A severely disabled man who was found guilty of sexual crimes against children and sentenced to 20 months’ imprisonment has successfully appealed against a sheriff’s decision to impose a custodial sentence.
The appellant ‘RC’ was born with spina bifida, has never had any sensation or movement below the waist and uses a wheelchair. RC claimed the sheriff’s sentence was ‘inappropriate and excessive’ and in contravention of his rights under article 3 of the European Convention on Human Rights (ECHR).
The argument that a sentence of imprisonment would expose him to ‘degrading treatment’ contrary to article 3 ECHR was rejected by the High Court of Justiciary Appeal Court, however, it found that incarceration was not the only appropriate disposal for the first-time offender:
“The appellant was deemed suitable for participation in Moving Forward: Making Changes and a detailed series of conditions which would enable appropriate management within the community to take place.”
Accordingly, the Lord Justice Clerk, Lady Dorrian, alongside Lord Brodie and Lord Turnbull, substituted the custodial sentence for a Community Payback Order (CPO).
The Appeal Court heard that RC pled guilty to a contravention of sections 31 and 34, and a contravention of section 21 and 24 of the Sexual Offences (Scotland) Act 2009. The charges involved the appellant having indecent communication with a 12- and 15-year-old child, causing them both to participate in sexual activity through the removal of their clothes. Both incidents happened between August 2015 and February 2017 and had been preceded by a period of ‘grooming’.
Following the plea in February 2019, the sheriff deferred sentencing while awaiting a criminal justice social work (CJSW) report and a Tay Project assessment. The report indicated that the deputy governor of Perth Prison did not believe they had “the physical capacity to provide for all [the appellant’s] needs safely”, alongside HMP Edinburgh and HMP Glenochil confirming they had no suitable cells available until September. At the continued diet one month later, the sheriff considered the plea as well as the reports, and determined that a custodial sentence was appropriate.
Due to the “nature and extent of the appellant’s disabilities, and to the care needs that he would require in the prison estate”, the sheriff further deferred sentence until 1 May 2019. In his report, the sheriff explained that while the appellants’ care is a matter for the Scottish Prison Service, he deemed it “appropriate that they be given fair notice and the opportunity to engage the necessary resources to meet the appellant’s needs before his incarceration”.
The sheriff then sentenced the appellant to a cumulo sentence of one year and eight months. In light of RC’s guilty plea, this sentence was reduced from 30 months.
On his arrival at HMP Perth, the appellant was put in the general area of the prison in an adapted cell, however no arrangements were yet in place to provide him with social care. This resulted in the appellant’s family members being called to care for his needs on his first night.
By the following day, the appellant had in-cell assistance from carers four times per day to assist with washing and personal care, as well as access to a call system if he required support from the prison staff during the night.
The Scottish Sentencing Council’s guidelines on the Principles and Purposes of Sentencing was referenced in support of the appellant, alongside article 3 ECHR and the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
The Lord Justice Clerk said the incarceration of RC alone did not constitute a breach of article 3 EHRC, as article 3 requires the State to ensure prisoners:
Due to the period of deferral, there was reasonable time for the authorities to prepare for his arrival and make suitable arrangement for the appellant’s care. However, it seems it was not made clear to the authorities that a custodial sentence was imposed and the purpose behind the delay was to ensure the necessary resources were in place. Although adequate care was arranged within 24 hours of the appellant’s arrival, the CJSW report confirmed three different prisons could not meet the appellant’s needs at that time, and therefore the sheriff had enough information to know the immediate imprisonment of RC - at least in the short term - could breach the appellant’s article 3 convention rights.
According to the appeal judges, the sheriff should have “ensured direct intimation to the prison on the date of the deferred sentence and sought an assurance that suitable arrangements would be put in place.”
It was submitted that, as he had no previous convictions and no pending cases against him, RC was protected by section 204(2) of the Criminal Procedure (Scotland) Act 1995, and the decision to impose a custodial sentence should be a “last resort”. Allowing the appeal, the judges ruled:
“The appellant is a first offender and is thus someone who has not been previously sentenced to imprisonment or detention. Accordingly, the sheriff was only entitled to impose a sentence of imprisonment if satisfied that no other method of dealing with the appellant was appropriate.”
The court concluded that a “suitable programme to address [treatment needs], with conditions designed to ensure suitable management within the community” was available, and yet the sheriff’s decision to impose a custodial sentence as the only option was “difficult to understand”.
The court therefore imposed a three-year CPO with supervision, conduct requirements including the participation in the Moving Forward: Making Changes programme, as well as the conditions specified in the CJSW report.
At Keith J Tuck, our sexual offence solicitors have years of experience in handling high profile cases. Whether you have been accused of grooming, indecent communication, an historic sexual offence, or rape, our qualified criminal defence lawyers can provide you with expert legal guidance and representation today. Do not delay and call us on 0141 336 2020 or complete the online enquiry form and we will get back to you straight away.