On 1 April 2019 the Domestic Abuse (Scotland) Act 2018 came into force. It creates a new offence where an individual has engaged in a course of behaviour which is abusive to their partner or ex-partner. The behaviour may or may not be violent, but includes threats and intimidation to the partner and children, for example making the partner dependent on or subordinate to the accused, controlling, monitoring or isolating them, depriving or restricting freedom or causing them to feel frightened, humiliated or degraded. An aggravation arises where children are involved in the behaviour.
The s 23D presumption against bail other than in exceptional circumstances will apply in petition cases if the accused has a previous conviction on indictment for a violent, sexual or domestic abuse offence. There is a statutory defence along similar lines to that in s 38 of the Criminal Justice and Licensing (Scotland) Act 2010 where, for example, it is suggested a partner took control of another to avoid excessive drinking, drug taking or suicidal tendencies.
This offence will result in a step change in investigating and prosecuting domestic violence. In the old days a callout to a domestic disturbance often resulted in police satisfying themselves at the doorstep that there was no need for further action. In recent years a firmer line has been taken, with the alleged perpetrator being arrested and a presumption in favour of prosecution where sufficient evidence is found. The new offence requires a quantum leap in police enquiries and evidence gathering. There may be signs in the house not suggestive of physical violence but of controlling behaviour – locks on doors, evidence from mobile phones etc.
At a recent training event we were told that since 1 April, 50 allegations of coercive or controlling behaviour had been reported to the police and already 25 prosecutions were underway. The course of conduct under consideration can only be from 1 April. Those of you who undertake family law cases may be familiar with bad behaviour in a domestic setting which hitherto has fallen short of being criminal. The recent cases of Procurator Fiscal, Aberdeen v Taylor  HCJAC 2 (see April article), and Spinks v Procurator Fiscal, Kirkcaldy  HCJAC 37 (June 2018 article) should be borne in mind. The Crown needs to establish a course of behaviour with two or more incidents within a reasonable time frame, and has made it clear there may be instances where summary level conduct may be mixed with more serious allegations such as rape. I am sure the new offence will give rise to many cases in the future.
Just as it is inadvisable but not illegal to swear at the police, there are circumstances when laying hands on an officer may not constitute a police assault in terms of s 90 of the Police and Fire Reform (Scotland) Act 2012.
The appellant in McCallum v Procurator Fiscal, Edinburgh  HCJAC 26 (22 March 2019) was a woman of 38 who lived with her son aged 14. Two police officers were tasked with attending at her house to detain her for an alleged assault.
They arrived at 9.40 pm when the appellant was in her nightclothes. She refused to accompany them and attempted to shut the door. A struggle ensued in the hallway during which the appellant said the police had no right to do what they were doing and should leave her alone. Additional officers were summoned and the appellant was subdued more than 15 minutes later. The sheriff accepted that the officers had no lawful right to enter the appellant’s property; she was entitled to physically resist, but could only use reasonable force short of cruel excess. She was accused of kicking one officer, without causing injury, and grabbing the skin of the thigh of another, which was said to have been very painful.
The sheriff convicted the appellant; this was upheld by the Sheriff Appeal Court which concluded that the assaults went well beyond any kind of reasonable resistance to an unlawful detention. Leave to appeal to the High Court was granted on the basis that the sheriff had applied the incorrect test.
The court accepted that the officers had unlawfully forced their way into the appellant’s property without a warrant (Gillies v Ralph 2008 SCCR 887). However the test derived from Wither v Reid 1980 JC 7, “all necessary force short of cruel excess”, was not the correct formulation. It cited the French concept of rebellion – the right to stop unlawful intruders entering one’s home! The court accepted however that there should be some measure of proportionality, and after considering a line of English authority on the topic determined the correct test should be whether the appellant’s conduct was reasonably necessary in order to provide effective resistance to the unlawful actings to which she was subjected. It concluded that the sheriff had overstated the appellant’s actings as a brutal attack, and quashed the convictions.
Don’t be late with that appeal!
Back in the day, if you ran out of time with a solemn appeal or had a client turn up months after the event wanting to appeal, an application seeking leave to appeal was usually granted. For the judge, the task of recalling a case some months later and trying to decipher one’s notes could be stressful.
In Solomon v HM Advocate  HCJAC 28 (2 May 2019), the appellant had been convicted of attempted rape in June 2018. He lodged a notice of intimation of intention to appeal within the requisite two week period and sought an extension to lodge the note of appeal, which was granted on 1 October, but failed to lodge a note before the period expired on 1 November. An application for a further extension was lodged on 15 March 2019. As is often the case in such circumstances, there had been a change of agency after conviction and the October extension was due to difficulties in obtaining papers from the previous agents. A consultation was held on 12 October when “potential sources of fresh evidence and further enquiries that might assist an appeal” were discussed, and a further consultation took place on 31 October, but no grounds were lodged to meet the following day’s deadline, nor further extension sought.
Four grounds of appeal were eventually lodged. The application for extension was refused at first instance due to it containing mainly generalised statements about discussions with the appellant and fresh evidence enquiries conducted. A further consultation had taken place in January 2019, by which time the appeal had been deemed abandoned, and no explanation was given for the subsequent passage of time.
The application seeking a further extension was refused. Crucially, what now has to be borne in mind in this context is that the relevant provision, s 111 of the Criminal Procedure (Scotland) Act 1995, was amended by s 90 of the Criminal Justice (Scotland) Act 2016 to insert subss (2ZA) and (2ZB). This means that the court will only grant an extension if “satisfied that doing so is justified by exceptional circumstances”. In such a case the High Court will consider the length of time that has elapsed from the time limit to the making of the application, the reasons for the delay and the proposed grounds of appeal. In Solomon the court concluded the application did not identify anything said to be fresh evidence, and the grounds advanced could have been presented within the approved time frame. No satisfactory explanation was advanced for the delay.
In Rodgers v HM Advocate  HCJAC 27 (10 May 2019), the appellant was responsible for the unprovoked stabbing to death at a party of a young woman he barely knew. The appellant had a long history of psychiatric problems originating in a “challenging childhood”. He had taken an overdose of prescribed medication in November 2013.
His psychiatrist noted this overdose “appeared to be linked to anger issues while intoxicated”. The appellant was prescribed the antidepressant Fluoxetine in June 2016 and was described as “quite chaotic... using drink, recreational drugs and anabolic steroids”, and “exhibiting maladaptive personality traits rather than suffering from a true depressive illness”. He was then prescribed the antipsychotic Quetiapine.
By May 2017 his condition was described as less erratic; he was discharged from psychiatric follow-up but took another overdose which required intensive care. He was expressing suicidal thoughts, and drinking and gambling as an escape mechanism. He was prescribed Valium and diagnosed as having a bi-polar II personality for which he was prescribed Lamotrigine. His condition deteriorated during August 2017, and on 5 August he started drinking and consuming his prescribed medication. He told friends he was contemplating suicide. He drank assorted alcoholic drinks and laced some with drugs. He exhibited bizarre behaviour and then attended an all-night party, arriving at 4am. He fell asleep, woke up about 11am when he heard partygoers singing, then suddenly stabbed one of them with a knife he had picked up in the kitchen. The appellant was arrested shortly after and made incriminating remarks, but later claimed to psychiatrists he had no recollection of events. Various psychiatric reports were available at trial; one doctor highlighted that the use of Diazepam (Valium) and alcohol was “not generally recommended”, causing “paradoxical aggression” and disinhibition. The appellant did not give evidence. There was a consensus he suffered from an emotionally unstable personality disorder at the time he was intoxicated, and this was “likely significantly to and may have been the crucial factor in the alleged offence”.
The Appeal Court noted that abnormality of mind had to be a substantial cause of impairment for the plea of diminished responsibility to be open. It need not be the only cause, but the impairment must not be brought on by the voluntary ingestion of drink and drugs. The Appeal Court disapproved of the form of words used by the trial judge as the standard to be met by the defence in advancing the plea, which was on a balance of probabilities. There was however no miscarriage of justice. Even on the assumption that the appellant’s ability was impaired as a consequence of a combined effect of voluntary alcohol/drug ingestion and a mental abnormality, the correct verdict was murder.
Dog days – the definitive version
In the April 2018 Journal (at 27) I recounted the cases of the dogs Sasha and Floyd, when their behaviour was the subject of scrutiny by the Sheriff Appeal Court. In Hunter v Procurator Fiscal, Kilmarnock  HCJAC 19 (2 April 2019) the High Court had to deal with a reference from the Scottish Criminal Cases Review Commission following the SAC confirming the destruction of an unnamed bull mastiff dog. This dog had in December 2016 run out of its garden and bitten a puppy and its owner who were passing. Both sustained serious bites. In a long judgment the High Court covered the complicated nature of the legislation, which had been enacted in a piecemeal fashion after various high profile cases of attacks by dangerous dogs.
Initially the legislation resulted in the mandatory destruction of a dangerous dog if it injured a person. After pressure the Government allowed the court not to make a destruction order if the dog would not constitute a danger to public safety, and also introduced a contingent safety order. The sheriff had ordered the dog’s destruction based on a report that the animal was five, had not been properly trained and was too old to train to avoid a repetition. An appeal to the SAC was refused, and application to the second sift was also refused in February 2018 on the basis that a contingent destruction order had not been considered. The SCCRC refused to refer the case back to the High Court in July 2018, but did refer the case in November on further information including a report from a canine behavioural consultant who argued the dog could be muzzled and subjected to a control order. The court was of the view that a contingent destruction order could only be considered if a decision not to destroy the dog had first been made. It was clear the dog’s owner was incapable of controlling the animal, and although a charity was prepared to rehome and retrain it, the additional information did not meet the fresh evidence test and the order to destroy was confirmed. From the report I can only assume the dog remained in kennels from the incident in December 2016 until some time after this decision was pronounced over two years later.
HM Advocate v GO’D  HCJAC 33 (22 May 2019) highlighted an obscure area of sentencing when dealing with offenders under the age of 18. The respondent pled guilty to two charges under the Sexual Offences (Scotland) Act 2009 and was sentenced to detention under s 207 of the 1995 Act. Counsel had suggested the respondent should be sentenced under s 208, whereby he would have been taken to a place and on conditions as might be directed by ministers. At time of sentence the respondent was the subject of compulsory supervision imposed by a children’s hearing. At appeal the Crown conceded that Anderson v McLennan 1998 SCCR 552 applied. In recent years the definition of a child had been extended to include all under-18s and not just those under supervision. Although s 208 referred to a person under 16, it was clear that the respondent, being a child, should be sentenced under s 208.
Consent to sexual intercourse
In a lengthy judgment in GW v HM Advocate  HCJAC 23 (15 November 2018) their Lordships answered in the negative the question, can someone consent in advance to having sexual intercourse while asleep? They traced the history of the relevant provisions, and the debate which took place as to whether prior consent should be permissible. It was suggested consent had been given at the start of the relationship between the appellant and complainer and had not been withdrawn. The preliminary hearing judge and trial judge refused to allow a defence of consent in these terms to be read to the jury, and refused a s 275 application to permit evidence of prior consent to being woken by vaginal penetration as a facet of the relationship. The Appeal Court agreed that consent expressed at a point materially remote from the conduct said to constitute the crime could not provide a defence under statute. A sleeping person could not give consent, which had to be given at the time, and the appeal was refused.
Cumulo and other sentences
I am not clear what took place in Fleming v HM Advocate  HCJAC 20 (5 March 2019). The appellant pled guilty to two charges of housebreaking, and a contravention of s 57(1) of the Civic Government (Scotland) Act 1982 (being in or on a building etc with intent to commit theft), and went to trial on more serious charges of assault and armed robbery at Gleneagles Hotel. After conviction he received an extended sentence of 18 years including an extension period of three years. The appeal against this sentence was unsuccessful due to the nature of the charge and his previous record. A three year cumulo sentence in respect of the other charges was upheld with the words “we cannot find any fault with that sentence”. As every solicitor practising in the criminal courts knows, the maximum sentence for a s 57 offence is three months’ imprisonment!