CROWN APPEAL AGAINST SENTENCE BY HER MAJESTY'S ADVOCATE AGAINST IAIN LINDSAY [2020] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> CROWN APPEAL AGAINST SENTENCE BY HER MAJESTY'S ADVOCATE AGAINST IAIN LINDSAY [2020] ScotHC HCJAC_26 (12 June 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_26.html Cite as: 2020 GWD 21-288, 2020 JC 293, 2020 SCCR 324, [2020] ScotHC HCJAC_26, [2020] HCJAC 26, 2020 SLT 818

Respondent: Dean of Faculty; John Pryde & Co for Blackwater Law, Glasgow

[1] This is a Crown appeal against the sentence imposed upon the respondent following

his plea of guilty under section 76 of the Criminal Procedure (Scotland) Act 1995 on a charge

“did culpably and recklessly cough in the faces of James Iredale and Scott

MacDonald, both Police Constables, of the Police Service of Scotland, then in the

[2] The facts were that whilst at the charge bar being “booked in” the respondent turned

towards the officer on his right and coughed once in his face, before turning to the second

officer and doing the same. The respondent was not displaying any symptoms of Covid 19,

but both officers (and those with whom they live) were caused significant alarm and

distress. There was little if any mitigation. It was accepted (it could not be otherwise) that

the respondent had a bad record. It was submitted that he had a drink problem that was at

[3] The sheriff imposed a sentence of 6 months imprisonment reduced to 4 months to

The offence was not planned, was completed in a matter of seconds, and was not

The objective risk to the officers, given the very low rate of Covid 19 in the

Highlands as at 15 April 2020 was very small. In addition. the respondent was not

displaying any symptoms of Covid 19 at the time. However, the subjective impact on the

The emergency services deserve and require the protection of the courts as they

perform their duties. The purpose of the sentence was to deter other offenders from similar

behaviour, to punish the respondent and to express disapproval of the offending behaviour.

“I acknowledge that the sentence imposed was less than might often be seen on

indictment, but I consider it was within the range of appropriate disposals, having

[4] In support of the appeal it was submitted that the sentence was unduly lenient and

that the sheriff erred in failing to give sufficient weight to the nature of the conduct, the

[5] The respondent’s record displays a variety of criminal conduct including convictions

for public disorder, dishonesty and assault and numerous convictions for contraventions of

section 41(1)(a) of the Police (Scotland) Act 1967or section 90(1)(a) of the Police and Fire

[6] He also has a conviction under section 1(1) of the Emergency Workers (Scotland) Act

2005. There has been no discernible reduction in the frequency of his behaviour. His most

recent conviction for such offences was on 2 September 2019 where he received an 8 month

custodial sentence. Prior to that was 2 July 2019 when he received a four month sentence.

[7] The Sheriff took into account that the offence was not planned, but failed to

recognise that the actions were nonetheless deliberate and designed to cause significant fear

and alarm. Although the respondent was not displaying any symptoms the terms of

Government medical advice issued is well known: a person can have Covid-19 and transmit

it without displaying any symptoms. The respondent’s conduct displayed an utter

disregard for others. His actions were not conducive to maintaining a relatively low level of

infection in the locality. In carrying out their duties police officers will often be unable to

avoid close proximity to others. As at 29 April 2020 of 827 Police Scotland employees tested

[8] According to the sheriff, the purposes of the sentence selected were punishment,

disapproval and deterrence. It was submitted that the length of the sentence selected fell

[9] The sheriff applied a discount of one third “in light of the considerable utilitarian

value of the plea of guilty; particularly due to the current inability to conduct trials and

[10] The Appellant acknowledged that a one third discount was appropriate given the

early plea by section 76 letter. However, it was submitted that insofar as the sheriff was

suggesting that an enhanced discount was appropriate because of the Covid 19 pandemic,

(i) The existing discounting regime is designed already to provide a substantial

incentive to accused persons, if they are going to plead guilty, to do so at the

(ii) The benefits of an early plea were described in Gemmell v HMA 2012 JC 223:

"In some cases, there is a saving of inconvenience to complainers and

witnesses. In a small minority of cases there is a saving in jury costs. There is

also a benefit to the criminal justice system in the avoidance of undue delay

between arrest and sentencing. But the primary benefit that is realised in

every case is the saving of administrative costs and a reduction of the court's

(iii) The existence of a backlog, and the potential effect of a plea on backlog, has

not been identified as a relevant factor. There is good reason for that.

The fundamental reasons for a discount are focused on the utilitarian

benefits in the individual case and only indirectly on any broader “system”

benefit. They are not affected by the existence of a backlog, even a serious one.

There is a real risk to confidence in the fair and sound administration

of justice if the court is perceived to be using additional "inducements" to plead

guilty as a mechanism for tackling a backlog. It is important not to undermine

public confidence that serious crime will be met with a just punishment.

perceptions of the seriousness of the backlog at any given time. To treat

backlog as a relevant factor in the discount would undermine the relative

clarity of the approach which the Court currently takes to this issue (an

approach which is based principally on the timing of the plea in the criminal

justice process), and would also undermine comparative justice between

similar offenders who are sentenced at different times, or by different judges at

(vi) The present and well understood approach to discounts give ample

encouragement to the guilty to tender a guilty plea at the earliest possible

stage. It is not appropriate to offer greater "inducement" than already exists to

[11] It is well established that for the court to consider a sentence as unduly lenient it

"outside the range of sentences which the judge at first instance, applying his mind to

all the relevant factors, could reasonably have considered appropriate. Weight must

always be given to the views of the trial judge ... There may also be cases where, in

the particular circumstances, a lenient sentence is entirely appropriate. It is only if it

can properly be said to be unduly lenient that the appeal court is entitled to interfere

with it at the request of the Lord Advocate." (HM Advocate v Bell 1995 SCCR 244).

[12] The Sheriff has properly considered all relevant matters in this case including the

aggravating issues of the respondent’s records of convictions; as well as the significantly

mitigating factors including the brevity of the incident, and the low risk in practice at the

time (as opposed to the theoretical risk). The sentence might be lenient, but not unduly so. It

[13] The issue of the discount is not a live issue in the case, given (a) that it was not raised

as an issue in the Note of Appeal, and the sheriff, understanding that no issue was taken

with the discount, offered no further comment on her reasoning; and (b) the discount

generally considered appropriate for a section 76 plea is one third. The discount was

therefore appropriate for the timing of the plea. There was no increased discount given in

this case and the premise of the appellant’s argument is thus unsound.

[14] In any event, the issue of discounting in the current, unprecedented, situation has

been considered in England & Wales in Attorney General’s Reference of R v Manning [2020]

“In accordance with established principles, any court will take into account the likely

impact of a custodial sentence upon an offender and, where appropriate, upon others

as well. Judges and magistrates can, therefore, and in our judgment should, keep in

mind that the impact of a custodial sentence is likely to be heavier during the current

emergency than it would otherwise be. Those in custody are, for example, confined

to their cells for much longer periods than would otherwise be the case – currently,

23 hours a day. They are unable to receive visits. Both they and their families are

likely to be anxious about the risk of the transmission of Covid-19.”

The conditions in which the respondent is held reflect these observations. He is confined to

his cell for at least 23 hours a day. Meals are taken within the cell. There is no access to

recreation, work, programmes or support to help occupy his time. There is no family

contact through visits. Telephone calls are limited to 10 minutes per prisoner per day. The

respondent has been unable to get hold of his family. He and his fellow prisoners are

anxious about contracting the virus while in custody. The respondent leaves his cell for

approximately 30 minutes per day when he and two others are taken from their cells in

[15] In all these circumstances the test for undue leniency has not been met and the

[16] In our opinion the sentence as a generality meets the test of undue leniency. The

respondent has an appalling record and, apart from referring to it as a “bad record”, the

sheriff gives no indication that she really took this into account and reflected it in the

sentence which she imposed. The respondent’s record runs to 11 pages. He has appeared

on complaint well over a 100 times, on over 170 charges, as well as appearing on indictment

for assault. Of particular relevance are 30 separate occasions of contravening section

41(1)(A) of the Police (Scotland) Act 1967or section 90(1)(a) of the Police and Fire Reform

(Scotland) Act 2012. The greater majority of these offences were serious enough to warrant a

sentence of imprisonment of 3 months or more, and in several cases 6 months or more. He

was convicted three times on such charges in 2019 alone, receiving sentences of, 2, 4 and

[17] The sheriff appears to have considered that it was a mitigating factor that the offence

was not planned, was completed in a matter of seconds, and was not accompanied by any

threats, violence or aggression. However, as the Advocate Depute submitted, this is to

ignore the fact that the offence was clearly deliberate, repeated towards the second officer

and designed to cause significant fear and alarm, which the respondent must have known

would be the result of his actions. We cannot see that the fact that the respondent was not

displaying Covid 19 symptoms is a factor in his favour: there appears to be a real risk that

the condition may be transmitted by those who are asymptomatic carriers of it, even if the

risk may be a small one. As the sheriff correctly states, the emergency services deserve and

require the protection of the courts as they perform their duties. Assaults upon them, or

other behaviour culpably and recklessly endangering their health or lives in the execution of

their duties, require to be treated with appropriate severity. The sheriff did not take

sufficient account of the fact that the charge to which the respondent pled guilty was of

culpably and recklessly endangering the lives of the officers, even if that endangerment was,

as is often the case, potential rather than actual. The alarm and distress suffered by the

officers was certainly real. Had the sheriff taken full account of the appellant’s record, his

deliberate and calculated actions, the nature of the offence, and the general risk involved, we

cannot see that she could have selected a starting point of less than 15 months. We therefore

consider that the sentence selected was unduly lenient, in being outwith the range of

[18] A discount of 30% to one third is often granted in cases where the plea has been

tendered at the earliest possible opportunity by section 76 letter. In the present case the

sheriff granted such a discount and it is not suggested that she was wrong to do so.

Whether or not the court was facing an unprecedented situation the appellant might

reasonably have expected to be awarded a discount of one third. There is no question of the

sheriff having increased the discount because of the current emergency, so it is rather

difficult to understand why she even made reference to it. The matter is therefore somewhat

academic in the present case. However, we are advised that the issue is one which is

repeatedly arising in courts up and down the country and that some guidance on the issue

[19] As the court in Gemmell v HMA made clear, the allowance of a discount following a

plea of guilty is a matter for the discretion of the sentencing judge, to be exercised according

to broad general principles. The fundamental basis for the granting of any discount is that it

should be “based on the objective value of an early plea in the administrative and other

costs, and the personal inconvenience, that it saves” (Gemmell, Lord Justice Clerk (Gill)

[20] In paragraph 34 the Lord Justice Clerk went on to say that “the primary benefit that

is realised in every case is the saving of administrative costs and the reduction of the court’s

workload.” It seems clear from the detailed figures examined in subsequent paragraphs that

the savings in cost were a particularly significant aspect of the issue, but that the effect

which a plea of guilty has on the workload of the court, in a general sense, was also already

taken into account in the selection of a discount under the general principles elaborated

upon in Gemmell. We agree with the advocate depute that there is no basis for any specific

backlog in a general or occasional sense to be treated as a separate identifiable justification

for awarding a discount. Workload does fluctuate, and perceptions of workload are not

universal. The effect of pleas of guilty on the workload of the courts in a conventional sense

is already factored in to the levels of discount generally granted.

[22] In this respect it is necessary to bear in mind the risks inherent in sentence

[73] There are two significant risks in sentence discounting. The first is that the

allowance of substantial discounts may cause accused persons who have a stateable

defence to play safe and plead guilty for the sake of the discount. The greater the

potential discount, the greater is the risk of that, in my view. The prospect of a

substantial discount is therefore a potentially dangerous incentive that may

undermine the presumption of innocence (Ashworth and Redmayne, The Criminal

Public confidence in the criminal justice system and the credibility of sentences

[74] The second risk is that the allowance of substantial discounts may cause the

sentencing decisions of the criminal courts to lose credibility and in this way may

Elaborating on these reasons, the Lord Justice Clerk concluded (para 77): “that the court’s

discretion to allow a discount should be exercised sparingly and only for convincing

reasons.” Moreover, the court should be wary of increasing the level of discount given for

the same reasons all as identified by the Lord Justice Clerk in paras 78 and 79 of Gemmell.

[23] The current discounting regime is a relatively generous one. Its operation is

relatively clear and is based on broad general principles. We do not consider that the

likelihood of an increased backlog within the court system is a convincing reason to award a

discount any greater than would follow from the operation of those general principles.

[24] In R v Manning [2020] EWCA Crim 592 the Court of Appeal stated that current

conditions in prisons represent a factor which can properly be taken into account in deciding

on the necessary length of any custodial sentence, or whether, in that jurisdiction, to

suspend it (paras 41 and 42) on the basis that, on established principles, the court will take

into account the likely impact of a custodial sentence upon an offender which is likely to be

heavier during the current emergency than it would otherwise be. In this jurisdiction also,

the impact of the sentence on the individual offender is of course a relevant factor.

However, it is necessary to distinguish between circumstances which are permanent and

inevitable (see for example HMA v RC [2019] HCJAC 62) and those which are transitory and

likely to change. The conditions which arise as a consequence of Covid 19 are unlikely to be

permanent, and one can expect that in the short to medium term prisons will find better

ways of adapting to the conditions dictated by the virus. There are already signs that this

may be happening. We were given information about the current regime in Inverness

Prison which suggests that efforts are being made to provide structured activities,

recreation, fresh air and exercise. It is said that steps have been taken to facilitate contact

between prisoners and their families by phone, and in writing. Visits from solicitors can take

place. It is anticipated that a form of “virtual” family access will be made available within

[25] In addition, it is necessary to note what were the circumstances of R v Manning

“being invited in this Reference to order a man to prison nine weeks after he was

given a suspended sentence, when he has complied with his curfew and has engaged

The advocate depute was correct in our opinion to describe the circumstances facing the

court as essentially a “threshold” decision, about whether custody should be imposed

immediately or not. In cases where that threshold issue is in a very fine balance, and where

any ensuing sentence would be a very short one, then we accept that the fact that prisons

may not currently be operating normally may be a factor to weigh in the mix. However,

beyond that we do not consider that it has a role to play, and we do not accept that, once the

custody threshold has been crossed, it has any role to play in the selection of the eventual

sentence. There are several reasons for this. As we have noted above, there is already a

generous discount scheme applicable to those who plead guilty. Adding another layer,

which would presumably have to apply whether or not there had been a plea with

utilitarian value, would merely add confusion. The current situation as a whole may be

unprecedented, but that the regimes within penal establishments may from time to time

have to be enforced with greater rigour than at others is not. As with the issue of backlog, it

is something which may vary in intensity from time to time for a raft of reasons. What

would be the threshold for taking these into account? It would be impossible to identify. It

is reasonable to anticipate that in the short to medium term the Scottish Prison Service will

find ways of adapting to the requirements imposed by the prevalence of Covid 19 and find

reasonable ways of improving the situation for those in their care. To take account of the

current emergency as a reason for discounting a custodial sentence would discriminate

unfairly against prisoners who may have been given a short term sentence shortly before the

lockdown, in favour of those upon whom such sentences are imposed now. Furthermore,

short term prison sentences are subject to both automatic early release and discretionary

early release. The latter in particular provides an administrative method by which the most

serious consequences of imprisonment in the short term may be mitigated.

[26] In the circumstances we will therefore allow the appeal and increase the sentence to

one of 15 months. We will apply a discount of one third bringing the total sentence to

Scottish High Court of Justiciary Decisons