Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Emslie Lord Brodie	[2012] HCJAC 125 Appeal No: XC847/11 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal against sentence by BARRY McCLUSKEY Appellant: against HER MAJESTY'S ADVOCATE Respondent _______

Appellant: A Ogg, solicitor advocate; Paterson Bell (for Livingstone Brown, Glasgow)

Respondent: Wade AD; the Crown Agent

19 September 2012

Statutory Background

[1] Section 210F of the Criminal Procedure (Scotland) Act 1995 provides that the High Court can make an order for the lifelong restriction (OLR) of an offender, if it is satisfied that certain risk criteria (s 210E) are met. An OLR can only be made where a risk assessment report has been ordered under section 210B (see s 210F(1)(a)). Such a report can, in turn, only be ordered in certain circumstances, but these include cases in which the offender has been convicted of a "sexual offence (as defined in section 210A(10))". "Sexual offence", as so defined, expressly encompasses not only a variety of common law crimes but also statutory contraventions, notably, in the context of this appeal, breaches of section 52 of the Civic Government (Scotland) Act 1982 (taking and distributing indecent images of children) and section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (indecent behaviour towards a girl between the ages of 12 and 16). Both these offences have statutory maximum sentences of 10 years (1995 Act s 6; 1982 Act s 52(3)(b)).

[2] An OLR is a "sentence of imprisonment ... for an indeterminate period" (1995 Act s 210F(2)). In terms of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the court requires to select a "punishment part" within an OLR, during which the offender is not eligible for parole. That part has to be such as satisfies:

"(2) ...the requirements for retribution and deterrence (ignoring the period... necessary for the protection of the public), taking into account -

(a) the seriousness of the offence, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence".

These provisions were extensively analysed in Petch and Foye v HM Advocate 2011 SCCR 199. That analysis does not require repetition here.

Facts and Procedure

[3] On 22 February 2011, at the High Court in Glasgow, the appellant pled guilty, under the procedure governed by section 76 of the Criminal Procedure (Scotland) Act 1995, to an indictment which libelled: three contraventions of section 52(1) of the Civic Government (Scotland) Act 1982 (charges 1, 48 and 49) by downloading or distributing indecent photographs of children; thirty nine contraventions of section 6 of the Criminal Law Consolidation (Scotland) Act 1995 (charges 2, 4 - 7, 9 - 15, 17 - 24; 26 - 43 and 45) by using indecent behaviour towards girls between the ages of 12 and 16; five charges (3, 8, 16, 25 and 44) of lewd, indecent and libidinous practices; and two charges (46 - 47) of breach of the peace.

[4] The sentencing judge was invited by the Crown to consider imposing a cumulative OLR. Despite concern being expressed by the judge on the effect of the statutory maxima, it was accepted by both the Crown and the appellant that such an order was competent. Eventually, on 31 October 2011, a hearing took place upon the risk assessment report, which had been obtained, and the objections to it from the appellant. The objections were repelled and the sentencing judge imposed an OLR on the statutory and common law indecency charges, which she regarded as the most serious. She explained that, but for the plea, a 12 year determinate sentence would have been appropriate for these offences. Accordingly, employing the formula dictated by Petch and Foye v HM Advocate (supra), she selected a punishment part of 3 years and 4 months (12 - 2 = 10 ÷ 2 = 5 - 1/3).

[5] On the first charge of downloading child pornography (charge 1) she imposed a sentence of 2 years (discounted from 3), which was ordered to run consecutively to the punishment part. On the second of these charges (48), which involved video images, she imposed an identical sentence, concurrent to that on charge 1. On the third (49), she imposed 12 months (discounted from 18 months), again concurrent with the other two charges but consecutive to the punishment part. On the two breaches of the peace, which involved filming women and children in changing rooms at public baths and leisure centres), she imposed a sentence of 1 year and 4 months (discounted from 2 years); this time consecutive to that on charge 1 (and hence also to the punishment part). The overall effect was an OLR with a punishment part of 3 years and 4 months and consecutive terms also totalling 3 years and 4 months. The practical effect was calculated by the sentencing judge to be that the appellant would not be eligible for parole until he had served 5 years (i.e. the whole of the punishment part and one half of the consecutive total).

[6] The Note of Appeal contained two grounds. First, it was said that the OLR was inappropriate and excessive. This ground was not given leave at the sift. The second ground was that the imposition of consecutive sentences was excessive or inappropriate. Leave to appeal was granted upon this ground, but only on the basis that sentences consecutive to a punishment part were incompetent. Reference was made by the sifting judge to the analogous situation with life sentences and to the provision (1993 Act s 2(2)(a)) requiring account to be taken, when selecting a punishment part, of other offences on the same indictment (see HM Advocate v Turner 2007 SCCR 194). The sifting judge, under reference to Henderson v HM Advocate 2011 JC 96, also granted leave to appeal on the competency of imposing a cumulative OLR upon charges for which there was a statutory maximum. Although the sifting judge's diligence in identifying these points of competency is commendable, it creates a difficulty for the court if the sentencing judge's comments are not obtained on any of these matters. If a sifting judge is considering granting leave to appeal upon a ground not raised in the Note of Appeal, as he is fully entitled to do (1995 Act s 107(7)), it will normally be appropriate for him to request a supplementary report from the trial or sentencing court on the new ground before proceeding further. It may also be prudent to afford the applicant an opportunity to comment on any proposed new ground.

Submissions

[7] The appellant submitted that an OLR could not competently be imposed in respect of an offence for which Parliament had prescribed a statutory maximum penalty. It followed that imposing an OLR for a combination of offences, some of which had maxima, was not competent. If Parliament had intended that an OLR be available where there were maxima prescribed, it would have said so. The "Explanatory Notes", which had been released along with the Act, contained no reference to any such intention. The statutes involved were penal in nature and had to be construed in the manner most lenient to the offender (Tuck & Sons v Priester (1887) 19 QBD 629, Lord Esher MR at 638; Cross: Statutory Interpretation (3^rd ed) 172). A strict interpretation was necessary. The statutory maxima were clear and that clarity afforded no allowance for the imposition of an OLR. It was of note that the MacLean Committee (on Serious Violent and Sexual Offenders), which had recommended the introduction of the OLR, had used only common law examples of crimes where such an order would be appropriate (Report SE/2000/68, paras 6.2-6.4).

[8] In Henderson v HM Advocate (supra), the court, following upon a Crown concession, had held that an OLR could not be imposed in respect of an offence under a section of the Firearms Act 1968, where there was a statutory maximum penalty of five years. It did so on the basis that firearms were a reserved matter and the maximum could not competently be increased by the Scottish Parliament enacting the OLR provisions. The court had said (para 11) that a decision on whether the OLR provisions increased statutory maxima, for offences which were not reserved, was for another day. However, the rationale in Henderson had been that an OLR, being a sentence of imprisonment for an indefinite period (1995 Act s 210F(2)), could not be imposed where a definite period had already been stipulated in the relevant statute. The sentencing judge in Henderson (HM Advocate v Henderson 2009 SCCR 30) had been in error (at para [14]) in stating that an OLR was not a punishment but an imposition designed for the protection of the public.

[9] HM Advocate v Austin, unreported, High Court, 21 March 2011, ought to be overruled. There, Lady Stacey had reasoned that, because the list of offences (contained in section 210A of the 1995 Act) for which an OLR could be imposed included several with a statutory maximum, therefore an OLR could be imposed for these offences.

[10] It was accepted that, in determining whether the risk criteria were met, the risk assessor and thereafter the court could take into account the nature of the statutory offences (s 210C(1); 210E). It was accepted also that the court could impose an OLR for the common law offences alone and, in selecting the appropriate period, it could take into account the statutory offences (1993 Act s 2(2)(a)). However, a judge ought not to do so if he were imposing consecutive sentences for the statutory offences.

[11] Alternatively, if an OLR were imposed, the punishment part selected should have taken into account the other offences (1993 Act s 2(2)(a)) and no consecutive sentences ought to have been imposed. This was not affected by the provision (1995 Act s 204B) permitting a court to impose a sentence consecutive to a punishment part (eg HM Advocate v Johnstone 2009 SCCR 203). On analogy with sentences for life imprisonment, it was not appropriate to impose consecutive periods of custody (McRae v HM Advocate 1987 SCCR 36, LJ-C (Ross) at 37; McPhee v HM Advocate 1990 SCCR 313, Lord Wylie at 314)

[12] The Crown contended that Henderson v HM Advocate (supra) had no application. It turned on the legislative competence of the Scottish Parliament to amend a United Kingdom statute in relation to a reserved matter. The Parliament could amend a Scottish statute (HM Advocate v Austin (supra) and see generally Martin v HM Advocate 2010 SCCR 401). In the legislation for OLRs, the Parliament had provided a list of offences (1995 Act s 210A) for which it considered an OLR might be an appropriate disposal. Eighteen of these were statutory offences with maximum sentences. The Criminal Justice (Scotland) Act 2003 had increased the sentence for a contravention of section 52(1) of the 1982 Act and, at the same time, had both introduced the OLR and specified a breach of section 52(1) as one of the offences for which it might be imposed. This indicated the Parliament had intended an OLR to be applicable for such a breach.

[13] Parliament's intention in introducing OLRs had been to increase the range of possible disposals for certain categories of offender, including those convicted of certain specific sexual offences. The effect of section 210F had been to enable the court to pass an OLR for an offence which would otherwise involve imprisonment for a determinate period. However, the court ought to have regard to a maximum penalty in fixing a punishment part. Although issues of certainty arose, it was sufficient that the offender could know, from looking at the relevant provision and, if necessary, taking legal advice, what penalty may be imposed (M v Germany, European Court of Human Rights, 17 December 2009 (no 19359/04)).

[14] It was competent to impose a cumulative sentence on a mixture of common law and statutory indecency charges (Gemmell v HM Advocate 2012 SCCR 176 re the appellant Gibson; HM Advocate v Currie 2009 SCCR 48; see for summary cases 1995 Act s 167(6)), in the same way as a cumulative sentence could be imposed for separate statutory offences (McDade v HM Advocate 1997 SCCR 52, Lord Sutherland at 54). Thereafter, the sentencing judge had been entitled to impose consecutive sentences for quite separate offending on the remaining charges (1995 Act s 204B; Nicholson v Lees 1996 JC 173, LJ-C (Ross) at 182). The penalty for the remaining offences had not been included by the judge in the OLR. The reference to "taking into account" in section 2(2) of the 1993 Act meant, according to dissenting views of Lords Osborne and Emslie in Petch & Foye v HM Advocate (supra at paras [55] - [57], [93] - [95] and [110]), doing so intellectually and not mathematically. The starting point for the selection of the punishment part could exceed the statutory maximum for a single charge (see the consecutive sentences in Howard v HM Advocate 1997 SLT 575; cf S v HM Advocate 1999 40 GWD 1930; see in England, R v Delucca [2011] 1 WLR 1148).

Decision

[15] The statutory provisions governing the imposition of an OLR have as their purpose the idea that, although the particular offence (seen in isolation) may not immediately appear to merit an indeterminate prison sentence, further investigation of the nature and circumstances of the offence, either in itself or taken together with a pattern of behaviour, may demonstrate that the offender, if he were at liberty, would "seriously endanger the lives, or physical or psychological well-being, of members of the public at large" (1995 Act s 210E). The investigative process is circumscribed by a number of different conditions, as recommended by the Maclean Committee (supra). First, it is only the High Court which can impose an OLR (1995 Act s 210F). Secondly, before the High Court can contemplate that imposition, the offender has to have been convicted of a defined sexual, violent or life endangering offence or one demonstrating a propensity to commit such an offence (1995 Act s 210B (1)). Thirdly, the professional assessment presented to the court must be such as to demonstrate that there is a risk of the offender seriously endangering the lives, or physical or psychological well-being, of persons (1995 Act s 210E). It is clear, from the structure of the provisions, that the trigger for the assessment process itself need not be an apparently serious offence. Rather, a relatively minor contravention might suffice to commence that process.

[16] In understanding the intention of Parliament in enacting the OLR provisions, it is critical to look at the definition of what offences are said to be potential triggers. These include (1995 Act s 210A), as sexual offences, several statutory contraventions where there is a maximum determinate sentence set by the statute. The statutory contraventions committed by this appellant fall into the category of "sexual offence". These act as the triggers and, despite the maximum determinate terms, can lead to the imposition of an OLR, if the other conditions for such an imposition are met. This is not so different from the situation where a common law offence, which would not have merited an indeterminate sentence on its own, triggers the risk assessment.

[17] The interpretation of the statutory provisions, contained in the Opinion of Lady Stacey in HM Advocate v Austin, unreported, High Court, 21 March 2011, to the effect that the existence of a maximum sentence does not render the imposition of an OLR incompetent, is correct. This construction does not require the employment of any special canons of interpretation beyond examining the terms of the sections in their context and giving the wording its plain and ordinary meaning. In this respect there is no potential problem in understanding the circumstances in which an OLR may be imposed, at least if legal advice is taken.

[18] An OLR cannot be seen as other than a punishment, even although it may have other purposes. In that respect, the sentencing judge in HM Advocate v Henderson 2009 SCCR 30 was in error. However, the decision in that case upon appeal (Henderson v HM Advocate 2011 JC 96) is not authority for the proposition that the Scottish Parliament cannot legislate for the imposition of an OLR in respect of criminal actions where this does not contradict an Act of the United Kingdom Parliament in the field of reserved matters (cf Martin v HM Advocate 2010 SCCR 401). Such an imposition is precisely what the Scottish Parliament has done, albeit in a somewhat elaborate manner.

[19] There is no difficulty in the imposition of a cumulative OLR for both common law and statutory offences, so long as these offences are all within the defined sexual and violent categories. Cumulative sentences may be imposed, as a matter of discretionary judgment, for groups of offences, although that is not to say that, in many cases, it will still be appropriate to select different sentences for different offences (whether statutory or otherwise) (see generally McDade v HM Advocate 1997 SCCR 52, Lord Sutherland, delivering the Opinion of the Court at 54; Nicholson v Lees 1996 JC 173, LJ-C (Ross), delivering the Opinion of the Court at 182). If the court considers that a period of imprisonment greater than the maximum permitted for one particular offence is appropriate, it can, where appropriate, attain that objective by imposing consecutive sentences, within its powers of competence (eg Howard v HM Advocate 1997 SLT 575).

[20] The punishment part of an OLR must take into account (1993 Act s 2(2)(a)): "the seriousness of the offence ... combined with other offences of which the ... prisoner is convicted on the same indictment". This means that, once a court has decided to impose an OLR, it will normally make only one such order (cf life sentences where there is more than one murder). It may do so in respect of one offence only; in which case it requires to take "into account" any other offences of which the person is convicted on the same indictment. Alternatively, it may impose a cumulative OLR in respect of a group of offences; in which case it still has to take into account the other offences for which an OLR has not been imposed. In either event, the notional determinate sentence for the purposes of calculating the punishment part will be the totality of the sentence or sentences (with the public protection element stripped out) which the court would have imposed, but for the OLR. Thus, if the court would have imposed consecutive sentences for the offences on the indictment, it is the totality of those sentences which forms the starting point for the calculation. This is so even if the court decides to impose an OLR on only one offence and there is a maximum determinate period for that offence. That maximum must, of course, be a factor in the calculation of what determinate sentence or sentences may have been selected, but it does not form an overall maximum, if there are other offences on the indictment which would have attracted consecutive terms.

[21] The effect of this reasoning is that, where the court is imposing an OLR in a situation where there are several offences of which the offender has been convicted on one indictment, the court should not impose periods of custody for separate offences to be served consecutively to the punishment part, since the latter ought to have taken full cognisance of the totality of the determinate sentences which would have been imposed on the whole indictment. In this respect, the reasoning in life imprisonment cases (HM Advocate v Turner 2007 SCCR 194, Lord Macfadyen, delivering the Opinion of the Court at para [13]) ought to be adopted. The situation is different where the offender is being sentenced subsequently on another indictment. In that event, the later offences will not have been taken into account in selecting the earlier punishment part. In these circumstances, it will be competent (1995 Act s 204B) and may be appropriate (HM Advocate v Johnstone 2010 SCCR 203) to impose a custodial term which takes effect after the expiry of a punishment part.

[22] Accordingly, the separate sentences imposed on the appellant and ordered to run consecutively to the punishment part of the OLR must be quashed. Instead, an OLR encompassing all the offences on the indictment should be imposed. However, since the sentencing judge did not take the separate offences into account when assessing the punishment part, this court must do so. It requires to add the consecutive headline sentences, which total 5 years, to the 12 year starting point selected as the notional determinate sentence by the sentencing judge. It should strip out, from the resultant headline figure of 17 years, a period of 3 years to represent the element estimated as being for future public protection. It should halve the resultant 14 years to produce 7 years, which it will reduce by one third for the early plea. The punishment part will therefore be 4 years and 8 months. It is appreciated that there will thus be little practical impact on the sentences imposed by the sentencing judge in the first place, but, nevertheless, this mechanism reflects the correct approach and outcome on the basis of the legislation as interpreted in Petch and Foye v HM Advocate 2011 SCCR 199.