APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Philip

Lord Kingarth

[2006] HCJAC 86

Appeal No: XC195/06

OPINION OF THE COURT

delivered by LORD KINGARTH

NOTE OF APPEAL

RONALD O'NEILL MARTIN

Appellant'

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Taylor, solicitor advocate; Bruce Short, Dundee

Alt: D. Young, A.D.; Crown Agent

2 November 2006

[1] On 6 March 2006 the appellant pled guilty in Dundee Sheriff Court to a charge of attempted robbery. He was sentenced to a period of 12 months imprisonment. Against that sentence he has appealed.

[2 ] On the same date he also pled guilty, on a separate indictment, to a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995, in respect of his failure at an earlier point in the same proceedings, to appear in the course of a trial diet. For this he was sentenced to a consecutive period of 12 months imprisonment. Although he appealed against that consecutive sentence, his appeal has already been refused by this court.

[3 ] The history of proceedings, so far as relevant, is that the appellant first appeared on petition in respect of the charge of attempted robbery on 17 August 2005, and was committed in custody for further examination. He was fully committed in custody on 24 August 2005, bail having been refused. The case was indicted for the sitting commencing on 5 December 2005, but, for reasons which were not due to any fault on the part of the appellant, on 7 December 2005 the indictment was deserted pro loco et tempore, a further trial diet was appointed for 13 December 2005 and the appellant was allowed bail. On 13 December 2005 evidence was led in the morning and the case was adjourned until the afternoon. However, the appellant failed to appear in the afternoon and a warrant was granted for his arrest. The petition warrant, containing the charge under section 27(7) of the Criminal Procedure (Scotland) Act 1995, was executed on 20 December 2005, when the appellant appeared and was remanded again in custody, where he remained until sentence. During the appellant's first period on remand he spent a total of 112 days in custody. During his second period on remand he spent a further 68 days in custody. The total period spent on remand was thus 180 days.

[4 ] In her Report the sheriff informs us that in sentencing the appellant she decided that the starting point for the attempted robbery was a sentence of 18 months imprisonment. She chose not to allow any discount for the plea of guilty, given that it was tendered at the trial diet, and her approach on that matter is not challenged. Nevertheless, she did consider it appropriate to make a deduction to take account of the period spent on remand (to which period she was obliged to "have regard" under section 210(1)(a) of the Criminal Procedure (Scotland) Act 1995). In her Report she tells us

"In order to recognise the two periods which the appellant had spent on remand, I considered that the simplest way to deal with this was to add these together and deduct them from the period of 18 months. As previously stated, the appellant spent 112 days in custody in relation to the attempted robbery indictment and 68 days in relation to the second indictment containing the charge of failing to appear. I therefore deducted 6 months from the period of 18 months imprisonment".

[5 ] The only ground of appeal which was insisted on before us was that the sheriff erred in failing to recognise that the total period of about 6 months spent on remand

"would, in the ordinary course of events, amount to the equivalent of 12 months imprisonment. The learned sheriff deducted only 6 months from the sentence that she would have imposed, which was 18 months. It is respectfully submitted that it would have been more appropriate to deduct a total of 12 months from the 18 months imprisonment".

In her Report the sheriff comments on this ground of appeal as follows:

"In relation to the sentence imposed on the charge of attempted robbery, the Note of Appeal suggests that I should have deducted 12 months from the period of 18 months imprisonment. I do not understand this contention. The accused was on remand during the periods referred to, not a serving prisoner. The ground of appeal therefore amounts to a suggestion that, every time a sheriff backdates a sentence to take account of a period on remand, he should in fact double that period; that in my view is nonsense."

[6 ] In presenting the appeal Mr. Taylor argued that, in circumstances where it was clear that the sheriff wished to give credit for the periods on remand but could not readily backdate the sentence to be imposed (given the interval of time during which the appellant had been on bail), the fair way for her to have done so would have been to deduct 12 months for the reasons mentioned in the ground of appeal.

[7 ] The advocate depute, for his part, did not dispute that, in circumstances like the present, ordinarily, although not necessarily in every case, the approach contended for by the appellant would be the appropriate course. He could not support the view of the sheriff that this would be nonsense (or indeed her remarks about the implications for backdating).

[8 ] In our opinion, in the circumstances of this case, the sheriff can be said to have erred. Although she could well have approached the matter differently, she clearly decided (favourably from the point of view of the appellant) that it was appropriate that the total period spent on remand should be taken account of. In circumstances where she could not readily backdate, given the period spent on bail, she simply deducted that period from the sentence which she would otherwise have imposed. The question is whether that went far enough. Although, as the sheriff points out, a period on remand is different from a period spent in custody following sentence, the important point is that in both cases the prisoner is deprived of his or her liberty. And deprivation of liberty on remand is, in the ordinary case, for the same period as it would be if the prisoner had been sentenced to twice that period (given the provisions of section 1(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993). In these circumstances, while we would not wish to be taken as suggesting any absolute rule (and certainly none is suggested by section 210(1)(a) of the 1995 Act), or that too fine a mathematical approach would be appropriate, we consider that normally a period spent on remand in circumstances like the present should, absent any specific reason or reasons for not doing so, be recognised by deduction, from the sentence which otherwise would be imposed, not just of the period itself but of the length of sentence which would result in that period being served in custody. If that were not so, it would mean that someone who happened to have been remanded for a period prior to the date of sentence but in circumstances where there could not readily be backdating would be likely to end up being deprived of his or her liberty for longer than, not merely a person who was never remanded at all, but also someone remanded for the same length of time but throughout the period from committal until sentence. In the latter case, the normal practice at least is to backdate to the start of the remand period, so that the whole period of remand counts toward assessment of the appropriate date for release under section 1(1) of the 1993 Act.

[9 ] In these circumstances we shall allow the appeal, quash the sentence imposed and substitute a sentence of 6 months imprisonment.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Martin v. Her Majesty's Advocate [2006] ScotHC HCJAC_86 (02 November 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_86.html Cite as: 2006 GWD 37-740, [2006] HCJAC 86, [2006] ScotHC HCJAC_86, 2006 SCCR 683, 2007 JC 70

Scottish High Court of Justiciary Decisons

Lord Johnston

Lord Philip

Lord Kingarth

[2006] HCJAC 86

Appeal No: XC195/06