APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lord Emslie	[2010] HCJAC 2 Appeal No: XC663/07 XC640/08 OPINION OF THE COURT delivered by LORD OSBORNE in APPEALS by MORRIS PETCH First-Named Appellant; against HER MAJESTY'S ADVOCATE Respondent: and ROBERT FOYE Second-Named Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellants: Shead, Mackenzie; Gillespie MacAndrew, Edinburgh (for first appellant)

Drummond Miller; (for second appellant)

Respondent: Mackay, A.D.; Crown Agent

8 January 2010

The background circumstances

[1] The first-named appellant, Morris Petch, was convicted on 24 May 2007 at the High Court in Edinburgh on two charges of rape. The charges were in the following terms, which include the deletions and amendments made during the course of the trial:

"(11) On various occasions between 17 September 1990 and 4 June 1992, both dates inclusive, the precise dates being to the Prosecutor unknown, at [two specified addresses in Edinburgh] you... Morris Petch did while acting along with W.K., now deceased, assault D.M.F. ..., then 10 to 11 years and did induce her to lick and suck the private members of said Morris Petch and W.K. and did repeatedly rape her;

(12) On an occasion between 17 September 1990 and 4 June 1991, both dates inclusive, the precise date being to the Prosecutor unknown, at [a specified address in Edinburgh] you Morris Petch did assault D.M.F. ... then aged 10 years, and H.E.F., ... then aged between 8 and 9 years and you did induce them to take off their clothes, lie on the sofa bed there and then you did induce each girl to lick the private parts of the others and you did rape them."

[2] On 10 August 2007 the trial judge sentenced the first-named appellant to life imprisonment and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, ordered that a period of twelve years be served by the appellant before the provisions of sections 2(4) and 2(6) of that Act should apply.

[3] On 4 September 2007 the first-named appellant lodged a Note of Appeal against sentence. Leave to appeal was granted on 21 November 2007.

[4] The grounds of appeal tabled on behalf of the first-named appellant were in the following terms:

"It is accepted from the outset that a lengthy custodial sentence was appropriate given the nature of the offences that the appellant was found guilty of an his schedule of previous convictions.

It is however submitted that in the present case the imposition of a discretionary life sentence was excessive, particularly when viewed against the appellant's age and sentences imposed on his co-accused. In drawing this comparison, it is of course accepted that the sentence imposed on the co-accused who pled guilty will have been discounted to reflect the utility to the criminal justice system of the timing of their plea."

[5] The reasons stated in support of these grounds of appeal in Form 15.16, lodged on the first-named appellant's behalf were as follows:

"It is submitted that the sentencing judge erred in imposing a discretionary life sentence and that a lengthy determinate sentence would have been sufficient to meet the gravity of the offences. It is submitted that the sentencing judge gave too much weight to the risk factors identified in concluding that only a discretionary life sentence would offer sufficient protection to the public.

In any event the sentence is excessive when compared to the determinate sentences of 12 and 13 years imprisonment imposed in respect of the co-accused.

Esto a discretionary life sentence was justified. It is submitted that the punishment part of 12 years is excessive.

In the first place it is submitted that the starting point identified by the sentencing judge was excessive notwithstanding the gravity of the offences concerned.

Secondly, it is submitted that the sentencing judge erred in his approach by selecting two thirds of the notional determinate sentence as the punishment part. It is maintained that there was nothing in the present case to justify going beyond half of the notional sentence. In so far as the sentencing judge's approach was informed by the decision in Ansari v Her Majesty's Advocate 2003 S.C.C.R. 347, the latter was wrongly decided."

[6] The appeal of the first-named appellant, on 24 April 2009, came before a court constituted by two judges. On that date, that court pronounced an interlocutor in the following terms:

"In the appeal against sentence, the Court, having heard counsel for the appellant, the Advocate Depute having indicated that the Crown had no objection, on the motion of Counsel for the appellant, Remitted the appeal to a bench of three judges on a date to be afterwards fixed to be heard along with the appeal of Robert Foye (XC640/08) in order to revisit the issue of the formula for determining a punishment part of a discretionary life sentence."

[7] The second-named appellant, Robert Foye, on 23 January 2008, at the High Court at Glasgow, pleaded guilty to a charge in the following terms:

"11 On 24 August 2007 at a wooded area at Dowanfield Road, Cumbernauld, you did assault F.H. ... and did seize her by the neck, place your hand over her mouth, pull her into said wooded area, repeatedly punch her on the head, pull her to the ground, kiss her on the mouth, kiss and handle her breasts, pull down her trousers and pants and force her legs apart all to her injury and you did rape her."

[8] On 1 October 2008, the sentencing judge, being satisfied that the relevant risk criteria were met, made an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995; and in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, ordered that a period of nine years be served by the second-named appellant before the provisions of section 2(4) and 2(6) of that Act should apply. In selecting the punishment part the court indicated that it had taken account of the first-named appellant's early plea, and the guidelines set out in Ansari v Her Majesty's Advocate, and that the starting point of any determinate sentence, after discount in terms of section 196 of the Criminal Procedure (Scotland) Act 1995, would have been 13 years.

[9] On 9 October 2008, the second-named appellant lodged a Note of Appeal against sentence. On 14 January 2009, leave to appeal was granted to the second-named appellant, but only as regards Ground of Appeal 2 in the second-named appellant's Note of Appeal.

[10] Ground of Appeal 2 for the second-named appellant was in the following terms:

"2. In addition the appellant appeals against the punishment part selected because:

(a) the appellant pled guilty by section 76 letter at the earliest opportunity and intimated to the Crown not to precognosce the Complainer and in addition the agents did not precognosce the Complainer to prevent her further distress.

(b) in addition he expressed remorse for his involvement in this offence, and

(c) the discount that aught (sic) to have been applied to all of these circumstances was insufficient standing the fact that as the learned trial judge imposed a lifelong restriction order, he will require to serve all of the period selected before being eligible for parole."

[11] The following reasons were stated in support of Ground of Appeal 2 in the Form 15.16 lodged on behalf of the second-named appellant:

"It is submitted that Ansari v Her Majesty's Advocate 2003 S.C.C.R. 347 was wrongly decided and that in so far as the sentencing judge followed the decision she was in error. Reference is made to the terms of her report and page 16 in particular.

Following the exercise prescribed by statute the sentencing judge concluded that the notional determinate sentence would have been one of 13 years. Before the decision in Ansari the normal approach would have been to fix half of that period as the punishment part. It is submitted that she have (sic) followed that approach in the present case.

Separatim reference is made to pages 11-14 of the sentencing judge's report. It appears that the sentencing judge was influenced by the fact that the appellant had been released temporarily from custody when the offence was committed. If so, it is submitted that was a misdirection since it had no direct bearing on the gravity of the offence of which the appellant was convicted.

Separatim it is submitted it is not clear how the sentencing judge approached her task including applying a reduction in sentence in recognition of the plea of guilty by section 76 indictment. If Ansari is to be followed then it would be necessary to identify the starting point and then apply a reduction to bring out the notional sentence. Thus far the process would follow the imposition of a determinate sentence. Thereafter the court is obliged to discount the risk element from that sentence. It follows that the steps in this process should be transparent otherwise it becomes difficult to assess whether the sentencer has approached the exercise properly.

It is submitted that it is not clear from the report how the figure of 13 years has been arrived at. It follows that the appellant has been denied a fair hearing (or at least the appearance of one).

In any event it is submitted that the sentencing judge has misdirected herself in relation to the fixing of the punishment part. Reference is made to page 14 of the report and the last paragraph of the sentencing judge's remarks. It is submitted it was double counting to take retribution and deterrence into account twice in the manner described.

It is submitted that there was an error in relation to the reduction applied in respect of the plea of guilty. Here too double counting is in issue. On this occasion as well this appears to have operated to the detriment of the appellant. Reference is made to page 18 of the report. A guilty plea does not of itself imply remorse. Where remorse is expressed the court can take that into account if it considers it right to do so. It is submitted that some weight should have been attached to that factor in determining the sentence.

Separatim the sentencing judge appears to have concluded that the case did not merit a reduction of one third in recognition of the plea of guilty. It is submitted that this was an error in approach standing the decision in Du Plooy v Her Majesty's Advocate 2003 S.C.C.R. 640.

The complainer did not have to be precognosced and so the plea had considerably more than utilitarian value in the circumstances of the present case.

The sentencing judge also appears to have been influenced by the decision in Alexander. It is important to emphasise that that was a case involving a mandatory life sentence. There is good reason to suppose even assuming that Du Plooy is modified for cases under murder a different approach will be appropriate in cases like the present. In any event as the law presently stands it was not a proper basis for restricting the measure of discount available in the case.

Accordingly there has been a miscarriage of justice."

The-second-named appellant indicates in Form 15.16 that he intends to rely upon the case of Ansari v Her Majesty's Advocate and particularly the dissenting opinion of Lord Reed.

[12] When the second-named appellant's appeal came before a court constituted by two judges on 26 March 2009, the court, having heard counsel for the second-named appellant and the Advocate depute, remitted the appeal to a bench of three judges on a date to be afterwards fixed.

[13] The appeals of the first and second-named appellants came before us on 18 December 2009, when both appellants were represented jointly by counsel.

The submissions of the appellants

[14] Counsel, having explained the background which we have just outlined, said that there was one significant issue which was considered to be common to both cases, which was why they were being heard together. That issue was the question of the soundness of the decision in Ansari v Her Majesty's Advocate. He went on to indicate that there existed a number of other cases in which that issue was also raised, which had not yet been determined.

[15] While it was the case that the sentences imposed upon the first and second-named appellants were not of the same kind, it was evident that Ansari had been followed in each case. There were serious doubts as to the soundness of the decision in Ansari, arrived at by a court of five judges. The appellants' motion to the court was that these appeals should be remitted to an appeal court of seven judges. The view that there were serious doubts about the decision in Ansari v Her Majesty's Advocate was supported by what had been said in Locke v Her Majesty's Advocate 2008 S.C.C.R. 236, although, in that case, the court had not found it necessary to remit Ansari v Her Majesty's Advocate to a court of seven judges, since it was not considered to be determinative of an issue arising in that case. Reliance was placed on the observations of the Lord Justice General in paragraphs 13, 17, 18, 21 and 23-25; also on paragraph 28 of the Opinion of Lord Macfadyen. Counsel contended that the present case raised issues which directly arose out of the decision in Ansari v Her Majesty's Advocate. Contentions were being advanced in each appeal to the effect that Ansari v Her Majesty's Advocate had been wrongly decided. The approach taken by Lord Reed in his dissenting judgment in that case was to be preferred to that of the majority. Counsel also drew attention to O'Neill v Her Majesty's Advocate 1999 S.C.C.R. 300, which had been concerned with the law prior to certain statutory amendments which were now in force.

[16] Counsel then proceeded to examine the opinions in Ansari v Her Majesty's Advocate in some detail, referring in particular to paragraphs 24 and 29-31 and 35-37 in the Opinion of the Lord Justice Clerk. The approach followed by the majority was mechanical and did not properly reflect the statutory obligation to take certain factors "into account". He also referred to paragraphs 38-40. In paragraph 40, the error in approach could be identified. Counsel commended to the court the dissenting Opinion of Lord Reed, which, he contended, more accurately reflected the approach that had to be followed in the light of the relevant statutory provisions.

[17] Counsel pointed out that Ansari v Her Majesty's Advocate was a decision of importance in relation to sentencing practice. In a situation in which there were serious doubts as to its soundness, it was appropriate that it should be reconsidered by a larger court. It was submitted that enough had been said to justify the remit being sought. There was no doubt that the case of Ansari v Her Majesty's Advocate had been a factor in the decision making of the sentencing judges in these appeals.

[18] Having heard the submissions made on behalf of the appellants, the Advocate depute agreed that there were doubts regarding the soundness of the decision in Ansari v Her Majesty's Advocate and was content, on behalf of the Crown, that the present appeals should be remitted to a court of seven judges which would be in a position to review that decision.

[19] In the situation reflected in our narrative of the submissions that were made before us, we have come to think that there are indeed serious doubts as to the soundness of the decision in Ansari v Her Majesty's Advocate. While we have reached no concluded view on that matter, it appears to us that there are strong arguments to support the contention of the appellants that that case was wrongly decided. Furthermore, we have no doubt that that case has been a significant factor in the identification of the sentences pronounced in these appeals. Accordingly we are satisfied that it is proper to remit these appeals to a court of seven judges.