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HIGH COURT
OF JUSTICIARY
[2008] HCJ 4
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OPINION
of
LORD UIST
in causa
HER MAJESTY'S ADVOCATE
against
STEPHEN MICHAEL HENDERSON
__________
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Crown: Prentice QC; Crown Agent
Defence: Findlay QC;
Higgins, Moreledge & Litterick, Alloa
28 October 2008
[1] The accused,
who is aged 34, appeared at Edinburgh High Court on 15 October 2008
on an indictment under section 76 of the Criminal Procedure (Scotland)
Act 1995 ("the 1995 Act") containing a charge of a contravention of section 1(1)(a) of the Firearms Act 1968 ("the 1968 Act") as
amended by the Firearms Amendment Act 1998, to which he pleaded guilty. The maximum sentence for that offence where, as in this case, it has not been committed in
its aggravated form within the meaning of section 4(4) of the 1968 Act,
is 5 years imprisonment or a fine, or both: section 51 of, and schedule 6 to,
the 1968 Act.
[2] The advocate
depute moved for sentence and tendered a schedule of previous convictions which
disclosed a lengthy and serious criminal record running from May 1990 to
August 2002 containing a total of 38 separate court appearances for a
multiplicity of crimes, including many crimes of dishonesty and violence. The accused has been sentenced to custody on
12 separate occasions. Of
particular note are the following convictions.
On 23 November 1995 at Kirkcaldy Sheriff Court he was convicted of breach of the
peace, assault and assault to severe injury and permanent disfigurement and
sentenced to a total of 15 months imprisonment from 3 July
1995. On 24 September
1998 at Kirkcaldy Sheriff Court he was convicted of a contravention
of sections 1(1)(a) and 4(4) of the 1968 Act
and sentenced to 2 years imprisonment.
On 22 August 2002 at Edinburgh High Court he was
convicted of abduction and assault to severe injury and permanent disfigurement
and sentenced to 7 years imprisonment from 12 March
2002, a
sentence later reduced on appeal to 6 years imprisonment.
[3] The advocate
depute further advised me that the accused had first appeared in the Sheriff Court on 5 August 2008, when he was remanded in custody. He appeared there again on 12 August
2008 when he
was fully committed and again remanded in custody. A letter offering a plea of guilty to the
charge under section 1(1)(a) of the 1968 Act
was received by the Crown on 12 August 2008.
The advocate depute apologised for the fact
that the case had been indicted in the High Court: as the crime libelled carried a statutory
maximum term of 5 years imprisonment, it ought to have been indicted in
the Sheriff Court.
[4] The following
narrative of the facts of the offence was presented by the advocate depute. Prior to Monday 4 August
2008
confidential information was received by Fife Drug Squad to the effect that the
accused was intent on acquiring a firearm and that he would be returning to Fife with it in his possession. The information was that his car would be
parked in the rear car park of the Novotel Car Park in Hermiston Gait,
Edinburgh. As a result of this
information a Lothian and Borders Police Firearms Team was advised of the
situation. At about 9.35 pm on Monday
4 August 2008 the accused, accompanied by a female and a child, was seen to get out of
a taxi at the front of the Novotel. All
three walked towards his car in the rear car park. A decision was taken by the police to detain
and search the accused under section 47 of the 1968 Act. All three persons were detained by the
Firearms Team. The accused was
handcuffed and searched by officers who found and seized a sock containing a
black revolver contained within the waistband of his jeans. He was detained under section 14 of the
Criminal Procedure (Scotland) Act 1995 for offences under
the 1968 Act and conveyed to St Leonard's Police Station, Edinburgh, where he was interviewed at 01.27 am on 5 August 2008.
He said that the gun belonged to him, that he had owned it since
March 2008, that he did not routinely carry it with him and that it was
ornamental and not capable of discharging ammunition. He also said that he had just returned from
Bradford and York on holiday. When he
was arrested and cautioned and charged at 01.40 am he indicated that he understood the
charge and made no reply. The revolver
is a German manufactured ME 38 blank firing pistol which had at some time
been converted to discharge .380 / 9mm bulleted cartridges and therefore
constituted a firearm under section 57(1) of the 1968 Act. Its acquisition, purchase or possession is
subject to firearm certificate control and requires the written authority of
the Secretary of State or Scottish Ministers.
The Crown did not accept that the gun was carried as an ornamental item
having regard to the circumstances of its possession by the accused.
[5] In mitigation
Mr Paterson, Solicitor, who appeared for the accused on 15 October
2008, stated
that there was no dispute about the facts of the case. The accused had just brought the gun from Bradford.
He had been released from prison in March 2008 and run up a debt. He agreed to pick up the gun in order to
clear the debt. He did not tell the
police that, as was the case, he was going to pass the gun on to someone else. Mr Paterson requested that I backdate
the sentence to 5 August 2008 and give a one third discount on the
sentence for the early plea of guilty.
[6] I raised with
Mr Paterson the question whether it would be open to me to make a risk
assessment order under section 210B of the 1995 Act. As I understood that Mr Paterson had not
considered the possibility of such a procedure being followed and was not then
in a position to deal with the issue I adjourned the diet until 21 October
2008 so that I could hear full legal submissions on the point and also receive
from the Crown an explanation for the case having been dealt with as a
contravention of section 1(1)(a) of the 1968 Act when it was clear
that the facts disclosed a contravention of section 5(1) of the 1968 Act
as the revolver was a prohibited weapon.
A contravention of section 5(1) of the 1968 Act carries a
maximum sentence of 10 years imprisonment or a fine or both and, under section 51A
of the 1968 Act, a minimum sentence of 5 years imprisonment.
[7] When the case
called again on 21 October 2008 the advocate depute advised me that the
plea offered by the accused in his section 76 letter had been accepted by
the Crown without a ballistics report having been received, although there had
been a report from the Procurator Fiscal.
It was deeply regrettable that this had occurred and he had raised the
matter with senior officials in Crown Office who had devised procedures to
ensure that such a situation did not arise again. It seemed to me that in giving this
explanation the advocate depute was accepting that the Crown had been in error
in accepting the plea offered by the accused in his section 76 letter. This plea was obviously accepted by the Crown
without considering which statutory charge was the most appropriate to bring in
the public interest. To that extent the
Crown were, as the advocate depute accepted, remiss in their duty.
[8] On 21 October
2008 the
accused was represented by Mr Findlay QC and I heard submissions from him
and the advocate depute on the question whether it would be competent for me to
make in this case a risk assessment order under section 210B of the 1995 Act. Sections 210B to 210H of the 1995 Act,
which were inserted by section 1(1) of the Criminal Justice (Scotland) Act 2003 ("the 2003 Act")
deal with risk assessment and I shall refer to them as "the risk assessment
provisions".
[9] Mr Findlay
began his submission by emphasising that, whatever the position might be so far
as acceptance of the plea by the Crown was concerned, no blame could be laid at
the door of the accused, who had done everything he could to bring the matter
to a swift conclusion by tendering a guilty plea at the earliest possible
moment. The offence to which he had
pleaded guilty carried a statutory maximum penalty of 5 years imprisonment. The nature of the offence was simple
possession, not possession for any particular purpose. The Crown had accepted the plea tendered
notwithstanding the nature of the weapon.
If it were open to the court to make a risk assessment order the accused
would find himself in a situation not of his own making in a case which could
have been indicted in the Sheriff Court.
[10] There were two
reasons why it would not be competent for the court to make a risk assessment
order in this case. First, the requirements
of section 210B(1) were not satisfied. Section 210B(1)(a) plainly did not
apply, and the case could only possibly come within section 210B(1)(b)(ii)
or (iii), but it would be wrong to categorise the case under either of those
two sub-paragraphs as nothing in the narrative suggested that the circumstances
of the offence disclosed the requisite propensities. The accused was acting as a courier and was
being paid for what he did by a pre-existing debt being eradicated. It was wholly inappropriate to suggest that
simple possession of a gun suggested the necessary propensity. Parliament had in the 1968 Act
distinguished simple possession of a firearm from other types of possession. This case therefore did not fall within the
ambit of section 210B(1)(b)(ii) or (iii) of the 1995 Act. In determining whether it did the court could
not look at the criminal record of the accused.
That would lead to singularly Draconian consequences for an accused. The fact of the offence itself was not enough
to satisfy the statutory requirements: there
had to be something in the nature of the offence or the circumstances of its
commission for it to qualify. The
circumstances of this offence were as disclosed to the court in mitigation,
namely, that the accused was acting as the courier of the gun to pay off a debt.
[11] Secondly, it
was not competent for me to make a risk assessment order with a view ultimately
to making an order for lifelong restriction when Parliament had set the maximum
sentence for the offence at 5 years imprisonment. If the legislature (in this case the Scottish
Parliament by means of section 1(1) of the 2003 Act) had intended in
enacting the risk assessment provisions to override existing statutory maxima
for certain offences it would have said so explicitly. In the absence of such a provision it was not
competent for the court to make a risk assessment order. Firearms law was a reserved matter
(sections 29(2)(b) and 30(1) of, and
Schedule 5, Part 2, Section B4 to the Scotland Act 1998)
and it was therefore outside the legislative competence of the Scottish
Parliament to alter the sentence for an offence under the Firearms Act. Mr Findlay simply did not accept as a
correct statement of the law the following passage in Renton and Brown on Criminal Procedure (6th Ed)
at para 23-06.2:
"A lifelong restriction order
constitutes a sentence of imprisonment or detention for an indefinite period. In effect, therefore, it enables the court to
pass a life sentence for an offence the maximum penalty for which is otherwise
imprisonment for a specified period."
[12] Mr Findlay
then went on to submit that I should not in any event exercise my discretion to
make a risk assessment order. While it
was accepted that the accused had a criminal record, he had taken a risk by
pleading guilty at the earliest possible moment and he found himself in the
High court only by reason of a mistake on the part of the Crown. There was another side to the public interest
aspect of this case in that accused persons were now, as Mr Findlay put
it, under some form of pressure to assist the administration of justice by
pleading guilty at the earliest possible moment: if an order for lifelong restriction could be
made even where there was a statutory maximum for the offence in question, an
accused who pleaded guilty might find himself at risk of being detained for
life despite the statutory maximum sentence for the offence. If the risk assessment provisions overrode
the statutory maximum penalty for an offence that would potentially have the effect
of deterring early pleas, which was not in the interests of justice.
[13] In response
the advocate depute stated that the only statement of the law which he had been
able to find was that in Renton and Brown on Criminal Procedure which
I have quoted above. In submitting that
it would be competent for me to make a risk assessment order in this case he
invited me to look at the nature and scope of the risk assessment provisions. Their purpose was preventative, having regard
to the safety of the public. The
relevant provisions did not seek to, and did not,
amend the penalty provisions in the1968 Act: they were concerned with risk assessment and
the safety of the public. If Mr Findlay
were correct, a risk assessment order could not be made following conviction
for an offence for which there was a statutory maximum sentence. The court did not require to
wait until a crime of violence was committed: at this stage all I had to decide was whether
the risk assessment criteria may be met.
He submitted that the case fell within section 210B(b)
of the 1995 Act. If a lifelong
restriction order were ultimately made then in fixing the punishment part the
court would require to take into account the period of imprisonment which it
considered would have been appropriate for the offence had it not made the
order for lifelong restriction (section 2(1)(ab)
and (2)(aa)(i) of the Prisoners and Criminal Proceedings (Scotland)
Act 1993), and that would mean that the court would have to have regard to
the statutory maximum for the offence. The
punishment part could not exceed the period which an accused would spend in
prison if he were sentenced to the maximum period of imprisonment for the
offence. Section 210B of the 1995 Act was not restricted to offences
in which it would otherwise be open to the court to impose a sentence of life
imprisonment.
[14] I deal first
with the submission that the risk assessment provisions cannot affect the
maximum sentence for an offence under section 1(1)(a)
of the 1968 Act. The maximum
sentence of 5 years imprisonment for a contravention of section 1(1)(a)
of the 1968 Act is set out in Schedule 6 to, and given effect by section 51
of, that Act. Schedule 6 is headed
"Prosecution and Punishment of Offences" and Part 1 of it, in which the
maximum sentences are to be found, is headed "Table of Punishments". These provisions are, therefore, concerned
with punishment. The risk assessment
provisions inserted into the 1995 Act by section 1 of the 2003 Act
are, on the other hand, as they profess to be, concerned with the protection of
the public at large. When an order for
lifelong restriction is made a punishment part must be fixed to deal with
retribution and deterrence only, and that punishment part must have regard to
any maximum punishment laid down by the legislature for the offence. The risk assessment provisions do not
therefore amend the maximum punishment laid down for any offence. What they do is to permit the court to make
an order for lifelong restriction for the purpose of the protection of the
public where the risk criteria as defined in section 210E of the 1995 Act
are met. The risk criteria are that the
nature of, or the circumstances of the commission of, the offence of which the
convicted person has been found guilty either in themselves or as part of a
pattern of behaviour are such as to demonstrate that he, if at liberty, will
seriously endanger the lives, or physical or psychological well-being, of
members of the public at large. The
order for lifelong restriction can be made only after the procedure for a risk
assessment order and a risk assessment report has been followed and it
constitutes a sentence of imprisonment for an indefinite period (section 210F(2)
of the 1995 Act). I am therefore of
the opinion that the advocate depute was correct in his submission that the
risk assessment provisions do not amend the statutory maximum sentence set out
in the 1968 Act. As he pointed out,
if Mr Findlay were correct in his submission, an order for lifelong restriction
could not be made in any case in which the offence is subject to a statutory
maximum sentence. It seems to me that if
that were so it would to a large extent defeat the evident purpose of having
the risk assessment provisions in the first place. For example, it would mean that an order for
lifelong restriction could not be passed for a contravention of section 6
of the Criminal law (Consolidation) (Scotland) Act 1995 (indecent behaviour
towards a girl aged between 12 and 16, which carries a maximum term
of imprisonment of 10 years) in a case where an accused had many previous
convictions for the same offence. I am
of the opinion that these provisions apply in cases where the statutory maximum
for the offence is less than life imprisonment.
If that were not so it is difficult to see why the provisions were
enacted to cover only cases in which the court had a pre-existing power to
impose a discretionary life imprisonment sentence. As I am of the opinion that the risk
assessment provisions do not seek to, and do not, amend the penalty provisions
of the1968 Act the question of the Scottish Parliament acting outside
devolved competence does not arise as a separate issue.
[15] I turn now to
consider the terms of section 210B(1)(b)
and (2) of the 1995 Act. The
only ground upon which I could make a risk assessment order in this case is
that the accused has been convicted of an offence other than murder and it is
an offence the nature of which, or the circumstances of the commission of
which, are such that it appears to the court that he has a propensity to commit
a violent offence or an offence which endangers life and I consider that the
risk criteria may be met. I have
referred above to the risk criteria set out in section 210E of the 1995 Act. I must first consider whether the provisions
of section 210B(1)(a)(ii) and (iii) and
(b) apply to the circumstances of this case. Mr Findlay submitted that in carrying
out this exercise I was not entitled to have regard to the accused's previous
convictions. I do not accept that
submission. It would in my view be
absurd if I had to close my eyes to the accused's previous convictions in
carrying out this exercise. The opening
words of section 210B(1) declare that it applies "where it falls to the
High Court to impose sentence on a person convicted of an offence other than
murder": the subsection is
therefore focusing on the sentencing stage of procedure, at which point the
court will be aware of the previous convictions of the accused. Moreover, in my opinion the accused's
previous convictions can form part of the circumstances of the commission of
the offence. To take this case itself,
there is plainly a world of difference between a contravention of section 1(1)
of the 1968 Act consisting of a man with a lengthy and violent criminal
record possessing a handgun in a public car park and a contravention consisting
of a farmer who has inadvertently forgotten to renew his shotgun certificate. Accordingly, in looking at the circumstances
of this case, I have regard to the fact that the accused is a man with a
lengthy criminal record which includes crimes of violence who was found by the
police in possession of a handgun in a public car park.
[16] I then have to
consider whether it appears those circumstances are such that it appears to me
that the accused has a propensity to commit a violent offence or an offence
which endangers life. In this respect Mr Findlay
founded strongly on what had been said in mitigation to the effect that the
accused was going to hand the gun onto someone else. I do not consider that I am obliged to accept
that statement as true. It is based
solely on the word of the accused, and in putting forward that explanation he
accepts that he lied to the police at interview. Even if the statement put forward in
mitigation is true, it does not seem to me to negate a propensity on the part
of the accused at least to commit an offence which endangers life. The whole context of the accused's possession
of the handgun, which could easily cause death if used to fire bullets, is
eloquent of criminality. It goes without
saying that a man with a criminal record for offences of violence and a
previous conviction under section 1(1) of the 1968 Act is not in
possession of a handgun in a public car park for some benevolent purpose. Even on the basis that his explanation is
true, it seems to me that his being in unlawful possession of a handgun for the
purpose of delivering it to someone else shows a propensity to commit an
offence which endangers life. It is
possible to be guilty art and part of a crime of violence by providing the
weapon used to commit such a crime. If the accused had the gun to use it
himself for some criminal purpose then that in my opinion obviously shows that
he has a propensity to commit either a violent offence or an offence which
endangers life. For these reasons the
requirements of section 210B(1)(a)(ii)
and (iii) and (b) are in my opinion met.
[17] I next have to
consider, under section 210B(2) of the 1995 Act,
whether the risk criteria may be met. If
I do so consider then I am obliged to make a risk assessment order (section 210B(2) of the 1995 Act). I have no discretion in the matter and
therefore reject Mr Findlay's submission based on discretion to make a
risk assessment order. I have to look at
the nature of, or the circumstances of, the commission of the offence either in
themselves or as a pattern of behaviour and determine whether they are such as
to demonstrate that that there is a likelihood that the accused, if at liberty,
will seriously endanger the lives or physical or psychological well-being of
members of the public at large. Looking
to the circumstances of the offence as part of the pattern of behaviour
demonstrated by the accused's criminal record, I am satisfied that they
demonstrate that there is a likelihood that if the accused is at liberty he
will seriously endanger the lives, or physical or psychological well-being , of
members of the public at large.
[18] I shall
therefore make a risk assessment order that the accused is to be taken to Her
Majesty's Prison, Edinburgh so that there may be prepared there by Professor
David Cooke, a person accredited by the Risk Management Authority for the
purposes of section 210B of the 1995 Act, a risk assessment report. I shall remand the accused in custody there
until 23 January 2009 and I shall adjourn the diet for
sentencing until that date at Edinburgh High Court.
