APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Macfadyen
Lord Penrose
|
[2006]
HCJAC 57
Appeal
No: XC1282/03
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
NOTE OF APPEAL
by
MOHAMMAD ARSHAD
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Shead; Drummond Miller, W.S.
Alt: Murphy, Q.C., A.D.; Crown Agent
28 July 2006
Introduction
[1] On 6 November 2003 at the High Court in Edinburgh
the appellant was convicted of a charge of breach of the peace and a charge of
incitement to murder. The charge of
breach of the peace involved the uttering of threats against the appellant's
son-in-law, Abdullah Yaseen, and members of his family. The charge of incitement to murder was in the
following terms:
"(2) on 27 and 28 December 2001 at 17 Cleghorn Street, Dundee
and at Moto Service Station, Kinross and the Swallow Hotel, Invergowrie, Dundee
for the purpose of inciting a police officer known as Peter, c/o Tayside
Police, Dundee, to murder Abdullah Yasin, your son-in-law, c/o Tayside Police,
Dundee, you did provide him with photographs of said Abdullah Yasin and advise
him that said Abdullah Yasin was believed to reside at 3 Highgate Close,
Walsall and could be found there or at another address or addresses unknown in
Dundee, Walsall or elsewhere in the United Kingdom, and did indicate to said
police officer known as Peter that you wished members of the family of said
Abdullah Yasin and in particular Fasihuddin Ahmed and Ageed Fatima Ahmed, 3
Highgate Close, Walsall, assaulted and injured and you wished said Abdullah
Yasin to be murdered, request him to commit said assaults and murder on your
behalf, agree to pay him £1000 to arrange for said assaults and murder to take
place and pay him £200 as a deposit for same and you did incite said police
officer known as Peter to assault said Fasihuddin Ahmed and Ageed Fatima Ahmed
and to murder said Abdullah Yasin."
[2] On 4 December 2003 the appellant was sentenced to seven
years imprisonment in cumulo with
effect from 6 November 2003.
[3] The appellant presented a note of appeal
against conviction and sentence. On 8 March 2006 the appeal against
conviction was refused, and the case was continued to enable the appeal against
sentence to be considered.
The ground of appeal
[4] The ground of appeal against sentence
was in the following terms:
"The sentence imposed was excessive. In selecting the sentence it is submitted
that the trial judge failed to give adequate weight to:
(a)
the appellant's previous good character and his
personal circumstances;
(b)
the attitude of both [sic] complainers;
(c)
the appellant's state of
health at the time of the commission of the offences."
The sentencing judge's original report
[5] In her original report to this court on
the appeal, at pages 14 to 17, the sentencing judge dealt with the matter of
sentence in the following terms:
"In a plea in mitigation, counsel for the appellant, Mr
Simpson, drew my attention to the fact that the appellant had previously been
of good character. He had worked in his
father's business since the age of 16.
He had founded the Tayside Racial Equality committee. He had previously been a Justice of the
Peace. He was well respected in the
Muslim community in Dundee. Mr Simpson said that the appellant had had
health problems which included diabetes, a knee problem and depression. The depression was, he said, ongoing."
[6] The sentencing judge went on to explain
that she had called for a social enquiry report and also a psychiatric
report. She had called for the latter
report because she was aware that the trial had been postponed on a number of
occasions because psychiatrists had expressed the view that the appellant was,
on account of his mental state, not capable of giving instructions. Dr K. W. Richard, a consultant forensic
psychiatrist at the Murray Royal
Hospital, Perth,
who had seen and reported on the appellant on a number of occasions before the
trial, had, after his conviction, provided a further report dated 1 December 2003. The sentencing judge summarised Dr Richard's
conclusions as follows:
"She concluded that, although the appellant was exhibiting
mild depressive symptomatology, psychiatry had little to offer in terms of
managing the risk of reoffending. She
did not recommend that he receive any psychiatric treatment or that a hospital
order be imposed. She noted that the
nursing staff at the prison did not believe that he merited referral to the
visiting consultant psychiatrists.
Further, she expressed the view that there was no evidence to suggest
that the appellant was insane at the time he committed these offences."
[7] The sentencing judge also recorded that
she was provided with letters of support for the appellant from his daughter,
Insha, whose husband's murder he had been convicted of inciting. She comments that, sadly, Insha appears to
blame herself for what has happened to her father. She also indicated that she received
petitions in support of the appellant bearing the signatures of many members of
the Muslim community in Dundee and elsewhere.
[8] The sentencing judge explained her
decision in the following terms:
"In sentencing the appellant, whilst bearing in mind the
positive factors that there were in his case, namely that he was a first
offender who had, previously, been of good character and had the support of
many friends, acquaintances and family, I took the view that he had committed a
particularly serious offence. It
involved, on his part, complete denial of the principle which is fundamental to
our law that human life is entitled to protection and complete lack of regard
for the sanctity of human life. Far from
doing him any wrong, his son-in-law appears to have acted respectfully towards
the appellant's daughter and had sought to persuade the appellant to accept his
relationship with her, in a respectful way.
The appellant's reaction of determining upon having him killed seemed to
me to call for a significant custodial sentence. Further, his actions involved utter disregard
for the welfare of his son-in-law's family and a desire that was wholly
unjustified though, to his mind, expedient, to harm them. I did not see that any desire on the
appellant's part to order the affairs of his family in such a way as, according
to his perception, would better accord with the requirements of his culture, as
giving rise to any justification for any of his actions."
Having
considered a number of English cases, the sentencing judge concluded by
sentencing the appellant to seven years imprisonment.
The first hearing
[9] When the appeal against sentence first
called before us on 16 May 2006,
Mr Shead, who appeared for the appellant elaborated on the submissions
formulated in the ground of appeal. He
referred to a report dated 1 May 2003
by Dr Andrew K. Zealley, a consultant psychiatrist. He explained that when an attempt was made to
lead the evidence of Dr Zealley in the course of the trial, a Crown objection
to his evidence was sustained. He sought
to contrast Dr Zealley's evidence with that of Dr Richard, suggesting that Dr
Richard's evidence had focused on whether the appellant was sane and fit to
plead. He suggested that it was accepted
that the appellant was suffering from depression at the time of the offence. He invited us to take into account (a) the
attitude of the complainers, who supported the view that the appellant was
suffering from depression at the time of the crimes, (b) the appellant's
previous good character, (c) what had happened since the crimes were committed,
and (d) Dr Zealley's view of the appellant's state of mind at the time of the
commission of the crimes. On the basis
of those considerations, Mr Shead invited us to reduce the appellant's
sentence.
[10] We were not satisfied that we had a
sufficiently clear understanding of how far the account of events on which Dr
Zealley had relied in forming his opinion of the appellant's mental state at
the time of the crimes accorded with the evidence led in the course of the
trial. We accordingly continued the
hearing of the appeal, and requested the sentencing judge to report to us on
how far the factual assumptions on which Dr Zealley's opinions were based
accorded with the evidence at the trial.
The sentencing judge's second report
[11] In her report in response to our
interlocutor of 16 May 2006,
the sentencing judge first explained the basis on which she sustained the
objection to the attempt to lead Dr Zealley's evidence at the trial. It was, in short, that his evidence had no
bearing on the issue which was before the jury, namely whether the appellant
was guilty of the crimes charged. We
note that the soundness of that ruling was not challenged in the appeal against
conviction. The sentencing judge added
that Dr Zealley's report was not referred to in the plea in mitigation at the
sentencing diet.
[12] At pages 4 to 7 of her second report the
sentencing judge discusses the extent to which the factual basis on which Dr
Zealley proceeded in his report differs from that elicited in evidence at the
trial. It is unnecessary for us to
record that discussion in detail. While
there were respects in which the account given to Dr Zealley accorded with what
was said in evidence at the trial, there were also a number of important
discrepancies, which were not made the subject of cross-examination of the
witnesses who gave evidence at the trial.
Moreover, a number of points which formed part of the account given to
Dr Zealley and were relied on by him were not mentioned in evidence at the
trial. The appellant did not himself
give evidence at his trial.
The second hearing
[13] The second hearing took place on 4 July 2006. Mr Shead accepted that there were
discrepancies between some things said to Dr Zealley and what was said in
evidence, and that some things said to Dr Zealley were not mentioned at all at
the trial. He nevertheless submitted
that it was surprising that Dr Zealley's report had not been relied upon before
the sentencing judge in the plea in mitigation.
Dr Zealley's report supported the view that at the time when the crimes
were committed the appellant was suffering from a major depressive
illness. That was in accordance with the
views expressed by the appellant's family, that he was
not in his right mind at the material time.
That should be taken into account.
Even if we did not accept Dr Zealley's assessment, we should
nevertheless accept that the appellant was at the material time affected by
depression which was relevant to the assessment of the seriousness of his
offending. His conduct was not such as
to be capable of being explained solely by reference to the effect on him of
his strongly held religious beliefs. It
seemed likely that his depression had been a significant factor in prompting
him to act as he did.
[14] In further support of the submission that
weight should be accorded to the appellant's previous good character and to the
fact that the crimes were out of character, Mr Shed produced for our
consideration a further petition, which appears under the letterhead of the
Tayside Islamic and Cultural Education Society.
It is dated 15 February 2006
and bears to contain over 150 names. It
is addressed to "The Appeal Judges" and is in the following terms:
"We the undersigned members of the Muslim community know
Mohammed Arshad for many years. And have
the highest regards for him. Therefore
ask the court to show mercy to him.
Mohammed Arshad is a very highly respected and honoured member of the
communities. Therefore his attendance is
highly required we the above society request his sentence to be re-considered
as community work."
Discussion
[15] As the sentencing judge's second report
makes clear, no reliance was placed on the report of 1 May 2003 by Dr Zealley in the plea in mitigation
addressed to her on the appellant's behalf.
On the other hand, she had before her when passing sentence the report
of Dr Richard dated 1 December 2003,
which had been prepared at her request after the appellant had been
convicted. The sentencing judge
explained at page 15 of her original report that she had taken that
course. Mr Shead's submissions at the
first hearing were made on the basis of his understanding that Dr Richard had
not prepared a post-conviction report, and he explained at the second hearing
that he had not been aware at the time of the first hearing that such a report
had been prepared. Dr Zeally's report,
prepared prior to conviction, contains material that would have been difficult
to reconcile with the appellant's position at trial, and indeed with the
position maintained on his behalf in the appeal against conviction. A decision whether or not to introduce Dr
Zeally's report in mitigation, in face of Dr Richard's post-conviction
report, would have required careful balancing of the advantages and
disadvantages likely to accrue.
[16] There is a clear difference of opinion
between Dr Zealley and Dr Richard. Dr
Zealley, in the first paragraph of his Opinion at page 7 of his report,
expresses himself as fully satisfied that as at that date the appellant was
suffering from a major depressive order (DSM-IV (diagnostic code 296·2x) or
ICD-10 (diagnostic code F32·2)). He goes
on in the next paragraph to express the view that it is highly probable that
the beginnings of the appellant's clinical depression go back to the death of
his father in 1997. He then discusses
the appellant's religious and cultural beliefs and the impact on him of his
daughter's marriage. He makes a number
of points: (i) that the appellant appears to have been "conspicuous in his
attempts to be an exemplary Muslim citizen, husband and father"; (ii) that he
"nurtured his social status carefully"; (iii) that "against the background of
meticulous religious adherence", news of his second daughter's link - then
marriage - to a non-Pakistani (lower cast Indian) young man served to "demolish
his and his family's social and cultural standing"; (iv) that he perceived the
marriage prospects of his other children, especially his daughters, to be
"gravely and irrevocably compromised"; and (v) that "the impact of the news of
[the] marriage, and of his appalled perception of all it implied for himself
and for his family, was almost certainly enough to cause a major stepwise
deterioration in an already extant major depressive illness". Dr Zealley then concludes as follows:
"It is my opinion that by late 2001, Mohammed Arshad was
characterised by a seriously significant abnormality of mind - an amalgam of
shattered religious and cultural beliefs and aspirations and of the typically
distorted thinking and judgment of a person with a major depressive illness."
[17] In contrast, Dr Richards expressed the
following views in the section of her report headed "Opinion and
Recommendations" at page 8:
|
|
"1.
|
He
[the appellant] currently demonstrates psychiatric symptomatology,
specifically mild depressive symptomatology ...
|
|
|
2.
|
The
index offences took place in September 2001.
He was not seen by a psychiatrist and it is therefore difficult to
comment on his mental state at the time of the alleged offences. His family give a history of a gradual
deterioration in his mental state for the four years prior to the
offences. This is not confirmed by the
General Practitioner's records ... There is no evidence of any concern
about Mr Arshad's mental state by any of the General Practitioners prior to
2003.
|
|
|
5.
|
There
is no evidence to suggest that the accused was insane at [the time of] the
alleged offences.
|
|
|
6.
|
There
is no indication that at the time of the alleged offences the accused was
suffering from an abnormality of mood which substantially impaired the
ability of the accused to determine or to control his acts."
|
[18] It appears to us that the decision to
proceed to mitigation on the basis of Dr Richard's post-conviction report
without reference to Dr Zeally's report must have been made deliberately. Nevertheless, we consider it appropriate to
consider whether Dr Zeally's views should now be given weight as submitted by
Mr Shead. Having considered carefully
the competing views of the psychiatrists, and having taken into account what
the sentencing judge has told us about the extent to which the factual basis
for Dr Zealley's opinion was not borne out in evidence at the trial, we have
formed the view that Dr Richard's opinion is to be preferred. We do not think that material weight can be
given to the views expressed by members of the appellant's family after the
event. None of the material before us
offers any precise explanation of how a depressive disorder, of whatever
degree, might have led the appellant to take the course of action which he did,
if it was not one which he would otherwise have been inclined to take. In considering the appeal against sentence,
therefore, we proceed on the basis that there is no sufficient evidential basis
for a conclusion that the appellant committed his crimes because he was
suffering from depression, or that his culpability can be regarded as reduced
on that account.
[19] We note the submission that the crimes of
which the appellant has been committed were out of character. We of course accept all that was said,
uncontradicted, about the appellant's previous good character. We do not consider, however, that in relation
to a crime of the sort libelled in charge 2, previous good character is a
factor which has much mitigatory effect.
Nor is the fact that there is no risk of repetition of much significance. The nature of the appellant's crime is such
that no occasion for such conduct had ever previously arisen, and no occasion
for repetition is ever likely to occur.
We do not think that the sentence selected by the sentencing judge is
likely to have been at all intended to reflect a risk of similar
re-offending. What is of the greatest
significance is that, when circumstances arose in which the appellant felt that
his religious and cultural attitudes had been offended,
he was prepared on that account to commit the extremely grave offence of
incitement to murder.
[20] We would add that we do not consider it
appropriate in the circumstances to accord material weight to the views
expressed in the petition which was laid before us. We do not doubt that, before the crimes were
committed, the appellant was a highly respected and honoured member of the
Muslim community in Dundee. The petition, we note, bears the date 15 February 2006. By that date the appellant had been convicted
of incitement to murder, and sentenced to seven years imprisonment. But his appeal against conviction was still
pending. We cannot properly assume that
those who expressed support for him at that stage, when it remained a
possibility that he would be acquitted on appeal, continue to hold the same
favourable view of him now that his appeal against conviction has been
refused. If it were the case that they
did continue to hold him in high regard as a respected and honoured member of
the community, despite his conviction of such a serious offence, that is not a
factor which we could allow to influence the result of the appeal in his
favour.
[21] Having considered all the submissions and
all the material laid before us in connection with the appeal against sentence,
we find nothing in them that persuades us that the sentencing judge erred in
selecting a period of seven years imprisonment as the appropriate punishment
for the appellant's crimes. The appeal
against sentence is therefore refused.
