HIGH COURT OF JUSTICIARY [2008] HCJ 4
	OPINION of LORD UIST in causa HER MAJESTY'S ADVOCATE against STEPHEN MICHAEL HENDERSON __________

Crown: Prentice QC; Crown Agent

Defence: Findlay QC; Higgins, Moreledge & Litterick, Alloa

28 October 2008

[1] The accused, who is aged 34, appeared at Edinburgh High Court on 15 October 2008 on an indictment under section 76 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") containing a charge of a contravention of section 1(1)(a) of the Firearms Act 1968 ("the 1968 Act") as amended by the Firearms Amendment Act 1998, to which he pleaded guilty. The maximum sentence for that offence where, as in this case, it has not been committed in its aggravated form within the meaning of section 4(4) of the 1968 Act, is 5 years imprisonment or a fine, or both: section 51 of, and schedule 6 to, the 1968 Act.

[2] The advocate depute moved for sentence and tendered a schedule of previous convictions which disclosed a lengthy and serious criminal record running from May 1990 to August 2002 containing a total of 38 separate court appearances for a multiplicity of crimes, including many crimes of dishonesty and violence. The accused has been sentenced to custody on 12 separate occasions. Of particular note are the following convictions. On 23 November 1995 at Kirkcaldy Sheriff Court he was convicted of breach of the peace, assault and assault to severe injury and permanent disfigurement and sentenced to a total of 15 months imprisonment from 3 July 1995. On 24 September 1998 at Kirkcaldy Sheriff Court he was convicted of a contravention of sections 1(1)(a) and 4(4) of the 1968 Act and sentenced to 2 years imprisonment. On 22 August 2002 at Edinburgh High Court he was convicted of abduction and assault to severe injury and permanent disfigurement and sentenced to 7 years imprisonment from 12 March 2002, a sentence later reduced on appeal to 6 years imprisonment.

[3] The advocate depute further advised me that the accused had first appeared in the Sheriff Court on 5 August 2008, when he was remanded in custody. He appeared there again on 12 August 2008 when he was fully committed and again remanded in custody. A letter offering a plea of guilty to the charge under section 1(1)(a) of the 1968 Act was received by the Crown on 12 August 2008. The advocate depute apologised for the fact that the case had been indicted in the High Court: as the crime libelled carried a statutory maximum term of 5 years imprisonment, it ought to have been indicted in the Sheriff Court.

[4] The following narrative of the facts of the offence was presented by the advocate depute. Prior to Monday 4 August 2008 confidential information was received by Fife Drug Squad to the effect that the accused was intent on acquiring a firearm and that he would be returning to Fife with it in his possession. The information was that his car would be parked in the rear car park of the Novotel Car Park in Hermiston Gait, Edinburgh. As a result of this information a Lothian and Borders Police Firearms Team was advised of the situation. At about 9.35 pm on Monday 4 August 2008 the accused, accompanied by a female and a child, was seen to get out of a taxi at the front of the Novotel. All three walked towards his car in the rear car park. A decision was taken by the police to detain and search the accused under section 47 of the 1968 Act. All three persons were detained by the Firearms Team. The accused was handcuffed and searched by officers who found and seized a sock containing a black revolver contained within the waistband of his jeans. He was detained under section 14 of the Criminal Procedure (Scotland) Act 1995 for offences under the 1968 Act and conveyed to St Leonard's Police Station, Edinburgh, where he was interviewed at 01.27 am on 5 August 2008. He said that the gun belonged to him, that he had owned it since March 2008, that he did not routinely carry it with him and that it was ornamental and not capable of discharging ammunition. He also said that he had just returned from Bradford and York on holiday. When he was arrested and cautioned and charged at 01.40 am he indicated that he understood the charge and made no reply. The revolver is a German manufactured ME 38 blank firing pistol which had at some time been converted to discharge .380 / 9mm bulleted cartridges and therefore constituted a firearm under section 57(1) of the 1968 Act. Its acquisition, purchase or possession is subject to firearm certificate control and requires the written authority of the Secretary of State or Scottish Ministers. The Crown did not accept that the gun was carried as an ornamental item having regard to the circumstances of its possession by the accused.

[5] In mitigation Mr Paterson, Solicitor, who appeared for the accused on 15 October 2008, stated that there was no dispute about the facts of the case. The accused had just brought the gun from Bradford. He had been released from prison in March 2008 and run up a debt. He agreed to pick up the gun in order to clear the debt. He did not tell the police that, as was the case, he was going to pass the gun on to someone else. Mr Paterson requested that I backdate the sentence to 5 August 2008 and give a one third discount on the sentence for the early plea of guilty.

[6] I raised with Mr Paterson the question whether it would be open to me to make a risk assessment order under section 210B of the 1995 Act. As I understood that Mr Paterson had not considered the possibility of such a procedure being followed and was not then in a position to deal with the issue I adjourned the diet until 21 October 2008 so that I could hear full legal submissions on the point and also receive from the Crown an explanation for the case having been dealt with as a contravention of section 1(1)(a) of the 1968 Act when it was clear that the facts disclosed a contravention of section 5(1) of the 1968 Act as the revolver was a prohibited weapon. A contravention of section 5(1) of the 1968 Act carries a maximum sentence of 10 years imprisonment or a fine or both and, under section 51A of the 1968 Act, a minimum sentence of 5 years imprisonment.

[7] When the case called again on 21 October 2008 the advocate depute advised me that the plea offered by the accused in his section 76 letter had been accepted by the Crown without a ballistics report having been received, although there had been a report from the Procurator Fiscal. It was deeply regrettable that this had occurred and he had raised the matter with senior officials in Crown Office who had devised procedures to ensure that such a situation did not arise again. It seemed to me that in giving this explanation the advocate depute was accepting that the Crown had been in error in accepting the plea offered by the accused in his section 76 letter. This plea was obviously accepted by the Crown without considering which statutory charge was the most appropriate to bring in the public interest. To that extent the Crown were, as the advocate depute accepted, remiss in their duty.

[8] On 21 October 2008 the accused was represented by Mr Findlay QC and I heard submissions from him and the advocate depute on the question whether it would be competent for me to make in this case a risk assessment order under section 210B of the 1995 Act. Sections 210B to 210H of the 1995 Act, which were inserted by section 1(1) of the Criminal Justice (Scotland) Act 2003 ("the 2003 Act") deal with risk assessment and I shall refer to them as "the risk assessment provisions".

[9] Mr Findlay began his submission by emphasising that, whatever the position might be so far as acceptance of the plea by the Crown was concerned, no blame could be laid at the door of the accused, who had done everything he could to bring the matter to a swift conclusion by tendering a guilty plea at the earliest possible moment. The offence to which he had pleaded guilty carried a statutory maximum penalty of 5 years imprisonment. The nature of the offence was simple possession, not possession for any particular purpose. The Crown had accepted the plea tendered notwithstanding the nature of the weapon. If it were open to the court to make a risk assessment order the accused would find himself in a situation not of his own making in a case which could have been indicted in the Sheriff Court.

[10] There were two reasons why it would not be competent for the court to make a risk assessment order in this case. First, the requirements of section 210B(1) were not satisfied. Section 210B(1)(a) plainly did not apply, and the case could only possibly come within section 210B(1)(b)(ii) or (iii), but it would be wrong to categorise the case under either of those two sub-paragraphs as nothing in the narrative suggested that the circumstances of the offence disclosed the requisite propensities. The accused was acting as a courier and was being paid for what he did by a pre-existing debt being eradicated. It was wholly inappropriate to suggest that simple possession of a gun suggested the necessary propensity. Parliament had in the 1968 Act distinguished simple possession of a firearm from other types of possession. This case therefore did not fall within the ambit of section 210B(1)(b)(ii) or (iii) of the 1995 Act. In determining whether it did the court could not look at the criminal record of the accused. That would lead to singularly Draconian consequences for an accused. The fact of the offence itself was not enough to satisfy the statutory requirements: there had to be something in the nature of the offence or the circumstances of its commission for it to qualify. The circumstances of this offence were as disclosed to the court in mitigation, namely, that the accused was acting as the courier of the gun to pay off a debt.

[11] Secondly, it was not competent for me to make a risk assessment order with a view ultimately to making an order for lifelong restriction when Parliament had set the maximum sentence for the offence at 5 years imprisonment. If the legislature (in this case the Scottish Parliament by means of section 1(1) of the 2003 Act) had intended in enacting the risk assessment provisions to override existing statutory maxima for certain offences it would have said so explicitly. In the absence of such a provision it was not competent for the court to make a risk assessment order. Firearms law was a reserved matter (sections 29(2)(b) and 30(1) of, and Schedule 5, Part 2, Section B4 to the Scotland Act 1998) and it was therefore outside the legislative competence of the Scottish Parliament to alter the sentence for an offence under the Firearms Act. Mr Findlay simply did not accept as a correct statement of the law the following passage in Renton and Brown on Criminal Procedure (6^th Ed) at para 23-06.2:

"A lifelong restriction order constitutes a sentence of imprisonment or detention for an indefinite period. In effect, therefore, it enables the court to pass a life sentence for an offence the maximum penalty for which is otherwise imprisonment for a specified period."

[12] Mr Findlay then went on to submit that I should not in any event exercise my discretion to make a risk assessment order. While it was accepted that the accused had a criminal record, he had taken a risk by pleading guilty at the earliest possible moment and he found himself in the High court only by reason of a mistake on the part of the Crown. There was another side to the public interest aspect of this case in that accused persons were now, as Mr Findlay put it, under some form of pressure to assist the administration of justice by pleading guilty at the earliest possible moment: if an order for lifelong restriction could be made even where there was a statutory maximum for the offence in question, an accused who pleaded guilty might find himself at risk of being detained for life despite the statutory maximum sentence for the offence. If the risk assessment provisions overrode the statutory maximum penalty for an offence that would potentially have the effect of deterring early pleas, which was not in the interests of justice.

[13] In response the advocate depute stated that the only statement of the law which he had been able to find was that in Renton and Brown on Criminal Procedure which I have quoted above. In submitting that it would be competent for me to make a risk assessment order in this case he invited me to look at the nature and scope of the risk assessment provisions. Their purpose was preventative, having regard to the safety of the public. The relevant provisions did not seek to, and did not, amend the penalty provisions in the1968 Act: they were concerned with risk assessment and the safety of the public. If Mr Findlay were correct, a risk assessment order could not be made following conviction for an offence for which there was a statutory maximum sentence. The court did not require to wait until a crime of violence was committed: at this stage all I had to decide was whether the risk assessment criteria may be met. He submitted that the case fell within section 210B(b) of the 1995 Act. If a lifelong restriction order were ultimately made then in fixing the punishment part the court would require to take into account the period of imprisonment which it considered would have been appropriate for the offence had it not made the order for lifelong restriction (section 2(1)(ab) and (2)(aa)(i) of the Prisoners and Criminal Proceedings (Scotland) Act 1993), and that would mean that the court would have to have regard to the statutory maximum for the offence. The punishment part could not exceed the period which an accused would spend in prison if he were sentenced to the maximum period of imprisonment for the offence. Section 210B of the 1995 Act was not restricted to offences in which it would otherwise be open to the court to impose a sentence of life imprisonment.

[14] I deal first with the submission that the risk assessment provisions cannot affect the maximum sentence for an offence under section 1(1)(a) of the 1968 Act. The maximum sentence of 5 years imprisonment for a contravention of section 1(1)(a) of the 1968 Act is set out in Schedule 6 to, and given effect by section 51 of, that Act. Schedule 6 is headed "Prosecution and Punishment of Offences" and Part 1 of it, in which the maximum sentences are to be found, is headed "Table of Punishments". These provisions are, therefore, concerned with punishment. The risk assessment provisions inserted into the 1995 Act by section 1 of the 2003 Act are, on the other hand, as they profess to be, concerned with the protection of the public at large. When an order for lifelong restriction is made a punishment part must be fixed to deal with retribution and deterrence only, and that punishment part must have regard to any maximum punishment laid down by the legislature for the offence. The risk assessment provisions do not therefore amend the maximum punishment laid down for any offence. What they do is to permit the court to make an order for lifelong restriction for the purpose of the protection of the public where the risk criteria as defined in section 210E of the 1995 Act are met. The risk criteria are that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large. The order for lifelong restriction can be made only after the procedure for a risk assessment order and a risk assessment report has been followed and it constitutes a sentence of imprisonment for an indefinite period (section 210F(2) of the 1995 Act). I am therefore of the opinion that the advocate depute was correct in his submission that the risk assessment provisions do not amend the statutory maximum sentence set out in the 1968 Act. As he pointed out, if Mr Findlay were correct in his submission, an order for lifelong restriction could not be made in any case in which the offence is subject to a statutory maximum sentence. It seems to me that if that were so it would to a large extent defeat the evident purpose of having the risk assessment provisions in the first place. For example, it would mean that an order for lifelong restriction could not be passed for a contravention of section 6 of the Criminal law (Consolidation) (Scotland) Act 1995 (indecent behaviour towards a girl aged between 12 and 16, which carries a maximum term of imprisonment of 10 years) in a case where an accused had many previous convictions for the same offence. I am of the opinion that these provisions apply in cases where the statutory maximum for the offence is less than life imprisonment. If that were not so it is difficult to see why the provisions were enacted to cover only cases in which the court had a pre-existing power to impose a discretionary life imprisonment sentence. As I am of the opinion that the risk assessment provisions do not seek to, and do not, amend the penalty provisions of the1968 Act the question of the Scottish Parliament acting outside devolved competence does not arise as a separate issue.

[15] I turn now to consider the terms of section 210B(1)(b) and (2) of the 1995 Act. The only ground upon which I could make a risk assessment order in this case is that the accused has been convicted of an offence other than murder and it is an offence the nature of which, or the circumstances of the commission of which, are such that it appears to the court that he has a propensity to commit a violent offence or an offence which endangers life and I consider that the risk criteria may be met. I have referred above to the risk criteria set out in section 210E of the 1995 Act. I must first consider whether the provisions of section 210B(1)(a)(ii) and (iii) and (b) apply to the circumstances of this case. Mr Findlay submitted that in carrying out this exercise I was not entitled to have regard to the accused's previous convictions. I do not accept that submission. It would in my view be absurd if I had to close my eyes to the accused's previous convictions in carrying out this exercise. The opening words of section 210B(1) declare that it applies "where it falls to the High Court to impose sentence on a person convicted of an offence other than murder": the subsection is therefore focusing on the sentencing stage of procedure, at which point the court will be aware of the previous convictions of the accused. Moreover, in my opinion the accused's previous convictions can form part of the circumstances of the commission of the offence. To take this case itself, there is plainly a world of difference between a contravention of section 1(1) of the 1968 Act consisting of a man with a lengthy and violent criminal record possessing a handgun in a public car park and a contravention consisting of a farmer who has inadvertently forgotten to renew his shotgun certificate. Accordingly, in looking at the circumstances of this case, I have regard to the fact that the accused is a man with a lengthy criminal record which includes crimes of violence who was found by the police in possession of a handgun in a public car park.

[16] I then have to consider whether it appears those circumstances are such that it appears to me that the accused has a propensity to commit a violent offence or an offence which endangers life. In this respect Mr Findlay founded strongly on what had been said in mitigation to the effect that the accused was going to hand the gun onto someone else. I do not consider that I am obliged to accept that statement as true. It is based solely on the word of the accused, and in putting forward that explanation he accepts that he lied to the police at interview. Even if the statement put forward in mitigation is true, it does not seem to me to negate a propensity on the part of the accused at least to commit an offence which endangers life. The whole context of the accused's possession of the handgun, which could easily cause death if used to fire bullets, is eloquent of criminality. It goes without saying that a man with a criminal record for offences of violence and a previous conviction under section 1(1) of the 1968 Act is not in possession of a handgun in a public car park for some benevolent purpose. Even on the basis that his explanation is true, it seems to me that his being in unlawful possession of a handgun for the purpose of delivering it to someone else shows a propensity to commit an offence which endangers life. It is possible to be guilty art and part of a crime of violence by providing the weapon used to commit such a crime. If the accused had the gun to use it himself for some criminal purpose then that in my opinion obviously shows that he has a propensity to commit either a violent offence or an offence which endangers life. For these reasons the requirements of section 210B(1)(a)(ii) and (iii) and (b) are in my opinion met.

[17] I next have to consider, under section 210B(2) of the 1995 Act, whether the risk criteria may be met. If I do so consider then I am obliged to make a risk assessment order (section 210B(2) of the 1995 Act). I have no discretion in the matter and therefore reject Mr Findlay's submission based on discretion to make a risk assessment order. I have to look at the nature of, or the circumstances of, the commission of the offence either in themselves or as a pattern of behaviour and determine whether they are such as to demonstrate that that there is a likelihood that the accused, if at liberty, will seriously endanger the lives or physical or psychological well-being of members of the public at large. Looking to the circumstances of the offence as part of the pattern of behaviour demonstrated by the accused's criminal record, I am satisfied that they demonstrate that there is a likelihood that if the accused is at liberty he will seriously endanger the lives, or physical or psychological well-being , of members of the public at large.

[18] I shall therefore make a risk assessment order that the accused is to be taken to Her Majesty's Prison, Edinburgh so that there may be prepared there by Professor David Cooke, a person accredited by the Risk Management Authority for the purposes of section 210B of the 1995 Act, a risk assessment report. I shall remand the accused in custody there until 23 January 2009 and I shall adjourn the diet for sentencing until that date at Edinburgh High Court.