Appeal Against Sentence Scott Daniel Ross Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Justice Clerk |
| Judgment Date | 29 April 2015 |
| Neutral Citation | [2015] HCJAC 38 |
| Court | High Court of Justiciary |
| Date | 29 April 2015 |
| Published date | 07 May 2015 |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 38
HCA/2015/474/XC
Lord Justice Clerk
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST SENTENCE
by
SCOTT DANIEL ROSS
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Jackson QC, Mackintosh; John Pryde & Co, SSC
Respondent: I McSporran AD; the Crown Agent
29 April 2015
Introduction and general
[1] This appeal raises an issue concerning the circumstances in which a sheriff can decline to accept the basis of a plea in mitigation in the absence of proof.
[2] On 28 January 2015, in the Sheriff Court at Inverness, the appellant pled guilty to charges that on 7 October 2014, at MacKintosh Road, he: (1) had a knife with him, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49; and (2) assaulted a police officer by pushing her to the ground to her injury. He was sentenced to 1 year’s imprisonment in respect of charge (1) and 23 weeks imprisonment on charge (2).
The evidence of search
[3] It should be noted at the outset that the case has an important distinguishing feature. Prior to the plea being tendered, the sheriff had heard testimony in relation to the circumstances in which the police came to be at the locus and recovered the knife in charge (1). This was in the context of an objection to the evidence of the search of the appellant; the legality of which was critical to proof of the charge.
[4] The police had gone to a block of flats in response to a report of a disturbance. They had called at a first floor flat, whose occupier was complaining of her downstairs neighbour banging on her door and refusing to leave. Whilst the police were there, the appellant and three males appeared at the door. For a number of reasons, which are of no relevance to the appeal, they were suspected of possessing drugs. In the course of the subsequent search, the appellant was seen to have a kitchen knife held behind his back. The police seized his wrist and the knife was recovered. The appellant ran off, later pushing over an officer who tried to stop him. The officer struck her elbow and head on the ground, sustaining sundry cuts and bruises of a relatively minor nature. At the conclusion of this evidence, the objection to the search was withdrawn. The appellant then pled guilty.
The plea in mitigation of proof
[5] In the course of the plea in mitigation, it was said that the appellant and his friends had been invited to the first floor flat. When they had entered the block they had encountered the neighbour, who had been outside her door, holding a knife and behaving in an aggressive fashion. The appellant had taken the knife from her before continuing upstairs where he met the police. He had, it was said, panicked, and ran off when the knife had been discovered. No account was given to the police at the time that the appellant had disarmed an aggressive neighbour and still had the knife. Rather, the appellant had been concealing the weapon.
[6] The sheriff stated that he was not prepared to accept the account given in mitigation ex parte. The minutes record that the court “directed” that evidence be led to support the plea in mitigation. However, the sheriff reports that what was said in mitigation, although not contradicted by the Crown, was not agreed with them either. As the sheriff put it in his report, the Crown was “agnostic” on the point. The procurator fiscal depute had merely commented that, even if the appellant’s version were true, he was still guilty of the offence. In view of the sheriff’s scepticism, he informed the appellant’s agent that, if he intended to rely on what was said in mitigation, then the appellant would have to lead evidence in support of it (see McCartney v HM Advocate 1997 SCCR 644 at 646).
[7] After a short adjournment, the appellant’s agent called the first floor occupier, who confirmed that her female cousin had been staying with her. This cousin had invited the appellant and the others to the flat. The appellant gave evidence on his own behalf. He stated that, on entering the block, he had met the neighbour, who was in an intoxicated state. He had recognised her, but only as a drug addict from the centre of town. She was carrying a knife and behaving in an aggressive fashion. He had taken the knife from her and gone upstairs where he was challenged by the police.
[8] The neighbour was called to give evidence. She said that she knew the appellant to say hello to. She knew his name and he knew hers. She had been concerned about people calling at her door. She had opened it with a view to seeing what was going on. She had taken a knife with her. This had been removed from her by the appellant. She described this knife. When she was shown the knife which had been recovered from the appellant by the police, her immediate reaction was that it was not the same one. She had described her own knife in different terms.
[9] The sheriff rejected the explanation in mitigation for three reasons. First, it had not been given at the time, in circumstances where, if it had been true, he would have expected the appellant to have informed the police. Secondly, there was a disparity about the degree to which the appellant and the neighbour knew each other. Thirdly, there was the evidence that the neighbour’s knife was different from that recovered from the appellant at the scene. Accordingly, the sheriff sentenced the appellant on the basis that he had arrived at the block of flats with the knife in his possession. Given the appellant’s extensive previous convictions, which included 11 assaults and one High Court conviction for drug supply in 2011, the sheriff selected the custodial sentence.
Ground of appeal and submissions
[10] The ground of appeal, for which leave has been given, is that the plea of guilty was tendered on the basis of a very limited narrative, following upon discussions between the procurator fiscal depute and the appellant’s agent. It is said in the Note of Appeal that the depute had taken no issue with the mitigation advanced. The manner in which this is phrased suggests that the context of the depute’s comment was in discussion with the agent. At the Bar, however, it was said that the depute had indicated in open...
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