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© All images are copyright of the SSC Society, Angus Bremner, and Graeme Ross 2018  |  Data Protection  |  TwitterFacebook  |  Contact

Aug 15, 2018

Count Dankula, the Sheriff Appeal Court and freedom of speech

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Over the past months, much publicity has been given to the case of PF Airdrie v Mark Meechan[1], which relates to the consequences of Mr Meechan posting on YouTube a short video entitled “M8 Yer Dugs [sic] a Nazi”. As everyone now knows, in the course of this short clip, Mr Meechan’s dog lifted its fore paw in response to Mr Meechan using the words “Sieg Heil” and (apparently on 23 separate occasions) “Gas the Jews”. The existence of the video on a public forum came to the attention of persons who found its content grossly offensive, the matter was reported to COPFS, a summary prosecution was commenced under Section 127 of the Communications Act 2003 and after a trial lasting around four days, spread as is normal in present-day summary procedure over several months, he was found guilty and ultimately fined. Leave to appeal both conviction and sentence has now been refused at the sifting stage, and this has resulted in a great deal of criticism of the Scottish legal system, much of it ill-informed.

The applicable law

Mr Meechan was charged under Section 127 (1) of the Communications Act 2003, which states that a person is guilty of an offence if he –

“(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent.”

The charge can only be prosecuted summarily by virtue of Section 127 (6). There was therefore no question of the case ever being heard before a jury; Parliament has chosen to preclude that. In the context of the case, the key words were clearly “grossly offensive”. There could be no doubt that by electing to post the clip on a public site dedicated to the showing of video images, which could be viewed anywhere, the message was “sent”, and no counter argument was submitted to the sheriff. Some commenters, though, have taken the view that the role of the sheriff at trial is the same as that of Humpty Dumpty in Through the Looking Glass[2] – “When I use a word, it means just what I choose it to mean — neither more nor less.”

On this view, every sheriff, magistrate or judge applies a purely subjective test, viz. - “does this offend me?” That is not the view the law takes. While the statutory offence is of recent vintage, verbal comments giving rise to offence and alarm have been criminal for centuries, and cases can be found at common law in respect of written communications as far back as the time of Baron Hume[3]. Sending a letter to a named individual in which threats were made to third parties, but not to the recipient himself, was found to be a relevant criminal charge in 1815[4]. Hume’s view was that to be criminal there needed to be more than mere insult; there needed to be “circumstances of rage and disturbance as to justify alarm with the fear of further mischief[5]”. As the common law developed in the context of breach of the peace, in the era where words travelled only as far as they could be heard and where publication was the province of authors and editors, the issue developed rather as one of disorderly conduct, although the use of offensive language directed at a third party not present at the time could still found a criminal charge into the 20th century; for example the comments made by the accused in PF Perth v Robert Mathieson[6], where a man clearly unhappy at the outcome of court proceedings accused a number of legal figures of being “cowardly, perjury-abetting vermin”.

Modern methods of communication make it absolutely obvious that words causing grave offence can travel round the world in seconds. Should the uttering of such words be criminal? While some hard-core libertarians take the view that no words ever used in any context should attract criminal sanctions, even where the words impart direct threats to personal safety, the more common and practical view is that there will always be limits on free speech; there is no “right” to shout fire in a crowded venue to cause panic, no right to defame by making knowingly false allegations, and no right to place someone in a state of fear by uttering direct threats. Should the law become involved where the person viewing or otherwise becoming aware of the comment that caused fear and alarm was not in any sense its intended recipient?

It is at least arguable that the import of the 2003 Act was not to create a whole new class of offence, but to ensure that behaviour that was criminal in other contexts could not escape punishment merely by virtue of it being sent electronically. Issues arising from the wording of the Act had come before the court several times. In respect of “offensive”, rather than indecent or obscene massages, the court had considered the sentencing issues in Rodgerson v PF Alloa[7], which involved an individual pleading guilty to making a number of grossly offensive remarks about the death of a child and sexual remarks about children. While the issue before the court related only to whether the offence merited registration under the Sexual Offences Act 2003, it did not express any disquiet as to the soundness of the plea. Again in Hill v HM Advocate[8], where the messages alleged that the complainer offered sexual favours to other men, there was no challenge to the validity of the conviction. The arguable distinction in Mr Meechan’s case, is that the persons offended were not the recipients of the original message.

The actions of Mr Meechan

On any view, Mr Meechan, while presenting himself as a champion of free speech, does not appear an obvious successor to the likes of Martin Luther King or Nelson Mandela, neither of whom ever gloried in the titles “Professional Shitposter” and “Edgi Boi [sic]”. His idea of humour is not one that many of an older generation would find amusing, although he seems unaware of the extent to which casual racism was a staple of mainstream television in the era in which Sheriff O’Carroll grew up. It must be said that his “comedy” is not notable for its subtlety, but the only issue for the courts related to a single video clip, posted in April 2016. It is not clear, nor does it matter, who first reported it to the authorities, but the Procurator Fiscal clearly formed the view at the outset that the content of the video was grossly offensive and thus merited prosecution. It seems to be accepted by all concerned that the words “gas the Jews” were repeated on 23 occasions, images of Adolf Hitler and the Nuremberg rally were shown, and strident music played. Equally, it seems beyond doubt that amongst those who viewed the video there was a significant proportion that actively saw it as racist, and as a vindication of their own racist views. Whether that was anticipated by Mr Meechan cannot be said with certainty, and he denies personally holding racist views, he seems at the very least to have been reckless as to the consequences of online publication.

Proceedings appear to have commenced some time in 2017 (the statutory time bar under the Act being one of three years), with evidence being heard from September 2017 until 20th March 2018. Mr Meechan’s explanation was that the video was made as a joke, intended only to annoy his girlfriend, the owner of the dog. However, this seemed inconsistent with its being posted on a public communications network on a channel to which she was not a subscriber. He accepted that the phrase “Gas the Jews” was anti-Semitic though not, he said, when used as part of a joke. In this regard I am reminded of the phrase much used by the late Sheriff Irvine Smith QC when faced with a submission more notable for optimism than reality – “brave, but doomed”. Whether Mr Meechan realised that the video would be seen by Jewish viewers is not clear, nor is it immediately apparent to what extent he considered their reaction. It appears that if he considered something to be a joke, so would every other viewer, although his channel is reported to have borne the words “provides offensive social comedy and skits that get people thrown in prison”. In any event, evidence was led from witnesses, including Ephraim Borowski of the Scottish Council of Jewish Communities, who were deeply offended, and Mr Meechan gave evidence in his own defence. Ultimately, as we know, he was found guilty and fined, although he expresses his wish to go to prison rather than pay the fine.

Freedom of speech

Much of the criticism of the court’s decision is based upon its effect upon the concept of “free speech”. It might be helpful to note at this stage the relevant part of the sentencing statement (emphasis mine) –

“[A]lthough I invited both legal representatives to make legal submissions during the trial about the law on freedom of expression, that was done only to a very limited extent. In the absence of focused submissions on that topic by either the Crown or the defence, all I can say is that, while that right is very important, in all modern democratic countries the law necessarily places some limits on that right.”

Some have sought to draw unflattering parallels between the decision of the court and certain well-known comedy moments focussing upon Nazi Germany. It seems obvious, to me at least, that in the famous “Germans” episode of “Fawlty Towers”, that Basil Fawlty is the butt of the joke, not the innocent guests. Likewise, it is difficult to interpret the joke in “Springtime for Hitler” in Mel Brooks’ “The Producers” as directed at anyone other than the (Jewish) theatrical producers seeking to profit from staging the most offensive and badly performed show imaginable. I cannot see that teaching a dog to raise its paw in response to anti-Semitic language is comparable in comedy terms. In any event, it appears that there was no meaningful debate on the application of Article 10 of the European Convention on Human Rights or citation of its leading case law. Whether this was a deliberate decision on the part of his agent is not clear from the trial judge and appeal judge’s comments, but given that Article 10.2, read short, states

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society….[and] for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.”

British courts have never supported an unfettered right to speak in any manner at all. Whether in private or in public, there has always within a mature legal system been recognition that where words cause offence, this can stray into the realms of the criminal law. That Mr. Meechan was convicted, the court having rejected his defence, was therefore not wholly surprising to lawyers, although some on the fringes of comedy where the boundaries of “offence” may be somewhat fluid clearly disagree.

The Sheriff Appeal Court

Having been convicted and sentenced, Mr Meechan exercised his statutory right to appeal against both conviction and sentence, and it is here where the expectations of his supporters diverge most radically from legal reality. In summary proceedings, where the sheriff is the master of the facts and the sole arbiter on issues of credibility, an appeal by stated case to the Sheriff Appeal Court[9] may only be made on a point or points of law.

The right to submit an appeal exists in all cases, but following concern at the amount of court time taken up with disposing of appeals which had no merit, the court now exercises a gatekeeping function, based upon the written grounds of appeal and the contents of the stated case as drafted by the sheriff and finalised after adjustment by prosecution and defence. This paper review is conducted by a single appeal sheriff[10] who may either grant or refuse leave to proceed to a full court hearing. Where leave to appeal is refused, there is a statutory right to apply to a court of three Sheriff Appeal Court judges for leave to appeal, once again in writing; it “shall be considered and determined in chambers without the parties being present[11]”. The powers and duties of the court of three sheriffs are the same. This, I would suggest, is a wholly unremarkable system. Either there are valid grounds of appeal or there are not. Whether the grounds are valid or not, they can be summarised in writing by a lawyer and submitted for consideration. An appeal is not a “second bite at the cherry”, but a process in which a higher court determines whether a lower court has failed to apply the relevant law correctly. There needs to be an identifiable error. In modern practice, most of the appeal process is conducted in writing, and where an appeal does proceed to a hearing the court requires to see full written argument from both sides some weeks in advance of the hearing itself. Mr Meechan has elected to publish documents which confirm that his case failed at both the first and second stage, the court being unable to identify any error of law.

Therefore, before any question of further oral argument could arise, no fewer than four senior sheriffs have considered the grounds of appeal and detected no error in the findings of the original sheriff. On any view, Mr Meechan has been given ample opportunity to ventilate his criticisms of the decision of the original sheriff. While some might argue that open justice suggests this should be done in public, the fact that Mr Meechan has chosen to post the decision online indicates both that the decision itself was not secret and the likely outcome of any oral submissions. At this stage I pause to note that a sum in excess of £190,000 was crowdfunded before leave to appeal was granted, on the surprising assertion that the costs of the appeal would exceed £100,000. Given that this was undertaken at a time when the SAC was considering paper documents, and when it was far from certain leave would be granted, the amount proposed in the crowdfunding request appears rather rash, and there will no doubt be a full accounting into how much was spent, and how money is to be refunded, given that an application to the Scottish Criminal Cases Review Commission (which conducts its own enquiries through public funding) will not generate much additional expenditure. While Mr Meechan seems determined at present to send himself to prison rather than accept his current penalty, the Terms of the GoFundMe site on which he sought donations offer very wide discretion to the fund manager – “[w]e assume no responsibility to verify whether the Donations are used in accordance with any applicable laws; such responsibility rests solely with the Campaign Organizer or Charity, as applicable[12].”

Finally, some comments need to be made anent the trenchant criticisms made of the solicitor who conducted the trial and later plea. I was not present in court so can base my comments only on the terms of the letter from the SAC, and do not propose to name him. Many commenters were deeply concerned with the appeal sheriff’s obvious unhappiness at the way in which the plea was presented, but this is once again fundamentally misunderstanding the role of the defence lawyer post-conviction and pre-sentencing.

While a case is at trial, the duty of the defence agent is to use his best endeavours, within what is permitted by law, to seek to have his client acquitted. His right to cross-examine witnesses and call defence evidence in accordance with his instructions is not restricted. However, once a verdict is delivered, the role of the defence lawyer changes. The appellate sheriffs recognise this, but it is less clear that the solicitor acted appropriately. There can be no criticism of an agent telling a court “My client maintains his innocence and intends to pursue the further legal avenues open to him.” Indeed, it is probably ethical to observe that an accused does not recognise the justice of the statute under which he was convicted, provided the agent recognises that everyone in the court is bound to conform with statute law as it exists at the time, and only the relevant Parliament may change or repeal the law. In my understanding it has never been regarded as appropriate for a solicitor, who is in addition to being the agent for his client an officer of the court and a member of a professional body with published practice rules to express a personal view on the soundness of a verdict. Law Society guidance[13] states that a solicitor “must maintain due respect and courtesy towards the court while honourably pursuing the interests of your clients”.

In rejecting the finding of contempt of court against Aamer Anwar, who had made some public criticism of a verdict prior to sentence being passed, in July 2008[14] the High Court observed “If they are of the view that it is in their client's best interests to make public comments on court decisions in proceedings in which they have been involved, about which we say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings, and, second, that their comments are not misleading.”

While the solicitor’s comments were made in the context of a plea in open court, it does appear that certain of his remarks went beyond the role of delivering a plea in mitigation; the suggestion of an “apparent attempt to intimidate the court” is clearly concerning, although I recognise that this may not be a wholly accurate assessment of what was said, and the solicitor’s reaction to the suggestion has not been made public. It is, though, worthy of note that the comments made by the appeal sheriff anent advice on contempt of court were based upon the trial sheriff’s report, rather than on the plea itself, the trial sheriff not apparently having considered the plea as giving rise to this possibility.

While many view the case as demonstrating deficiencies in the Scottish system of criminal justice, and recognising that there is clear room for improvement in our summary courts, I do not find either the trial, verdict or appellate procedure to present any objective concerns for the present or future.

 

[1] http://www.scotland-judiciary.org.uk/8/1962/PF-v-Mark-Meechan

 

[2] Lewis Carroll, Through the Looking Glass, and What Alice Found There (1871)

 

[3] Hume’s Commentaries on Crimes (3rd Edition, Ed. Ben R Bell), pub 1844, reprinted by the Law Society of Scotland 1986

 

[4] HMA v John Jaffray, Hume (op. cit.), Vol 1, p. 441 fn

 

[5] Hume (op. cit.), Vol 1, p. 343

 

[6] The Scotsman, 6th July 1984, reported in Christie – Breach of the Peace (pub. W. Green 1990)

 

[7] [2016] HCJAC 12

 

[8] [2016] HCJAC 35

 

[9] Under the Criminal Procedure (Scotland) Act 1995, s. 176

 

[10] CP (S) A 1995, s. 180 (1), (2)

 

[11] CP (S) A 1995 s.180 (6)

 

[12] https://www.gofundme.com/terms

 

[13] Rules and Guidance, Para. B1.13

 

[14] [2008] HCJAC 36

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At present these are where the prisoner is serving an extended sentence imposed under section 210A of the 1995 Act, the prisoner is subject to a supervised release order made under section 209 of the Ac, the prisoner is subject to a hospital direction or a transfer for treatment direction made under the relevant mental health legislation, the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or the prisoner is liable to removal from the United Kingdom. The former rule precluding recalled prisoners from re-release on HDC was withdrawn in December 2016 [2] . Prisoners released in terms of the Act may be recalled to custody in certain circumstances. These are found in Section 17A of the 1993 Act, which provides that, where “it appears to Ministers that a prisoner released on licence under s.3AA has failed to comply with any condition included in his licence, or his whereabouts can no longer be monitored remotely at the place for the time being specified in the curfew condition included in the licence, they may revoke the licence and recall the person to prison”. A person whose licence is revoked must, on being returned to prison, be informed of the reasons for the revocation and of his right to make representations in writing with respect to the revocation to the Scottish Ministers. For their part, Ministers must refer the case of any person who makes such representations to the Parole Board, which may, after considering the circumstances, direct, or decline to direct, the Scottish Ministers to cancel the revocation. Often the prisoner will have left his address, and his whereabouts may be unknown. However, failure to be home by a designated time even on a single occasion by a matter of minutes also constitutes a breach, as in some circumstances, is failure of the monitoring equipment to work satisfactorily. Change of address or permission to vary the curfew times for a specific reason (such as an important family event, or job interview) must be sought in advance, and may be refused. Leaving home during curfew hours, even to go into the back yard or garden to take the dog out or smoke a cigarette, will usually trigger an alert at the monitoring centre and breach action may be instigated. Only prisoners identified as low risk are eligible for HDC release. The majority of prisoners selected are short term as defined in the 1993 Act, serving less than four years, but HDC is occasionally available to long-term prisoners granted parole. Police may report a suspected breach to the Scottish Prison Service for transmission to the monitoring contractor, but have no power to arrest a suspect for breach alone [3] . Legal Consequences of a Breach of HDC In terms of s.17A (6) ‘‘on the revocation under this section of a person’s licence, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.’’ Thus, where a Home Detention Curfew is breached for any reason, the licence is revoked, and the prisoner, unless already in custody is liable to immediate arrest and return to custody for all the remaining days outstanding of the sentence, until release in terms of the 1993 Act is mandatory. A warrant to apprehend is automatically granted. Breach of HDC is not an offence in itself. This surprises some people, but arises from the distinction between the “punitive regime” constituted by the sentence imposed as punishment, and the “protective regime” arising from the need for public protection. As Ministers have already, by virtue of Section 3AA (4) above considered various statutory tests directed to public protection at the time release is directed, breach involves non-compliance with the protective regime, the offender’s freedom being curtailed by the terms of the HDC licence [4] . A Scottish Government Working Party Report on electronic monitoring in 2016 revealed a concerning lack of understanding of the system by some persons subject to monitoring; “There appeared to be a lack of basic knowledge amongst monitored persons about the 'rules' of electronic monitoring. It was thought that this lack of knowledge often left monitored persons' and their families unsure about contacting G4S or the issuing authorities to ask for advice in case they were perceived to be asking 'stupid' or 'phishing' questions. It was noted that this reluctance to communicate openly with G4S or the issuing authority may, in turn, lead to unnecessary breach of the monitored person's order.” What is clear from the widely publicised case of James Wright, convicted of murder committed in 2017 whilst unlawfully at large after revocation of his HDC licence, and not arrested after some five months, and from other cases reported in recent press reports, is that not all warrants result in the early arrest of offenders. This may raise issues both in respect of police practice and in respect of risk assessment, and it is to the latter that I turn first. Is the HDC system failing? The FOI figures reveal that in the three years from 2015/16 to 2017/18, a total of 4264 prisoners were released subject to HDC licence conditions, and 763 licences were breached; over the whole period that means licences were breached in 17.9% of all cases, although the percentage for the most recent year was the highest at 20.1%. This certainly suggests that the assessment process required by Section 3AA (4) above could benefit from being made more robust. Any offender released on HDC licence should have a fixed address suitable for release, in respect of which there are no obvious ongoing concerns. A number of prisoners are refused release on HDC due to concerns over the person with whom they propose to reside, or over the proximity to complainers and other witnesses. It does of course go without saying that in every case where release on HDC is granted, a judge has determined that there is no alternative to a custodial sentence. In many cases the offender will have failed to comply with previous non-custodial disposals. While the offenders will rarely have been convicted of the most heinous of offences, they will inevitably be perceived as, at the very least, a serious public nuisance from whom law-abiding citizens deserve respite. It is thus not wholly surprising that a proportion of such offenders struggle with the obligations of a home curfew. However, we must not lose sight of the fact that within this offender group, in most years well over 80% of offenders do comply with the obligations imposed. The orders must run for between 14 days and six months; in practice most will run for around three months or thereby. The average annual cost of keeping a prisoner in custody is £35,325 [5] so over three years the saving to the public purse in respect of the 3501 prisoners released on HDC who would otherwise be kept in custody, and who avoid breach proceedings would appear to be of the order of 875 “prisoner years”, or £30.91 million. According to the Scottish Parliament’s Financial Memorandum on the Management of Offenders (Scotland) Bill [6] the annual cost per person of electronic monitoring is £2310; to monitor 875 persons for twelve months over three years would equate to £2.02 million – a net saving of over £28 million. While recognising that breaches of HDC cannot be condoned, perhaps some perspective should be retained; how many of the persons breaching the orders should have remained in custody? At present the figures publicised do not indicate the proportion who reoffended subject to HDC and the offences with which they were charged. There is therefore no strong published evidence of a pressing need for more incarceration for public protection. Thus, any improvement in the risk assessment process that ensures only those who present an objectively low risk of serious reoffending and have genuine prospects of rehabilitation, will result in more persons being kept in custody and will thus have a significant impact upon public finances. Spending more time and money on pre-release investigation would be welcome; during my time on the Parole Board many years ago I was struck on occasions by the limited risk assessment undertaken in the very early days of HDC, and trust that processes have become more sophisticated in the last decade. I cannot, of course, ignore the fact that persons released on HDC do on occasions reoffend, and as stated above in once case the offender committed murder (although it might be noted that had he been apprehended immediately and served his time he would in all probability still have been at large on the date of the offence). Extreme cases, horrendous though they are, cannot in themselves be the basis for wholesale changes in the law. I have observed earlier that is not yet clear, pending full inquiries by both the Scottish Prison Service and Police Scotland, how Mr Wright managed to evade apprehension for as long as he did, so further comment at this stage would clearly be premature. Given that many breaches are committed by failure to be home at a designated time, it is far from clear how many persons released on HDC from short-term sentences objectively present a risk to the public. Is it acceptable for persons breaching HDC not to be apprehended? Much of the criticism of the present system in the press has focussed upon a small number of released persons who have evaded capture for their breaches for significant periods. It is reported that fifteen offenders released on HDC have not been apprehended despite being unlawfully at large for over five years. Quite clearly not arresting someone in these circumstances implies failure on the part of the arresting authorities. It cannot be stated with certainty that all these persons are alive and living within the UK, although attempting to leave or re-enter the country with a valid passport should trigger automatic action. What can be said with a degree of certainty is that these offenders have not been apprehended for any further offending, as such an arrest should automatically result in the existence of the warrant being discovered (and use of false particulars should be uncovered if fingerprint and identity checking is undertaken). There is justifiable public concern at someone being nominally “on the run” for such a long period. While absence of arrest is not unequivocal proof of wholly blameless behaviour, it does suggest an ability to avoid situations where police interest is likely. What is perhaps less recognised in some of the more aggressive reporting is that the absence of proven reoffending over a long period is regarded in a great many circumstances as worthy of some credit. In respect of criminal appeals the use of a reduced sentence as a remedy for a long delay in determination of an appeal has long been recognised – see for example Gillespie v HM Advocate [7] . It is also commonplace, where a custodial sentence is quashed, for the court to defer consideration of sentence for up to a year, and where the person does not come to the adverse attention of the courts, to replace imprisonment with a lesser sentence. In Robertson, McCourt and others v HM Advocate [8] the High Court of Justiciary held that a delay of eighteen months in the issuing of an appellate decision interfered with the Article 6 rights of the appellants to have their cases determined within a reasonable time, and once again sentences were reduced to reflect this. In two unreported cases in March 2011 referred to in Reed and Murdoch’s “ Human Rights Law in Scotland ” the appellate court declined to grant warrants to apprehend unsuccessful appellants who had been on bail throughout a lengthy appeal process given the short period remaining of the sentence [9] . This, with respect to the critics of the failure to apprehend those who remain at large for over a year, is on all fours with current policy. It was certainly police policy in the fairly recent past that where a non-appearance warrant in summary proceedings had been outstanding for over a year without arrest, the police would no longer take active steps to enforce it, although were the offender to be arrested for a fresh matter the existence of the warrant would be discovered. A long period of good behaviour can also prevent extradition where the offence is not of the gravest nature. In Republic of South Africa v Headrick [10] the sheriff declined to order extradition on fraud charges where the warrant was issued in May 1996 and extradition proceedings commenced in 2004. A similar view was taken in the more extreme case of Commonwealth of Australia v O’Neill [11] which an extradition request signed in 2008 in respect of an armed robbery in 1979 where the warrant to recall to custody for breach of parole license was issued in 1986. There may also be supervening medical issues, unknown at the outset, that militate against the law taking its course. This was the situation in Lord Advocate for the Government of the USA v SN [12] which related to alleged bomb threats in 2012. By the time the case reached court unchallenged medical evidence showed that the accused now suffered from a plethora of medical issues including dementia. In conclusion then, there is clearly a strong case for increasing resources that will allow more robust risk assessment before release, and to increase the likelihood of swift apprehension of those unlawfully at large. However, I remain far from convinced that the case for root and branch reform of the HDC scheme has yet been made out. [1] For example, https://www.scotsman.com/news/snp-criticised-for-soft-touch-justice-as-home-detention-curfew-breaches-rise-1-4770085 [2] The Home Detention Curfew Licence (Amendment) (Scotland) Order 2016 [3] for further details, see http://www.scotland.police.uk/assets/pdf/151934/184779/electronic-monitoring-offenders-sop , published 25th May 2018 [4] For a fuller explanation of the distinction, see Stuart (Simon) v HM Advocate 2010 SCCR 498. [5] SPS Annual Report and Accounts 2016-17 , Appendix 8a [6] http://www.parliament.scot/Management%20of%20Offenders%20(Scotland)%20Bill/SPBill27FMS052018.pdf , published 2nd February 2018 [7] 2003 SCCR 82 [8] 2012 SCCR 411, [2012] HCJAC 32 [9] Shepherd v PF Dornoch, Cairns v HM Advocate referred to at Para 5.187 [10] Edinburgh Sheriff Court, 27th October 2005 [11] Edinburgh Sheriff Court, 11th June 2010 [12] Edinburgh Sheriff Court, 23rd October 2017