Lord Justice Clerk Lady Dorrian rebuked by academic over poor quality of opinion

In an article on long punishment parts in the Scots Law Times, Dr Graeme Brown, senior lecturer in law at Aberdeen University, wrote that Lady Dorrian’s opinion in Packer (Iain) v HMA was “poorly written” and felt “rushed”.

Some paragraphs, wrote Dr Brown, “feature certain infelicities of expression and a number of colloquialisms are used, some of which comprise language inappropriate for inclusion in an opinion of the appeal court”.

The case concerned an appeal of the long punishment part imposed on Iain Packer for various offences, including the murder of Emma Caldwell in 2005. In total, he committed offences against 22 women over 26 years between 1990 and 2016. The punishment part is the minimum period before which an offender can apply for parole – Iain Packer received the second-longest upheld on appeal, at 36 years.

Dr Brown, who was previously a professional support lawyer to the Court of Criminal Appeal and worked with the senior judiciary, suggested certain sections of the opinion had “the air of having been largely cut and pasted from the Crown narrative”.

He notes that the Lord Justice General, Lord Carloway, had “deprecated” the approach of copying and pasting in his report to the appeal court in Miller v HM Advocate “and yet the Lord Justice Clerk appears to have followed much the same approach in drafting a substantial part of the court’s opinion in Packer v HM Advocate”.

“It is submitted that it is inappropriate for one rule to apply to sentencing judges in preparing their reports to the appeal court, with another rule applying to the appeal court itself in drafting its opinions,” Dr Brown remarks.

At paragraph 18, the opinion states that one of the appellant’s charges involved “doggy style vaginal sex”. This phrasing, Dr Brown writes, is “shockingly inappropriate”.

The appeal court had to consider Chalmers (Robert) v HM Advocate (No.1), which provides guidance on fixing the punishment part when there are other charges on the indictment. But Lady Dorrian conflated Chalmers (No.1) with Chalmers (Robert) v HM Advocate (No.2) – an error that had already been made by a differently constituted bench in Owens v HM Advocate and one which Dr Brown had pointed out in another Scots Law Times article.

He concludes: “It is thus clear that her Ladyship did not give this important appeal against sentence the attention it deserved. This is not the first occasion on which the present Lord Justice Clerk has issued a poorly drafted opinion in an appeal against sentence in a case of particular gravity. Her Ladyship’s opinion in HM Advocate v MG 2023 J.C. 68; 2023 S.L.T. 232; 2023 S.C.C.R. 97, a Crown appeal against sentence in a case of rape, was replete with typographical errors and, more importantly, was based on an incomplete reading, and erroneous understanding, of the relevant English sentencing guidelines which the appeal court misapplied in refusing the Crown’s appeal.

“The lower courts, the legal profession, the Crown, and academic commentators are all entitled to expect a higher standard of written opinion from the appeal court, particularly in cases such as Packer v HM Advocate, which generate considerable public interest and which feature important points of principle.

“The family of Emma Caldwell waited almost 19 years to see Iain Packer convicted of her murder. Having refused Iain Packer’s appeal against his punishment part of 36 years on 28 August 2024, the appeal court (a bench chaired by the Lord Justice Clerk) issued its opinion a mere six days later. Sections of the opinion are at best slapdash and, at worst, highly inappropriate. The appeal court requires to put more effort into drafting its opinions. If justice is to be seen to be done, it needs to look better than this.”