Daniel Ross v. Her Majesty’s Advocate [2016] HCJAC 54

Note of appeal against conviction and sentence:- The appellant was convicted of a number of charges including theft by housebreaking and theft of a motor vehicle. The appellant was sentenced to three years and 20 weeks detention dating from the time of sentencing, he having already spent ten and a half months in custody. The appellant appealed against his conviction and sentence. It was submitted on behalf of the appellant that there was insufficient evidence to establish that the comparative fingerprint was that of the appellant after the police officers who took the livescan fingerprint failed to identify him at the trial. In addition, it was submitted that in the event that the evidence was sufficient to establish that the prints were that of the appellant the finding of his fingerprint on the mirror of the car was insufficient to prove that he was the perpetrator of the theft. Here the court refused the appeal. In relation to the failure by the police to identify the appellant as the subject of the livescan fingerprint procedure the court observed that both officers were able to speak to the system in operation within the police station and to the person detained being processed, fingerprinted, interviewed and arrested and to the livescan fingerprint form relating to that person, that person being the appellant. The court considered that the fingerprint on the mirror of the car at the driver’s side was sufficient evidence of the appellant being the perpetrator given that the theft occurred between 10pm on the 17th and 8.30am on the 18th and the car was recovered by lunchtime on the 18th and found to be undamaged and locked indicating that it had been driven and abandoned by someone in possession of a true key. The court considered that it was a legitimate inference for the jury to draw that the appellant was the perpetrator. A further ground of appeal relating to an alleged misdirection by the trial sheriff in relation to the taking of the prints was refused as, by the time of the sheriff’s directions, the issue for the jury was less about whether the prints were those of the appellant but, rather, more to do with what inferences could legitimately be drawn by the jury in relation to their presence on the mirror. In relation to the appeal against sentence it was submitted on behalf of the appellant that the sentencing sheriff ought to have considered the observations of Lord Justice Clerk Gill in Kane v HMA 2003 SCCR 749 regarding the sentencing of young offenders in which it was said that the personal circumstances of the young offender were important and any behavioural problems may not solely be down to the young offender and the sentencer should have regard to the concept of rehabilitation. Here the court considered that, notwithstanding that he was aged 17 at the time of the commission of most of the offences, the appellant had previously received non-custodial sentences and that a custodial sentence was appropriate in the present case. Charge 7 was no longer before the court following a concession by the Crown and, having regard to the length of time the appellant had spent in custody, the appropriate period of detention was one of 20 months from the date of sentencing.