Sheriff Appeal Court quashes decision to sustain oppression plea in prisoner prosecution for unauthorised SIMs

About this case:

• Citation:
  [2023] SAC (Crim) 4
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Respondents Brandon Douglas and John Pow both argued that it was oppressive of the Crown to prosecute them as they had already received disciplinary punishment within prison for the same acts.

The appeal was heard by Sheriff Principal Nigel Ross, along with Appeal Sheriffs Harry Small and Derek Hamilton. Ewing KC appeared for the Crown and Jane, solicitor advocate, for the respondents.

Necessary to prosecute

Following the discovery of the cards, the first respondent was disciplined by loss of recreation, loss of earnings, and loss of access to personal cash, all for seven days. The second respondent received a similar punishment but suspended for 14 days. Nonetheless, both were charged by the Crown with a contravention of section 41AZ of the Prisons (Scotland) Act 1989.

The sheriff who sustained the pleas of oppression did so based on her own unreported decision in an earlier case, James v Procurator Fiscal (Peterhead) (2023), in which she came to the same conclusion. In that case, she did not agree with a Crown submission that it was necessary to prosecute contraventions of section 41AZ in order to avoid unauthorised use of SIM cards in prison and reasoned that the charge being dealt with by disciplinary proceedings was part of the criminal law.

For the Crown it was submitted that the correct remedy for being prosecuted twice was regulated by the Double Jeopardy (Scotland) Act 2011, which did not apply to this case. The common law pleas of tholed assize or res judicata did not apply as between criminal and administrative processes, with the prison rules specifically permitting both imposition of punishment and a referral to the police.

The respondents submitted that prosecution on the same factual basis would be oppressive, and it was always open to the court to dismiss a prosecution where the Crown had acted oppressively. Oppression could be claimed without reference to the 2011 Act, and no other mechanism seemed to be available to them.

Lacking in substance

Sheriff Principal Ross, delivering the opinion of the court, observed: “In our view Sheriff Cowan’s approach was erroneous and unsupported by authority. The sheriff did not conduct any analysis of the principles which apply to oppression, or double jeopardy. She recorded that the plea to the competency was one of oppression, although a plea of oppression is a plea in bar of trial and not of competency.”

Assessing the sheriff’s reasoning in the previous James, case he said: “She identified that the question for her to resolve in James was “whether the accused is in that position as a result of the Crown’s decision to prosecute although disciplinary proceedings have already been taken and a punishment imposed’. Accordingly, the sheriff decided James on the basis of double jeopardy.”

He went on to say: “The sheriff did not embark on any discussion of the test for either oppression, or double jeopardy. She did not cite authority for the principle of oppression, or its interrelationship, if any, with a plea based on double jeopardy. We have found almost no assistance in the sheriff’s report which asserts, but fails to analyse or compare or explain, the different issues which arise. We find her reasoning, and the respondents’ arguments presented on appeal, to be too lacking in substance to allow us to embark on any comprehensive discussion of the principles which are said to apply.”

Noting the interaction between the law and prison rules, Sheriff Principal Ross said: “The Prison and Young Offenders Institutions (Scotland) Rules 2011 expressly permit both a charge of breach of discipline, and a report to be made to the police under section 41ZA of the Act. Accordingly, the plea by the respondents conflicts with an express legal provision. The respondents seek to take a plea of oppression in order, not to challenge the actings of the Crown, but to challenge the underlying statutory instrument.”

He concluded: “We agree with the Crown submission that it is not automatically oppressive to bring proceedings merely because the offender has already suffered detriment. Everyday examples include where the offender has lost employment as a result of an alleged offence, or has been disciplined, has had social security benefits withdrawn, has had assets frozen under proceeds of crime proceedings, has been the subject of interdict, or has had contact with family curtailed. Further, we have already noted that the sanctions were relatively minor, certainly well short of the deprivation of liberty referred to in the ECHR cases referred to by the sheriff.”

The decision of the sheriff was therefore quashed, with the cases remitted to a different sheriff to proceed as accords.