James Mcgill+steven Harrison V. Procurator Fiscal, Perth
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Justice Clerk,Lord Menzies |
| Neutral Citation | [2013] HCJAC 150 |
| Date | 05 November 2013 |
| Docket Number | XC221/13 |
| Court | High Court of Justiciary |
| Published date | 10 January 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 150 | |
| Lord Justice Clerk Lord Menzies Lord Philip | Appeal No: XC221/13 and XJ424/13 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEALS AGAINST SENTENCE by (FIRST) JAMES McGILL Appellant; against HER MAJESTY'S ADVOCATE Respondent; and (SECOND) STEVEN HARRISON Appellant; against PROCURATOR FISCAL PERTH Respondent: _______ |
Appellant (McGill): LK Kennedy; Jim Friel & Co, Glasgow
Appellant (Harrison): MC Mackenzie; Ward & Co, Perth
Respondent: Edwards, AD; the Crown Agent
5 November 2013
McGill's Case
[1] On 10 April 2013, at a trial diet at Glasgow Sheriff Court, the appellant James McGill pled guilty to a charge of breach of the peace, occurring at Strathblane Court on 25 July 2011. The libel was that he formed part of a disorderly crowd, shouted, swore, brandished "weapons" and challenged others to fight. Pleas of not guilty to a charge of an assault on an unknown male and three others of carrying offensive weapons were accepted by the Crown.
[2] The locus was a new build housing scheme in Netherton. The incident appears to have involved a gang fight, with a group of youths going to the scheme by car in order to attack the appellant, who lived there, and his friends. The appellant was seen with a dog chain as a knuckle duster and wielding a baseball bat in the CCTV images of the fight. At the end of the incident, which was particularly frightening to the children who witnessed it, the participants shook hands and went their separate ways.
[3] The appellant, who is now aged 46, has a significant criminal record for theft, housebreaking, drugs offences and assault. He was put on probation at Glasgow Sheriff Court, after being convicted of four charges of assault in 1987. A decade or so later he was sentenced to 3 years imprisonment at the High Court for assault to the danger of life and robbery. He had by then moved North, but was convicted of assault again in Inverness in 2004, when a Community Service Order was selected as appropriate. He was made the subject of probation and a Restriction of Liberty Order in the same year for shoplifting. A further CSO was imposed for a breach of the RLO in 2005. His last conviction stems from 2005 and was also for an assault, for which he was fined.
[4] The sheriff sentenced the appellant to 21 months imprisonment, which had been reduced for the plea at the trial diet from one of 2 years.
[5] The appellant had originally appeared on 12 August 2011 on a petition which libelled the five charges. He was liberated on a curfew condition after full committal a week later. The condition required him to be at home from 7.00pm to 7.00am. He was cited to a first diet on 17 July 2012; trial diets in July, October and January 2013 thereafter being discharged for sundry, mostly unspecified, reasons. The curfew condition was eventually removed on 31 October 2012. The appellant had therefore been subject to the curfew for slightly over one year. It was the appellant's contention at the appeal hearing that, during this period, there had been repeated random checks by the police "virtually every night" to see if he was in breach of the curfew. The apparent excessive nature of this monitoring was not something brought to the sheriff's attention, although he was told that there had been some degree of monitoring. The court declines to take this feature into account in the absence of agreement or supporting material.
Harrison's Case
[6] On 26 March 2013, at a trial diet at Perth Sheriff Court, the appellant Steven Harrison, who is aged 22, was found guilty of a charge of assault to severe injury on 25 May 2012 at South Methven Street, Perth. He had, along with some friends, attacked the complainer, who was a 20 year old student, outside a nightclub in the early hours of the morning after an altercation. He punched the complainer on the jaw, causing significant dental damage.
[7] The appellant had four previous convictions for assault, one also being to severe injury. At the time of this offence he had been the subject of a Community Payback Order in respect of culpable and reckless conduct. He had been placed on probation on four previous occasions.
[8] On 8 May 2013, the appellant was sentenced to 7 months imprisonment.
[9] The appellant had originally appeared from custody on 29 May 2012, when he was liberated subject to a 7.00pm to 7.00am curfew. He failed to appear at his trial diet in August 2012 (although at the appeal hearing it was said that he had only been slightly late). He was arrested on a warrant, before appearing on 4 October 2012. He was again liberated on a curfew, but the hours were reduced to between 10.00pm and 7.00am on 3 January 2013. He had therefore originally been on a curfew for less than 3 months and then spent further time on a curfew, partly with reduced hours, after his failure to...
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