Sentences of Imprisonment and the Physically Disabled Prisoner: C (R) v HM Advocate [2019] HCJAC62; 2019 SLT 1243; 2020 SCCR 20

AuthorRobert S Shiels
DOI10.1177/0022018320918523
Published date01 April 2020
Date01 April 2020
Subject MatterCase Notes
Case Note
Sentences of Imprisonment
and the Physically Disabled
Prisoner
C (R) v HM Advocate [2019] HCJAC62; 2019 SLT 1243;
2020 SCCR 20
Keywords
Criminal appeal, sentence, prisoner, physical disabilities
Article 3 of the European Convention on Human Rights provides that: ‘No one shall be subjected to
torture or to inhuman or degrading treatment or punishment’. The issue of degrading punishment was
raised in this appeal against sentence in Scotland and there was then a helpful review of authorities from
England and Wales, and elsewhere on the issue. The specific appeal against sentence in Scotland was
concerned with whether the sentence imposed was excessive and whether given the physical disability of
the appellant that sentence contravened his rights under Article 3. That appeal by RC, and the others
reviewed in this note, indicates at the very least that the sentencing of individuals with severe physical
disabilities, against whom criminal behaviour has been proved or by whom it had been admitted, was a
matter of general judicial concern.
RC was charged with a statutory offence of communicating indecently with a 15-year-old girl, after a
period of time spent in grooming her. He was then 39 years of age but pretended to the girl that he was 18
years old. There was a second and, on the facts, not dissimilar charge involving a 12-year-old girl who
represented that she was 13 years old. He pled guilty at an expedited calling of the indictment against
him and reports were obtained from a social worker. In due course, he was sentenced to a cumulative
period of 20 months’ imprisonment.
The appellant had been born with spina bifida and had never had any sensation or movement below
the waist. He was doubly incontinent and reliant on the care of his mother and an aunt to manage his
needs on a daily basis which included assistance with toileting, dressing, eating, washing and mobility.
He wore incontinence pads that required to be changed regularly. He had a part-time job in a call centre
but that was very restricted because of his medical condition. He used a wheelchair. He also had diabetes
and ulcers on his legs which required constant treatment. The prison estate was unable provide suitable
accommodation for him immediately. He had no previous convictions.
Held, appeal against sentence allowed. The imposition of a custodial sentence on this appellant
would not be incompatible with his convention rights. Accordingly, it would not be unlawful to impose a
custodial sentence. An individual was not, be reason of disability alone, entitled to a reduced sentence, as
legitimate aim of sentencing was a degree of parity of punishment between like offenders. However, the
sentence of imprisonment selected at first instance was excessive. It flew in the face of a clear assess-
ment by social workers that a community-based disposal was appropriate. It offended the statutory
presumption in Scottish criminal procedure that a sentence of imprisonment should only be imposed
if there are no other appropriate methods of dealing with the matter. The imposition of a custodial
sentence should be a last resort.
The Journal of Criminal Law
2020, Vol. 84(2) 184–188
ªThe Author(s) 2020
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DOI: 10.1177/0022018320918523
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