Tag Archives: Lord Carloway

Is It A Crime To Wear A T-Shirt Supporting the INLA at a Rangers v Celtic Game? The High Court Says Yes

On 18th September 2011 Kevin Maguire attended the Rangers v Celtic match at Ibrox. One assumes he is a Celtic fan. One wonders if he had carefully chosen his wardrobe for the occasion.

As the High Court stated in its decision which can be found here in Maguire v PF Glasgow, Mr Maguire:-

“was wearing a black top which, in bright green letters approximately 3 to 4 inches in size, displayed the letters “INLA”. On the back of the top was, again in large bright green letters, the slogan “F… YOUR POPPY REMEMBER DERRY”. As is well-known, the initials INLA refer to the Irish National Liberation Army, which is a proscribed organisation in terms of schedule 2 to the Terrorism Act 2000. The reference to Derry is, of course, to the events in that town on 30 January 1972.”

Two officers from Strathclyde Police saw Mr Maguire’s attire as he left the ground amongst the 3,000 Celtic fans present at the game. The officers considered that his T-shirt posed a threat of disturbance to public order. Continue reading

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Filed under Criminal Appeals, Criminal Law, Human Rights

Beware – On Appeal Sentences Can Go Up As Well As Down – Lessons of Murray v HMA

Last Friday saw reported what is now a rare occurrence at the High Court of Justiciary.

It came in the appeal case of Murray v HMA [2013] HCJAC 3.

In this case Mr Murray had tendered a plea of guilty to three charges of sexually abusing, and in one case raping, dementia patients in the care home where he worked. He had tendered the guilty plea two months after his first appearance at court on the charges, and after extensive discussion with his legal advisers, and by them with the Crown. He had admitted his crimes when interviewed by the police at the time of his arrest.

He was sentenced by Lord Turnbull to nine years’ imprisonment, with a discount of two years in respect of his early plea of guilty.

(Scottish criminal law allows, and in almost all cases of an early plea, requires, the court to discount the sentence on the guilty party where a plea of guilty is tendered before trial. It is accepted that there is a utilitarian benefit to the system in saving witnesses having to give evidence, and public money and court time in holding a trial, if an acceptable guilty plea can be tendered beforehand. There is some suspicion that the judges and sheriffs might occasionally determine what the right sentence is, and then “gross it up” to arrive at the pre-discount sentence. However doing so would render a sentence open to challenge on appeal and would not be in accordance with the legal principles laid down by the High Court.)

In Mr Murray’s case the sentence was challenged on the basis that, as a result of his early plea of guilty, he ought to have received a discount of one third on his sentence (the nine years not being challenged). Therefore the best he was looking for was a sentence of six years, rather than the seven to which he had been sentenced.

Until the passing of the Criminal Procedure (Scotland) Act 1995, the High Court had only limited powers to dispose of criminal appeals without a full hearing. There was a power allowing the court to dispose of “frivolous” appeals without a hearing, but it was not uncommon for the appeal Rolls to be filled with appeals with no merit, nor any prospect of success. This caused a waste of court time, a waste of time for the judges and for the prosecution. Many of these appeals were seen as unsupportable by counsel, so the appellant would end up appearing on their own behalf. This had the effect in many, though not all, such appeals of having the appellant address the court at length on matters which were legally irrelevant but which, in some way, the appellant thought affected their guilty verdict or the sentence passed upon them.

However, it was not the legal equivalent of a “free bet”. The High Court had the power, in dealing with an appeal, to increase the sentence imposed on the appellant where the original sentence was deemed to be inadequate. This applied even where the appeal was against conviction alone.

Whilst it was not the case that the court would increase a sentence as a punishment for a “frivolous” appeal, there were cases where defence agents thought that had happened, but it was always a factor in the minds of solicitors and counsel when advising their clients – sentences could go up as well as down.

This was before the Crown could appeal against what it perceived to be “unduly lenient” sentences. The court decided this issue of its own volition, and not at the prompting of the Crown.

Finally enough was enough. In the 1995 Act the “sift” procedure was introduced. Now where an appeal is lodged against conviction or sentence in a Scottish criminal case, it is considered by a single judge in chambers, without appearance by Crown or defence. The judge considers the papers submitted with the appeal and decides if the case “passes the sift”. If the papers disclose “arguable grounds of appeal” then leave is granted and the case proceeds, in due course, to a full hearing.

Where leave to appeal is refused by the single judge, the appellant can seek leave from a panel of two judges who can grant or refuse leave. Again this takes place based on written submissions only.

If leave is also refused at the “second sift” then that is the appeal at an end, unless further grounds of appeal arise later, or the matter is referred to the High Court by the Scottish Criminal Cases Review Commission.

The reader will see however that one side effect of the need for an appeal to be arguable is that “no hopers” normally do not make it to the court, and therefore there is no longer any real possibility of a sentence being increased, unless the Crown has appealed (as it now has power to do). I remember discussing with colleagues when the sift system came in whether any appeals would be allowed through the sift so that the High Court could take the opportunity to increase a lenient sentence, but those more experienced in the workings of the High Court assured me that such motives would always be absent from the minds of the sifting judges.

And so we come to Mr Murray’s case.

Whereas increased sentences were commonplace until 1996, when the 1995 Act came into force, the numbers have diminished drastically since then. I suspect that there have maybe been a handful of such instances since the sift process came in.

However criminal practice solicitors and counsel will unfailingly tell their clients that, in the event of their appeal reaching the High Court, it is possible that the sentence could be increased, even where not challenged by the Crown. There is still no such thing as a “free bet”.

The Note of Appeal for Mr Murray stated:-

“It is accepted from the outset that the starting point of 9 years’ imprisonment is not excessive and no issue is taken with this.

It is, however, submitted that, absent any factors which would suggest a restriction in such discretion, a discount in the region of one third, as opposed to one quarter, would have been appropriate in circumstances where the Appellant pled guilty by way of s 76 procedure.”

(Section 76 governs an accelerated plea of guilty in a serious or “solemn” case.)

However Mr Murray’s appeal ended up encountering a “perfect storm” which led to the rare occurrence referred to in the first line of this post.

The Appeal Court consisted of the Lord Justice General, Lord Gill, the Lord Justice Clerk, Lord Carloway and Lady Paton. The Lord Justice General and the Lord Justice Clerk are the two most senior judges in Scotland.

Lord Gill has, even before his elevation to Lord Justice General, been an active proponent of moving the Scottish judicial system into the 21st century, both in the civil and criminal fields. Lord Carloway of course was tasked by the Justice Secretary with a comprehensive review of Scottish criminal procedure in the light of the  Cadder case, leading, inter alia, to the recommendation that the requirement for corroboration be removed.

Lord Gill, in delivering his opinion, with which his fellow judges concurred, noted as follows in relation to the principles of discounts after guilty pleas:-

In Gemmell v HM Adv (2012 SLT 484) the whole question of discounts for early pleas was reviewed by five judges. I expressed the view that the determination of the starting point and the appropriate discount were separate processes governed by different considerations. I considered that the circumstances of the offence and the offender determined the headline sentence; but that such matters were not relevant to the amount of the discount. The amount of the discount was governed solely by the utilitarian benefits that resulted from an early plea.

I also expressed my concern that Spence v HM Adv 2008 JC 174 might have created a climate of expectation amongst practitioners. I repeated that the accused is not entitled to any particular discount in return for a plea of guilty. I considered that the Court’s discretion was not wholly unfettered. It should be exercised in accordance with broad general principles. In any given case, the discount would be the greater the earlier the plea was tendered. I thought that, since there would always be some benefit in an early plea, if only in the administrative benefits that resulted from it, an accused should be given at least a token discount. The level of benefit that an early plea brought would depend on the circumstances of the given case. For example, the fact that complainers and other witnesses were spared the ordeal of a trial was, in general, a relevant consideration; but it was not relevant where the potential witnesses were police officers or experts for whom the giving of evidence would have been at most an inconvenience. I also expressed the view that in order to maintain public confidence in the justice system and the credibility of sentences that the court imposed, the court’s discretion should be exercised sparingly and only for convincing reasons. These propositions were, I think, assented to by my colleagues in the case.

Counsel who had framed the appeal and written submissions had suggested that the appeal should succeed because (a) the judge had given insufficient weight to the length of trial which had been avoided by the plea (b) that he had, in effect, reduced the discount so that the resultant sentence would not be too low; this amounting to adjusting the discount because of the circumstances of the offence and the offender and (c) an early plea such as this should, as a matter of course and in the absence of special circumstances, result in a one-third discount.

Lord Gill rejected all of these. The first ground was seen as misconceived, on the basis that the need for a shorter trial should not result in a shorter discount. He pointed out that in summary cases discounts of one third were allowed, even where the trial might last less than one hour.

On the second point he noted that this was not a plea tendered “at the earliest opportunity” and therefore the criticism of the judge was unfounded.

Thirdly he made it clear that there was no such thing as a mandatory one third discount, each sentence having to be considered on its own individual circumstances.

That might have been enough to dispose of the matter. However, the “perfect storm” combined to allow Lord Gill to offer further general guidance, before arriving at his conclusion.

He stated:-

(This appeal) was presented in the face of the principle recognised by this court that it is only in exceptional cases that the court will interfere with a discretionary decision on discounting for which the sentencer has given cogent reasons.

He then proceeded to determine the matter, to which I will return, but he also offered comment on the appeal hearing itself, saying:-

On any view, this was an important appeal against a sentence imposed on grave charges. Leave to appeal was granted at the second sift. The application was supported by an Opinion of (Counsel 1). The burden of it is set out in the written submissions that I have summarised. We were told that (Counsel 1) had withdrawn from this appeal some six days earlier. At the hearing, the appellant was represented by (Counsel 2). He had been instructed only on the previous afternoon. It was soon apparent to us that he had not been properly briefed. He had been given none of the information specifically asked for by (Counsel 1) and had not been given all the relevant documents. We had to adjourn the appeal for some time to enable him to read the social enquiry and psychological reports and other papers, and to enable those instructing him to obtain details of the preparation of the defence in the period between the petition stage and the tendering of the plea.

I have some sympathy with (Counsel 2) in his predicament. It is unfortunate that he was instructed so late and that he was not given proper instructions. Something has gone seriously wrong. I express no criticism of any individual; but I remind practitioners of the comments of Lord Penrose in similar circumstances in Smith (CC) v HM Adv (2004 SCCR 521, at para [18]).

” … the appeal court is entitled to expect that those instructed to argue an appeal against sentence will be fully briefed as to what happened during any trial, the agreed factual basis on which any plea of guilty has been tendered, what happened during the hearings before the trial judge, and the appellant’s instructions on issues relevant to mitigation which are liable to be raised during the hearing of the appeal.”

Before I turn to the outcome, I should also note Lord Carloway’s comments as follows:-

I … have only one additional observation. It is that, when the court is considering an appeal by a convicted person against sentence, it is looking to see whether a miscarriage of justice has occurred by reason of that sentence being excessive, inappropriate or unduly lenient, as the case may be. This exercise does not involve simply correcting any flawed part of the sentencing exercise carried out by the court of first instance and adjusting the sentence imposed according only to that correction. The court requires to look at the entire process in order to decide whether the sentence ultimately imposed is sustainable. Where an appeal is directed specifically towards the discount afforded or the headline punishment selected, the question of whether the net penalty was warranted is likely to involve an examination of both elements.

So practitioners are reminded that in appeals against sentence it is only whether there has been a “miscarriage of justice” which is relevant. Seen from outside, and without being party to the opinion of counsel and of the detailed case papers, it might seem hard to see that the difference between a six year sentence and a seven year sentence would amount to a “miscarriage of justice”. (I am sure however that Mr Murray would take any route which might have seen his sentence reduced, even by a few months.)

But the disposal by the court, as narrated by Lord Gill, was the sting in the tail. He said:-

I conclude therefore that this appeal should be refused. That leaves the question of the headline sentence fixed by the sentencing judge. In my opinion, the figure of nine years is unduly lenient. The crimes to which the appellant pled guilty were vile. They involved a grievous abuse of trust. The appellant committed these offences against helpless women whom it was his duty to treat caringly and respectfully. His conduct is aggravated by the fact that, on his own admission, he chose his victims because they were incapable of any meaningful communication with others. The consequences of these crimes on others should not be underestimated. It is little wonder that the appellant’s conduct put at least three of his colleagues into a state of shock. The effect upon the immediate families of the complainers has been severe.

In my view, the headline sentence in this case should be twelve years. Some discount is however appropriate for the fact that the accused pled by section 76 letter. In the circumstances, I consider that the appropriate discount would be a period of two and a half years.

So, after all that, the seven year sentence against which Mr Murray had appealed, ended up as a sentence of nine years and six months.

When the press frequently decry the courts for failing to see justice done for victims of crime, it is heartening to see such a clear and unequivocal statement coming from the senior judge in Scotland.

It should also act as a salutary reminder to practitioners and appellants that sentences can go up on appeal, even where the Crown has not challenged them. Bearing in mind that roughly two-thirds of the practising Scottish Bar have become Advocates since the 1995 Act came into force, it is likely that very few indeed of them have seen the High Court increase a sentence when the case comes before them only with an application by the appellant to reduce it.

I suspect we might have to wait some time before we see a similar event in future, as lawyers make sure that their clients do not face such an outcome.

Posted by Paul McConville

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Filed under Criminal Appeals, Criminal Law

Predictions for 2013 – All Wrong or Your Money Back! – Part 1 – Blogging, Legal and Rangers

It appears to be de rigueur for anyone who writes regularly to do either a review of the year just ended, or predictions for the coming 12 months, if not both!

Whilst I might do a review, I thought I would make some predictions first.

I put on my Nostradamus gear to write my predictions

I put on my Nostradamus gear to write my predictions

Feel free to add your own suggestions or analyses.

Some of my predictions, or guesses, will lead to later posts explaining my reasoning (if I get round to it) but for now I have tried to keep this short and snappy.

Please feel free, on 1st January 2014, if we are spared till then, to let me know how close to 100% inaccuracy I have managed!

Blogging Predictions

I will keep blogging.

I will continue to annoy supporters of a brand-new football club (Only joking!) playing in Glasgow who will misunderstand what I write. Continue reading

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A Phony Consultation? Corroboration on its Way Out, Despite the “Divide” in Legal Opinions?

A fine example of the openness to differing opinions and the advantages of the Scottish system of consulting about legislative plans comes from the debate regarding dramatic changes to the Scottish criminal justice rules, including the abolition of corroboration, as recommended by Lord Carloway, in his recent review.

From the Law Society of Scotland Journal Online:-

Justice Secretary Kenny MacAskill has hinted that the Scottish Government is likely to proceed with its plans to abolish the corroboration rule in Scots law, despite the opposition of many in the legal profession.

In his speech to the SNP conference at the weekend, Mr MacAskill acknowledged the opposition to the change, which was recommended in Lord Carloway’s review of criminal evidence and procedure published late last year but has recently been opposed in submissions by the other Scottish judges, the Faculty of Advocates and the Law Society of Scotland, as well as local bar associations.

The Scottish Police Federation has also come out against the move, although it is supported by the Association of Chief Police Officers in Scotland. Continue reading

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Filed under Cadder v HMA, Criminal Law, Double Jeopardy, General Scots Law Rambling, Politics, The Scottish Ministers

Lord Nimmo Smith and Rangers – The Judge Sets the Ground Rules

Highlights of the Opinion by Lord Nimmo Smith’s Commission

The “EBT” charges cover a period from 23rd November 2000 to 3rd May 2011.

This includes a charge of fielding ineligible players.

There is a further charge against Rangers (In administration) for failing to co-operate after March 15 this year, which is capable at the very least of causing Duff and Phelps embarrassment.

There is a clear distinction between the Independent Commission set up by the SPL and the SPL itself.

No fair-minded and informed observer would consider the possibility that the Commission or a member thereof was biased.

Rangers dropped the bias argument before the hearing on 11th September.

Mr Green has said the SPL refused to reply to his lawyers.

The Commission says that the SPL’s lawyer did so by letter and in numerous emails.

Which of the two statements above is correct?

Oldco and NewCo were going to turn up, represented by the same lawyer, to argue that the SPL had no jurisdiction. At the last minute they declined to attend.

The SPL undoubtedly has jurisdiction over OLDCO.

The SPL undoubtedly has jurisdiction over THE CLUB.

The club is a separate but non-legal entity which continues notwithstanding transfer from one owner to another. Rangers Football Club therefore continue as before even though ownership has been transferred.

The SPL has no jurisdiction over NEWCO, but as it has power to impose sanctions on the club, owned by newco, newco has a direct interest in proceedings.

Therefore newco could face all of the punishments for the offences if proved, on the basis that the club it bought was guilty of them.

The administrators’ argument that this was a legal process and as such ought to be stopped without their consent failed. The case can go forward to  a full hearing.

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The most clear cut and most informative analysis of the saga of Rangers Football Club (apart of course from that on this site 🙂 ) has come from the courts or from legally qualified people presiding over regulatory matters.

The opinion of Lord Hodge in the case of Martin Bain v Rangers spelled out in detail the financial perils for Rangers and included the assessment by his Lordship that Rangers faced “a real and substantial risk of insolvency if the tax appeal were to be decided against Rangers in the sums which have been discussed”.

We had the decision of Sheriff Ross in One Stop v Tixway, which blew any remaining credibility Mr Whyte had to smithereens. In that case the Sheriff said of the former Rangers Chairman “I reject the evidence of Mr Whyte as wholly unreliable. It is not possible to ascertain whether he is not telling the truth or is simply unable to recollect the true position, and has convinced himself that this arrangement is something that he would not have entered into. Either way, his evidence is contradicted by virtually every other piece of evidence.”

Gary Allan QC chaired the SFA Judicial Panel which found that Rangers and Mr Whyte were guilty of various offences against football’s rules. Their judgement laid bare a concerted campaign by Mr Whyte to avoid paying millions of pounds of taxes, which money was used to keep Rangers Football Club running as far as February (and as the administrators started with around £3 million in the bank which should have been paid to HMRC, that non-payment probably enabled Rangers to make it to the end of the season).

Lord Glennie then overturned the transfer embargo imposed by Mr Allan’s Panel and confirmed by the Appellate Tribunal under Lord Carloway.

We also had Lord Hodge’s opinion on the application by the administrators to regularise their appointment when it turned out they had failed to notify all relevant parties.

We can now add to the ever growing pile of judicial consideration the Opinion published yesterday by the SPL. This is written by the SPL Independent Commission, consisting of Lord Nimmo Smith, Nicholas Stewart QC and Charles Flint QC.

It deals with their hearing last week to determine further procedure in the so-called Rangers EBT investigation. This is the procedure condemned by Mr Green as unfair and seeking to arrive at a pre-determined conclusion.

So, now that these three legal luminaries have considered preliminary matters and issued their opinion, where does it take us?

—————————————————————

After referring to the appointment of the Commission, the opinion narrates some of the relevant history.

At paragraph 4 it states-

The SPL was incorporated in 1998.   Its share capital consists of sixteen shares of £1 each, of which twelve have been issued.   Oldco (Rangers Football Club PLC) was one of the founding members of the SPL, and remained a member until 3 August 2012 when the members of the SPL approved the registration of a transfer of its share in the SPL to The Dundee Football Club Limited.  Each of the twelve members owns and operates an association football club which plays in the Scottish Premier League (“the League”).  The club owned and operated by Oldco played in the League from 1998 until 2012 under the name of Rangers Football Club (“Rangers FC”).

This confirms what seemed rather odd, namely that oldco, even though no longer owner and operator of a football team, remained a member of the SPL for almost two months after the sale of its entire assets.

Para 6 says:-

On 14 June 2012 a newly incorporated company, Sevco Scotland Limited, purchased substantially all the business and assets of Oldco, including Rangers FC, by entering into an asset sale and purchase agreement with the joint administrators.   The name of Sevco Scotland Limited was subsequently changed to The Rangers Football Club Limited.   We shall refer to this company as Newco.

This comes back again to the point I discussed earlier this week  namely that the purchaser seemed to change from Sevco 5088 Ltd to Sevco Scotland Ltd, although this statement by the Commission does not tally with the Rangers spokesman mentioned in the piece I quoted.

Para 7 states:-

Newco was not admitted to membership of the SPL.   Instead it became the operator of Rangers FC within the Third Division of the Scottish Football League (“the SFL”).   It also became a member of the Scottish Football Association (“the SFA”), the governing body of the sport in Scotland.  These events were reflected in an agreement among the SFA, the SPL, the SFL, Oldco and Newco which was concluded on 27 July 2012 and in this Commission’s proceedings is referred to as “the 5-Way Agreement”.

Let’s look at that again. Newco became a member of the SFL and became a member of the SFA (not that it had the existing membership of oldco transferred to it).

Para 8 summarises the definition of the notorious EBTs to be considered by the Commission. It states:-

“Payments made by or for [Oldco] into an employee benefit trust or trusts for the benefit of Players, including the Specified Players, employed by [Oldco] as Professional Players, Registered and/or to be Registered as Professional Players with the Scottish Premier League  and Playing and/or to Play for Rangers FC in the Scottish Premier League and payments made by or for [Oldco] into a sub-trust or sub-trusts of such trust or trusts of which such Players were beneficiaries, payments by such trust or trusts and/or sub-trust or sub-trusts to such Players and/or for the benefit of such Players and any and all arrangements, agreements and/or undertakings and the like or similar relating to or concerning any of such Players and payments.”

 Para 9 indicates that the periods covered in the “complaint” run from 23 November 2000 to 21 May 2002, 22 May 2002 to 22 May 2005 and 23 May 2005 to 3 May 2011 in relation to EBT payments and after 15 March 2012 in relation to failure by Rangers to co-operate with the SPL and to comply with the SPL Rules. Bearing in mind that this last charge is effectively levelled against Duff & Phelps, who were running the company as administrators, it makes the declaration by them that they would have nothing more to do with these proceedings remarkable. A finding that administrators had failed to comply with the regulatory body’s investigations in an industry where they were administrators would at the very least be embarrassing and at worst could have serious financial and disciplinary consequences for the firm and the partners involved.

The “charges” allege that Oldco and Rangers FC breached the relevant Rules of the SPL, and also those of the SFA, by failing to record EBT payments and arrangements in the contracts of service of the Specified Players and/or other Players and by failing to notify them to the SPL and the SFA.   There is one Issue directed only against Rangers FC, alleging that the club was in breach of the Rules by playing ineligible players.  The fourth chapter alleges that during the period from 15 March 2012 Oldco and Rangers FC failed to co-operate and to respond to requests for documents.

The Notice of Commission was served on Oldco, Newco and Rangers FC by letters dated 2 August 2012.

The Commission then goes on to comment on certain preliminary matters.

Independence

They state in para 10:-

It is fundamental to the constitution of a body with investigatory and disciplinary powers, such as the present Commission, that it must act independently of the person or body appointing it.   We must of course operate within the terms of our remit, and apply any rules which are applicable, but in reaching our final determination of the Issues, and in making any incidental decisions, we shall exercise our own judgement, on the basis of the evidence which is adduced, in accordance with the principles of natural justice, and unfettered by the influence of the Board or of anyone else.   None of us would have accepted his appointment on any other basis.   We have the use of SPL premises and are assisted by SPL staff, but this is because we have given instructions to that effect; the members of staff, in particular, act under our instructions.

The Minute of the Board Meeting appointing the Commission is referred to:-

Continue reading

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Filed under Administration, Charles Green, Football, Football Governance, Rangers, SPL