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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McIntyre v Council Of The Law Society Of Scotland [2001] ScotCS 249 (2 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/249.html Cite as: [2001] ScotCS 249

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[1] The petitioner was admitted as a solicitor on 23 February 1983 and was enrolled on 22 March 1983. He was the subject of a complaint to the Scottish Solicitors' Discipline Tribunal dated 24 September 1998. That complaint was at the instance of the respondents, in terms of section 53(1)(b) of the Solicitors' (Scotland) Act 1980. The background to the complaint was that on 30 October 1997, at the High Court of Justiciary in Edinburgh, the petitioner was convicted of a contravention of section 1(1)(a) and (b)of the Firearms Act 1968, and in respect of that offence was sentenced on 20 November 1997 to three years imprisonment. Prior to the date of the complaint, the appellant had appealed against both conviction and sentence, but the appeal against conviction was abandoned while being heard, and the appeal against sentence was abandoned without any submissions being made.

[2] Having considered the complaint, the Tribunal issued Findings, and by interlocutor of 20 January 1999, censured the respondent. The respondents appealed, and by interlocutor of 7 May 1999 this court recalled the Tribunal's order of 20 January, and remitted the complaint to a differently constituted Tribunal for consideration. By interlocutor of 12 July 1999, the newly constituted Tribunal, having considered the whole circumstances as directed by the court, ordered that the petitioner's name be struck off the Roll of Solicitors in Scotland, directing that the order take effect upon intimation of the decision. By this petition, the petitioner seeks recall of the Tribunal's order dated 12 July 1999. The petition sets out a number of different grounds upon which recall was said to be appropriate. However, when the matter came before us counsel on behalf of the petitioner indicated that in seeking recall he would wish to advance argument only in certain specific respects, which were not directly referred to in the petition, but which might be regarded as coming under the general proposition set out at Article 9 of the petition, to the effect that in the whole circumstances no reasonable Tribunal properly directing itself could have arrived at the decision in question. Despite the inadequacy of what actually appeared on the face of the petition, counsel for the respondents did not suggest that we should refuse to hear counsel for the petitioner, and we were content to do so.

[3] Before coming to the submissions advanced on behalf of the petitioner, it is convenient to set out some of the background material. The indictment which the petitioner faced was one containing six charges. However, three of these were dropped in advance of trial, and of the remaining three, only charge 2 went to the jury. That charge was in the following terms:

On this charge, the jury convicted the appellant unanimously.

[4] When passing sentence, the trial judge said this:

[5] As is evident from that final sentence, the account given by the petitioner in evidence at his trial included a narrative which (putting matters briefly) was to the effect that a criminal client (and childhood friend) had handed him the two handguns and some bullets, asking him to hand these in to the police - which in his evidence the appellant said he intended to do the following day, but without mentioning the client's name because of "client confidentiality". He had received the guns and bullets at the client's flat in the small hours of the morning, and had taken them to his own home, where he had wrapped them in some pyjamas and had put them in the drawer of a chest in his garage. That was where they were found by the police.

[6] The submissions which counsel for the petitioner advanced to us turn to some extent upon the way in which the trial judge charged the jury in relation to this aspect of the defence. The judge directed the jury that even if they were to accept the evidence of the accused in its entirety, they would have no alternative but to convict him of having been in possession of the two pistols. (On the petitioner's own evidence he was aware of the existence of these guns, and he had control over them). The jury were, however, directed that this would not be the position in relation to the nine rounds of ammunition. The petitioner's evidence had been that he knew nothing of two rounds found in Union Street, or one found in a car. That being so, and on the same hypothesis of having accepted the accused's evidence in its entirety, the trial judge suggested that the jury delete the references to Union Road and to the nine rounds of ammunition, telling them that they could not substitute any lesser number. (We are not quite sure why a substitution of lesser numbers was thus ruled out entirely, but at all events the direction given to the jury in this respect would, if anything, be favourable to the petitioner).

[7] The trial judge subsequently came to deal with the possibility that the jury might accept some parts and reject other parts of the petitioner's evidence, and the fact that it might be open to them to find him guilty either as libelled or subject to whatever deletions they thought were appropriate. He added this:

In finding the petitioner guilty, the jury did not add a rider on the lines described by the trial judge.

[8] In addition to what was said by the trial judge when charging the jury, and what he said when passing sentence, our attention was drawn to certain parts of what he said when reporting to this court in relation to the appeal. He there noted that one of the handguns was a semi-automatic sporting pistol manufactured in Spain of which the barrel had been shortened to three inches with no fore-sight. The other handgun was an Italian made Derringer type pistol. This had originally been designed to fire only blank rounds as a "starting pistol", but it had been modified to the point that it could discharge .22 calibre live ammunition. The original barrel had again been reduced and been replaced with a half inch long brass barrel. In his report, the trial judge goes on to make brief comments in relation to the grounds of appeal. These include an observation that from the summary at the outset of the report

He also says that he was very doubtful whether a firearm certificate would in any circumstances have been granted in respect of either of the weapons in question.

[9] In submitting that the Tribunal's decision should be recalled, counsel for the petitioner acknowledged that it was not for this civil court to review what had been done by the trial judge: that jurisdiction lay with the Court of Criminal Appeal, and counsel accepted that having abandoned his appeal both on conviction and sentence, the petitioner could not now contend that either the conviction or the sentence was open to criticism. In particular, he accepted that three years imprisonment was an appropriate sentence for what the petitioner had done. But in relation to the disciplinary proceedings, it remained open to the petitioner to point out any respect in which the Tribunal had misdirected themselves in law. And if any such misdirection consisted (as was here the case) in the Tribunal adopting from the trial judge propositions which had amounted to the trial judge misdirecting himself, neither counsel for the petitioner, nor this court, would be debarred from considering what the trial judge had done, or from holding, for the purposes of the present proceedings, that what he had done did indeed amount to self-misdirection.

[10] It was acknowledged that the allegation of misdirection could have been insisted in, in the criminal appeal. But the abandonment of the appeal against sentence should not be read as meaning that specific arguments that there had been misdirection were accepted as having been wrong. A decision to abandon an appeal against sentence might turn on many considerations. In the present case, the appeal against conviction had not been going well. In relation to the appeal against sentence, there was at least the possibility that the sentence might be increased, if the appeal were insisted in. By the time the appeal was heard, the appellant had already served a substantial part of his sentence. The overall decision that the appeal against sentence should be abandoned carried no implication as to the validity of particular arguments on misdirection. We should hold that the trial judge had indeed misdirected himself in various respects, and that consequentially the Tribunal had also misdirected itself, in adopting what the trial judge had done.

[11] The submission contained two principal, separate elements. First, in imposing sentence, the trial judge had proceeded upon the basis that the appellant had been in the possession of lethal firearms and ammunitions "of which the only possible use" was the furtherance of crime. It was submitted that the words quoted were not justified. Secondly, in imposing sentence the trial judge had proceeded upon the basis that the appellant's account of matters "was clearly rejected by the jury". Again the quoted words were not justified. In terms of the criminal law, and having abandoned his appeal, the petitioner must accept that even if these were errors, the three year sentence would nonetheless have been upheld (or indeed increased) on grounds broader than, or different from, those relied upon by the trial judge. But turning from the criminal law to the present disciplinary proceedings, the Tribunal's decision could not simply be left standing, based as it was upon these same errors. The matter would become one for this court to consider, and to dispose of either by a further remit or by a decision of this court itself.

[12] In support of the first main proposition, counsel submitted that one could not say that "the only possible use" of the firearms and ammunition in question was the furtherance of crime. The offence lay in the absence of a certificate, and with a certificate it was clear that such firearms and ammunition could be used otherwise than in the furtherance of crime. One might possess such arms for the purpose of shooting at tin cans on a wall. Their possible or conceivable uses were quite simply not necessarily related to the furtherance of crime. Counsel referred us to section 16 of the Firearms Act, and the succeeding provisions, all of which showed ways in which the use of such firearms might indeed be in the furtherance of crime. But the petitioner had not been charged under any of these sections, but only under the fundamental provisions of section 1, relating to certification. It had not been suggested to him, when he gave evidence, that he had held the firearms for any criminal purpose. To sentence him for that offence as if it was an offence under or analogous to those created by the subsequent sections was wrong.

[13] Further and in any event, the trial judge had gone too far in saying that the petitioner's account of matters was "clearly rejected by the jury". It could not be denied that the jury had neither deleted the references to Union Road and ammunition, nor added a recommendation for leniency. But the judge's directions in relation to the ammunition had been geared to acceptance of the petitioner's evidence "in its entirety". If the jury's position was anything short of that, they had not been directed to make the deletions in question, and may have wished to leave the references to the nine rounds for reasons relating to their assessment of different parts of the petitioner's evidence. Moreover, on the more general matter, a jury could not be, and in this case had not been, positively required to recommend leniency. Their decision not to recommend leniency no doubt might have been for reasons of the type suggested by the trial judge. But there might be other reasons for this jury not wishing to recommend leniency, even if they were not rejecting the petitioner's account. Their silence did not bear the inference placed upon it by the trial judge.

[14] We think that it is clear that the considerations which weighed with the trial judge, and which he touches upon in the passages which are quoted and criticised, also weighed with and were relied upon by the Tribunal. But we are not persuaded that either passage contains any error or misdirection.

[15] In considering the possible uses of the firearms and ammunition in question, we think it is clear that the trial judge is not merely making some generalised comment upon weapons of this type, but a specific comment upon the firearms and ammunition in question. The petitioner had chosen to give one explanation of what he was doing with the firearms and ammunition (an explanation, we would note, indicative of their being capable of some criminal purpose) - but at no stage does there appear to have been any evidence, from any source, indicating some possible or conceivable non-criminal use for these particular weapons and ammunition. If only one explanation is available, and in the absence of that explanation no non-criminal use for the weapons and ammunition has been suggested, it would in our opinion be entirely justifiable to see them as having no possible non-criminal use. But in this case, there was the additional information mentioned by the trial judge in his report, to the effect that one weapon had been modified so that it could discharge live ammunition, through a half-inch barrel, while the other had had its barrel shortened to three inches, and no longer had a fore-sight. Counsel suggested that these modifications would require expert advice before one could draw any conclusion as to possible uses. Such facts could not be interpreted by analogy, for example, with the well-known reasons for shortening the barrels of a shotgun. We are not persuaded that there is any force in these submissions. Both the absence of any evidence of possible non-criminal uses, and the alteration of the weapons in the manner described, in our opinion well justify the words used by the trial judge.

[16] The other branch of the submissions advanced on behalf of the petitioner is in our opinion likewise without merit. The fact that the references to Union Road and the ammunition were left standing is perhaps of some significance in indicating that the jury were not satisfied with the account given by the petitioner. But much more significantly, having regard to what was said in the trial judge's charge in relation to a possible rider, we are in no doubt that the jury would have regarded it as appropriate to add such a rider, if they were not rejecting the account given by the petitioner. If the petitioner's intentions had been as he described them, a rider recommending leniency would have been appropriate, having regard to what the judge had said. The inference drawn by the trial judge is in our view well justified, and the Tribunal's reliance on what he said cannot, in our opinion, be criticised.

[17] Counsel for the petitioner accepted that if his submissions in relation to misdirection were rejected, he would not be in a position to contend that the Tribunal's decision should be recalled, or that the striking off of the petitioner's name was not justified. We would, however, mention one other aspect of this case. It is clear that when matters were before the original Tribunal, they received what this court, when recalling the censure, described as, at best, a "lopsided account of the facts". With the account which had been given by the petitioner at trial before the Tribunal, it became necessary to consider in some detail the factual details of the case, the implications of the verdict and the inferences upon which the trial judge had proceeded when deciding that a three year sentence was appropriate. Given the somewhat unsatisfactory history of events before the original Tribunal, we do not think that this is a case in which to attempt any general analysis of the situations in which it will, or will not, be appropriate in disciplinary proceedings to go back beyond the bare terms of a conviction and sentence. But having regard to the way in which charges are expressed in an indictment, and the inherent gravity, in criminal terms, of any offence which attracts a substantial custodial sentence, we are satisfied that a bare knowledge of the offence and the sentence may well, and perhaps will usually, provide a sufficient basis for a disciplinary Tribunal to proceed, without further detail, to its assessment of the gravity of these matters in professional terms and in relation to the appropriate sanction. We think it worth quoting what the Tribunal said in relation to its determination of the appropriate sanction:

[18] In these circumstances the petition is refused.