William James McKay (Hansard, 4 March 1996)

§ Lord James Douglas-Hamilton

The case concerned a note of appeal by the Lord Advocate in terms of section 228A(a) of the Criminal Procedure (Scotland) Act 1975. On 5 December 1995 William James McKay pled guilty in the High Court at Glasgow to four charges of possessing quantities of controlled drugs with intent to supply them to another and one charge of unlawfully possessing a controlled drug. Following upon a plea in mitigation to the effect that the accused was now drug free and counselling young drug addicts, the trial judge deferred sentence for six months for good behaviour. The trial judge stated that were he to sentence the accused on the basis of his record of previous convictions and the offences to which he pled guilty, the sentence that he would have been thinking of imposing would have been one of seven years.

On 6 December 1995 the Lord Advocate became aware of the trial judge's decision to defer sentence in light of that plea in mitigation. On 11 December 1995, on the instructions of the Lord Advocate, the Crown Office wrote to the clerk of court asking to be provided with copies of all reports and documentation which were available to and placed before the trial judge. A written note, incorporating information provided by the trial advocate depute, was prepared by a Crown Office official for the Lord Advocate.

Appeals under section 228A(a) of the Criminal Procedure (Scotland) Act 1975 require to be taken within 28 days. On 27 December 1995 the Lord Advocate decided to proceed with an appeal on the basis of the information available at the time. On the basis of that information it appeared to the Lord Advocate that, having regard to the whole circumstances of the case, the deferment of sentence by the trial judge had been inappropriate.

On 29 December 1995 a note of appeal was lodged on behalf of the Lord Advocate. It contained grounds of appeal to the effect that the deferment of sentence was inappropriate having regard to the gravity of the offences of which the accused had been convicted, the value and quantities of the various drugs referred to in the indictment, the fact that the accused was found in possession of the drugs in Her Majesty's prison Barlinnie, on the day following the imposition of a sentence of 18 months imprisonment in respect of a previous contravention of the Misuse of Drugs Act 1971 and the criminal record of the accused.

The grounds of appeal did not invite the court to lay down minimum sentences in respect of contraventions of the Misuse of Drugs Act 1971 committed in prisons. The trial judge's report about the case was sent to the Crown Office on 22 February 1996. It was accompanied by the documentation requested on 11 December 1995. When an appeal is taken under section 228A(a) of the 1975 Act, the Lord Advocate's position in respect of the appeal is reviewed after the trial judge's report becomes available. On receipt of the trial judge's report on the present case the papers were reviewed by Crown counsel. They were 75W then placed before the Lord Advocate. After studying the trial judge's report, the documentation which had been before the trial judge and a further report dated 16 February 1996 from the Glasgow community drugs project, the Lord Advocate decided not to proceed with the appeal which had been taken.