COVID-19: Man who deliberately coughed in faces of police officers has sentence increased

The appeal by HM Advocate followed the sentencing of Iain Lindsay to six months’ imprisonment, reduced to four months by his guilty plea, under section 76 of the Criminal Procedure (Scotland) Act 1995.

The appeal was heard in the Appeal Court of the High Court of Justiciary by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Turnbull.

Significant distress

It was accepted that the respondent had a bad record and that a drink problem was at the root of much of his offending. The offence was committed in April 2020 whilst he was being booked in for another offence at a police station in the Highlands.

During this time, the respondent coughed once in the face of one officer before turning to the second and doing the same. He did not display any symptoms of COVID-19 at the time, but his actions caused significant alarm and distress to the officers and those who lived with them.

The sheriff imposed a sentence of six months’ imprisonment, reduced by one third to four months by the respondent’s guilty plea. She did this on the basis that the offence was unplanned, that the objective risk to the officers was very low, and that the sentence was intended as a deterrent to prevent other offenders from similar behaviour.

In her report, the sheriff stated: “I acknowledge that the sentence imposed was less than might often be seen on indictment, but I consider it was within the range of appropriate disposals, having regard to all the circumstances in this case.”

The appellant submitted that this sentence was unduly lenient and that the sheriff erred in failing to give sufficient weight to the nature of the conduct, the respondent’s previous convictions, and the objective of deterrence. The respondent’s actions, despite being unplanned, were deliberate and designed to cause fear and alarm.

In applying a discount to the respondent’s sentence, the appellant submitted that the sheriff erred in suggesting that this was appropriate due to the difficulties in conducting trials during the pandemic. The fundamental reasons for a discount are focused on the utilitarian benefit of a guilty plea in any individual case, not their effect on the existence of any general backlog in cases.

The appellant also submitted that if the court was perceived to be using additional inducements to plead guilty as a mechanism for tackling a backlog it was a real risk to confidence in the fair and sound administration of justice.

The respondent submitted that the sheriff had properly considered all relevant matters in determining his sentence, including the brevity of the incident and the low practical risk. While the sentence might be lenient, it was not unduly so. On the second point, the appropriate discount for a guilty plea for a section 76 offence was one third of the total sentence, and therefore no increased discount had been given to the respondent.

An appalling record

The opinion of the court was delivered by Lady Dorrian. On the respondent’s previous record, she said: “In our opinion the sentence as a generality meets the test of undue leniency. The respondent has an appalling record and, apart from referring to it as a ‘bad record’, the sheriff gives no indication that she really took this into account and reflected it in the sentence which she imposed. The respondent’s record runs to 11 pages. He has appeared on complaint well over 100 times, on over 170 charges, as well as appearing on indictment for assault.”

Of the objectively low risk, she said: “The sheriff appears to have considered that it was a mitigating factor that the offence was not planned, was completed in a matter of seconds, and was not accompanied by any threats, violence or aggression. However, as the Advocate Depute submitted, this is to ignore the fact that the offence was clearly deliberate, repeated towards the second officer and designed to cause significant fear and alarm, which the respondent must have known would be the result of his actions. We cannot see that the fact that the respondent was not displaying COVID-19 symptoms is a factor in his favour: there appears to be a real risk that the condition may be transmitted by those who are asymptomatic carriers of it, even if the risk may be a small one.”

She continued: “Had the sheriff taken full account of the appellant’s record, his deliberate and calculated actions, the nature of the offence, and the general risk involved, we cannot see that she could have selected a starting point of less than 15 months. We therefore consider that the sentence selected was unduly lenient, in being outwith the range of reasonable sentences available to the sheriff.”

Regarding the discount applied, she said: “A discount of 30% to one third is often granted in cases where the plea has been tendered at the earliest possible opportunity by section 76 letter. In the present case the sheriff granted such a discount and it is not suggested that she was wrong to do so.”

For these reasons, the appeal was allowed. The respondent’s sentence was increased to 15 months’ imprisonment, with the discount bringing it down to 10 months.

Guidance on discounts

Recognising that despite its irrelevance in the present case the issue of sentence discounts during the pandemic was one that was repeatedly arising in other courts up and down the country, the opinion also contained some guidance on sentence discounts in the current situation.

Noting with approval the opinion of the High Court in Gemmell v HMA, Lady Dorrian said: “There is no basis for any specific backlog in a general or occasional sense to be treated as a separate identifiable justification for awarding a discount. Workload does fluctuate, and perceptions of workload are not universal. The effect of pleas of guilty on the workload of the courts in a conventional sense is already factored in to the levels of discount generally granted.”

She continued: “The current discounting regime is a relatively generous one. Its operation is relatively clear and is based on broad general principles. We do not consider that the likelihood of an increased backlog within the court system is a convincing reason to award a discount any greater than would follow from the operation of those general principles.”

On the current state of prisons, she said: “The conditions which arise as a consequence of COVID-19 are unlikely to be permanent, and one can expect that in the short to medium term prisons will find better ways of adapting to the conditions dictated by the virus. There are already signs that this may be happening.”

She concluded: “It is reasonable to anticipate that in the short to medium term the Scottish Prison Service will find ways of adapting to the requirements imposed by the prevalence of COVID-19 and find reasonable ways of improving the situation for those in their care. To take account of the current emergency as a reason for discounting a custodial sentence would discriminate unfairly against prisoners who may have been given a short term sentence shortly before the lockdown, in favour of those upon whom such sentences are imposed now.”