Disabled man jailed for child ‘grooming’ offences wins appeal against ‘inappropriate and excessive’ custodial sentence 

The appellant “RC”, who was born with spina bifida, claimed that the sentence was “excessive”, and that, in the light of his particular circumstances, in breach of his rights under article 3 of the European Convention on Human Rights (ECHR).

The High Court of Justiciary Appeal Court rejected that appellant’s argument that a custodial sentence would expose him to “inhuman or degrading treatment” contrary to article 3 ECHR, but ruled that as a first offender a sentence of imprisonment was not the only appropriate disposal, and accordingly imposed a community payback order instead.

‘Grooming’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that the appellant, who has never had any sensation or movement below the waist and who uses a wheelchair, appeared at Perth Sheriff Court on 12 February 2019, where he pled guilty to a contravention of sections 31 and 34 of the Sexual Offences (Scotland) Act 2009 and admitted a contravention of sections 21 and 24 of the 2009 Act.

Both charges involved a period of “grooming”: charge 1 involved the appellant communicating in a sexual manner with a 15-year-old girl, and intentionally causing her to participate in a sexual activity via Skype in that he encouraged her to remove her clothing on camera while he watched her; while charge 2 involved causing a 12-year-old child to participate in sexual activity by persuading her to remove clothes and to send him a picture.

Following the plea, the sheriff deferred sentence for the provision of a criminal justice social work (CJSW) report and a Tay Project assessment. 

At the continued calling on 27 March 2019 the sheriff, having considered the plea in mitigation along with the terms of the relevant reports, determined that a sentence of imprisonment was appropriate, but having regard 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 for those to be properly assessed. 

A supplementary CJSW report indicated that the deputy governor of Perth Prison had indicated that she “does not believe that we have the physical capacity to provide for all [the appellant’s] needs safely in Perth Prison”.

It also noted that HMP Edinburgh and HMP Glenochil had no suitable available cells until September. 

Nevertheless, on 1 May 2019 the sheriff imposed a cumulo custodial sentence of 20 months, reduced from 30 months in light of the guilty plea.

‘Inappropriate and excessive sentence’

The court was told that on his admission to HMP Perth the appellant - who is doubly incontinent and reliant on the care of his mother and aunt to manage his daily needs, including assistance with toileting, dressing, eating, washing and mobility - was housed within the general area of the prison in an adapted, larger than usual, cell with a wet room and lavatory.

But no arrangements were yet in place for carers to attend to provide social care, meaning his mother and brother were called to attend the prison to care for his needs on his first night.

From 2 May 2019, an individual care package included in-cell assistance by carers four times per day to assist him with washing, toileting and personal care and access to a call system if he required assistance from SPS staff during the night, as no NHS staff were in the prison overnight.

However, on appeal it was argued for the appellant - who also has diabetes and ulcers on his legs for which he requires constant treatment - that in light of his needs and the inability of the prison estate to provide the necessary care, taken together with the fact that the appellant had no previous convictions, the custodial sentence imposed by the sheriff was “inappropriate and excessive”.

The appellant had been assessed as suitable for a community-based disposal, which could have included a Community Payback Order with supervision which could have included a programme requirement, and a conduct requirement to reduce the risk of further offending.

While it was was clear from the terms of the supplementary CJSW report that there were issues regarding the ability of the prison estate to provide appropriate care to the appellant, the sheriff did nothing to ensure the wellbeing of the appellant in both the prison estate and the court in the period following the imposition of the sentence.

In support of the appellant’s position, reference was made to the Scottish Sentencing Council’s guidelines on the Principles and Purposes of Sentencing; article 3 of the European Convention on Human Rights and in particular, Price v United Kingdom (2002) 34 EHRR 53 in that regard; and the United Nations Convention on the Rights of Persons with Disabilities.

In any event, it was submitted that the appellant, as a first offender, was protected by section 204(2) of the Criminal Procedure (Scotland) Act 1995, and that the imposition of a custodial sentence should be a “last resort”.

‘Breakdown in communications’

Allowing the appeal, the judges ruled that the sheriff was “wrong” to impose a custodial sentence.

Delivering the opinion of the court, the Lord Justice Clerk said: “Whatever the deficiencies of the arrangements for the appellant’s reception into custody (as to which see below) within 24 hours the prison had managed to put in place a system of care which is not suggested to have been other than Convention compliant, although it is relied on as illustrating the extent to which imprisonment imposed a more significant punishment on the appellant than on a prisoner without his condition.

“The sheriff in the present case, having decided to impose a sentence of imprisonment, did defer sentence for the purpose of allowing the appellant’s care needs within the prison estate to be assessed. 

“There is nothing about the appellant’s condition, however severe it may be, in the context of the known regime for incarceration within the UK, which would suggest that his imprisonment would immediately and inevitably result in a breach of article 3. The period of deferral would enable the authorities adequately to prepare for his arrival and to ensure that they were prepared to meet his needs. 

“However, there seems to have been a breakdown in communications. The method by which the sheriff sought to achieve his intention was by means of a supplementary criminal justice social work report. 

“In reality what was required here was not a supplementary criminal justice social work report at all. What was required was intimation directly to the prison authorities that at the deferred diet a sentence of imprisonment would be imposed on the appellant; that he had numerous complex care needs; and that the delay was to enable the prison authorities to make the necessary arrangements for his reception.

“Had this been done, it seems likely – from the speed with which the prison was able to respond eventually – that there would have been no difficulty. However, what happened was that at the continued diet the sheriff had a report which stated in terms that the appellant’s needs could not at that time safely be met within Perth Prison and that no facility was available in either Edinburgh or Glenochil. 

“The sheriff was thus faced with information which at the very least raised the possibility that immediate imprisonment might inevitably, at least in the short term, breach the appellant’s article 3 rights. Nevertheless, he proceeded to impose the sentence of imprisonment already decided upon.

“We are satisfied that he was wrong to do so even if a custodial sentence were otherwise merited, a matter we address below. The sheriff should have continued the case further; ensured direct intimation to the prison on the date of the deferred sentence; intimated that he expected arrangements to be made for the sentence to be served in Convention compliant conditions; and sought an assurance that suitable arrangements would be put in place. Only after that should he have imposed a custodial sentence, assuming that to be appropriate.”

‘Community-based disposal’

Turning to the merits of the case, Lady Dorrian added: “The starting point for consideration of the present case is not in fact, in our view, the appellant’s condition but the protection afforded to him in terms of section 204(2) of the Criminal Procedure (Scotland) Act 1995. 

“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: “From the full, first CJSWR it is quite clear that the appellant was deemed suitable for community-based disposal. That report noted that the appellant’s restricted sexual development, already noted, had resulted in highly complicated feelings that he was not currently equipped to process; however, ‘it is hoped with appropriate intervention and support [he] will be able to find appropriate ways to understand and process his sexual identity’. 

“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 was proposed, together with conditions designed to limit his access to the internet.

“How it is that in the face of the clear identification of treatment needs, an available and suitable programme of work to address these, and to reduce the risk of future offending, with conditions designed to ensure suitable management within the community, the sheriff nevertheless was able to conclude that only a custodial sentence would serve is difficult to understand.

“Moreover, we say that before taking any account of the appellant’s physical difficulties. When one takes them into account, and recognises the extent to which imprisonment would constitute a heavier punishment for him than for an offender without his condition (something the sheriff appears not to have acknowledged), the position becomes even clearer.”

The court therefore imposed a three-year community payback order with supervision, programme and conduct requirements involving participation in the Moving Forward: Making Changes programme and the conditions specified in the CJSW report.