R.C. v. Her Majesty’s Advocate [2019] HCJAC 62

Description

Note of appeal against sentence:- On 12 February 2019, at pert Sheriff Court, the appellant pled guilty on indictment in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 to:- (1) a contravention of sections 31 and 34 of the Sexual Offences (Scotland) Act 2009; (2) a contravention of sections 21 and 24 of the 2009 Act. On 1 May 2019 the appellant was sentenced to a cumulo sentence of 20 months imprisonment. The appellant appealed against the sentence on the ground that it was excessive and, having regard to the personal circumstances of the appellant, it was contended that the sentence imposed was in contravention of his rights under article 3 of the European Convention on Human Rights. The appellant’s circumstances include that he suffers from the condition spina bifida. It is contended that as a result of the appellant’s needs and the inability of the prison estate to provide for his acute needs, and the fact that he has no previous convictions, the sentence imposed was inappropriate and excessive. It was submitted that the sentencing process must take account of a convicted individual’s disability and reference was made to the Scottish Sentencing Council: Core Principle of Sentencing, article 3 of the European Convention on Human Rights, Price v United Kingdom (2002) 34 EHRR 53 and the United Nations Convention on the Rights of Persons with Disabilities. It was further submitted that section 204(2) of the Criminal Procedure (Scotland) Act 1995 applied to the appellant and that the imposition of a custodial sentence should be a last resort and the present offences were not so serious that custody was required. On behalf of the respondent it was submitted that the court should proceed on the assumption that the prison authorities will make adequate provision for the health and care needs of any prisoners and will discharge their obligations to implement the court’s sentence in a way compatible with ECHR rights. It was recognised that the sentencing court is obliged to have regards to the provisions of the Convention where relevant to the sentencing decision. It was submitted that failure to make adequate provision for the detention of a prisoner with severe disabilities can result in a breach of that prisoner’s article 3 rights and that the primary responsibility for the fulfilment of the UK’s article 3 obligations relating to the conditions provided for the detention of prisoners lay with the prison authorities. If the conditions of detention were incompatible with a prisoner’s article 3 rights, the prison authorities would be obliged to make arrangements whereby the prisoner could be held in Convention compliant conditions and if that were not possible, the prisoner could be released under section 3 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. It was submitted that the legal provisions applicable in Scotland could be relied upon as compatible. It was further submitted that guidance has been issued by the Scottish Prison Service in relation to the treatment of prisoners with disabilities titled “Guidance for Prison Officers on Disabled Prisoners and Visitors”. It was further submitted that the only relevant question for the sentencer is whether imprisonment would inevitably and immediately be incompatible with article 3 and where a court is considering imposing a sentence of imprisonment for an accused with severe disabilities it may wish to ascertain that the prison authorities are able to meet the needs of that accused and accommodate him and where it appears that imprisonment would immediately and inevitably be incompatible with article 3 make inquiries to confirm whether the case does fall into that exceptional category. It was further submitted on behalf of the respondent that in the particular circumstances of the appellant a sentence of imprisonment would not inevitably be incompatible with his Convention rights and whilst the arrangements may be inferior to the care provided by his mother, that was not the issue, rather the question was whether the appellant would be subjected to inhuman and degrading treatment such that a custodial sentence would be incompatible with his article 3 rights. Here the court examined the applicable law. It was noted that the sentencing sheriff had, after deciding to impose a sentence of imprisonment, deferred sentence to ensure that the appellant’s care needs could be met in prison. However, at the deferred sentence the sheriff had received a report which indicated that the appellant’s needs could not at that time safely be met within Perth Prison and there were no appropriate facilities available in either Edinburgh or Glenochil prisons which indicated that immediate imprisonment might inevitably breach the appellant’s article 3 rights. Notwithstanding those concerns the sheriff imposed a sentence of imprisonment at that time which the court considered was wrong to do. The court considered that on being advised of the difficulty in adequately meeting the appellant’s needs the sheriff ought to have deferred sentence again to obtain the necessary assurances from the SPS that suitable arrangements would be put in place for the appellant. The court also considered that, having regard to the particular circumstances of the case and the content of the Criminal Justice Social Work Report which provided a clear alternative to custody in the form of a Community Payback order with supervision, programme and conduct requirements, it was difficult to understand why the sheriff considered that there was no appropriate alternative to a custodial sentence available. The court considered that the appeal against sentence would have succeeded even in the absence of the appellant’s particular health needs. The court quashed the sentence of imprisonment and substituted a three year community payback order with supervision, programme and conduct requirements involving participation in the Moving Forward: Making Changes programme.