Scottish High Court of Justiciary Decisons

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Cite as: [2006] HCJ 76, [2006] ScotHC HCJ_76

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Johnston

Lord Penrose

[2006] HCJAC 76

Appeal No: XJ690/06

OPINION OF THE COURT

delivered by LORD MACFADYEN

in

NOTE OF APPEAL

by

RODERICK URQUHART, Procurator Fiscal, Dingwall

Appellant;

against

RONAN JOSEPH CAMPBELL

Respondent:

_______

Act: D.R. Bain, A.D.; Crown Agent

Alt: M.C. MacKenzie; Foggo Maciness

12 October 2006

[1] On 10 April 2006 at Dingwall Sheriff Court the respondent, Ronan Joseph Campbell, pled guilty to a summary complaint containing two charges, one of driving a motor car with excessive alcohol in his breath, contrary to section 5(1)(a) of the Road Traffic Act 1988, and one of driving without due care and attention, contrary to section 3 (as amended) of the same Act. The Sheriff fined the respondent £50 in respect of charge 1 and £10 in respect of charge 2, and allowed the fines to be paid by instalments of £10 per fortnight. In addition, the Sheriff disqualified the respondent from holding or obtaining a driving licence for a period of one year, and ordered endorsement of his driving licence in respect of each charge.

[2] The appellant has appealed against the sentences imposed by the Sheriff on the ground that they were unduly lenient. Notwithstanding the somewhat different statutory references given in the Note of Appeal, the appeal is governed by section 175(4)(a) and (4A)(b)(i) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). Subsection (4)(a) of section 175 provides that:

	"(4)	The prosecutor in summary proceedings , in any class of case specified by order made by the [Scottish Ministers], may, in accordance with subsection (4A) below, appeal to the High Court against any of the following disposals, namely ―
		(a)	a sentence passed on conviction".

Subsection (4A) provides inter alia as follows:

"(4A)	An appeal under subsection (4) above may be made ―
	(b)	where it appears to the Lord Advocate, in relation to an appeal under ―
		(i)	paragraph (a) ... of that subsection, that the disposal was unduly lenient".

In the present case the contention to be advanced by the appellant is that both the fines and the period of disqualification from holding or obtaining a driving licence were unduly lenient.

[3] When the appeal called for hearing, the respondent was represented by counsel and solicitor, but was not personally present. No detailed explanation of that state of affairs was available, but it appears that the view may have been taken that his personal presence was not required. The court, ex proprio motu, invited submissions as to whether the appeal could properly be heard in the absence of the respondent. Having heard brief submissions from the Advocate depute and counsel for the respondent, we decided to continue the appeal to a future date to enable the respondent to be personally present at the hearing.

[4] In an appeal against sentence by the prosecutor on the ground that the sentence was unduly lenient, the consequence, if the appeal is allowed, is likely to be the imposition of a more severe sentence than the one under appeal. We are of opinion that, in principle, proceedings which may have that consequence ought not to take place outwith the presence of the respondent. We do not consider that it would have been satisfactory to hear the appeal in the respondent's absence, then, if it was successful, continue it to enable the respondent to be present when the new sentence was imposed.

[5] Although the matter has arisen before us in an appeal in respect of summary proceedings, the observations which we have made apply equally to appeals under section 108 of the 1995 Act against sentence on the ground of undue leniency in solemn proceedings, if the respondent is not in custody.

[6] Since it appears that there may be no clear guidance on the matter, we take the view that for the future consideration should be given to the adoption of a practice designed to ensure or at least encourage the presence of the respondent at the hearing of such appeals. That might, for example, be done, when the diet for hearing of the appeal is intimated to the respondent, by including in the intimation an indication of the respondent's right to be personally present at that diet and the desirability of his exercising that right.

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