Lady Smith

Sheriff Principal Lockhart QC

[2013] HCJAC 132

XJ165/13 and XJ166/13


delivered by LADY SMITH










Appellant: Dow; WSA Galashiels

Respondent: Pike AD; Crown Agent

27 September 2013

[1] Hamish Middlemiss appeared before the sheriff in relation to two complaints. The first was a summary complaint, reference XJ165/13. It included two charges of a breach of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. Those offences were said to have been committed on 26 August 2011. One of the charges related to conduct on a bus between Berwick upon Tweed and Eyemouth. The other charge related to his conduct in Eyemouth High Street. There was also a charge of obstructing and resisting the police, contrary to section 41(1)(a) of the Police (Scotland) Act 1967. That related to conduct on 2 October 2011.

[2] He was remanded in custody on 3 October 2011. He pled guilty to these charges on 24 November 2011 when he was released on bail. Between that date and 10 January 2013 sentence was deferred on several occasions for the appellant to be of good behaviour. A social enquiry report dated October 2012 recommended that a non-custodial sentence should be imposed. That report was in relatively positive terms. The appellant states that he was told by the sheriff who presided at the diet of deferred sentence that occurred on 24 October 2012 that he would be admonished on the next occasion if he remained to being of good behaviour.

[3] The second complaint (reference XJ166/13) was one to which he pled guilty on 29 August 2012. It related to a charge of a breach of section 38(1) of the 2010 Act. The events in the charge on that complaint had occurred on 2 January 2012. That is, those events had occurred during the period of deferral that related to the earlier complaint. Sentence on that complaint was deferred for a criminal justice social work report and for the appellant to be of good behaviour.

[4] On 30 January 2013, both complaints called in court for sentence. At that diet the appellant interrupted the Crown narration by standing up in the dock, shouting, demanding to see the CCTV footage, shouted that the procurator fiscal depute was lying, refused to desist and required to be taken from the dock to the cells. The sheriff found him to have been in contempt of court.

[5] Accordingly, what remained was for the appellant to be sentenced in relation to the three charges on complaint XJ165/13, one charge on complaint XJ166/13 and the finding of contempt of court. The sheriff sentenced him as follows: first, in relation to XJ165/13 he sentenced him to 6 months and 5 months imprisonment in relation to the section 38(1) charges (those sentences to run concurrently from the date of sentencing) and 4 months imprisonment on the Police (Scotland) Act charge, that sentence to run consecutively to the section 38(1) sentences. In relation to complaint XJ166/13, he imposed a sentence of 5 months imprisonment, to run consecutively to the sentences on complaint XJ165/13. In relation to the contempt of court, he imposed 2 months imprisonment, to run consecutively to the sentence for the section 38(1) charge on that complaint. That is, the sheriff imposed a total of 17 months imprisonment, all to run from 30 January 2013. That was in circumstances where the appellant had already spent some time in custody on remand, as we have observed. That was a period of almost eight weeks. He had also not offended since January 2012. We note, further, that the appellant served over 3 months of the sentence imposed on 30 January 2013, not being released on interim liberation until 10 April 2013.

[6] That sentence was, on any view, excessive in the circumstances and we will quash it.

[7] When the case called before this court on 31 May 2013, it was continued for the appellant to be of good behaviour and an up to date report was ordered. We are advised by the author of that report (from the Northumbria Probation Trust) which is dated 19 September 2013, (a) that the appellant has stayed out of trouble since his release and (b) that he has now secured employment in Jersey, where he is being trained in rope access and the making safe and securing of cliff faces. The author observes, and we quote:

"Employment has in the past been a protective factor for Mr Middlemiss in reducing the risk of offending. He appears to have complied with the expectations of the court regarding his behaviour since the court released him from prison. Considering the time that he served both on remand and on sentence the court may consider it appropriate to now deal with him by way of an admonishment."

The same author had previously assessed the appellant, in the report provided to the sheriff, as not presenting any significant risk of serious harm and concluded that his troublesome behaviour when drunk was a matter of posturing rather than anything having a real violent substance to it.

[8] We are advised today that the appellant has continued to stay out of trouble.

[9] The appellant has, accordingly, been free of offending for a period of some 21 months and he has obtained employment which has operated as a stabilising factor in his life in the past.

Sheriff's Reasons

[10] The sheriff's reasons for imposing the sentences which he did impose are shortly stated and were, we quote:

"I took the view that given the appellant's appalling record and the breach of his good behaviour requirement by committing an analogous offence that only a custodial sentence was appropriate."

He appears also to have taken account of the comment made by another sheriff, in what appears to have been a report explanatory of the refusal of bail on 3 October 2011, that the appellant had "chosen a criminal lifestyle". He did not, however, have any regard to the fact that that refusal of bail was successfully appealed against, nor, importantly, did he have any regard to the fact that by the date of the sentencing diet the appellant had stayed out of trouble for the whole of the preceding year, a lifestyle which, as we have observed, he continues, to maintain.

[11] Before us today Miss Dow submitted that the sentence, other than the sentence in relation to the finding of contempt, was excessive and ought to be quashed. It was submitted that a non-community disposal would have been appropriate, although there could be difficulties with imposing such a sentence now, given the demands of the appellant's employment. He would, however, be in a position to pay a fine.


[12] Turning to our decision, during a period of some 18 months, between June 2010 and January 2012, by which date the appellant was aged 22 years, he was, as is set out in a schedule which runs to just over one page, convicted on a number of occasions of offences which included three contraventions of section 38(1) of the 2010 Act, a number of road traffic matters and a number of breaches of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995. All of the convictions relate to cases which were prosecuted either at sheriff summary or justice of the peace level. He evidently had difficulty in complying with authority and there appear to have been no excuses for his flouting both bail conditions and an order disqualifying him from driving.

[13] His offences can, however, colloquially be described as low level. The context is, as explained by the author of the relevant report, a young man who did not present a significant risk and it is difficult to accept that it was fair to refer to his record as appalling. Further what must carry substantial weight is that by the time he appeared before the sheriff for sentencing in January 2013, he had not breached the trust that the court had placed in him to be of good behaviour throughout the previous 12 months. Further, whilst the sentencing sheriff was not told that when sentence was deferred to 30 January 2013 (on 24 October) the sheriff before whom he then appeared had advised him that, if he continued to stay out of trouble, he would be admonished when he next appeared before the court. We have to accept that that is what occurred. Indeed, we were advised today by Miss Dow that that is what was recorded by his solicitor at the time. Further, we can well understand why that may have been the thinking of that sheriff. That is, an approach to the effect that the appellant was being put to the test to see if he could stay out of trouble for as long as a year and that if he did so then the court would have achieved what was , in the circumstances of this case, its sentencing objective. The appellant, laudably, achieved that outcome and we accept, in all the circumstances, that it was, and ought to have been seen, as being demonstrative of the requisite change in the appellant's lifestyle and attitudes notwithstanding his conduct in court, which was regrettable. That conduct was, however, no doubt at least partly due to the anxiety of the occasion and he did, according to the sheriff's report, apologise at the time.

We are satisfied that the appropriate course to adopt now is to admonish the appellant. We bear in mind, in particular, the time he has already served in custody and the powerful evidence that he has made a positive effort to redirect his life in a way that would appear to be bearing fruit. Indeed, he can be congratulated for having done that. We will accordingly quash the sentences imposed by the sheriff, other than the sentence for contempt which is not challenged in this appeal and admonish him in relation to the charges on both complaints.


[14] We would add that, if a sheriff makes a statement to a person in the position of the appellant as to what he might expect to be the likely outcome if he continues to be of good behaviour, it should be recorded in some way. That can be done either in the court minutes or, ideally, in a short note from that sheriff which can then be retained with the court papers so that if a different sheriff is presiding when it comes to the sentencing diet they will then, in fairness to the accused, have the benefit of knowing exactly what was said to him at the earlier diet.