APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal Nos: 1382/99 & 1383/99
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
BILL OF SUSPENSION
ADRIAN PAUL THORNE
PROCURATOR FISCAL, Dunfermline
Complainer: A. Brown; Martin Johnston & Sacha
Respondent: Di Rollo, A.D.; Crown Agent
5 August 1999
We have before us two bills of suspension in each of which the complainer is Adrian Paul Thorne. The complainer appeared at Dunfermline Sheriff Court on 23 February 1999 when he was sentenced to six months imprisonment for driving while disqualified and was admonished for driving without insurance. He appealed against that sentence and was granted interim liberation; in due course he was refused leave to appeal. Thereupon a warrant was granted by this court and, although the particular warrant was not available to us, it is within judicial knowledge that, where leave to appeal is refused, the court always grants warrant
"to all proper Officers of Law in possession of this warrant to apprehend and imprison or detain the appellant, said imprisonment or detention to continue during the period of the sentence detailed [overleaf] and to run from the date of the appellant's apprehension under this warrant, but always under deduction of any period of imprisonment or detention which the appellant is entitled to have reckoned as already undergone under that sentence, including any such period undergone during the currency of this appeal, the appellant to be conveyed by Officers of Law to the Prison of Saughton, Edinburgh or to any other lawful institution to be dealt with in due course of law."
Although the warrant was granted and passed to the police, it had not been executed by 4 June 1999.
On 4 June the complainer was arrested in connexion with a number of motoring offences. He was kept in custody and appeared in the Sheriff Court on Tuesday 8 June on two complaints. The first contained a charge of driving while disqualified and a charge of driving without insurance. The complainer pled guilty to both charges and the Sheriff imposed a sentence of four months imprisonment on the charge of driving while disqualified and admonished him on the charge of driving without insurance. The other complaint contained four charges: driving without due care and attention; failing to stop after an accident; failing to report an accident and failing, without reasonable excuse, to provide two specimens of breath. The complainer pled guilty to the charge of failing, without reasonable excuse, to provide two specimens of breath and not guilty to the other charges. The pleas were accepted by the Crown and the Sheriff imposed a sentence of four months imprisonment on the charge of failing to provide the specimens.
So, on 8 June the Sheriff imposed two sentences of four months imprisonment, each of which he ordered "to commence from the expiry of the sentence previously imposed". It was common ground that the Sheriff intended that the two sentences of four months imprisonment should run concurrently but consecutively to the sentence of six months imprisonment imposed on 23 February.
The complainer presented these bills of suspension in respect of the sentence on each of the June complaints on the ground that the imposition of the sentence as consecutive to that imposed on 23 February was incompetent.
In presenting his submission in support of the bills, Mr. Brown argued that it had been incompetent for the Sheriff to order the four-month sentences to commence from the expiry of the 23 February sentence because, at the time when the four-month sentences were imposed, the warrant in respect of the 23 February sentence had not been executed. He expanded this submission by saying that the difficulty was that the complainer had not been arrested in terms of the warrant and the warrant had not been shown to him and therefore it was not in operation. Even though, therefore, the warrant for his arrest and imprisonment under the 23 February sentence existed at the time of his arrest on 4 June and remained in existence over the period to 8 June, the complainer was not in custody under that warrant. He was not, accordingly, serving or "undergoing" the 23 February sentence at the time when he was sentenced on 8 June. In that situation it had not been competent for the Sheriff to make the four-month sentences consecutive to the six-month sentence imposed on 23 February. Reference was made to the power of a summary court under Section 167(7) of the Criminal Procedure (Scotland) Act 1995 to frame a sentence
"so as to take effect on the expiry of any previous sentence or order which, at the date of the later conviction order, the accused is undergoing."
For his part, if only briefly, the Advocate Depute sought to persuade us that the complainer could properly be regarded as "undergoing" the sentence of 23 February even though he was not actually in prison serving the sentence.
Were it necessary to contemplate adopting the construction of "undergoing" proposed by the Advocate Depute, we should find it impossible to do so. But, as was made clear by Lord Justice General Hope when considering the predecessor of Section 167(7) in Beattie v. McGlennan 1990 J.C. 391 Note at pp. 393 - 394:
"There is no doubt that a court of summary jurisdiction has power to impose consecutive sentences of imprisonment at common law. It is sufficient on this matter to refer to the opinion of the Lord Justice-Clerk (Ross) in Young v. McGlennan 1990 S.C.C.R. 373 where the authorities are reviewed. The only qualification to the common law power which has been recognised is that the sentences in aggregate must not exceed the limit of the court's sentencing power... The foundation for the power which is available to all courts of summary jurisdiction at common law is that a custodial sentence should be effective in those cases which merit that disposal. If this purpose is to be achieved it is necessary that the court should have power to direct that a particular sentence should not commence until the way is clear for it to take effect."
His Lordship confirmed this approach when giving the opinion of the Court of Five Judges in Russell v. Macphail 1990 J.C. 380 at p. 390. He declared that:
"a power to impose consecutive periods of detention or imprisonment is available at common law in all circumstances which merit this disposal unless there is some provision in the statute which states expressly or by necessary implication that this cannot be done."
Since a summary court has this common law power to impose consecutive periods of imprisonment in all circumstances which merit this disposal, the Sheriff's power to order the 8 June sentences to commence from the expiry of the 23 February sentence was not circumscribed by the terms of Section 167(7).
Mr. Brown submitted that, even at common law, however, the Sheriff had no power to make the order which he did, because the complainer was not being held under the warrant of the 23 February sentence at the time when the later sentences were imposed. In our view that could not affect the competency of the order which the Sheriff made. At the moment when the Sheriff imposed the two sentences on 8 June, not only did the sentence of 23 February exist, but this court had given effect to it by granting a warrant for the complainer's apprehension and imprisonment under it. In that situation, since the Sheriff considered that the circumstances merited making the two four-month sentences consecutive to the sentence of 23 February, he had power so to order at common law, since no statutory provision stated that this could not be done.
In terms of Section 167(2) and (3) of the 1995 Act the record of the 8 June sentences was sufficient warrant for all execution on the sentences. The record of these sentences was therefore sufficient warrant for execution on the sentences according to their terms. For the same reason the extract of the relevant entry in the record was warrant or authority to the prison authorities to imprison the complainer for the period prescribed by the terms of those sentences. Their terms were to the effect that the sentences were to commence from the expiry of "the sentence previously imposed" - by which was meant the sentence of 23 February. Thus interpreted, the record of the sentences of 8 June was not warrant for the complainer's immediate imprisonment but only for his imprisonment from the expiry of the six-month period of imprisonment imposed on 23 February - a sentence which he had not even begun to serve. It follows that, even if on 8 June the prison authorities had been handed the relevant extracts of these sentences imposed by the Sheriff, these would not have given them authority to take the complainer forthwith to prison and to detain him.
The only sentence which could have constituted a warrant for the complainer's imprisonment on 8 June was the sentence of 23 February. As we have explained, it was common ground that, at the time on 8 June when the Sheriff imposed the four-month sentences, the appellant was not held under the warrant granted by this court in respect of the 23 February sentence. Mr. Brown suggested that, before the appellant could be regarded as being held under that sentence, he would have needed to be arrested in terms of the warrant and informed that he was being imprisoned under it. It is unnecessary in this case to decide exactly what would have been required for these purposes, since both parties accepted that at some point on 8 June the warrant in respect of the sentence of 23 February was put into effect and he was then imprisoned under it. We merely point out that a warrant of this kind is addressed to "Officers of Law" and is intended to give them authority for holding the person in prison. It appears likely that later on 8 June the police provided the prison officials with the warrant granted by this court. Of course, once they had it, they immediately had the necessary authority to imprison the complainer, as they did. Consistently with that approach, the prison authorities recorded the complainer as beginning to serve his six-month sentence on 8 June.
For these reasons we are satisfied that it was competent for the Sheriff to order that the four-month sentences imposed on 8 June should commence from the expiry of the sentence of six months imposed on 23 February. We shall accordingly decline to pass the bills.