APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
NOTE OF APPEAL
HER MAJESTY'S ADVOCATE
Appellant: J. Barr; Bennett & Robertson
Respondent: N. Beynon; Crown Agent
28 March 2002
"I do remember this case. There was indeed a gap. As soon as Lord Bonomy left the bench I attended in chambers and he indicated that he meant to disqualify. The court was reconvened within a matter of minutes, certainly not an hour, and before any extract was issued. This was the case where we had great difficulty identifying a DVLA code. The charge was reduced from attempted murder."
"In any case the sentence to be pronounced shall be announced by the judge in open court and shall be entered in the record in the form prescribed by Act of Adjournal."
Thus this provision makes plain that for a valid sentence to be "pronounced" it requires to be "announced by the judge in open court" and "entered in the record in the form prescribed by Act of Adjournal." What occurred in this case was that, first of all, the sentencing judge in open court announced the imposition of the sentence of imprisonment. Some short time later - and in our opinion it does not matter exactly how long - having recalled that the imposition of a disqualification was appropriate, the sentencing judge announced that step in open court. Following these events the clerk of court entered details of the sentence of imprisonment and the disqualification in the record of the proceedings. In these circumstances and, in particular, having regard to the order in which these things were done, we consider that the sentence which the sentencing judge announced, including the disqualification, having been duly recorded, was in accordance with the requirements of the legislation. While, in our view, it is sufficient for the determination of this appeal that what was done was in conformity with the provisions of section 198(1) of the 1995 Act, it is of interest to note that the authorities which pre-date that legislation appear to us to point in the direction of validity. Hume in volume ii at page 477, although not dealing with the two elements of the pronouncement of a sentence, makes it clear that "a criminal sentence" is irreversible "as soon as it receives the subscription of the judge." At the time when he was writing, we understand that the recording of the sentence was signed by the judge himself, rather than the clerk of court. Further, Alison in volume ii at page 661 indicates that a judgement becomes irreversible when "embodied in the form of a sentence against the prisoner", the use of the word "form" implying though not expressing the requirement of a record of what was done. Macdonald, op cit at page 352 also recognises the dual requirement of the delivery and recording of the sentence, after which alteration or amendment is impossible. In Tudhope v. Campbell, a case in which the court was dealing with a sentence pronounced in summary proceedings, to which sections 430 and 434 of the Criminal Procedure (Scotland) Act 1975 applied, the court expressed the view that the entry of the sentence into the record of the proceedings constituted the time when the case was finally determined, subject to any modification thereof in terms of statute.