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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Philip
Lord Kingarth
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[2006] HCJAC 86
Appeal No: XC195/06
OPINION OF THE COURT
delivered by LORD KINGARTH
in
NOTE OF APPEAL
by
RONALD O'NEILL MARTIN
Appellant'
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Taylor, solicitor advocate; Bruce Short, Dundee
Alt: D. Young, A.D.; Crown Agent
2 November 2006
[1] On 6
March 2006
the appellant pled guilty in Dundee Sheriff Court to a charge of attempted
robbery. He was sentenced to a period of
12 months imprisonment. Against that
sentence he has appealed.
[2] On the same
date he also pled guilty, on a separate indictment, to a contravention of
section 27(7) of the Criminal Procedure (Scotland) Act 1995, in respect of his failure
at an earlier point in the same proceedings, to appear in the course of a trial
diet. For this he was sentenced to a
consecutive period of 12 months imprisonment.
Although he appealed against that consecutive sentence, his appeal has
already been refused by this court.
[3] The history
of proceedings, so far as relevant, is that the appellant first appeared on
petition in respect of the charge of attempted robbery on 17 August 2005, and
was committed in custody for further examination. He was fully committed in custody on 24
August 2005,
bail having been refused. The case was
indicted for the sitting commencing on 5 December 2005, but, for reasons which were not due
to any fault on the part of the appellant, on 7 December
2005 the
indictment was deserted pro loco et tempore, a further trial diet was appointed for 13
December 2005
and the appellant was allowed bail. On 13
December 2005
evidence was led in the morning and the case was adjourned until the
afternoon. However, the appellant failed
to appear in the afternoon and a warrant was granted for his arrest. The petition warrant, containing the charge
under section 27(7) of the Criminal Procedure (Scotland) Act 1995, was executed on 20
December 2005,
when the appellant appeared and was remanded again in custody, where he
remained until sentence. During the
appellant's first period on remand he spent a total of 112 days in custody. During his second period on remand he spent a
further 68 days in custody. The total
period spent on remand was thus 180 days.
[4] In her Report
the sheriff informs us that in sentencing the appellant she decided that the
starting point for the attempted robbery was a sentence of 18 months
imprisonment. She chose not to allow any
discount for the plea of guilty, given that it was tendered at the trial diet,
and her approach on that matter is not challenged. Nevertheless, she did consider it appropriate
to make a deduction to take account of the period spent on remand (to which
period she was obliged to "have regard" under section 210(1)(a)
of the Criminal Procedure (Scotland) Act 1995). In her Report she tells us
"In order to recognise the two
periods which the appellant had spent on remand, I considered that the simplest
way to deal with this was to add these together and deduct them from the period
of 18 months. As previously stated,
the appellant spent 112 days in custody in relation to the attempted robbery
indictment and 68 days in relation to the second indictment containing the
charge of failing to appear. I therefore
deducted 6 months from the period of 18 months imprisonment".
[5] The only
ground of appeal which was insisted on before us was that the sheriff erred in
failing to recognise that the total period of about 6 months spent on remand
"would, in
the ordinary course of events, amount to the equivalent of 12 months
imprisonment. The learned sheriff
deducted only 6 months from the sentence that she would have imposed, which was
18 months. It is respectfully submitted
that it would have been more appropriate to deduct a total of 12 months from
the 18 months imprisonment".
In her Report the sheriff comments on this ground of appeal
as follows:
"In relation to the sentence imposed
on the charge of attempted robbery, the Note of Appeal suggests that I should
have deducted 12 months from the period of 18 months imprisonment. I do not understand this contention. The accused was on remand during the periods
referred to, not a serving prisoner. The
ground of appeal therefore amounts to a suggestion that, every time a sheriff
backdates a sentence to take account of a period on remand, he should in fact
double that period;
that in my view is nonsense."
[6] In presenting
the appeal Mr. Taylor argued that, in circumstances where it was clear that the
sheriff wished to give credit for the periods on remand but could not readily backdate
the sentence to be imposed (given the interval of time during which the
appellant had been on bail), the fair way for her to have done so would have
been to deduct 12 months for the reasons mentioned in the ground of appeal.
[7] The advocate
depute, for his part, did not dispute that, in circumstances like the present,
ordinarily, although not necessarily in every case, the approach contended for
by the appellant would be the appropriate course. He could not support the view of the sheriff
that this would be nonsense (or indeed her remarks about the implications for
backdating).
[8] In our opinion,
in the circumstances of this case, the sheriff can be said to have erred. Although she could well have approached the
matter differently, she clearly decided (favourably from the point of view of
the appellant) that it was appropriate that the total period spent on remand should
be taken account of. In circumstances
where she could not readily backdate, given the period spent on bail, she
simply deducted that period from the sentence which she would otherwise have
imposed. The question is whether that
went far enough. Although, as the
sheriff points out, a period on remand is different from a period spent in
custody following sentence, the important point is that in both cases the
prisoner is deprived of his or her liberty.
And deprivation of liberty on remand is, in the ordinary case, for the
same period as it would be if the prisoner had been sentenced to twice that
period (given the provisions of section 1(1) of the Prisoners and Criminal
Proceedings (Scotland) Act 1993). In these circumstances, while we would not
wish to be taken as suggesting any absolute rule (and certainly none is
suggested by section 210(1)(a) of the 1995 Act), or that too fine a
mathematical approach would be appropriate, we consider that normally a period spent
on remand in circumstances like the present should, absent any specific reason
or reasons for not doing so, be recognised by deduction, from the sentence which
otherwise would be imposed, not just of the period itself but of the length of
sentence which would result in that period being served in custody. If that were not so, it would mean that
someone who happened to have been remanded for a period prior to the date of
sentence but in circumstances where there could not readily be backdating would
be likely to end up being deprived of his or her liberty for longer than, not
merely a person who was never remanded at all, but also someone remanded for
the same length of time but throughout the period from committal until
sentence. In the latter case, the normal
practice at least is to backdate to the start of the remand period, so that the
whole period of remand counts toward assessment of the appropriate date for
release under section 1(1) of the 1993 Act.
[9] In these
circumstances we shall allow the appeal, quash the sentence imposed and
substitute a sentence of 6 months imprisonment.
