Men who spat at police officers during pandemic have prison sentences reduced by High Court of Justiciary

Gordon Dewar and Barry McLean both pled guilty to assaulting a police officer, as well as other offences of behaving in a threatening or abusive manner. Mr Dewar was sentenced to a net total of 22 months’ imprisonment including plea discount, while Mr McLean was sentenced to a total of 3 years’ imprisonment.

The appeals were heard by Lord Pentland and Lord Matthews. The first appellant was represented by Findlater, advocate, the second appellant by Paterson, solicitor advocate, and the advocate depute was A Gray, solicitor advocate.

Deplorable conduct

The first appellant, Mr Dewar, was charged with shouting and swearing at police officers, calling them derogatory and racially offensive names, and spitting on the face of a police officer in the course of her duties. At the time of the offences Mr Dewar was drunk and the officers were attempting to take him home.

The sentencing sheriff imposed two concurrent sentences of imprisonment, with the sentence for the assault offence being 33 months’ imprisonment, discounted to 22 months’ imprisonment by the appellant’s guilty plea. Counsel for Mr Dewar submitted that the headline sentence was excessive, particularly when compared to the circumstances of another case, HMA v Lindsay (2020).

It was submitted that in Lindsay the offence had been aggravated by potential danger to the lives of the police officers, as the charge was one of culpably and recklessly coughing in the faces of two police officers whilst claiming to have Covid-19. Further, the appellant’s prior criminal record featured fewer analogous convictions to those present in the Lindsay case.

Delivering the opinion of the court, Lord Pentland began: “The sheriff was undoubtedly right to take a serious view of the appellant’s conduct in assaulting a police officer by spitting at her in the face from close range. As the sheriff aptly observes, such conduct is all the more deplorable in the course of the pandemic.”

However, he went on to say: “We consider that there is force in the submission that the sentence selected by the sheriff was excessive when compared with that imposed by this court in Lindsay. Like the appellant in that case the present appellant has a disgraceful record of previous offending. We do not consider it appropriate or helpful to seek to draw fine distinctions between the respective records of the two offenders. The fact remains, however, that a starting point of 33 months’ imprisonment is more than twice the headline sentence considered appropriate by this court in Lindsay.”

For these reasons, the court substituted the original sentence for the spitting charge for one of 15 months’ imprisonment, discounted to 10 months by the guilty plea.

Single course of behaviour

The second appellant, Mr McLean, pled guilty to three charges of shouting and swearing at police officers and threatening them with violence, assaulting two officers by spitting at them, and struggling violently whilst in a police car to the danger of its occupants. For the first and third charges, he was sentenced to concurrent periods of imprisonment for a net total of 18 months’ imprisonment. For the second charge, he was sentenced to a further consecutive period of 2 years’ imprisonment, reduced to 18 months by the guilty plea, resulting in a total sentence of 3 years’ imprisonment.

It was submitted for the second appellant that, standing the decision in Lindsay, the starting point for the spitting charge was too high. The appellant had a less extensive record than the appellant in Lindsay, and it was arguable that the sentence for the charge should have been made concurrently with the other two.

In respect of this appeal, Lord Pentland said: “We have no difficulty in agreeing with the sheriff that assaulting police officers by spitting at them during the pandemic amounts to a serious offence. Nonetheless, we consider that the starting point of 2 years’ imprisonment selected by the sheriff was too high, having regard to the guidance provided by this court in the case of Lindsay.”

Addressing whether the sentences for all three charges ought to run concurrently, he said: “We are persuaded that the sheriff erred in deciding to make the sentence for the assault by spitting a consecutive one. We note that this offence was committed at the same time and in the same circumstances as the other two offences. It constituted a component, no doubt a deplorable one, of what was in reality a single course of disorderly behaviour directed by the appellant at police officers.”

He concluded: “We acknowledge that there is no hard and fast rule that sentences arising out of the same course of conduct have to be concurrent, but we are satisfied that in the circumstances of the present case the right course would have been to treat all the offences as amounting to a single continuing sequence of events and to impose concurrent sentences on all three charges.”

For these reasons, the court substituted a sentence of 12 months’ imprisonment, reduced to 9 months by the guilty plea, to run concurrently with the sentences imposed for the other charges. Mr McLean’s total sentence was therefore reduced to 18 months’ imprisonment.