The decision of the appeal court in RR v HM Advocate  HCJAC 34, published today, is a curious case and worthy of note.
In summary, the following happened. R was employed as a door steward at licensed premises in Aberdeen. In January 2014, she was engaged in a verbal altercation with an Italian student, in which she said (on the Crown’s account) that the complainer should go back to his own country or (on her account and that of a second defence witness) that he should go home. She was charged with, and convicted of, a racially aggravated breach of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour). The sheriff imposed a fine of £1,000, against which she appealed.
But here, a problem arose. As the court explains:
When coming to consider the submission for the appellant the court found itself in a difficulty, namely that, having regard to the relevant legislation and the evidence led at trial, as reported by the sheriff in her report, it could not understand how the appellant had come to be prosecuted, let alone convicted, in terms of a charge as quoted above. When applied to for his assistance, the advocate depute who had of course no personal responsibility for the relevant decision-making confessed to puzzlement. Even with the benefit of the police report, to which he had access, without in any way derogating from the Crown’s determination to take very seriously any incident in which persons are discriminated against or subjected to threats or abuse by reason of their actual or perceived racial origins, he confessed to having difficulty in understanding why it had been thought necessary to prosecute the matter.
The court explains this difficulty in some detail, expressing doubt about the procedural steps taken by the sheriff. At one point, it remarks:
The advocate depute very fairly said that on the information before him he was unable to see how the charge had been made out. The court is in the same position.
In fairness to the sheriff, although the court notes that she “does not disclose in her report what was the decision-making process which led her to convict”, the appeal was lodged only against sentence. Reasons for conviction would not necessarily be expected in such a report.
But, in any event, the court clearly had considerable doubt about the factual basis for the appellant’s conviction. So what next? In response to the court’s doubts about R’s guilt, her counsel moved for an extension of the relevant time limit in order to lodge an appeal against conviction. The court declined to entertain it:
We refused that application. It came very late in the day. No reason was given for that lateness, other than what might be implied from the circumstances in which the application was made. We were not advised of any irremediable prejudice to the appellant following upon her having a conviction. A purpose of our giving our reasons in writing is that they should be available to the appellant when addressing any issues arising in relation to her employment or her holding any necessary license.
At this point, the advocate-depute suggested a solution. Section 246 of the Criminal Procedure (Scotland) Act 1995 allows a summary court absolutely to discharge a person charged with a criminal offence. An absolute discharge involves a finding of guilt, but the order is made without proceeding to conviction, and so the accused acquires no criminal record. A neat solution? According to the court, no:
The difficulty about that course, as Mr Findlater [counsel for R] pointed out, is that it applies where the court is satisfied that the accused committed the offence charged. That was not a position that he wished the court to adopt. In the circumstances the court found its available options to be limited. As initially invited to do by Mr Findlater we shall quash the sentence imposed by the sheriff and substitute an admonition.
This is remarkable: you might not have committed this offence, so we must leave your conviction untouched. It follows, conversely, that if the court had been satisfied that R had committed the offence, but simply thought her conduct extremely trivial, an absolute discharge would have been unproblematic. Because the court is not satisfied that this was the case, she is put in a worse position: her conviction must stand.
Can that be right? Surely not. The court is of course correct that s 246 of the 1995 Act expressly refers to the court being satisfied that the accused has committed the offence before an absolute discharge is imposed. But that is true of every sentence. The only reason it is stated expressly in respect of an absolute discharge is that this is an order made without proceeding to conviction. In respect of all other sentences, the conviction serves as the court’s statement that it is satisfied of the accused’s guilt.
Now, one objection might be than an absolute discharge would have involved the appeal court itself concluding that it was satisfied of R’s guilt, whereas an admonition allows it to avoid that question. The appeal court has expressed itself in similar terms recently (see EM v PF (Inverness)  HCJAC 8 at ). But in principle, the appeal court is not in a position to make a judgment of fact. All it can do is say that it is unwilling to disturb the finding of the lower court that the offence had been committed. And it was clearly unwilling (indeed, unable) to do so in R’s case. What would have prevented the appeal court saying it declined to interfere with the sheriff’s finding of guilt, but that an absolute discharge would be appropriate?
There might, perhaps, have been a more technical objection to an absolute discharge in R’s case. Although the appeal court sometimes refers to quashing a sentence and imposing an absolute discharge (e.g. Husband v Russell 1997 SCCR 592), the nature of an absolute discharge seems in fact to require that the conviction itself should be quashed (e.g. Laing v Heywood 1998 SCCR 458). And in R’s case, the appeal court was sitting with two judges – an adequate quorum for an appeal against sentence, but not for an appeal against conviction. Arguably, therefore, it would have been incompetent for it to disturb the conviction. Such a conclusion might still seem unsatisfactory, but it would be less remarkable than what seems to have happened here: leaving a conviction undisturbed because the appellant might be innocent.