HM Advocate v Lindsay
| Jurisdiction | Scotland |
| Judge | Lord Glennie,Lord Turnbull,Lord Justice Clerk (Dorrian) |
| Judgment Date | 16 June 2020 |
| Neutral Citation | [2020] HCJAC 26 |
| Docket Number | No 28 |
| Date | 16 June 2020 |
| Court | High Court of Justiciary |
[2020] HCJAC 26
Lord Justice Clerk (Dorrian), Lord Glennie and Lord Turnbull
Advocate (HM) v Bell 1995 SLT 350; 1995 SCCR 244
Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223; 2012 SLT 484; 2012 SCL 385
RC v HM Advocate [2019] HCJAC 62; 2020 JC 60; 2019 SLT 1243; 2020 SCCR 20
R v Manning [2020] EWCA Crim 592; [2020] 4 WLR 77
Justiciary — Sentence — Novel coronavirus disease (COVID-19) pandemic — Culpable and reckless conduct by coughing in face of police officers during pandemic — Discounted sentence of four months' imprisonment imposed — Whether unduly lenient
Justiciary — Sentence — Discount — Whether enhanced discount justified by backlog of cases caused by novel coronavirus disease (COVID-19) pandemic
Iain Lindsay was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, at the sheriff court in Inverness. The indictment libelled that, on 15 April 2020, at the charge bar, the respondent had culpably and recklessly coughed in the faces of two police officers, then in the execution of their duties, to the danger of their lives. On 12 May 2020, the respondent pled guilty and was sentenced to four months' imprisonment, discounted from six months to reflect the plea of guilty. The Crown appealed to their Lordships in the High Court of Justiciary, on the ground that the sentence was unduly lenient.
The respondent pled guilty by letter in terms of sec 76 of the Criminal Procedure (Scotland) Act 1995 (cap 46) to a charge that, at the time of the novel coronavirus disease pandemic, he had culpably and recklessly coughed in the faces of two police officers, then in the execution of their duties, to the danger of their lives. The sheriff sentenced the respondent to four months' imprisonment, discounted from six months to reflect the timing of the plea. The Crown appealed against the sentence imposed as being unduly lenient.
The Crown submitted that the sheriff had failed to give sufficient weight to the nature of the conduct, to the respondent's previous convictions and to the sentencing objective of deterrence. The respondent's actions had been deliberate and intended to cause significant fear and alarm. While he had had no symptoms of the virus at the time that did not mean that the respondent could not have transmitted it. The emergency services required the protection of the courts. Further, the Crown argued that, while the level of discount applied to the sentence had been appropriate to take account of the timing of the plea, the sheriff had erred in suggesting that an enhanced discount may be justified by the backlog of cases caused by the virus outbreak.
The respondent submitted that the sentence fell within the range of reasonable sentences which had been available to the sheriff and that the discount had been appropriate for the timing of the plea.
Held that: (1) the sheriff had failed to give sufficient weight to the respondent's prior record and had failed to take sufficient account of the fact that the charge to which he pled guilty had been one of culpably and recklessly endangering the lives of police officers, even if that endangerment had been potential rather than actual, and, in all the circumstances, the sentence imposed had been unduly lenient; had the sheriff taken full account of the respondent's record, his deliberate and calculated actions, the nature of the offence, and the general risk involved, the appropriate starting point ought to have been one of not less than 15 months' imprisonment (paras 16, 17); (2) the sheriff had applied an appropriate discount to the sentence to reflect the timing of the plea and there was no question that that discount had been increased to take account of the emergency presented by the virus outbreak (para 18); and appeal allowed and sentence of four months' imprisonment quashed and ten months' imprisonment substituted therefor.
Observed that: (1) a backlog of court business in the general or occasional sense was not a separate identifiable justification for awarding a discount and the effects of pleas of guilty on the workload of the courts was already factored in to the levels of discount generally granted; the operation of the sentencing discounting regime was relatively clear and based on broad general principles and the likelihood of an increased backlog within the court system was not a convincing reason to award a discount any greater than would follow from the operation of those general principles (paras 19–22); and (2) while the impact of a sentence on an individual was a relevant factor in sentencing, a distinction required to be drawn between circumstances which were permanent and inevitable and those which were transitory and likely to change. The conditions in prisons which arose as a consequence of the novel coronavirus disease pandemic were unlikely to be permanent and it was reasonable to anticipate that, in the short to medium term, the Scottish Prison Service would find ways of adapting to the requirements imposed by the prevalence of the virus and find reasonable ways of improving the situation for those in its care (paras 23, 24).
RC v HM Advocate 2020 JC 60 and R v Manning[2020] 4 WLR 77considered and Gemmell v HM Advocate2012 JC 223applied.
The appeal called before the High Court of Justiciary, comprising the Lord Justice Clerk (Dorrian), Lord Glennie and Lord Turnbull, for a hearing, on 12 June 2020.
At advising, on 16 June 2020, the opinion of the Court was delivered by the Lord Justice Clerk (Dorrian)—
Opinion of the Court— [1] This is a Crown appeal against the sentence imposed upon the respondent following his plea of guilty under sec 76 of the Criminal Procedure (Scotland) Act 1995 (cap 46) on a charge that he
‘did culpably and recklessly cough in the faces of James Iredale and Scott MacDonald, both Police Constables, of the Police Service of Scotland, then in the execution of their duties to the danger of their life.’
[2] The facts were that while at the charge bar being ‘booked in’ the respondent turned towards the officer on his right and coughed once in his face, before turning to the second officer and doing the same. The respondent was not displaying any symptoms of COVID-19, but both officers (and those with whom they live)...
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Queen v Christine Connor
...the decision in R v Manning [2020] EWCA Crim 592. At [14] the “sister” decision in the jurisdiction of Scotland, HM Advocate v Lindsay [2020] HCJAC 26, was examined. At [16] consideration was given to the decision of the Recorder of Belfast in R v Beggs [2020] NICC 9, delivered on 15 April ......