Scottish High Court of Justiciary Decisons

Kelly v. Procurator Fiscal [2002] ScotHC 106 (17 August 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Cameron of Lochbroom Lord MacLean	2835/01, 2836/01 and Misc 200/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by MICHAEL JOHN KELLY Appellant; against PROCURATOR FISCAL, Hamilton Respondent: _______

 

 

Appellant: Shead; Carr & Co

Respondent: Di Rollo, Q.C.; Crown Agent

 

27 August 2002

 

Introduction

1. On 11 December 2001 the appellant appeared at Hamilton Sheriff Court before Sheriff Thomas Welsh, QC on four matters. The first and second were complaints charging him with having failed to appear at diets of the court on 7 July 2001 and 27 November 2001 respectively, contrary to section 27(1)(a) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). The third and fourth matters related to breaches of two supervised attendance orders imposed on 17 April 2001 in respect of earlier summary convictions.
2. The appellant pled guilty to the complaints and admitted the breaches of the supervised attendance orders. The sheriff had before him a report of the appellant's breaches of the supervised attendance orders submitted by a community service officer of the local authority. The report concluded that the appellant was indifferent to the obligations imposed on him by those orders. The solicitor for the appellant submitted in mitigation that the appellant's conduct was explained by his mother's poor health.

The sentences imposed

3. The sheriff was unimpressed by the explanation tendered on behalf of the appellant. He thereupon sentenced the appellant to imprisonment for three months in respect of the two breaches of the supervised attendance orders and to imprisonment for thirty days in respect of each of the complaints to which the appellant had pled guilty, the sentences to run concurrently.
4. The appellant was 21 years old. He had not previously served a custodial sentence. Section 204(2) (as amended) of the 1995 Act provides that a court may not impose a custodial sentence on such an offender, unless it considers that no other method of dealing with him is appropriate. To enable the court to determine that question, it must take into account inter alia "(a) such information as it has been able to obtain from an officer of a local authority or otherwise about [the offender's] circumstances; [and] (b) any information before it concerning his character and physical and mental condition" (s. 204(2A)). If the court decides, in the light of that report to impose a custodial sentence, it must state and record the reason for its opinion that no other method of dealing with the offender is appropriate (s. 204(3)).
5. The sheriff overlooked these provisions.

Subsequent procedure

6. Later in the day, the case was again called before the sheriff. The appellant's solicitor reminded the sheriff that a social enquiry report had been mandatory in the circumstances. The sheriff says in his Report to this court that at that stage he was "prepared to alter the disposal and call for a social enquiry report." But it was too late. By then the appellant was en route to Barlinnie Prison. He was subsequently liberated pending this appeal.

The appeals and the appellant's petition

7. The appellant appealed against all four decisions of the sheriff. In McGregor, Petr. (1999 SCCR 225) this court held that where a person is imprisoned for breach of a supervised attendance order, it is not competent to appeal against that decision by means of an ordinary appeal under section 175 of the Criminal Procedure (Scotland) Act 1995. The only means by which such a disposal can be reviewed is by the exercise of the nobile officium. The appeals against the sentences of imprisonment for the breaches of the supervised attendance orders are therefore incompetent. The petitioner's advisers have, without withdrawing the appeals, petitioned the nobile officium to have those sentences quashed. For convenience we shall simply treat the petition as if it were an appeal.
8. Since it is not disputed that the sheriff made a fundamental procedural error, we have to set aside all four decisions and consider the question of sentence in the light of the up-to-date information available to us.

Circumstances of the appellant

9. We have been given a helpful and informative social enquiry report. It sets out the following background. The appellant lives with his mother. His sister and his grandmother live nearby. The appellant has had a troubled history. Since he was 11 years old he has been in a series of residential schools. While in these schools he was trained in a number of skills. In about January 2002 he gained a place at a college in Motherwell on a full-time course in car mechanics. Many of the appellant's past problems have arisen from drug abuse. He is now on a methadone programme. This has enabled him to remedy his previously poor relationships with his close family. The social enquiry report is, on the whole, favourable to the appellant and assesses him as being suitable for probation and community service.
10. The other relevant information before us is that since December 2001 the appellant has been employed part-time with a security firm. His employer has submitted a favourable reference. In April 2002 the appellant's mother was diagnosed as having cancer. Since then the appellant had been unable to continue with his course, but we understand that his place at the college remains open for him and that he intends to resume the course when he can.

Submission for the appellant

11. Counsel for the appellant has submitted that imprisonment was not a necessary disposal in the circumstances and that in line with the view expressed in the social enquiry report we should make a probation or a community service order.

Decision

12. On the information before us we consider that imprisonment is not the only appropriate option in this case. There is still a chance that if the appellant is not sent to prison, he will be able to persevere with his methadone treatment, continue in useful part-time work and in due course acquire a qualification that will help him to keep out of trouble. We also take into account the added burden now imposed on him by his mother's illness.
13. In the circumstances, we consider that the appropriate disposal is to put the appellant on probation for a period of one year with a requirement that during that period he should do 100 hours of unpaid work.
14. We shall therefore allow the appeals in respect of the sentences of thirty days; grant the prayer of the petition to the nobile officium in respect of the sentences of three months; refuse the appeals against the latter sentences on the ground that they are incompetent; and substitute the disposal to which we have referred.