Criminal Appeal Court sets out test for granting leave where ground of appeal has already been refused at sift

The Lord Justice Clerk, Lord Carloway, sitting with Lord Malcolm and Lady Cosgrove, heard that on 13 March 2015 at Aberdeen Sheriff Court, the appellant Josh Birnie pled guilty to an indictment libelling a breach of a Sexual Offences Prevention Order (SOPO), granted on 4 July 2012, which prohibited him from approaching or having any contact or communication with any child under 16 years of age; contrary to section 113(1)(b) of the Sexual Offences Act 2003.

During November 2014, the appellant had come into contact with an 18-year-old woman, with whom he had exchanged texts. She had told him that she lived at home with her parents and her 15-year-old sister.

On 28 November 2014, the appellant accompanied her to her home and entered her bedroom where they met her younger sister. The appellant remained in her company for about 15 to 20 minutes and returned to the house the following day, where he again met the sister and remained in her company for a similar period of time.

The offence was the appellant’s fifth contravention of a SOPO and the sheriff observed that neither lengthy community based disposals, nor comparatively short custodial disposals, had brought home to him the necessity of compliance.

The sheriff sentenced the appellant to 28 months imprisonment, discounted from 36 months on account of the guilty plea.

On 24 March 2015, the appellant lodged a note of appeal against sentence on the basis that: (1) the length of the custodial sentence was “excessive” standing the circumstances of the offence; and (2) the level of discount was “inadequate” standing the timing and value of the plea.

On 28 April 2015, leave to appeal was refused by a judge of the High Court at the first sift. The appellant applied to the court for leave to appeal and at the second sift on 22 May, leave to appeal was granted on the second ground of appeal only; that is to say on the discount afforded.

In light also of the record of previous SOPO breaches, the court did not share the appellant’s counsel’s view, expressed in an opinion, that the length of the headline sentence was excessive, and therefore leave was refused on the first ground.

However, the appellant applied for leave to argue the first ground of appeal, notwithstanding the earlier refusal of leave, under and in terms of section 107(8) of the 1995 Act.

The basis for this application was a second opinion of counsel to the effect that, notwithstanding the decision at second sift, it remained “arguable” that the starting point of 36 months imprisonment had been “too high”, standing the basis upon which the appellant had tendered his plea.

It was said that the offence fell towards the “lower end of the scale of seriousness” and that each of the appellant’s prior breaches had resulted in a “relatively modest sentence”.

However, the judges refused the application.

Delivering the opinion of the court, the Lord Justice Clerk said: “An application under section 107(8) of the 1995 Act to argue a ground, for which not only has leave not been granted but has actually been refused at sift, is not to be seen as a form of appeal against the decision taken at sift.

“The sift decision is final at that stage of the proceedings. It is not simply a matter of asking the court to reconsider the question of the arguability of the ground of appeal.”

The judges explained that the test, as set out in the 2006 appeal case of Beggs v HM Advocate, was that the appellant “must show that there is ‘good reason’ for reinstating the ground, such as some change in circumstances, or a patent error or misunderstanding of the grounds of appeal by the sifting judge or court, or, indeed, that the point is of such significance that it would not be in the interests of justice to exclude it”.

Lord Carloway added: “Ultimately, it was belatedly argued at the hearing that, as a generality, the interests of justice test was met. It is significant, however, that the opinion of counsel upon which this application is based does not even attempt to address the test in Beggs. It contains simply a contention that the decisions at sift were wrong in their assessment of arguability.

“That is an insufficient basis upon which to ask this court to reverse the earlier decision. The court is not satisfied that the test in Beggs has been met. This application is therefore refused.”