating features in charge 1 and that he imposed the sentence which he did in relation to that charge in particular as a deterrent for other would-be housebreakers.  It is true that the appellant has been given numerous opportunities of non-custodial sentences and we are satisfied that a custodial sentence was appropriate.  However we agree with Miss Mitchell that the sheriff has not paid due regard to the observations of Lord Justice Clerk Gill in Kane v HM Advocate in 2003 regarding the sentencing of young offenders particularly paragraph 11 thereof. 

“The sheriff thought that considerations of retribution and deterrence were decisive.  These are material considerations; but there is more to sentencing than sending messages to society, particularly in the case of a young offender.  The court has to consider the personal circumstances of such an offender;  his home background;  the extent to which he may not be solely responsible for his behavioural problems;  and the opportunities that a non-custodial sentence may give for rehabilitation before he becomes trapped in the cycle of crime.”

[5]        Taking account of the fact that charge 7 is no longer before the court, that the appellant has spent a considerable time on remand and the factors relating to his youth and personal circumstances, we consider that a total cumulo sentence from the date of sentencing would have been one of 20 months.  We will therefore quash the conviction on charge 7 and quash the sentence which was imposed, substituting a sentence in those terms.