Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. GLEN FOLEY [1999] ScotHC 91 (22nd April, 1999)

This is an appeal by the Lord Advocate under section 108(1)(a) and (2)(a) and 110(1)(b) of the Criminal Procedure (Scotland) Act 1995 in respect of a sentence imposed on the respondent by the sheriff in Edinburgh on 16 February 1999. The respondent appeared before the sheriff in respect of a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. The sheriff imposed a sentence of three years imprisonment and ordered that that sentence should run consecutively to a sentence of five years imprisonment which had been imposed at the High Court at Edinburgh on 3 October 1994, back-dated to 13 June 1994. The respondent had been released on licence in respect of that sentence of five years imprisonment on 23 July 1998 in terms of section 17(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. That licence was revoked on 3 February 1999 and he was recalled to custody to serve the outstanding balance of the five year period. That period was of course due to expire on 12 June 1999.

The point which is made in the appeal is that as the sentence of imprisonment which the respondent was serving on 16 February 1999 was a sentence within the meaning of Schedule 6 to the 1993 Act, the sentence of three years imprisonment imposed on 16 February 1999 should not have been ordered to run consecutively to the sentence of imprisonment being served by the respondent on that date. This is because of the terms of section 204A of the 1995 Act, as inserted by section 112 of the Crime and Disorder Act 1998. It was not disputed by Mr Shead on behalf of the respondent that the point of law taken by the Lord Advocate is well founded and accordingly the question is what should be done in these circumstances.

Mr Shead invited us to quash the sentence imposed by the sheriff and simply to substitute a period of three years imprisonment as from 16 February 1999.

It is plain from the report from the sheriff that what he intended was that his sentence of three years should not be concurrent with any part of the sentence which had been imposed on the respondent by the High Court. It is clear that he gave some consideration to the possible use of section 16(2) of the 1993 Act but preferred to adopt a course of making his sentence of three years run consecutively to the sentence imposed by the High Court. That course of action was not available to him. In these circumstances therefore it is plain that he had not given consideration to the discretion which he had to refer this case to the High Court so that it could decide whether a section 16 order should be made and if so, in respect of what period. The sheriff had a responsibility to consider that matter, and in these circumstances we consider the appropriate course is to follow the same line of action as we took in a recent similar case. We will accordingly quash the sentence imposed by the sheriff and remit the case to the sheriff to consider whether or not he is to exercise his discretion to refer this case to the High Court under section 16(2) of the 1993 Act. We should emphasise as we have said before that whether or not a case is to be referred to the sentencing court lies wholly within the discretion of the sheriff and for this purpose it is appropriate that he should hear parties before deciding what course of action to take.