Category: Criminal Defence
In a recent case from the Appeal Court, the Crown appealed what they believed to be a lenient sentence handed down in the Sheriff Court which would not have arisen were it not for the unusual and unprecedented situation that we have all been living in in recent months.
In HMA v Iain Lindsay  HCJAC 26, Iain Lindsay, the Respondent, had pled guilty via section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge that he had culpably and recklessly coughed in the faces of two police officers, to the danger of their lives. The “danger” referred to in this instance was that, although not showing any symptoms, the Respondent had carried out his actions at a time when the world was suffering the effects of a global pandemic – it was widely known at the time that Covid-19 could be transmitted from person to person through a number of means, coughing being one of them. The Sheriff at first instance imposed a sentence of 4 months imprisonment, reduced from 6 months to take account of the stage of the plea.
Ultimately, the Appeal Court granted the Crown’s appeal and increased the sentence to 10 months imprisonment, discounted from 15 months to take account of the early plea.
The test for this was set out in HM Advocate v Bell 1995 SCCR 244. For a sentence to be unduly lenient it must fall:
"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."
In the present case, the Appeal Court held that the sentence did meet the test for undue leniency. There was no indication that the Respondent’s record had properly been taken into account by the Sheriff and the actions of the Respondent were repeated, in that he coughed in the face of one officer then turned to deliberately cough in the face of the other.
The Appeal Court also did not find favour in the assertion that the Respondent was not displaying symptoms of Covid-19, considering that there appears to be a real risk that the condition may be transmitted by those who are asymptomatic carriers of it.
For these reasons, the Appal Court allowed the appeal and increased the Respondent’s sentence. However, further comments made by the court in relation to discount, particularly in cases being dealt with during the pandemic, are worth bearing in mind.
In terms of Section 196 of the Criminal Procedure (Scotland) Act 1995, when sentencing, the Court is required to take in to account the stage at which a plea is tendered, or at which stage the intention to plead is indicated.
Generally, if a plea is tendered via Section 76 (or at first appearance in a summary case), a discount of 30% - 33% will be afforded. If the plea is tendered at a first diet (or intermediate diet in a summary case) then the discount will be approximately 25%. If the plea is tendered at the trial diet, then a discount of perhaps 10% will be given. This is not an exact science. The case of Gemmell v HMA  HCJAC 129 set out the steps to be taken when assessing the appropriate discount and highlighted that the sentencing judge has a degree of discretion when considering said discount. The predominant factor that is to be taken into account is the utilitarian value of the plea. That is, how much has been saved in the way of public resources and inconvenience to witnesses by not proceeding to trial.
The Appeal Court felt it necessary to expand further on the issue of discount in this case due to a recent decision in the English case of R v Manning  EWCA Crim 592 in which the Court of Appeal in England stated that the current conditions in prison, due to Covid-19, represent a factor which can properly be taken in to account in deciding on the necessary length of a sentence.
The Appeal Court in the present case took the view that the discount scheme already available is a generous one and that prisons are in the process of becoming better adapted to coping with current restrictions. Accordingly, once the custody threshold has been passed and there is no other alternative to a custodial sentence, the current circumstances due to Covid-19 should not play a role in determining the length of a sentence. Further, due to the pre-existing discount scheme, there may be a degree of confusion if further discounts are applied due to circumstances arising from Covid-19.
In light of the “new normal” way of living that we are all adapting too, it is likely that the Appeal Court in Scotland will be faced with a number of novel situations in the coming months which will require clarification.