Scottish High Court of Justiciary Decisons

IN PETITION TO THE NOBILE OFFICIUM v. BY WILLIAM MOSCROP [1999] ScotHC 70 (17th March, 1999)

On 28 April 1998 the petitioner was convicted at the District Court at Jedburgh of an offence under section 29 of the Vehicle Excise and Registration Act 1994 and was fined £50 and ordered to pay back duty in the sum of £24.17. We note that the offence itself was not one which was punishable by imprisonment. However, on 11 August 1998 the petitioner appeared at a Means Court and on that occasion a supervised attendance order was made in respect of him in terms of section 235 of the Criminal Procedure (Scotland) Act 1995. The order was that he should attend for ten hours and, as Miss Scott observed, that was the minimum period which it was competent to impose under the section.

On 2 February 1999 the petitioner appeared once more before the District Court and admitted a breach of the order. In fact, as the Justice's report makes clear to us, the petitioner had not carried out any part of the attendance order. It was apparently said to the Justice, and it was said again on the petitioner's behalf today, that this had been because he had obtained employment which ran during the period when he was due to attend, but Miss Scott accepted that it had, of course, remained his duty to attend and he accepted that. What the Justice did was to revoke the supervision order and to impose in its place a sentence of 60 days imprisonment in terms of paragraph 4 of Schedule 7 to the Criminal Procedure (Scotland) Act 1995. As Miss Scott pointed out, that was the maximum period of imprisonment which it would have been competent for the District Court to impose. She also drew attention to the fact that another disposal was competent, namely, to vary the number of hours specified in the supervised attendance order.

Miss Scott submitted that we could properly take the view that the disposal selected by the Justice had been excessive. She pointed out that the Justice had originally imposed the minimum period of 10 hours supervised attendance but then, in the case of the breach, the Justice had gone on to impose the maximum period of imprisonment.

It is clear that the Justice felt that the petitioner had not taken any steps to fulfil the terms of this supervised attendance order and it is understandable that he felt that a significant penalty had to be imposed. However, having regard to all the circumstances as we have explained them, we have come to the view that it can properly be said that the sentence of 60 days imprisonment is excessive. We note that the petitioner has already served 4 days in prison, and in those circumstances we are prepared to quash the sentence of imprisonment and to impose an additional 10 hours attendance under the supervised attendance order, making a total of 20 hours. The Justice remitted the unpaid balance of back duty of £10 because he had imposed a custodial sentence. Since we are quashing the custodial sentence, we shall restore the order for the payment of the back duty.

LIN