APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Carloway	[2009] HCJAC 17 Appeal No: XC902/04   OPINION OF THE COURT   delivered by LORD CARLOWAY   in the appeal by   IVAN ROBERT ALLAN Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

Appellant: Jackson QC, Nicolson; Wardlaw, Stephenson & Allan

Respondent: The Solicitor General (Mulholland QC); The Crown Agent

 

 

13 February 2009

 

Proceedings at First Instance

 

[1] On 12 October 2004, on the first day of a trial diet in the High Court at Forfar, the appellant pleaded guilty to a charge which libelled that:

"(1) On 30 June 2004 at Oxgangs Drive, Edinburgh, you did assault Robert

James Anderson ... and strike him on the body with a knife to his severe injury ... and danger of life and you did attempt to murder him;

you did commit this offence while on bail, having been granted bail on 28 April 2004 at the High Court of Justiciary, Edinburgh".

 

The plea involved the Crown dropping two elements in the original charge, namely permanent impairment and permanent disfigurement, and accepting a plea of not guilty to a subsidiary charge of disposing of items in an attempt to pervert the course of justice.

[2] The trial judge reports the circumstances of the offence, as narrated by the Advocate Depute, as follows:

" ... on 30 June 2004 at about 8.30 pm the complainer, who was aged 20, left

his mother's house to go to a local shop to purchase something for his mother. As he walked down Oxgangs Drive, Edinburgh the complainer said hello to two females. In the meantime the appellant had been drinking in a house in Oxgangs Drive and he left that house in the company of two other people. The appellant was also heading for the same shop as the complainer. The appellant and his companions walked into Oxgangs Drive and his two companions left the appellant who went to speak to the two women who had greeted the complainer. When he had completed his shopping the complainer was returning along Oxgangs Drive when the group consisting of the two women and the appellant shouted to him. The complainer walked towards the group and the appellant said to the complainer: 'What's this about you calling me a grass and a beast?'. The complainer did not understand what the appellant was speaking about and did not reply. The complainer had never made such an allegation against the appellant. The appellant then produced a knife and stabbed the complainer once in the stomach. The complainer ran off towards a close to get help but was followed by the appellant who shouted so that others would hear: 'Come on here. I'm trying to help you'. However he also said in a quiet voice so the complainer alone could hear: 'Stick me in it and you're getting it again'. The complainer collapsed and the appellant ran away towards his home address...".

 

The appellant was taken to Edinburgh Royal Infirmary, where he received emergency surgery. The knife had gone through three coils of the bowel, punctured the vena cava (a major blood vessel) and struck the inside front of the lumbar vertebrae. The surgeon performing the operation called upon the consultant Accident and Emergency surgeon to attend because of the seriousness of the situation. He was unable to control the bleeding and accordingly summoned two consultant vascular surgeons for assistance. After extensive surgery the bleeding was controlled. The injury was severe and life threatening. The blow had been one of considerable force, penetrating some 6 to 8 inches. The complainer was exceptionally lucky not to die at the scene. He would have died without immediate and skilful medical intervention. This was the most severe stabbing the Accident and Emergency consultant had ever seen. The complainer already had mental health problems and, not surprisingly, these had been exacerbated by this unprovoked, life threatening attack.

[3] The appellant had an extensive criminal record consisting of 25 previous court appearances involving 42 offences, including seven convictions for assault, one for carrying an offensive weapon and one for carrying a knife. Of considerable significance, on 21 December 1995 the appellant had been sentenced to six years imprisonment for culpable homicide. The trial judge had considered that the appellant might pose such a danger to the public that an extended sentence might be merited. He therefore adjourned the case for the production of the required Social Enquiry Report. This narrated the appellant's troubled background, notably an upbringing by two drug addicted parents. He had spent a great deal of his childhood in care. He had started abusing both drugs and alcohol at an early age. He had been under the influence of both when he had attacked the complainer.

[4] By the time of the sentencing diet on 2 November 2004, the appellant had been seen by a consultant forensic psychologist. She had concluded that the appellant was suffering from some form of organic brain damage, which had probably existed since birth. This had caused cognitive and perceptive difficulties. Although he had not previously had any form of structured psychiatric assistance, it was anticipated that he would receive this whilst in custody.

[5] The trial judge imposed an extended sentence of nineteen years, of which the custodial element was thirteen years, back-dated to the appellant's first appearance on 5 July 2004. The trial judge reports that the custodial element would have been fifteen years, but for the plea of guilty on the morning of a trial diet for which both potential jurors and five civilian witnesses had attended. No separate element was recorded as applicable in respect of the bail aggravation.

 

The Appeal

 

[6] On 12 November 2004, the appellant lodged a Note of Appeal against sentence which specified the ground of appeal simply as follows:

" ... the sentence is excessive ... an appropriate sentence would have been

15 years of which 12 years would be the custodial part and 3 years would be an extended sentence part, or lesser sentence as to the Court seems appropriate".

 

As the trial judge records in his report responding to that appeal: "No reason is given for the views expressed in the Note of Appeal". Leave to appeal was granted at first sift on 7 December.

[7] On 4 March 2005, the appellant lodged a further Note of Appeal; this time against both conviction and sentence. Other than stating baldly that the appeal was against sentence as well as conviction, the Note did not contain any grounds specific to the sentencing aspect. Rather, it stated, apparently in relation to both conviction and sentence, that a miscarriage of justice had occurred "on the basis that the Appellant's representation at first instance was defective". The first ground for that contention was that:

"The Appellant tendered a plea of guilty to charge one under amendment,

despite maintaining his innocence, only because Senior Counsel placed pressure on the Appellant to tender a plea of guilty on the basis that the presiding judge had indicated that he would impose a lighter sentence on the Appellant. The Appellant had been told that he would receive a sentence of 12 years imprisonment plus a 3-year extended sentence ... ".

 

It was maintained that, if the case had proceeded to trial, and the appellant's incrimination had been accepted, the jury "could not have confidently convicted the Appellant". The plea, the grounds continued, was one of convenience and known to be such by the appellant's representatives at trial. He had, it was contended, thus been deprived of his right to a fair trial.

[8] The appeal against conviction was abandoned on 24 October 2005. The Minute of Abandonment stated that "It is the Appellant's position that he wishes to proceed with the Appeal against Sentence". What happened then was that this appeal was treated as abandoned, but the original sentence appeal was regarded as live. The case accordingly proceeded to a hearing on 15 December 2005 in respect of that appeal. At the hearing, however, it became apparent that the appellant wished to argue, as part of the original appeal, the ground narrated in the appeal against conviction and sentence, in so far as that ground had a bearing upon the question of sentence. In support of that ground, which remained phrased in the context of defective representation, the appellant had lodged an affidavit from the law agent who had represented him at the trial diet. This affidavit gave a detailed version of events alleged to have happened on the morning of the trial. It went some considerable distance beyond what had been stated even in the appeal against conviction and sentence. Rather than containing an account that the appellant had been told, as would have been the case in any event, that a lesser sentence would be imposed in the event of a plea of guilty and that the appellant had been told (presumably by his counsel) that he would receive a particular sentence, it made allegations concerning remarks attributable to the judge and communicated to the appellant prior to sentencing. These were that, on the morning of the trial, the appellant's senior counsel had approached the clerk of court and requested that he (the clerk) obtain from the trial judge "some idea of what sentence the Appellant might face". The clerk had returned and stated that:

"if [the appellant] were to plead guilty and considering the information

believed to be in his record he would receive a sentence of 12 years imprisonment with an extended sentence of 3 years imprisonment. ... if, however, he went to Trial and was convicted after Trial his sentence would be 15 years imprisonment with an extended sentence of 5 years".

 

It was said that "details" of the appellant's record had been passed to the trial judge. The "indication" was communicated to the appellant and advice was given to him to plead guilty as both counsel and agent had:

"formed a clear and unreserved view that if the Appellant had proceeded to

Trial it was more than likely that he would have been convicted".

 

Having discussed the matter with his mother, the appellant was said to have agreed, "with a little reluctance", to plead guilty as he felt that "the difference between 12 years and 15 years imprisonment was not sufficiently significant to make it reasonable to tender the plea". The affidavit then continued:

"I am in no doubt, that if Mr Allan had been told that he was going to receive

a sentence of 13 years, with an extended sentence of 6 years, he would not have pled guilty".

 

[9] The Court continued the case to allow: (a) the appellant to obtain an affidavit from senior counsel who had represented the appellant; and (b) the Crown to consider its position on the alleged facts. When the case called again on 10 February 2006, there was no affidavit from senior counsel produced. Rather, there was an e-mail from her stating:

"As far as the Affidavit of [the law agent] is concerned, there is nothing I

would dispute ...

Unusually, in this case the indication given in relation to sentence was very

specific and was against a background of the record being made available. I had no reason to doubt at the time that the figures came from the sentencing judge...".

 

The Court determined that the grounds relating to the sentence indication ought to be allowed to be argued and requested the trial judge to provide a supplementary report. The trial judge reported that he had no recollection of the events mentioned in the affidavit from the agent and counsel's e-mail. He explained that he was not in a position to dispute that there was some communication between his clerk and senior counsel, which he would have authorised. He did, however, dispute that he had been provided with a schedule of previous convictions and explained that:

"Moreover, any indication about sentence given by me would be based upon

the restricted information contained in the charge, namely a charge of attempted murder committed while the appellant was on bail. In the absence of a detailed narrative and access to the schedule of previous convictions I could not, and would not, give other than a general indication of the level of sentence which might be appropriate ... ".

 

At a subsequent hearing, a report from the clerk at the trial diet was requested. He, however, stated that his recollection of events was extremely vague and, although he remembered speaking to senior counsel and the agent, he could not recall what had been said. He was not in a position to confirm or to deny the agent's version of events other than to stress that it was not his practice to enter into any discussions with a judge regarding an accused's previous convictions until a plea of guilty had been recorded.

[10] The case called again on 18 January 2007, when the Court expressed dissatisfaction with the submissions being presented to it in a case which, depending upon exactly what the appellant elected to submit, could potentially raise major questions of policy and competency. The cause was continued to allow both parties "to consider their positions and to research the issues properly". The Court set out in detail the issues which it required to be addressed upon, including: the precise facts which were to be founded upon; whether the plea tendered was prompted solely by the alleged sentence indication; the lawfulness of that indication; whether the appellant was seeking to withdraw his plea of guilty; the competency of that procedure; and the effect of a sentence indication on the trial judge and this court.

Submissions

 

Appellant

[11] At the final hearing on the appeal, the issues rapidly became narrowed and focused. The appellant confirmed that he did not seek to withdraw his plea of guilty. It was not possible to affirm that, but for the sentence indication, he would or would not have pled guilty. The appellant was content that his case be dealt with purely in the context of an appeal against sentence. His "legitimate expectation" had been that he would receive an extended sentence of fifteen years, of which the custodial element was to be twelve years. Although, he did not seek to peril his appeal on such an expectation, looking at all the circumstances, especially the appellant's cognitive impairment, there ought to be a reduction in the sentence to the figures said to have been indicated by the trial judge. In that context, it was not disputed that, whatever had occurred at Forfar, the appellant's clear perception had been that his counsel had told him of the sentence indication. The appellant's account ought to be accepted and, if it were, the indication of sentence given by the trial judge ought to be regarded as binding on him (McPherson v HM Advocate 1986 SCCR 278).

[12] The appellant did not seek to argue the issue of whether an indication of sentence ought to have been given; only what ought to occur were one to be given. In particular, he did not seek to have the Court approve a formal system of sentence indication such as had been adopted in England (R v Goodyear [2005] 1 WLR 2532). However, anecdotal information confirmed that informal sentence indications were sometimes given in the Sheriff Court, even although it was thought that such a practice was on the decline.

Crown

 

[13] The Crown submitted that the Court should not encourage a practice of sentence indication for a number of reasons. First, if conducted in the manner alleged, it lacked transparency. Secondly, if done in open court, it would involve the Crown in sentencing matters at the trial stage; an alien concept. Thirdly, it would require the preparation of a relatively detailed narrative in advance of the indication. Fourthly, legislation would be required as, at present, section 101(3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) prohibited the laying of previous convictions before the Court in advance of conviction. Fifthly, it would require the production, again in advance of the indication, of background information, such as social enquiry reports, victim impact statements (soon to be introduced widely, at least at High Court level), risk assessments, details of mitigation, and any "O'Neill letters" providing confidential information to the authorities (O'Neill v HM Advocate 1999 JC 1). Sixthly, it did not take into account the interests of others such as victims and their next of kin. There were also other practical difficulties in relation to multiple trials, where the Crown might wish to accept pleas from some accused but not others. The idea had been rejected in the Review of the Practices and Procedure of the High Court (2002) (Improving Practice para 7.14) and there were no Government plans to introduce it in the forthcoming Criminal Justice and Licensing Bill 2009. Were such a practice to be introduced, it ought to be by legislation after an appropriate period of consultation. There was already provision for the issuing of sentencing guidelines (1995 Act, ss 118(7), 197).

[14] Where a judge had given an indication of likely sentence after conviction, it was not binding upon the Court (Laing v Heywood 1998 SCCR 458). The prohibition upon laying previous convictions before a judge did not prevent the judge being advised in general about an accused person's record for particular purposes (Leggate v HM Advocate 1988 JC 127).

 

Decision

[15] Before addressing the particular circumstances of the appellant's case, it is appropriate to make some general comments on the issue of whether a judge at first instance should give any indication of the likely level of the sentence which he is inclined to impose in advance of a properly recorded plea of guilty or finding of guilt. No such indication, however general, should ever be given. The main reason for this is that, under the present system in Scotland, the judge does not and cannot have, in advance of that recording, the material necessary to inform any such indication, notably: an agreed narrative of the facts constituting the offence; a record of the accused's previous convictions; and any background reports which the court is statutorily obliged to consider in advance of sentence. Accordingly, any indication that might be given in the absence of that material, would be almost valueless (cf the position elsewhere in the United Kingdom: R v Goodyear (supra)).

[16] In any event, and with even greater force, it should be emphasised that no communication should normally take place between a judge and an accused person, or his advisors, in an "informal" manner, such as through the clerk of court or in the judge's chambers, where what is said is not recorded. As a generality, any oral pronouncements made by a judge in the context of criminal procedure require to be made in open (public) court (European Convention on Human Rights and Fundamental Freedoms, art 6.1) and, if in the context of solemn trial proceedings, they should be made in the presence of the accused and recorded (1995 Act, ss 92(1) and 93(1)). In addition, in the absence of quite exceptional circumstances, there should be no communication between a judge and the defence to which the Crown are not a party. It follows that it is quite inappropriate for a representative of the defence to solicit an indication on sentence of the type apparently sought in this case.

[17] The appellant does not seek to withdraw his plea of guilty on the basis that he was in some way misled by an indication of a sentence, which was not thereafter followed through by the trial judge. That being so, the issue for this Court now is whether, in all the circumstances, the sentence imposed by the trial judge amounted to a miscarriage of justice (1995 Act, s 106(3)). In the context of a sentence appeal, such a miscarriage will be held to occur if this Court considers that a different sentence should have been imposed (1995 Act, s 118(4)). In assessing that matter, this Court would never consider itself bound by any indication that might have been given by a trial judge in advance of his being aware of all the factors bearing upon the question of sentence mentioned above. That is not only because, in any event, the Court may have to deal with an appeal by the Crown on the basis of undue leniency. It is also because it ought to be manifest to all that any indication of sentence that might be given by a judge in advance of hearing the full facts could only be regarded as one of the most general nature. It would have to be approached in that light.

[18] This was an unprovoked and savage attack upon a young man who was doing no more than returning home in the evening from his local shop, where he had been running an errand for his mother. He was extremely fortunate to have survived the attack and, clearly, therefore the appellant was equally fortunate not to have been facing a life sentence for murder. The appellant had an appalling criminal record, including several convictions for assault and one for culpable homicide, which attracted a six year sentence. In these circumstances, there is no doubt that a substantial extended sentence was appropriate and the trial judge cannot be criticised in that regard. In addition, the judge allowed the appellant a discount, amounting to a fifth of the custodial element which would otherwise have been imposed, for a plea tendered at a trial diet. That discount could be described as generous. Furthermore, the trial judge did not include in his sentence any additional period of custody specifically related to the bail aggravation, which he might have done. Nevertheless, at the risk of being criticised for weighing such matters on too fine a scale, the Court is persuaded that the level of the appellant's psychological functioning, notably his cognitive impairment, was a factor of significance in assessing the level of the appellant's culpability and one to which the trial judge gave insufficient weight. The Court is also persuaded that, when all the circumstances are balanced, a starting point of fifteen years for the custodial part of the extended sentence was excessive. Rather, this Court considers that no more than fourteen years ought to have been imposed, even with the bail aggravation. If that period is reduced in the manner chosen by the trial judge, a custodial element of twelve years is reached. On the other hand, having regard to the danger to the public clearly posed by the appellant, the Court is satisfied that the additional period of supervision selected by the trial judge was entirely appropriate.

[19] The extended sentence of nineteen years, with a custodial element of thirteen years, will therefore be quashed and one of eighteen years, with a custodial element of twelve years, will be substituted.