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Cite as: 2005 SLT 834, 2006 JC 91, [2005] ScotHC HCJAC_85, 2005 GWD 25-477, [2005] HCJAC 85, 2005 SCCR 589

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Macauley v. Procurator Fiscal [2005] ScotHC HCJAC_85 (12 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Kinclaven

C.G.B. Nicholson, C.B.E., Q.C.

[2005HCJAC85]

Appeal No: XJ643/04

OPINION OF THE COURT

delivered by LORD MACFADYEN

STATED CASE

in the cause

ALAN MACAULEY,

Appellant;

against

PROCURATOR FISCAL, Lanark

Respondent:

_______

Act: Shead; Balfour & Manson

Alt: MacNeill, A.D.; Crown Agent.

12 July 2005

Introduction
[1] On 4 March 2004 the appellant was convicted at Lanark Sheriff Court of (1) reset of two drums of diesel and (2) possession of cannabis resin in contravention of section 5(2) of the Misuse of Drugs Act 1971.

[2] The sheriff imposed on the appellant a cumulo sentence comprising (a) a restriction of liberty order requiring the appellant, for a period of three months, to remain within his home from 7.00 p.m. to 7.00 a.m. the next day, and (b) a community service order requiring the appellant to undertake 150 hours of unpaid work in the community.

[3] The appellant appealed against the conviction and sentence by stated case. He did not insist in the appeal against conviction, and on 3 March 2005 it was refused. The appeal against sentence was continued, it being noted that the contention was that the sentence was incompetent. On 11 May 2005 the appeal was further continued. It was noted in the interlocutor on that date that the appellant's contention was that it was incompetent to impose a restriction of liberty order along with a community service order.

[4] On 12 July 2005 we heard submissions on that issue. Before recording those submissions it is convenient to set out the relevant statutory provisions.

The statutory provisions
[5] Section 245A(1) of the Criminal Procedure (Scotland) Act 1995 ("the Act") provides that:

"Without prejudice to section 245D of this Act, where a person is convicted of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law) the court may, instead of imposing on him a sentence of, or including, imprisonment or any other form of detention, make an order under this section (in this Act referred to as a 'restriction of liberty order') in respect of him."

Section 245A(6) requires the court, before making a restriction of liberty order which will require the offender to remain in a specified place or places, to obtain and consider certain reports. Section 245D(1) enables the court to impose a restriction of liberty order in conjunction with a probation order under section 228(1) of the Act or a drug treatment and testing order under section 234B(2). The remainder of section 245D sets out in considerable detail how such combined orders are to operate.

[6] Section 238(1) of the Act provides that:

"Subject to the provisions of this Act, where a person ... is convicted of an offence punishable by imprisonment, other than an offence the sentence for which is fixed by law, the court may, instead of imposing on him a sentence of, or including, imprisonment or any other form of detention, make an order (in this Act referred to as a 'community service order') requiring him to perform unpaid work for such number of hours ... as may be specified in the order."

Section 238(7) makes it clear that the making of a community service order is not incompatible with the concurrent imposition of a disqualification, the making of a forfeiture order, or the making of an order for caution for good behaviour.

[7] Section 229(4) of the Act enables the court, where an offender has been convicted of an offence punishable by imprisonment, if it is considering making a probation order and certain conditions are satisfied, to include in the probation order a requirement that the offender shall perform a specified number of hours of unpaid work.

The appellant's submissions
[8] For the appellant, Mr Shead submitted that it was clear, from the language of the relevant statutory provisions, that it was not competent to impose both a community service order and a restriction of liberty order. Such orders were discrete penalties. Each of them was an alternative to imprisonment. There was, however, nothing to suggest that they might be combined with each other. Express provision was made in section 245D for the combination of a restriction of liberty order with a probation order or a drug treatment and testing order. Express provision was made in section 238(7) for certain orders that might be combined with a community service order. Section 229(4) made provision, in effect, for the combination of community service with a probation order, by means of a requirement attached to the probation order. Given the existence of these express provisions, the absence of any express provision permitting a combination of a restriction of liberty order with a community service order was a clear indication that Parliament did not intend that such a combination should be competent.

The Crown submissions
[9] The Advocate depute submitted that there was nothing express in the legislation to render it incompetent to combine a restriction of liberty order with a community service order. He recognised that there was force in the appellant's submission based on the existence of the detailed express provisions in section 245D for combining a restriction of liberty order with a probation order or a drug treatment and testing order and the absence of any equivalent provision regulating the combination of a restriction of liberty order with a community service order. Nevertheless, he submitted that a restriction of liberty order was not inherently incompatible with an order for unpaid work. Such a combination could be achieved under section 245D by making a restriction of liberty order in conjunction with a probation order which contained a requirement under section 229(4) for the performance of unpaid work. The combination of orders made by the sheriff should therefore not be regarded as incompetent.

Discussion
[10] The point in issue is a short one. It must be accepted that Parliament has not regarded a restriction of liberty order as fundamentally incompatible with an order requiring the performance of unpaid work, since such a combination can be achieved under section 245D by means of combining a restriction of liberty order with a probation order incorporating a requirement of the sort provided for in section 229(4). Nevertheless, we are of opinion that, when regard is had to the whole range of statutory provisions, and to the combinations of orders for which express provision has been made, it is clear that Parliament did not contemplate the combination of orders which the sheriff made in the present case. Where combinations are permissible, they are expressly provided for (see sections 245D, 238(7) and 229(4)). In that context the absence of any recognition in the legislation of the possibility of combining a restriction of liberty order with a community service order points to the incompetence of that combination. So too does the absence of the sort of close regulation of that combination that is found in the context of probation plus restriction of liberty or probation plus drug treatment and testing in section 245D. We therefore conclude that the challenge to the competency of the combined disposal adopted by the sheriff is well-founded.

Result
[11] There remains the question of what should be done to rectify the position. In theory, the incompetency could be cured by quashing either the restriction of liberty order or the community service order. We note that the Social Enquiry Report which was before the sheriff makes no mention of a restriction of liberty order. That means that the sheriff did not have available to her the material which she required in terms of section 245A(6) to have before imposing a restriction of liberty order. In these circumstances, we take the view that the proper course is to quash the restriction of liberty order, leaving the community service order to take effect.