Scottish High Court of Justiciary Decisons

PAUL COWAN and JENNIFER MARGARET RENNIE and PATRICIA ELAINE BLAIR and ALAN ROBERT SIMPSON v. HER MAJESTY'S ADVOCATE and PROCURATOR FISCAL, STRANRAER and PROCURATOR FISCAL, GREENOCK and PROCURATOR FISCAL, GLASGOW [1999] ScotHC 84 (1st April, 1999)

We have before us a number of appeals concerning the application of Section 204A of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act").

Paul Matthew Cowan was sentenced on 14 January 1999 at the Sheriff Court at Glasgow for offences committed on 3 July 1998. He had been sentenced at the same court on 4 August 1997 to a total of 21 months imprisonment, but had been released on 18 June 1998 after serving one-half of that period. The expiry of that sentence was 3 May 1999. In January 1999, by virtue of Section 16(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act") the court "reimposed" 5 months of that sentence and in addition sentenced the appellant to 9 months imprisonment, "said period to run consecutively to the reimposed portion" of the sentence of 4 August 1997, "said period(s) to commence from the expiry of the period of 5 months reimposed from today". The repetition in the minute is, we fear, typical of the slack way in which many of the minutes appear to have been prepared.

Jennifer Margaret Rennie pled guilty to a theft which was committed on 19 November 1998. She was sentenced in the Sheriff Court at Stranraer on 14 December 1998. She had been sentenced previously on 29 April 1998 to detention for one year. That sentence would have expired on 16 February 1999, but the appellant was released on 16 October 1998, again after serving one-half of the period. In her case in December 1998 the court ordered that she be returned to the Young Offenders Institution for 89 days and sentenced her to 5 months detention in respect of the new offence, "said period(s) to commence from the expiry of all sentences previously imposed".

Patricia Blair was sentenced on 27 November 1997 at Greenock Sheriff Court to what the Sheriff describes as "a substantial period of imprisonment", the expiry date of which would have been 25 March 1999, according to the record in the papers. She was released on 3 August 1998 and subsequently pled guilty to three charges of theft, all the thefts having been committed after her release and the last having been committed on 18 January 1999. On 20 January 1999 the Sheriff sentenced the appellant in respect of all three complaints. On the complaint relating to the theft on 18 January 1999, the sheriff made an order under Section 16(2) of the 1993 Act that the appellant should be returned to prison for 164 days and sentenced her to 30 days imprisonment in respect of this new offence, "said period(s) to commence from expiry of 164 days imposed this date under Sec 16 of the Prisoners & Criminal Proceedings (Scotland) Act 1993". The minute does not specifically record the making of the order under Section 16(2). The Sheriff then proceeded to impose sentences of 3 months imprisonment and 60 days imprisonment for the other new offences, all the sentences for the new offences to run consecutively.

Alan Robert Simpson was sentenced at Glasgow Sheriff Court on 27 April 1998 to 18 months imprisonment. The expiration of the sentence was 4 August 1999, but he was released, after serving one-half of the sentence, on 4 December 1998. He subsequently pled guilty to an assault and robbery which had taken place on 17 January 1999. He was sentenced on 25 January 1999. According to the corrected minute, the court "reimposed" 199 days of the sentence imposed on 27 April 1998 and sentenced the appellant to 3 months imprisonment in respect of the new offence, "said period(s) to commence from the day following that upon which release from the period imposed in terms of Section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 imposed on even date is due."

It is important to notice that in each case the appellant has appealed against the sentences imposed for the new offence or offences, but not against the period ordered under Section 16(2) of the 1993 Act. Indeed, in some of the cases, the point relating to the competency of the sentence which was argued before us was not identified until the hearing of the appeal against sentence before a court of two judges. Because of the general importance of the point, their Lordships referred the appeals to this larger court for determination.

Section 204A of the 1995 Act was inserted by Section 112 of the Crime and Disorder Act 1998 ("the 1998 Act"). The 1998 Act contains a series of provisions relating to sentencing in Scotland and the amendment introduced by Section 112 has to be seen in the context of the amendments made to the 1993 Act by Section 111.

Section 204A of the 1995 Act provides:

For present purposes we notice, first, that the section forbids a court to direct that a term of imprisonment shall commence "on the expiration" of a particular class of sentence. So, the ban applies only to sentences which would be designed to start when a sentence actually expires. Secondly, the ban applies only where the sentence which expires is one from which the person has been released at any time.

As these appeals illustrate, it is nowadays commonplace for people to be released before the end of the sentence imposed by the courts. Under Section 1(1) of the 1993 Act the Secretary of State must release a short-term prisoner unconditionally "[a]s soon as [he] has served one-half of his sentence". As the wording implies, the prisoner has reached only the half-way point in his sentence. The other half of the sentence remains, even though he has been released. Similarly, by virtue of Section 1(2) the Secretary of State must release a long-term prisoner on licence as soon as he "has served two-thirds of his sentence", while by Section 1(3) the Secretary of State, if recommended to do so by the Parole Board, is to release a long-term prisoner on licence "after he has served one-half of his sentence". Again, the wording shows that the other portion of the sentence remains, even though the prisoner has been released. In all these situations, therefore, even though the prisoner may have been released, the "expiration date" of the sentences will not have altered.

The fact that release in terms of Section 1 does not affect the remainder of the sentence or its expiration date is indeed the key to the operation of Section 16 of the 1993 Act. So far as relevant for present purposes, Section 16 as amended provides:

Section 27(5) of the 1993 Act as amended provides:

We have set out certain particulars of the cases which are now under appeal. They have many elements in common. All of the cases involve appellants who were sentenced to a period of imprisonment, but were subsequently released after serving one-half of their sentence, by virtue of Section 1(1) of the 1993 Act. All of the appellants subsequently pled guilty to, or were found guilty of, an offence which was punishable by imprisonment and in all cases the offence had been committed before the dates on which, but for their release, the appellants would have served their sentences in full. The appellants were all therefore persons to whom Section 16(1) Act applied and in respect of whom the court which had imposed the original sentence could make an order in terms of Section 16(2). In all of the cases the court dealing with the appellants made such an order that the appellant in question should be returned to prison for a period. In none of the cases is it disputed that it was competent for such an order to be made under Section 16(2), nor is any appeal taken against the period selected by the court.

The question which is raised in the appeals arises out of the fact that, in addition to making such an order, the court also imposed a custodial sentence in respect of the new offence (or offences). Although the minutes recording the making of the Section 16(2) order and the imposition of the custodial sentence for the new offence vary from case to case, it is accepted that in all the cases the intention of the sentencing judge was that the sentence for the new offence was to begin after the Section 16(2) period. That is indeed the starting-point of the appeal since it is said that Section 204A of the 1995 Act forbids a court from ordering or directing that the term of imprisonment or detention should commence at the end of the Section 16(2) period. For that reason the appellants say that the sentences for the new offences were incompetent.

In support of this contention, counsel for the appellants drew attention to the terms of Section 16(5)(a) of the 1993 Act. By that provision the period for which a person is ordered to be returned to prison under the section is to be taken to be a sentence of imprisonment for the purposes of the Act. The submission was that, since the period was to be treated as a sentence of imprisonment, the end of that period fell to be treated as the expiration of a sentence of imprisonment in terms of Section 204A. For the purposes of the argument, we are content to assume that an order under Section 16(2) can properly be regarded as a sentence of imprisonment in terms of Section 204A.

As we have already explained, however, Section 204A applies only where the sentence is one from which the person has been released at any time. In none of the cases had the appellants begun to serve the period of imprisonment under the Section 16(2) order, far less been released from that period, at the time when the judge imposed the sentence of imprisonment for the new offence. Counsel acknowledged that this might suggest that any sentence of imprisonment under the Section 16(2) order was not one from which the appellant in question had been at any time released and was therefore not one to which Section 204A applied. Miss Scott, whose argument the other counsel adopted, submitted, however, that, even though a Section 16(2) order was to be regarded as a sentence of imprisonment, it should be seen as a sentence within the original sentence. This was consistent, she said, with the fact that the court ordered the person "to be returned to prison" for a period which was calculated by reference to the date when he would have served the original sentence in full. Since each of the appellants had been released from his or her original sentence, the Section 16(2) order was therefore a sentence "from which he has been released" for the purposes of Section 204A.

We reject that approach which, in our view, involves distorting rather than interpreting the terms not only of Section 204A of the 1995 Act but of Section 16 of the 1993 Act. Counsel indeed accepted that, if their interpretation were correct, then Parliament would have blundered when enacting Section 204A. This is because Section 16(5)(b) of the 1993 Act specifically provides that a court which makes a Section 16(2) order can direct that the period should be served before, and be followed by, any sentence of imprisonment imposed for the new offence. In that context therefore Parliament envisages that the sentence of imprisonment for the new offence can commence on the expiration of the period of imprisonment ordered under Section 16(2). So, on the appellants' construction, Section 204A would be inconsistent with Section 16(5)(b). We could, of course, conclude that there was such an inconsistency only if no other construction of the legislation were possible. Happily, there is another construction which means that we have no reason to suppose that the provisions are inconsistent.

It appeared to us during the argument, however, that the Crown saw some risk that the two provisions could be regarded as being in conflict. The Advocate Depute accordingly advanced an argument of exquisite subtlety. He submitted that, since the Section 16(2) order was to be made first and the judge making it would be the judge to direct that the other sentence was to follow the Section 16(2) period, the judge imposing that other sentence would not be ordering or directing that it should commence on the expiration of the Section 16 period. Despite its subtlety, we were not attracted by what is, essentially, a highly technical argument. If, in enacting Section 204A, Parliament had actually intended, as a matter of substance, that a court should not to be able to order that the sentence for the new offence was to commence after the expiry of the Section 16(2) period, then this court could not defeat that intention by giving effect to the technical argument advanced by the Crown. We are satisfied, however, that Parliament had no such intention.

The correct meaning of the provisions can be deduced by simply applying the words which Parliament has enacted. The critical point in the appellants' argument was to establish that the term of imprisonment imposed under Section 16(2) could be regarded as part of the original sentence and therefore as part of a sentence from which the person had been released. According to their counsel, a Section 16(2) period partook of the nature of the original sentence to the extent of being a sentence from which the appellant in question had been released, but at the same time it was distinct from the original sentence to the extent that its expiration came at the end of period prescribed by the court making the order rather than at the end of the original sentence.

The main support for counsel's argument was derived from the fact that a Section 16(2) order is an order for the person to be returned to prison for a period determined by reference to the date when he would have been released from the original sentence. Had nothing more been said, the argument would have been plausible. But Parliament enacted Section 16(5)(a), which counters any such argument by providing that, in any given case, the Section 16(2) term of imprisonment is itself to be taken to be a sentence. A Section 16(2) period is therefore not to be treated as part of the original sentence. That conclusion is reinforced by the fact that the expiry date of a Section 16(2) order has no necessary connexion with the expiration of the original sentence from which the person was released. For example, where the judge chooses to impose a period less than the maximum period, the Section 16(2) period may come to an end long before the expiration of the original sentence. By contrast, as Section 16(1)(b) expressly enacts, a Section 16(2) order may be imposed even after the date when the person would have served his sentence in full. Any period of imprisonment under an order made at that stage would of necessity end after the expiration of the original sentence.

For these reasons, where an order is made under Section 16(2), the period of imprisonment specified in that order is properly regarded as a sentence which is distinct from the original sentence.

We should add that, although we were not addressed by counsel on the scheme of the legislation, we are satisfied that the interpretation which we have adopted does not run counter to it. In particular, it appears to us to be important not to blur the distinction between the original sentence and the period under the Section 16(2) order. The original sentence is one from which the person concerned has been released. It is therefore not to be aggregated with any other sentence, which is wholly or partly concurrent, to form a single term (Section 27(5)). This means, for instance, that the original sentence and any period ordered under Section 16(2) do not form a single term. On the other hand, the period ordered under Section 16(2) and any sentence imposed for the new offence will form a single term if they fulfil the conditions laid down in Section 27(5). The significance of these distinctions is that they have a bearing on the dates when the persons concerned will fall to be released in terms of Sections 1 and 1A of the 1993 Act.

We emphasise that, if any point of construction of the amended provisions of the 1993 Act is raised in future, the court will expect counsel to take account of the provisions as a whole and not to confine themselves to narrow arguments which pay no attention to the overall picture.

We turn now to apply the approach which we have adopted to the cases under appeal. In all of them, except that of Jennifer Rennie, the court below made the sentence of imprisonment for the new offence commence at the end of the period of imprisonment imposed by the Section 16(2) order. In no case had any of the appellants been released from the imprisonment under that order. Since, as we have explained, Section 204A does not apply in that situation, there was nothing in the section to prevent the courts making the sentences for the new offences start after the Section 16(2) period.

In the course of his argument the Advocate Depute emphasised, however, that under Section 16(5)(b) it is for the court when making the order for the person's return to prison for a period to direct whether the period is to be served before, and to be followed by, or to be served concurrently with, any sentence of imprisonment for the new offence. Although this may be a somewhat technical matter where the same court is making the Section 16(2) order and imposing the sentence for the new offence, we agree that this is what the statute requires. The reports from the sheriffs and the minutes of proceedings in the appeals suggest that this provision has been overlooked. What should have been done was to determine the period for which the person was to be returned to prison or to the Young Offenders Institution and, at that stage, to determine whether it was to be served before or concurrently with any sentence of imprisonment or detention imposed for the new offence. The sheriff should then have gone on to consider whether to impose a sentence of imprisonment or detention for the new offence. If he decided to do so, he should have given effect to his previous decision by making that sentence either follow, or run concurrently with, the period for which he had ordered the person's return to prison or to the Young Offenders Institution under Section 16(2). We expect judges to adopt the correct procedure in future and we hope in particular that the software for the court computers will be modified so that the procedure is minuted correctly.

Although, in this regard only, the procedure adopted by the courts below was defective in the cases of Paul Cowan, Patricia Blair and Alan Simpson, counsel did not suggest that the defect had caused the appellants any prejudice. They simply submitted that the court should take the view that the defect in the sentencing procedure was not one which this court could correct on appeal. We should therefore quash the periods of imprisonment imposed for the new offences. We are satisfied that we should not do so. The defect in the procedure which the Advocate Depute identified relates to the form of the Section 16(2) order, but none of the appellants has appealed against that order. Their appeals are confined to the sentences imposed for the new offences. In our view the defect in the Section 16(2) order is immaterial in these cases where the same court dealt with the Section 16(2) order and with the sentence for the new offence on the same day: it is clear that any direction would have been that the sentence for the new offence should follow the Section 16(2) period and, in imposing the sentence for the new offence, the court would have ordered that it should commence after the expiry of the Section 16(2) period.

The applicability of Section 204A of the 1995 Act was the only point raised in the appeals of Patricia Blair and Alan Simpson. We accordingly dismiss their appeals. It was argued on behalf of Paul Cowan, however, that in any event the sheriff erred in imposing a custodial sentence rather than following the suggestion in a report before him that Cowan should be made subject to a particular form of probation order tailored to deal with vehicle-related offending. In our view, having regard to the appellant's record of previous convictions, it is impossible to say that the sentence selected by the sheriff was excessive. We accordingly refuse his appeal also.

That leaves the appeal of Jennifer Rennie. The form of the sentence in her case was somewhat different since it said that the sentence for the new offence was to commence "from the expiry of all sentences previously imposed". That could be interpreted as applying inter alia to the sentence imposed on 29 April 1998 from which the appellant had been released, but which was due to expire on 16 February 1999. On that construction, the sentence would have been in contravention of Section 204A. We are none the less satisfied that there has been no prejudice to the appellant and that we could properly substitute a sentence which reflected the sheriff's intention. Miss Scott submitted, however, that the sentence of five months detention was excessive. But the simple fact is that the appellant has an appalling record of convictions for theft and committed the new offence about a month after her release from the original sentence. In the circumstances we are quite unable to regard a sentence of five months detention as anything other than fully justified. We shall accordingly quash the sentence of five months detention imposed by the sheriff and substitute a similar sentence of five months detention, but provide that the sentence is to commence from the expiry of the period of 89 days imposed in terms of Section 16(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.