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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Johnston
Lord Sutherland
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[2006]
HCJAC 40
MISC14/06
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
PETITION
by
DONNA CRANE
Petitioner:
to the
NOBILE OFFICIUM
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Act: Farquharson; Beaumont & Co.
Alt: Prentice, A.D.; Crown Agent.
27 April 2006
Introduction
[1] By this petition to the nobile officium of the court the
petitioner seeks to appeal against a community service order imposed on her by
the sheriff at Edinburgh in respect
of breach of a supervised attendance order.
[2] The
procedural history of the matter is as follows.
On 13 June 2002 the petitioner was convicted on summary complaint at
Edinburgh Sheriff Court of contraventions of sections 87(1) and 143(1) and (2)
of the Road Traffic Act 1988 committed on 1 February 2001. She was fined £100 in respect of each
charge. Payment was allowed to be made
by instalments of £7 per fortnight. The
petitioner failed to make payment of the fines, and after sundry procedure a
supervised attendance order was made on 29 October 2002 (not 2004 as narrated in statement
1 of the petition). The petitioner
failed to comply with that order, in respect that she failed to attend a number
of appointments as instructed on dates in February and March 2003. Proceedings in respect of her breach of the
supervised attendance order were brought, and in respect of those proceedings
warrant for her apprehension was granted on 8 April 2003. The
petitioner eventually appeared before the sheriff on 4 February 2005 and admitted breach of the
supervised attendance order. The sheriff
deferred further consideration of the matter for the purpose of obtaining
social enquiry and community service reports.
On 25
February 2005 the sheriff revoked the supervised attendance order
and imposed a community service order requiring 80 hours work. When that disposal was intimated to the City
of Edinburgh Council Social Work Department, an
official of that department wrote to the Sheriff Clerk questioning the
competency of the community service order.
[3] On
27 February 2006 the
present petition was presented. The
contention for the petitioner, set out in statement 4 of the petition, is that
the imposition of the community service order was incompetent in terms of
paragraph 4(2) of Schedule 7 to the Criminal Procedure (Scotland) Act 1995
("the Act").
[4] The
sheriff was invited to comment on the petition.
He did so by letter dated 28 March
2006. He expressed the
view that, in the light of the terms of paragraph 4(2) of Schedule 7 of the
Act, read with section 238(1) of the Act, it was competent for him to impose,
in respect of breach of a supervised release order, a community service order.
The competency of the application to the nobile officium
[5] It
is averred that the Act provides no statutory right of appeal against an order
made in respect of breach of a supervised attendance order, and that, in the
absence of other means of bringing the community service order under review,
the application to the nobile officium is
necessary. Miss Farquharson, for the
petitioner, sought to support that position by reference to McGregor 1999 SCCR 225 (see also Ward v PF (Hamilton), 20
September 2000, unreported, and Kelly
v PF (Hamilton), 27 August 2002,
unreported).
[6] The
Advocate depute accepted that McGregor vouched
the competency of a petition to the nobile
officium as the appropriate means of bring under review the merits of an
order made in respect of breach of a supervised attendance order. He submitted, however, that where, as in the
present case, what was in issue was the competency of the order made in respect
of breach of the supervised attendance order, the ordinary means of challenging
a procedural irregularity, namely a bill of suspension, was available, and that
availability precluded application to the nobile
officium.
[7] We
consider that the distinction drawn by the Advocate depute is sound. When what is in issue is whether the order
made in respect of breach of a supervised attendance order is inappropriate or
excessive in the circumstances, there is no statutory right of appeal, and
resort to the nobile officium is
competent to avoid injustice. Where,
however, the issue is the competency of the order imposed in respect of breach
of the supervised attendance order, proceedings by way of bill of suspension
are appropriate, and a petition to the nobile
officium is not.
[8] We
were invited, if we took that view, to treat the present petition as if it were
a bill of suspension. The Advocate
depute offered no opposition to our taking that course. We consider it appropriate to do so.
The relevant legislation
[9] Supervised
attendance orders are regulated by section 235 of the Act. That section provides inter alia as follows:
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"(1)
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A court may make a supervised
attendance order in the circumstances specified in subsection (3) below ...
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(3)
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The circumstances referred to in
subsection (1) above are where ―
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(a)
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the offender is of or over 16
years of age;
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(b)
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having been convicted of an
offence, he has had imposed on him a fine which (or any part or instalment of
which) he has failed to pay and the court, but for this section, would also have
imposed on him a period of imprisonment under subsection (1) of section 219
of this Act; and
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(c)
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the court considers a supervised
attendance order more appropriate than the serving or, as the case may be,
imposition of such a period of imprisonment."
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[10] Further provisions relating to supervised attendance orders,
including the provisions conferring power on the court to deal with breach of
such an order, are contained in Schedule 7 to the Act. Paragraph 4(2) of that schedule contains inter alia the following provisions:
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"If it is proved to the
satisfaction of the court before which an offender is brought or appears in
pursuance of sub-paragraph (1) above that he has failed without reasonable
excuse to comply with any of the requirements of paragraph 3 above or of the
order (including any failure satisfactorily to carry out any instructions
which he has been given by the supervising officer under the order) the court
may ―
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(a)
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revoke the order and impose such
period of imprisonment not exceeding ―
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(i)
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in the case of a sheriff court ,
30 days ...
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as the court considers
appropriate; or
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(b)
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subject to section 235 of this
Act and paragraph 2(2) above, vary the number of hours specified in the
order."
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[11] The imposition of a community service order is regulated by
section 238 of the Act. Subsection (1)
of that section provides as follows:
"Subject
to the provisions of this Act, where a person of or over 16 years of age 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 (being in total not less than 80
nor more than 300 on conviction on indictment, and not less than 80 nor more
than 240 in any other case) as may be specified in the order."
Submissions
[12] For the
petitioner, Miss Farquharson submitted that paragraph 4(2) conferred on the
sheriff power to do one or other of two things when breach of a supervised
attendance order was proved to his satisfaction. These were (1) revocation of the supervised
attendance order and imposition of a period of imprisonment, and (2) variation
of the number of hours specified in the supervised attendance order. No power to impose a community service order
for breach of a supervised attendance order was conferred. Section 238(1) did not apply. It was concerned to empower the court, when
sentencing for an offence, to impose a community service order instead of a
sentence of imprisonment. It had no
application in the context of dealing with breach of a supervised attendance
order. What the sheriff had power to do
in that context was regulated by paragraph 4(2) of Schedule 7. At that stage, the sheriff was not imposing a
sentence for the original offences, but was rather imposing a penalty for the
breach of the supervised attendance order.
The sheriff's error lay in proceeding as if he were sentencing the
petitioner for the original offences.
[13] The Advocate
depute did not submit that the sheriff had power in the circumstances to impose
a community service order.
Discussion
[14] In our opinion
the sheriff had no power to impose a community service order in respect of the
petitioner's breach of the supervised attendance order. His powers in that context are set out in paragraph
4(2) of Schedule 7 to the Act. That
paragraph enabled the sheriff, on proof of breach of the supervised attendance
order, to revoke that order and impose a period of imprisonment, or to vary the
number of hours of supervised attendance.
It did not enable him to impose a community service order.
[15] The sheriff
relied on section 238(1) as empowering him to impose a community service
order. In our view that involves a
misconstruction of the subsection. It is
concerned with the imposition of a sentence for an offence. It is confined to offences punishable by
imprisonment. In the present case the
original offences were not punishable by imprisonment, and therefore did not
fall within the scope of section 238(1).
Had the sheriff been sentencing the petitioner in respect of the
original offence, the imposition of a community service order would have been
incompetent on that account. But that is
not what the sheriff was doing. He was
not imposing a sentence in respect of the original offences. On the contrary, he was imposing a penalty
for breach of the supervised attendance order.
Nothing in section 238(1), properly construed, applies in such
circumstances or increases the range of courses open to the sheriff under
paragraph 4(2).
Result
