APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Milligan Lord Caplan |
Appeal No: 101/00 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in BILL OF SUSPENSION by WILLIAM JOHN STEVEN WARD Complainer; against PROCURATOR FISCAL, Hamilton Respondent: _______ |
Complainer: Shead; Balfour & Manson
Respondent: Doherty, Q.C., A.D.; Crown Agent
20 September 2000
[1] The complainer in this bill of suspension seeks "reduction in a pretended conviction of 60 days imprisonment imposed" by the Sheriff at Hamilton on 12 January 2000. This matter concerns breach of a supervised release order. At the outset of the hearing of the appeal Mr. Shead, who appeared for the complainer, accepted that the competent and appropriate mode of appeal was by way of a petition to the nobile officium and not by way of a bill of suspension (see Pet. McGregor 1999 SCCR 225). We allowed the matter to proceed as though the proper mode of appeal had been adopted.
[2] The circumstances in which the court came to impose this period of imprisonment are as follows. The complaint called in Hamilton Sheriff Court on 3 October 1997. A plea of guilty to a charge of speeding in terms of the Road Traffic Regulation Act 1984 was tendered on the appellant's behalf. On 24 October 1997 the complainer appeared personally and a fine of £500 was imposed, the court allowing payment to be made by instalments of £20 weekly to commence 31 October 1997. The complainer failed to make any payment towards the fine. On 1 April 1998 he appeared before the fines enquiry court. The court then allowed payment of the fine to be made by instalments of £20 per week commencing 15 April 1998 and at the same time imposed a supervised attendance order for 100 hours as an alternative for non-payment of the fine, that period to commence on further default in payment of said fine. No instalment of the fine was paid and on 16 April 1998 the complainer was made subject to the supervised attendance order with effect from that date all in terms of section 235 of, and Schedule 7 to, the Criminal Procedure (Scotland) Act 1995. On 12 February 1999 warrant to cite the complainer to appear at Hamilton Sheriff Court on 16 March 1999 was granted in respect of information upon oath by the complainer's supervising officer to the effect that he had failed to comply with the requirements of the supervised attendance order. The failure to do so was in respect of three failures to attend as instructed between May 1998 and January 1999. The complainer failed to appear and a warrant for his apprehension was granted. On 12 January 2000 the complainer appeared before the sheriff at Hamilton having been arrested on the warrant. He admitted the breach set out in the warrant to cite. The minutes of proceedings set out that "the accused admitted beach (sic) of the supervised attendance order the court revoked the order imposed. The court sentenced the accused to 60 days imprisonment said period to commence from 12 January 2000". The complainer was born in 1974. He had not been convicted of any offence prior to 3 October 1997
[3] The first ground of attack upon the sheriff's determination was that he had erred in failing to call for a report as specified by section 204(2A) of the Criminal Procedure (Scotland) Act 1995. Mr. Shead referred to the provisions of section 204(2) which prohibits a court from passing "a sentence of imprisonment" on a person of or over 21 years of age who had not previously been sentenced to imprisonment or detention by a court in any part of the United Kingdom. He submitted that such a sentence of imprisonment was what had been passed on the complainer on 12 January 2000. He referred to the definition of "sentence" in section 307 of the 1995 Act which provides that, whether of detention or imprisonment, it means "a sentence passed in respect of a crime or offence and does not include an order for committal in default of payment of any sum of money or in contempt of court". In the present case no order for committal in default of payment of any sum of money had been made in terms of section 219 of the Act. Instead a supervised attendance order was made in terms of section 237 of the Act. Although an order that took effect "in default of payment of the fine or any instalment of it on the due date", it was not an order for committal. It fell to be contrasted with an order imposing a period of imprisonment on a person who has failed to pay any part of a fine, as was apparent from the provisions of section 235(2)(c). That provision allowed the court to make a supervised attendance order of up to 100 hours where it considered such an order more appropriate than the serving or imposition of a period of imprisonment in terms of section 219(1) of the Act. In the latter case the period to be served or imposed was governed by the provisions of section 219(1). The sheriff had purported to act in accordance with the powers given to him in paragraph 4(2) of Schedule 7 to the Act where there had been, amongst other things, a failure to comply without reasonable excuse with any of the requirements of the order. That paragraph provides that:
"the court may -
(a) revoke the order and impose such period of imprisonment not
exceeding -
(i) in the case of a sheriff court, three months....
as the court considers appropriate: or
(b) subject to section 235 of this Act and paragraph 2(2) above, vary the
number of hours specified in the order."
As is made clear in section 235(8), imprisonment includes detention since a supervised attendance order may be made where the offender is of or over 18 years of age and is not serving a sentence of imprisonment (see section 235(4)(b)).
[4] Mr. Shead submitted that, before proceeding to sentence the complainer to imprisonment, the sheriff was bound to consider whether any other method of dealing with him was appropriate in terms of section 204(2A). In doing so the sheriff was bound to obtain information "about his (the complainer's) circumstances" whether from an officer of a local authority or otherwise. That was consistent with the general scheme of the Act which was designed to ensure that a person who had not previously served a sentence of detention or imprisonment was not given such a sentence unless the court considered that there was no other more appropriate method of dealing with him. It was an important element in that consideration that the court should be fully informed as to the circumstances of that person. In the present case, the sheriff had not called for a social enquiry report or similar report about the complainer's circumstances at the time. The sheriff in his report made reference to the breach report but that was nearly a year out of date and was not comprehensive as to the complainer's circumstances. He had accordingly exercised his discretion without reference to the required information and in doing so had pronounced an incompetent sentence. This court should accordingly consider the matter de novo.
[5] We would add that the Crown did not dispute that an order for imprisonment following upon breach of a supervised attendance order was a sentence as defined in section 307 of the 1995 Act.
[6] The first issue to be determined is whether the order pronounced by the sheriff for the complainer's imprisonment is a sentence of imprisonment for the purposes of section 204(2) of the Act. While it cannot be determinative of the matter, we note that in the minutes of proceedings the order for imprisonment is described as a sentence. In Pet. McGregor Lord Justice Clerk Cullen observed that the particular power to impose imprisonment upon an individual in terms of paragraph 4 of Schedule 7 to the Act does not become available until the stage at which the individual has failed to comply with the supervised attendance order. He went on to observe that the disposal of a case after the breach of a supervised attendance order might be compared with cases in which there had been a breach of a probation order or of a community service order. The distinction between the making of a supervised attendance order and either of a probation order or of a community service order was that, in the two latter cases, the relevant statutory provisions demonstrated an intention that the court could exercise its original power to sentence the offender for the original offence as if the order had not been made. However, similar provision had not been made in the case of the breach of a supervised attendance order. In terms of sub-section (6) of section 235 the coming into force of the order has the effect of discharging the unpaid fine originally imposed or that part of it remaining unpaid. Accordingly, it would appear that Parliament envisaged that where such an order was made, it was to be regarded as a new sentence in contradistinction to an order for committal to a period of imprisonment in default of payment of the fine or any part of it, made under section 219(1) of the Act. It is apparent from the terms of section 216(1), which makes provision for restriction on imprisonment for default in making payment of a fine or for finding caution, that the fine or the order to find caution is the "sentence" of the court. But the imposition of a period of imprisonment for default in the payment of a fine or failure to find caution is tied directly to the amount of the fine and is made subject to the maximum periods set out in section 219(2). Thus the only discretion given to the court is as to the length of the period of imprisonment to be ordered within the specified maximum applying to the amount of the fine or caution originally imposed. By contrast, the statutory scheme which provides for the making of a supervised attendance order empowers the court, in the event of a breach of the order, if it considers it appropriate, to vary the order or to revoke it and impose a period of imprisonment by use of a separate and distinct power to the court to penalise the breach. The court is not bound to exercise that power. The extent of the power to impose a period of imprisonment is regulated in terms of paragraph 4 of Schedule 7 to the 1995 Act according to which court is dealing with the breach. In the case of the sheriff court the court may order imprisonment up to a maximum of three months and in the case of the district court the court may order imprisonment up to a maximum of sixty days. We are fortified in our view that such an order for imprisonment is to be regarded as a sentence by the provisions of section 236 of the 1995 Act. This section is concerned with the making of supervised attendance orders in place of fines for 16 and 17 year olds. It permits the imposition of a fine in certain circumstances together with the making of a supervised attendance order in default of payment of the fine within 28 days. However it disapplies, amongst others, the provisions of section 219 (see section 236(7)). It then provides by sub-section (8) that for the purposes of any appeal or review, a supervised attendance order made under the section is a sentence. Furthermore it is expressly declared in sub-section (9) of
[7] Accordingly, we agree with the submission made for the complainer that the power given to a court to impose a period of imprisonment upon breach of a supervised attendance order is a sentence for the purposes of section 204(2) of the 1995 Act. The sheriff fell into error, in our opinion, in that he considered that in dealing with a breach of the supervised attendance order and exercising the power to impose a period of imprisonment for that breach, he was not imposing a sentence. In his report following upon a reference to Pet. McGregor, he says this:
"I imposed a period of imprisonment on the complainer in connection with his failure to comply with the supervised attendance order and not as a 'sentence passed on such conviction'."
In this passage the sheriff, in our opinion, did not fully comprehend that the issue with which the court in that case was concerned was of a different character to the present, namely whether there was any statutory form of appeal against the imposition of a period of imprisonment for breach of a supervised attendance order. It was not immediately concerned with the issue that arises in the present case, namely, whether the imposition of a period of imprisonment is a "sentence" for the purposes of section 204 of the 1995 Act. We are satisfied that it is to be so regarded. That being so, for the purpose of determining whether such a method of dealing with the offender is appropriate, the court requires to have before it and to take into account the matters set out in sub-section (2A) of section 204, and in particular such information as it has been able to obtain from an officer of a local authority or otherwise about the offender's circumstances. That duty is not fulfilled by obtaining information from the prosecution or the defence (see Auld v. Herron 1969 JC 4). It is plain also that the information to be obtained must be pertinent to the offender's circumstances at the time when the court is dealing with the breach and considering whether there is no other method of dealing with the offender which is appropriate. There were alternatives available in that the court could decline to make any variation to the order or could vary the number of hours specified. In his report, the sheriff tells us that he did not consider that he required to call for a report in terms of section 204(2A). Without attempting to define the limits within which the duty is to be fulfilled, we are satisfied that in the present case it was not sufficient for the sheriff to proceed to deal with the matter upon the basis of a breach report which was already of considerable antiquity and which did not deal with the present circumstances of the complainer. That being so, we consider that as was done in Pet. McGregor, it is appropriate to entertain the appeal and, furthermore, in this case, albeit that it is set out in a bill of suspension, to treat it as if it had been made by way of a petition to the nobile officium. In particular, exercise of that power would not, we consider, conflict with any statutory intention to any contrary effect.
[8] Mr. Shead informed us that, prior to his being released on interim liberation, the complainer had spent fourteen days in prison. He had been in full-time employment and was earning £160 per week. He had financial obligations to a partner and a child of his, from whom he was estranged but which he had been meeting from his weekly earnings. His employment had been lost as a direct consequence of the order made by the sheriff. The complainer, while he had not paid any part of the fine, had carried out 23.5 hours of the hours required of him under the supervised attendance order. Mr. Shead did not dispute the general thrust of the sheriff's account of the complainer's failures to comply with the instructions of the supervising officer which indicated a cavalier attitude to the complainer's obligations in terms of the order. Without disagreeing with the sheriff that breach of an order is not to be regarded lightly, the course taken by him was inappropriate in that he failed to obtemper the provisions of section 204, and in particular subsection (2A). In these circumstances, the imposition of a period of imprisonment was incompetent and we consider that, in the light of the circumstances that have occurred since its imposition, we are entitled to look at the matter de novo. In these circumstances, and taking into account that the complainer has already served a period of fourteen days' imprisonment, we shall quash the sentence and vary the order to the extent of reducing it to a period of 48.5 hours.