Divin and McGinlay v HM Advocate [Appeal Court, High Court of Justiciary]
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Mackay of Drumadoon |
| Judgment Date | 01 June 2012 |
| Neutral Citation | [2012] HCJAC 81 |
| Date | 01 June 2012 |
| Docket Number | No 25 |
| Published date | 01 June 2012 |
| Court | High Court of Justiciary |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Mackay of Drumadoon Lord Bonomy | [2012] HCJAC 81 Appeals No: (1) XC 841/11; and (2) XC 808/11 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTES OF APPEAL AGAINST SENTENCE by SHAWN ERNEST DIVIN First Appellant; and JORDAN McGINLAY Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
First Appellant: McKenzie; Drummond Miller
Second Appellant: Paterson, Solicitor-Advocate; Paterson Bell
Respondent: Hughes AD; Crown Agent
1 June 2012
Introduction
[1] On 14 November 2011 the appellants appeared at Dundee Sheriff Court on an indictment libelling a charge in the following terms:-
"Between 9 August 2011 and 11 August 2011, both dates inclusive, at 50 Alloway Terrace, Flat F, 7 Balunie Avenue, 2 Scotscraig Road, all Dundee, Real Radio, Springwell Parkway, Glasgow Business Park, Ballieston, Glasgow and other undisclosed addresses unknown to the prosecutor in Tayside and elsewhere to the prosecutor unknown, you SHAWN ERNEST DIVIN and JORDAN McGINLEY did conduct yourselves in a disorderly manner and did create or contribute to an event listing on the social networking site namely Facebook to which members of the public had access and did by means of said event listing and your own Facebook page incite others to riot within the City of Dundee on 17 August 2011 to the fear and alarm of the lieges and commit a breach of the peace.
You SHAWN ERNEST DIVIN did commit this offence while on bail, having been granted bail on 8 August 2011 at Dundee Sheriff Court."
On 14 November 2011, which was the first diet in the case, the first appellant tendered a plea of guilty to the charge under deletion of the words "create or" in line 7 of the charge. The second appellant also tendered a plea of guilty to the charge under deletion of the words "create or" in line 7 and the words "and your own Facebook page" in line 9.
[2] The first appellant was born on 17 March 1995. He was 16 years of age when the offence was committed. The second appellant was born on 27 June 1993. He was 18 years of age when the offence was committed.
[3] On 14 November 2011, after moving for sentence, the procurator fiscal tendered schedules of previous convictions in relation to each appellant. The record of the first appellant detailed three previous court appearances involving a variety of offences, including breach of the peace, assault and statutory offences, including one for possession of an offensive weapon, namely a pole. All of those offences were dealt with in the summary courts. None had led to the imposition of a custodial sentence. The record of the second appellant disclosed two court appearances, on charges of theft and a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, involving his being in possession of three knives. As with the first appellant, the second appellant had not previously served a custodial sentence. On 14 November 2011, sentence was adjourned for the preparation of Criminal Justice Social Work Reports.
[4] On 12 December 2011, the appellants appeared before the same sheriff, who having heard a plea in mitigation on behalf of the first appellant imposed on him a period of three years three months detention. That sentence was reduced from a starting point of four years four months on account of the first appellant's plea of guilty. Three months of the sentence imposed were attributable to the bail aggravation detailed in the charge. The sheriff also imposed a further sentence of twelve months detention on the first appellant and ordered it should run consecutively with the sentence of three years three months. That further sentence was imposed in respect of the first appellant's breach of the probation order imposed in respect of the third of the convictions noted on his record. It forms the subject of a separate appeal, which is dealt with in a separate opinion.
[5] On 12 December 2011 the sheriff imposed a sentence of three years detention on the second appellant, that sentence having been reduced from one of four years on account of the appellant's plea of guilty.
Circumstances of the offence
[6] The facts giving rise to the charge of which the appellants were convicted were explained to the sheriff in the following terms:-
" The circumstances are that on 10 August 2011 at about 1730 hours, Tayside Police received a telephone call from a journalist with Real Radio in Glasgow advising that they had viewed an event posting on a Facebook page entitled 'Riot in the Toon' relating to the organisation of an event in Dundee. Police researched Facebook and found a public event posting titled 'Riot in the Toon', which had been created by D R who originally appeared on the Petition. The two accused agreed to be added as Administrators on the Facebook page. This event incited persons to congregate 'DOON THE TOON' indicating the city centre area of Dundee, between 1900 hours and 2200 hours on Wednesday 17 August 2011, in which the second accused added the post 'ONLY JOIN IF YIR ACTUALLY GONNA COME IF ANY HAS GUNS BRING THEM DOWN TO THIS KILL SOME F...... DAFTYS.'
Given the civil unrest around the country, an enquiry team had been created by Tayside Police in order to respond to such threats and any likelihood of rioting in Dundee. From the publicly posted Facebook event, at the time the police intervened, 2,048 Facebook members had viewed the event, of which 221 said they would attend, 68 said they would maybe attend and 333 said they would not be attending.
Other messages posted on Shawn Divin's Facebook page stated
(a) 'SWARE DOON EM GETTING ANOYED ASKING AH C... TI START A RIOT AND THERE SAYIN EM NO RIGHT HOWS NAE C... UP FIR GOIN MENTAL IN THE HEAD AND LOOTIN HELFY SHOPS AND TAKIN POLICE C...S OOT THE GEM :( :( :(?'
(b) 'SHOW THEM ENGLISH HOW ITS REALLY DONE'
(c) 'AH C... MEET IN THE TOON WE HELFY WEAPONS AND START A RIOT? PS EM NO JOKING'
(d) 'HELFY CITYS IN ENGLAND RIOTING ITS MENTAL GO PUT ON THE NEWS, IF IT DOES HAPPEN U UP FIR TAKIN A POLICE GUY OOT THE GEM'
Tayside Police systems were interrogated and the names detailed on the Facebook page were identified as the two accused.
Search warrants were craved and granted for both accused's home addresses in order to recover home computers and other devices which could access the internet.
On 11 August 2011 at about 0005 hours, the accused Divin was traced at his home address by police where he was detained in terms of Section 14 Criminal Procedure (Scotland) Act 1995 for incitement to mob and riot. He was cautioned at common law and replied 'SOMEBODY PUT MY NAME AS AN ADMINISTRATOR. I SAID GET IT OFF'. After carrying out a search of the house and recovering a laptop and computer tower, Shawn Divin was conveyed to Police Headquarters, Dundee where he was presented at the charge bar and given his rights of detention.
On the same date at about 0007 hours, the accused McGinley was traced at his home address by police where he was detained in terms of Section 14 Criminal Procedure (Scotland) Act 1995 for incitement to mob and riot. He was cautioned at common law and made no comment. After carrying out a search of the house the police recovered an HP Laptop Computer and then conveyed the accused McGinley to Police Headquarters, Dundee where he was presented at the charge bar and given his rights of detention.
The accused Divin was afforded his right to have a private consultation with a solicitor prior to interview but declined this. He was cautioned and interviewed at 0236 hours. He admitted to posting messages on the event wall and his personal Facebook wall regarding rioting. Divin stated that it was "D R" who had created the page and had added him as an administrator after they had a conversation of Facebook 'chat'. He stated that he was not bothered about his name being on it for a few days until the police were mentioned. He stated that it was a joke that got a bit serious. He stated that he had posted comments in favour of the riot but that he didn't think it would happen and that he had no intention to carry out any of the riots. He told police that he was aware that over 200 persons had posted that they would attend the event which he admitted he was concerned about but thought that it was too late to do anything about.
On 11 August 2011 at 0410 hours, the accused was cautioned and charged by police with a breach of the peace and made no reply to the charge.
The accused McGinley was afforded his right to have a private consultation with a solicitor prior to interview but declined this. He was cautioned and interviewed by police at 0158 hours on 11 August. He stated that he had been added as an administrator and that he had posted on the page. He stated that it was "D R" who had made him aware of the page and that he had invited guests from his own Facebook friend list to the event. He stated to police that it was only meant to be a joke."
Sentencing statement of sheriff
[7] When the sheriff came to sentence the two appellants, she delivered a detailed sentencing statement. In that statement she included a paragraph in which she set in context the offence committed by the appellants:-
"On 6 August 2011, violent disorder, in the form of rioting, looting, fireraising and criminal damage broke out in Tottenham, London. This violent behaviour quickly spread to other parts of London and thereafter to cities and towns all over England, including Birmingham, Bristol, Derby, Nottingham, Liverpool and Manchester. A particular feature of the disorder was the many confrontations between mobs of persons and the police, with stones and bricks and other missiles being hurled at police officers in full riot gear. Television footage of the violence and disorder was beamed across the world and horrified all right‑minded people who saw it. It did not come to an end until 11 August. Fortunately, this violence and disorder did not spread to...
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