Johnstone v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 05 July 2011 |
| Neutral Citation | [2011] HCJAC 66 |
| Docket Number | No 13 |
| Date | 05 July 2011 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-Clerk (Gill), Lord Drummond Young, Lord Bracadale
Justiciary - Sentencing - Order for lifelong restriction - Whether imposition of order incompetent standing inept drafting of amendment to provisions - Whether imposition of order constituting "preventative detention" contrary to Art 5(1) of European Convention on Human Rights and Fundamental Freedoms - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 210F
Statutory interpretation - Order for lifelong restriction - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 210F
Section 210F of the Criminal Procedure (Scotland) Act 1995 (cap 46) makes provision for the imposition, by the High Court of Justiciary, of an order for lifelong restriction, which constitutes a sentence or imprisonment of detention for an indeterminate period. The effect of the provisions is that, if certain risk criteria are met, the court is obliged to make an order.
The appellant plead guilty in the sheriff court at Glasgow to a charge of breach of the peace and to a contravention of the Firearms Act 1968 (cap 27) (in relation to the possession of canisters of pepper spray). The sheriff adjourned the case for reports and subsequently remitted the case to the High Court of Justiciary for sentence, including consideration of the imposition of an order for lifelong restriction. The breach of the peace had been constituted by conduct, which is fully set out in the opinion of the court, which took place on various occasions over a period in excess of two years, and which was directed towards AB, who had been the appellant's treating clinical psychologist. The appellant was a first offender. The sentencing judge heard evidence and was in receipt of numerous reports from, inter alia, a consultant forensic clinical psychologist and a consultant forensic psychiatrist. The sentencing judge held, on the balance of probabilities, that the criteria set down in sec 210F had been met, namely that the nature of all the circumstances of the offence were such as to demonstrate that there was a likelihood that the appellant, if at liberty, would seriously endanger the lives or physical or psychological well-being of members of the public. Accordingly, he imposed order for lifelong restriction in respect of each charge. Before the High Court of Justiciary in the appeal against sentence, the Crown conceded that the imposition of an order for lifelong restriction had been incompetent in respect of the charge under the Firearms Act 1968 and accordingly, the court was concerned only with the imposition of the order in respect of the charge of breach of the peace. It was argued for the appellant that: (1) the imposition of an order for lifelong restriction was incompetent standing an ineptly drafted amendment to the relevant statutory provisions, which failed for lack of clarity; and (2) the order was tantamount to a form of "preventative detention" contrary to Art 5(1) of the European Convention on Human Rights and Fundamental Freedoms.
Held that: (1) sec 210F of the 1995 Act, as amended, if read literally was ineptly drafted, but it fell to be construed in a way which made grammatical sense and which was consistent with other statutory provisions and with the intention of Parliament as elucidated by examining the relevant ministerial statement to the Justice Committee and the Explanatory Notes to the Act, both of which were legitimate aids to construction (paras 12-18); (2) an examination of European and UK jurisprudence established that an order for preventative detention was permissible under Art 5(1) of the Convention (para 21), subject to four important qualifications, which had been met in this case (paras 21-24); and the order for lifelong restriction restricted to charge 1 and otherwise appeal refused.
Observed that having also been addressed on the power of the court to correct obvious drafting errors in legislation, and having considered a number of authorities on the point, the court should not be taken as holding that an error in the drafting of a penal statute may be corrected by the courts, even in a clear case (para 18).
Brian Johnstone was charged on indictment, at the instance of the Right Honourable Elish F Angiolini QC, Her Majesty's Advocate. On 31 October 2008, before a sheriff at Glasgow, the appellant plead guilty to a charge of breach of the peace constituted by a course of conduct which amounted to harassment and to a contravention of the Firearms Act 1968 in relation to the possession of canisters of pepper spray. The sheriff (NC Ritchie QC) adjourned the case for reports and subsequently remitted the case to the High Court of Justiciary for sentence including consideration of the imposition of a lifelong restriction order. The case called before Lord Malcolm in the High Court of Justiciary on 9 March 2009 and was continued on a number of occasions for the preparation of reports and for evidence. On 6 November 2009 the appellant was sentenced and, inter alia, an order for lifelong restriction was imposed in respect of each charge. The appellant subsequently appealed to the High Court of Justiciary against the imposition of orders for lifelong restriction.
Cases referred to:
Aberdeen City Council v WokomaSC 2002 SC 352; 2002 SLT 878
BP Oil (UK) Ltd v City of Edinburgh Licensing BoardSCUNK [2011] CSIH 29; 2011 SC 632; 2011 SLT 491; 2011 SCLR 406
Haw v City of Westminster Magistrates' CourtELRWLRUNK [2007] EWHC 2960; [2008] QB 888; [2008] 3 WLR 465; [2008] 2 All ER 326
Henderson v HM AdvocateUNK [2010] HCJAC 107; 2011 SLT 488; 2010 SCCR 909; 2011 SCL 326
Inco Europe Ltd v First Choice DistributionWLRUNKUNKUNK [2000] 1 WLR 586; [2000] 2 All ER 109; [2000] 1 All ER (Comm) 674; [2000] Lloyd's Rep 467; [2000] CLC 1015
M v GermanyHRC (2010) 51 EHRR 41; 28 BHRC 521
R (on the application of James) and ors v Secretary of State for Justice and anrUNKELRWLRUNK [2009] UKHL 22; [2010] 1 AC 553; [2009] 2 WLR 1149; [2009] 4 All ER 255
R (on the application of Kelly) and ors v Secretary of State for JusticeUNKELRWLRUNK [2008] EWCA Civ 177; [2009] QB 204; [2008] 3 WLR 1044; [2008] 3 All ER 844
Scottish Water v Clydecare LtdSC 2003 SC 330; 2003 SLT 333; [2003] RA 78
Van Droogenbroeck v BelgiumHRC (1982) 4 EHRR 443
Textbooks etc. referred to:
Bennion, FAR, Statutory Interpretation: A Code (5th ed, LexisNexis, London, 2008), p 799
Scottish Executive, Management of Offenders etc (Scotland) Act 2005: Explanatory Notes (ASP 14-EN) (TSO, Edinburgh, 2005), para 96
The appeal called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Gill), Lord Drummond Young and Lord Bracadale, for a hearing on 31 May 2011.
At advising, on 5 July 2011, the opinion of the Court was delivered by Lord Drummond Young-
Opinion of the Court- [1] The appellant appeared on indictment at Glasgow Sheriff Court, on 31 October 2008, and plead guilty to the following charges:
'(1) between 1 January 2006 and 9 July 2008, … at [specified addresses in Glasgow], you did conduct yourself in a disorderly manner and did pursue a course of conduct which amounted to harassment of a person, namely, a medical practitioner, Doctor AB, … and did:
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(a) on various occasions between 1 January 2006 and 9 July 2008 … at [the same specified addresses] you did take video recordings or similar and photograph images of said Doctor AB without her knowledge or consent and store same on your computer;
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(b) on 5 February 2008 you did follow said Doctor AB to her home address … and did deliver a package addressed to her containing an anonymous handwritten note and brooches through the letterbox of her home;
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(c) on 12 February 2008 at [an address in a health centre] you did enter an office used by said Doctor AB and did steal a key belonging to her;
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(d) on 29 February 2008 at Stobhill Hospital, Glasgow, you did steal 2 wing mirrors and 3 wiper blades from motor vehicle registered number … belonging to said Doctor AB;
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(f) on 9 July 2008 at [an address in a health centre] you did steal 2 wing mirrors and 3 wiper blades from said motor vehicle belonging to said Doctor AB;
and you did thus harass said Doctor AB and did place her in a state of fear and alarm for her safety and did commit a breach of the peace; … and
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(3) on 14 July 2008 at [the appellant's home address] you did have in your possession without the authority of the Secretary of State a prohibited weapon, namely, 5 gas canisters designed or adapted for the discharge of a noxious liquid, gas or thing, namely, pepper spray; CONTRARY to the Firearms Act 1968 [(cap 27)], Section 5(1)(b) as amended by the Transfer of Functions (Prohibited Weapons) Order 1968 [(SI 1968/1200)]'.
[2] The case proceeded on an agreed narrative. The appellant was 32 years old at the time of sentence. He had been unemployed and in receipt of state benefits. He had no previous convictions. He had a medical history involving mental health problems. As a result of these problems, he became a patient of the complainer, Dr AB, who is a clinical psychologist, in the latter part of 2006. He met her every two weeks within a health centre, and during a period when he was admitted to Stobhill Hospital she also saw him. She was treating him for mental health issues including a possible personality disorder, obsessive-compulsive disorder and possible schizophrenia. At one of his early...
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