MARTIN v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicants are British national, born in 1958 and detained in H.M. Prison Shotts, Scotland. He represented before the Court by Mr. Harvie S. Diamond, a lawyer practising at Ross Harper, Solicitors, in Glasgow, Scotland. A. The applicant owned a public house jointly with a partner. The applicant had financial difficulties and agreed to accept a sizeable loan from a customer which he was unable to repay. He agreed to act as a drugs courier in the hope of clearing his debt to the customer. On 2 February 1996 he drove a car from Glasgow to Liverpool to collect the packages and on his return to Glasgow he was stopped by the police and about 50kg of cannabis was found to the value of £135,000-£156,000. On 20 January 1997, the applicant pleaded guilty to a charge that on 2 February 1996 he was concerned in the supplying of a controlled substance, namely cannabis resin, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. At the trial the Crown accepted that the applicant's involvement was as a courier only. The court adjourned to consider a number of reports prior to sentencing the applicant. These reports included, inter alia, a Social Enquiry report, reports from the applicant's psychologist and general practitioner and a letter from the applicant's sister. These reports revealed that the applicant was previously of good character and had no previous convictions. He was a married man with 2 children and retained the support of his family. He had come under extreme financial pressure in his partnership of the public house, and the business had been repossessed. This financial anxiety, combined with the resurgence of repressed psychological problems due to childhood sexual abuse, caused the applicant to become depressed, for which he sought professional help. The applicant had become less depressed with medical assistance and had commenced a college course. On 10 February 1997, the court sentenced the applicant to five years' imprisonment. Counsel advised the applicant that the sentence was excessive and the applicant lodged a written note seeking leave to appeal against his sentence referring to, inter alia, his previous good character, the stress and depression he was under when the offence was committed, and the fact that his role was limited to that of a courier of a class B drug on one day. The medical and social reports relied on at his trial were attached to the note. The trial judge prepared a note for the appeal against sentence in which he stated that he had to balance, on the one hand, the serious nature of the offence involving a substantial quantity of cannabis, the need for the court to publicly recognise this and, on the other hand, the mitigating factors. He considered the balance had been appropriately struck. Furthermore, the grounds of appeal appeared to add nothing to that which was put before him in mitigation. Leave to appeal against the sentence was refused by a single High Court judge on 14 March 1997. He stated: "Having regard to the whole circumstances of the offence, it cannot be argued that the sentence imposed failed to take account of the matters raised in the Court of Appeal, nor that (even for an offence on a single day) the sentence excessive." The applicant was not present when the application for leave to appeal was considered and was not heard on the application by the judge. The applicant appealed against the refusal of leave to appeal. Counsel's written opinion supporting the appeal was filed at the court. His appeal against the refusal to grant leave to appeal was refused by the High Court on 3 April 1997, which adopted the same reasons as the single judge. The applicant was not present when the application for leave to appeal was being considered and was not heard on the application by the court. B. Relevant domestic law and practice In Scotland, appeals against the sentences imposed by the High Court of Justiciary are regulated by Part VIII of the Criminal Procedure (Scotland) Act 1995. The appeal lies to the High Court of Justiciary sitting as an appellate court. It is necessary for leave to appeal to be granted. There is no provision in the law of Scotland for an appeal against sentence to be heard without leave being granted, and no further national remedy if leave is refused. If leave to appeal is granted, the Crown is represented at the hearing of the appeal. Section 107 of the Criminal Procedure (Scotland) Act 1995 provides; " (1) The decision whether to grant leave to appeal for the purposes of s.106(1) of this Act shall be made by a judge of the High Court who shall - (a) if he considers that the documents mentioned in this subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and (b) in any other case- (i) refuse leave to appeal and give reasons in writing for the refusal ... (2) The documents referred to in subsection (1) above are - (a) the note of Appeal... (c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; ... (4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 day....., apply to the High Court for leave to appeal. (5) In deciding an application under subsection (4) above the High Court shall- (a) if after considering the documents mentioned in the subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and (b) in any other case - (i) refuse leave to appeal and give reasons in writing for the refusal; ... (6) Consideration whether or not to grant leave to appeal under subsections (1) or (5) shall take place in chambers without the parties being present.” The Crown have the right to appeal against unduly lenient sentences under section 108 of the Act. Such an appeal does not require the granting of leave to appeal.