Andrew Jolly+her Majesty's Advocate V. Her Majesty's Advocate+andrew Jolly
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Wheatley,Lord Eassie |
| Judgment Date | 09 August 2013 |
| Neutral Citation | [2013] HCJAC 96 |
| Docket Number | XC701/12, |
| Date | 09 August 2013 |
| Court | High Court of Justiciary |
| Published date | 09 August 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 96 | |
| Lord Eassie Lady Smith Lord Wheatley | Appeal Nos: XC701/12, XC282/13, XC702/12 and XC283/13 OPINION OF THE COURT delivered by LADY SMITH in APPEALS UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by ANDREW JOLLY Appellant; against HER MAJESTY'S ADVOCATE Respondent: and HER MAJESTY'S ADVOCATE Appellant; against ANDREW JOLLY Respondent: _______ |
Appellant and Respondent: A Ogg, Solicitor Advocate; Drummond Miller
Respondent and Appellant: Wade, AD; Crown Agent
9 August 2013
Introduction
[1] The accused, Andrew Jolly, stands indicted, at Falkirk Sheriff Court, on an indictment containing three charges of which charges 2 and 3 are in the following terms:
"(002) on various occasion between 12th January 2012 and 10th July 2012 both dates inclusive at Her Majesty's Young Offenders Institution, Polmont, Brightons, you ANDREW JOLLY did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did, to Valerie McKenzie, Lee Paul Tait, Tracey Lynch and Elizabeth Walker, all c/o Central Scotland Police, Falkirk, then acting in the course of their duties as social workers and nursing staff, repeatedly utter threats of violence regarding L B, c/o Strathclyde Police, Glasgow, members of her family and your former work colleagues; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010
(003) you ANDREW JOLLY being an accused person and having been granted bail on 21st August 2012 at the High Court of Justiciary at Edinburgh in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia that you do not enter or approach Westerhill Road, Bishopbriggs, Glasgow did on 22nd August 2012 at Westerhill Road, Bishopbriggs, Glasgow fail without reasonable excuse to comply with said condition in respect that you did enter said Westerhill Road, Bishopbriggs, Glasgow; CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1(b)."
Charge 1, which alleged the sending of letters in breach section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010("the 2010 Act"), was withdrawn by the Crown in the course of the proceedings to which we refer below.
[2] Regarding charge 2, in the course of the hearing before the sheriff, the Crown conceded that the conversation between the accused and Elizabeth Walker could not properly be relied on and stated that the Crown would, accordingly, only seek to rely on statements made to Valerie McKenzie, Lee Paul Tait and Tracy Lynch, all of whom were social workers, between the dates 12 January 2012 and 3 May 2012.
[3] At a first diet, on 15, 16, 19 and 20 November 2012, the following issues were raised and debated: (i) the competency and relevancy of charge 2, (ii) the fairness of relying on the evidence which the Crown proposed to lead in relation to charge 2, (iii) whether the prosecution of the allegations in charge 2 amounted to oppression, and (iv) whether it was oppressive to allow the proceedings in respect of charge 3 to continue. The sheriff held that charge 2 was a competent one but that it would be unfair at common law were the Crown to be permitted to lead the evidence upon which it proposed to rely in support of it; that evidence was, accordingly, held to be inadmissible. He did not consider that any issue as to the relevance of the charge arose. The case was remitted back to the sheriff following the lodging by both parties of notes of appeal and he heard further submissions on 19 April 2013. He again repelled the pleas of oppression in relation to both charges whilst observing that there was legitimate cause for anxiety in relation to charge 3. A devolution issue minute having, by then, been lodged, he also expressed the view that the unfairness which he had identified would result in a breach of article 6 ECHR if the prosecutor were to deploy the evidence of the social workers at trial.
[4] The Crown presented a note of appeal under section 74 of the Criminal Procedure (Scotland) Act 1995, submitting that the sheriff had erred in holding the evidence which would be relied on for charge 2, namely what the accused said to the social workers at interview, to be inadmissible. In the course of the hearing before us, the advocate depute stated that the Crown would not proceed with charge 3 if the Crown appeal was not upheld.
[5] The accused also presented a note of appeal, submitting that the sheriff had erred in repelling his pleas of oppression.
[6] The sheriff granted leave to appeal to both the Crown and the accused on 20 November 2012 and (insofar as his decisions were respectively adverse to them) in relation to the issues of oppression and art 6 ECHR discussed at the hearing on 10 April, on 14 May 2013.
Background
[7] On 26 May 2011, the accused was convicted of two charges of contraventions of section 38(1) of the 2010 Act, two charges of contraventions of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 and one charge of a breach of section 234A of the 1995 Act. The first and third charges involved the accused having sent offensive and threatening letters to an ex-girlfriend and others including former work colleagues. He was sentenced, at the High Court, to be detained for a total period of three years, backdated, with the result that his earliest date of release was 1 June 2012. He was also made subject to a supervised release order for 12 months.
[8] The accused was interviewed by the social workers whilst detained in Polmont Young Offenders' Institution ("YOI"), as part of their preparation for the implementation of the supervised release order. At the first diet, the sheriff heard evidence from the social workers about those interviews. The sheriff advises that the evidence was presented "largely without contention", he was entirely content as to the social workers' credibility and, subject to some inevitable uncertainties arising from the passage of time, he accepted them as reliable.
[9] Valerie MacKenzie interviewed the accused on 12 and 31 January 2012. She had been appointed to be his allocated social worker and supervisor when he was released. Her interviews of the accused were for the purpose of preparing for that release. The sheriff's summary of her evidence regarding the interview on 12 January includes the following:
"...at the start of the meeting she explained to Mr Jolly the purpose of the meeting, what her job was at the time and what it would be eventually as far as he was concerned. She explained that she was preparing a home background report and she would then meet regularly up to his release......... She explained that it was not compulsory for Mr Jolly to attend whilst in custody but when he was released, it would be a standard condition of the order that he would require to meet with the supervising officer when required. She said that she advised Mr Jolly he had the option to attend but that she was glad that he had come along. She said that there was no penalty which would follow if Mr Jolly did not attend. It was a matter of his free will if he attended or not and he could leave the meeting if he wished. The home background report would be prepared in any event but it would be better if he participated. She said that in the letter sent to Mr Jolly it was not amplified that he was free to attend or not and they always finished the letter sent to (sic) saying that the social worker looked forward to meeting to (sic) the individual prisoner............
Mr Jolly was willing to engage and discussion flowed freely. She was next asked if Mr Jolly became upset and confirmed that he did when discussing his mental health. He was then talking about his parents and became upset. She told me that it was at this point that he made comments about his victim. He said that he was not sleeping well at night because he thought constantly about how to get revenge. She said that it was all comments in relation to L B and making threats against her and her mother. Mr Jolly also mentioned RW and people he used to work with at A and how they had made a fool of him. He said that these people had got in his way and therefore he would have to deal with them and it was their fault. She said she couldn't remember the exact words because she had met with him a few times but she recalled him saying that he wanted to get a gun and shoot L and shoot himself ................ She confirmed that following the comments made on 12 January she was not personally concerned in relation to her own position. She was concerned for the safety of the people that Mr Jolly was talking about."
[10] Ms MacKenzie returned to her office after the interview of 12 January 2012, spoke to a senior colleague and then contacted the police to tell them what the accused had said. She then discussed matters with Mr Lee Tait, the social worker at Polmont YOI and the psychological team based there.
[11] Ms MacKenzie interviewed the accused again on 31 January 2012. Mr Tait accompanied her on that occasion. The sheriff's summary of her evidence regarding that interview includes:
" ... He restated a lot of what he had said previously and both she and Mr Tait said that they were very serious comments and they required to be taken seriously by everyone involved. She recalled that one of his replies was to the effect that 'there is not enough police to keep an eye on me 24/7' .............. She confirmed that when dealing with the threats, she asked why Mr Jolly felt that way to help clarify the position for her. She was interested in any information which would be provided to her. She was asked if Mr Jolly was told that his statements could result in him being prosecuted and being used in evidence. She answered that she would not do that ..............She agreed that to some extent the purpose of the meeting of 31 January was to revisit the threats that...
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