Barry Mccluskey V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Carloway,Lord Emslie |
| Judgment Date | 19 September 2012 |
| Neutral Citation | [2012] HCJAC 125 |
| Docket Number | XC847/11 |
| Published date | 19 September 2012 |
| Court | High Court of Justiciary |
| Date | 19 September 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Emslie Lord Brodie | [2012] HCJAC 125 Appeal No: XC847/11 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal against sentence by BARRY McCLUSKEY Appellant: against HER MAJESTY'S ADVOCATE Respondent _______ |
Appellant: A Ogg, solicitor advocate; Paterson Bell (for Livingstone Brown, Glasgow)
Respondent: Wade AD; the Crown Agent
19 September 2012
Statutory Background
[1] Section 210F of the Criminal Procedure (Scotland) Act 1995 provides that the High Court can make an order for the lifelong restriction (OLR) of an offender, if it is satisfied that certain risk criteria (s 210E) are met. An OLR can only be made where a risk assessment report has been ordered under section 210B (see s 210F(1)(a)). Such a report can, in turn, only be ordered in certain circumstances, but these include cases in which the offender has been convicted of a "sexual offence (as defined in section 210A(10))". "Sexual offence", as so defined, expressly encompasses not only a variety of common law crimes but also statutory contraventions, notably, in the context of this appeal, breaches of section 52 of the Civic Government (Scotland) Act 1982 (taking and distributing indecent images of children) and section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (indecent behaviour towards a girl between the ages of 12 and 16). Both these offences have statutory maximum sentences of 10 years (1995 Act s 6; 1982 Act s 52(3)(b)).
[2] An OLR is a "sentence of imprisonment ... for an indeterminate period" (1995 Act s 210F(2)). In terms of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the court requires to select a "punishment part" within an OLR, during which the offender is not eligible for parole. That part has to be such as satisfies:
"(2) ...the requirements for retribution and deterrence (ignoring the period... necessary for the protection of the public), taking into account -
(a) the seriousness of the offence, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence".
These provisions were extensively analysed in Petch and Foye v HM Advocate 2011 SCCR 199. That analysis does not require repetition here.
Facts and Procedure
[3] On 22 February 2011, at the High Court in Glasgow, the appellant pled guilty, under the procedure governed by section 76 of the Criminal Procedure (Scotland) Act 1995, to an indictment which libelled: three contraventions of section 52(1) of the Civic Government (Scotland) Act 1982 (charges 1, 48 and 49) by downloading or distributing indecent photographs of children; thirty nine contraventions of section 6 of the Criminal Law Consolidation (Scotland) Act 1995 (charges 2, 4 - 7, 9 - 15, 17 - 24; 26 - 43 and 45) by using indecent behaviour towards girls between the ages of 12 and 16; five charges (3, 8, 16, 25 and 44) of lewd, indecent and libidinous practices; and two charges (46 - 47) of breach of the peace.
[4] The sentencing judge was invited by the Crown to consider imposing a cumulative OLR. Despite concern being expressed by the judge on the effect of the statutory maxima, it was accepted by both the Crown and the appellant that such an order was competent. Eventually, on 31 October 2011, a hearing took place upon the risk assessment report, which had been obtained, and the objections to it from the appellant. The objections were repelled and the sentencing judge imposed an OLR on the statutory and common law indecency charges, which she regarded as the most serious. She explained that, but for the plea, a 12 year determinate sentence would have been appropriate for these offences. Accordingly, employing the formula dictated by Petch and Foye v HM Advocate (supra), she selected a punishment part of 3 years and 4 months (12 - 2 = 10 ÷ 2 = 5 - 1/3).
[5] On the first charge of downloading child pornography (charge 1) she imposed a sentence of 2 years (discounted from 3), which was ordered to run consecutively to the punishment part. On the second of these charges (48), which involved video images, she imposed an identical sentence, concurrent to that on charge 1. On the third (49), she imposed 12 months (discounted from 18 months), again concurrent with the other two charges but consecutive to the punishment part. On the two breaches of the peace, which involved filming women and children in changing rooms at public baths and leisure centres), she imposed a sentence of 1 year and 4 months (discounted from 2 years); this time consecutive to that on charge 1 (and hence also to the punishment part). The overall effect was an OLR with a punishment part of 3 years and 4 months and consecutive terms also totalling 3 years and 4 months. The practical effect was calculated by the sentencing judge to be that the appellant would not be eligible for parole until he had served 5 years (i.e. the whole of the punishment part and one half of the consecutive total).
[6] The Note of Appeal contained two grounds. First, it was said that the OLR was inappropriate and excessive. This ground was not given leave at the sift. The second ground was that the imposition of consecutive sentences was excessive or inappropriate. Leave to appeal was granted upon this ground, but only on the basis that sentences consecutive to a punishment part were incompetent. Reference was made by the sifting judge to the analogous situation with life sentences and to the provision (1993 Act s 2(2)(a)) requiring account to be taken, when selecting a punishment part, of other offences on the same indictment (see HM Advocate v Turner 2007 SCCR 194). The sifting judge, under reference to Henderson v HM Advocate 2011 JC 96, also granted leave to appeal on the competency of imposing a cumulative OLR upon charges for which there was a statutory maximum. Although the sifting judge's diligence in identifying these points of competency is commendable, it creates a difficulty for the court if the sentencing judge's comments are not obtained on any of these matters. If a sifting judge is considering granting leave to appeal upon a ground not raised in the Note of Appeal, as he is fully entitled to do (1995 Act s 107(7)), it will normally be appropriate for him to request a supplementary report from the trial or sentencing court on the new ground before proceeding further. It may also be prudent to afford the applicant an opportunity to comment on any proposed new ground.
Submissions
[7] The appellant submitted that an OLR could not competently be imposed in respect of an offence for which Parliament had prescribed a statutory maximum penalty. It followed that imposing an OLR for a combination of offences, some of which had maxima, was not competent. If Parliament had intended that an OLR be available where there were maxima prescribed, it would have said so. The "Explanatory Notes", which had been released along with the Act, contained no reference to any such intention. The statutes involved were penal in nature and had to be construed in the manner most lenient to the offender (Tuck & Sons v Priester (1887) 19 QBD 629, Lord Esher MR at 638; Cross: Statutory Interpretation (3rd ed) 172). A strict interpretation was necessary. The statutory maxima were clear and that clarity afforded no allowance for the imposition of an OLR. It was of note that the...
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