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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Wheatley
C.G.B.
Nicholson, CBE, QC,
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[2007HCJAC]22
Appeal No: XJ 920/06
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEAL AGAINST SENTENCE
in causa
MICHAEL ROBERTSON
Appellant;
against
PROCURATOR FISCAL, AIRDRIE
Respondent:
_______
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Appellant: Shead: Brodies
Respondent: Logan, A.D.;
Crown Agent
8 March 2007
Background
[1] On
6 March 2006, at Airdrie
Sheriff Court, the appellant pled guilty by
letter to a charge in the following terms:
"... you ...
being an accused person and having been granted bail on 23122005 [sic] at
Airdrie Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1995
and being subject to the condition inter alia YOU do not approach Jacqueline
Hall or enter Lansdowne Drive, Cumbernauld did on 31 December 2005 at
Lansdowne Drive, Cumbernauld fail without reasonable excuse to comply with said
condition in respect that YOU DID approach Lansdowne Drive the home address of
Jacqueline Hall;
CONTRARY to
the Criminal Procedure (Scotland) Act 1995,
Section 27(1)(b)
you MICHAEL
ROBERTSON did commit this offence while on bail, having been granted bail on 23 December 2005 at Airdrie
Sheriff Court."
As can be seen, the foregoing
charge not only libels a breach of a bail order contrary to section 27(1)(b) of
the 1995 Act but also, at the end of the charge, libels what is commonly
referred to as a "bail aggravation". As can also be seen, however, the bail
order which is libelled in relation to the bail aggravation is the same one as
is said to have been breached within the libel of the substantive offence.
[2] Following
on receipt of the appellant's written plea of guilty the case was continued on
several occasions in order to obtain reports, and for other reasons. Finally,
on 14 June 2006, the
appellant was sentenced to four months' imprisonment, of which three months
were stated to be attributable to the bail aggravation. An appeal was marked
against that sentence and, on 22 June
2006, interim liberation was granted in the High Court.
Accordingly, the appellant has served eight days of the sentence.
[3] In
the course of our preliminary reading of the papers for the sitting of the
Appeal Court in which the present appeal was to be heard, we found that we had
a degree of anxiety regarding the propriety, if not indeed the competency, of
adding a bail aggravation to a charge under section 27(1) of the 1995 Act, particularly
where, as in the present appeal, the bail order founded on in each part of the
charge was exactly the same. We were aware, from our experience in the Appeal
Court, that this does not appear to be a
consistent practice in the libelling of charges of this kind throughout the
courts in Scotland. We also
noted that, in the immediately following case on the Roll for the day in
question, a somewhat similar, though not identical, problem appeared to arise.
In that case, which also involved a conviction and sentence under section 27 of
the Act, the substantive part of the charge referred to a bail order granted on
13 February 2006 whereas
the aggravation at the end of the charge referred to an earlier bail order
granted on 23 January
2006. The penalty selected by the sheriff in that case was one of
three months' imprisonment. The sheriff does not state what part, if any, of
that term of imprisonment was attributable to the bail aggravation though, in
his note, he offers the view that, for the charge under section 27, he could
have imposed up to 12 months' imprisonment. It is not immediately clear what
was his basis for reaching that figure.
[4]
The propriety, or possibly competency, of libelling a bail aggravation in
addition to a substantive charge under section 27(1) was not, as it happened, a
matter which was expressly focussed in the grounds of appeal either in the
present appeal or in the one which was scheduled to follow it in the Roll.
However, we considered that, since a question of competency might be involved,
it was a matter on which we would wish to know the position of the Crown.
Accordingly, on the day prior to the hearing of the present appeal we alerted
the Advocate Depute to the fact that we would wish to know the Crown's view on
this matter.
The hearing of the appeal
[5] When
this appeal called, the Advocate Depute, in response to the request made by us
the previous day, advised us that the Crown position in the case presently
under appeal is that it is not appropriate, where a person is charged under
section 27(1) of the 1995 Act, to libel a bail aggravation relating to the same
bail order as forms the subject matter of the substantive offence. That, it was
conceded, amounts to a form of double jeopardy. However, the Advocate Depute
went on to say that he would not be making the same concession in the next case
on the Roll where, as mentioned above, the bail aggravation related to a
different bail order from the one libelled in the substantive charge. Unfortunately,
we were not able to hear the Advocate Depute develop the Crown's position on
that matter because, when the next case on the Roll eventually called, the
appellant, who had been on bail, failed to appear with the consequence that his
appeal was simply refused for want of insistence. Accordingly, the potential
problem focussed in that case will have to await discussion and argument on
another occasion.
[6] So
far as the present appeal is concerned, we are of opinion that the concession stated
by the Advocate Depute was well made, and is consistent with the terms, and the
overall structure, of section 27 of the 1995 Act. Section 27(1) creates an
offence in respect of a person who has been granted bail; and that offence may
consist of (a) a failure without reasonable excuse to appear at the time and
place appointed for any diet of which he has been given due notice, or (b) a
failure to comply with any other condition imposed on bail. The present case
concerns the second of the foregoing circumstances. Subsection (1) is stated to
be subject to subsection (7). However, that subsection relates to solemn
proceedings, and it may be ignored for present purposes. Subsection (1) also
provides that a person who commits the offence is to be liable on conviction to
the penalties specified in subsection (2), that is to say (a) a fine not
exceeding level 3 on the standard scale, and (b) imprisonment for a period (i)
where conviction is in the district court, not exceeding 60 days, or (ii) in
any other case, not exceeding 3 months.
[7] All
of the foregoing appears to set out perfectly clearly that an offence under
subsection (1) is to be punishable to the maximum extent permitted by
subsection (2). However, subsection (1) is also stated to be subject to
subsection (3). That subsection is in the following terms:
"Where, and
to the extent that, the failure referred to in subsection (1)(b) above consists
in the accused having committed an offence while on bail (in this section
referred to as 'the subsequent offence'), he shall not be guilty of an offence under
that subsection but, subject to subsection (4) below, the court which sentences
him for the subsequent offence shall, in determining the appropriate sentence
for disposal of that offence, have regard to [various matters, including, for
example, the number of bail orders to which the accused was subject at the
relevant time]".
Subsection (4) provides, in effect,
that subsection (3) will not apply unless the fact that the accused was on bail
is libelled in the indictment or, as the case may be, specified in the
complaint. That, of course, is the specification which appears at the end of
the charge in the case presently under appeal. Also of importance is subsection
(5) which provides, putting it shortly, that the maximum sentence for a
subsequent offence to which subsection (3) applies may be increased
nothwithstanding that the maximum penalty as so increased exceeds the penalty
which it would otherwise be competent for the court to impose. The amount of
the increase, where the penalty is a fine, is the amount equivalent to level 3
on the standard scale; and, where it is a period of imprisonment, the amount,
in the High Court or the sheriff court, is 6 months, and, in the district
court, 60 days.
[8] The
operation of subsection (3) is familiar, and easy to understand, in cases where
an accused person, who is subject to a bail order, commits an offence such as,
for example, theft or assault during the currency of the bail order. In such a
case, and in compliance with subsection (4), the charge relating to the new
offence will normally contain a reference to the bail order (the "bail
aggravation"); and, on conviction of the substantive offence, the court will in
that event have available the increased penalties provided for in subsection
(5). However, the question is whether the same outcome will arise where a new
charge is itself one under section 27(1) of the Act. It seems to be clear that
the provisions of subsection (3), taken along with the provisions of subsection
(5), have led some procurators fiscal to consider that it is competent to libel
a bail aggravation in respect of charges under section 27(1), and that those
same provisions have, in those circumstances, led some sheriffs to a belief
that in such cases they were entitled to increase the maximum sentence provided
for under subsection 2(b) by a further period of six months. In our opinion,
however, the critical words in subsection (3) are "he shall not be guilty of an
offence under that subsection". The import of these words is that, where a
person who is on bail fails to comply with a condition of the bail order by the
commission of a "subsequent offence", he is not to be guilty of an offence
under section 27(1)(b), but will be liable to an increased penalty in respect
of that subsequent offence. From that it must follow, in our opinion, that,
where a person is in fact charged with an offence under section 27(1)(b), he
does not in that event fall under the provisions of subsection (3) and,
accordingly, it is not competent to libel a bail aggravation in respect of the
same bail order as forms the subject matter of the charge. By the same token,
the increased penalties provided for in subsection (5) are not competently
available in such a case since, as has been seen, subsection (2) provides its
own penalties for a breach of section 27(1). It may be that, as was suggested
by the Advocate Depute, a charge under section 27(1) will be capable of being
regarded as one to which subsections (3) and (5) apply if the substance of the
charge can be said to have been in breach of a different bail order from that
specified in the charge. Since that possibility was not argued before us, we
offer no view regarding it. For present purposes it is sufficient for us to say
that, in our opinion, there is nothing in section 27 which would engage
subsections (3) and (5) in a case such as the present one where only one bail
order is involved, and where the essence of the charge under section 27(1)(b)
is a failure to comply with a condition of that order. To conclude otherwise would,
as was conceded by the Advocate Depute, result in double jeopardy since it
would result in the possibility that the offender would be punished twice for
precisely the same thing.
[9] For
the foregoing reasons we consider that the position adopted by the Advocate
Depute in the present case was sound, and in accordance with a correct
construction of the statutory provision in question. Since, as we have said, it
is our experience that some, though not all, procurators fiscal around the
country, and, additionally, some sheriffs, are falling into the error which is
highlighted in the present case, we have considered it appropriate to set out
our views on this matter in writing. We also express the hope that, following
on the decision in this case, Crown Office will issue appropriate instructions
to procurators fiscal so that this error does not occur again.
Decision on the appeal
[10] This aspect of the current appeal can, in the circumstances, be
dealt with fairly briefly. The present charge, and several other offences
committed by the appellant within a few weeks of each other, all arose from the
break-up of a relationship which the appellant had had with the lady named in
the bail order referred to in the charge which is the subject of this appeal.
When the sheriff came to pass sentence he took the view that this breach of a
bail condition was a serious matter on account of the immediate background of
offending and in light of the fact that the bail order in question had been
imposed only eight days previously. In that situation he concluded that only a
custodial sentence was appropriate and, as mentioned earlier, he imposed a
sentence of four months' imprisonment of which three months were attributable
to the "bail aggravation". Given that, by this stage in the proceedings, it had
been accepted on all sides that the bail aggravation, together with the three
months' imprisonment attributable to it, were incompetent we were in fact at
this point considering a sentence of only one month's imprisonment since that,
according to the sheriff, was the length of the sentence which he imposed
solely in respect of the substantive offence.
[11] In presenting the appeal against that sentence Mr Shead
accepted that the offence was a serious one. However, he submitted that a
sentence of one month's imprisonment was inappropriate and excessive given that
the appellant had never before received a custodial sentence. He also reminded
us that the appellant had served eight days of the sentence prior to release on
interim liberation. That, as he pointed out, represents about half of the total
period that would require to be served on a sentence of one month's
imprisonment. In that situation, he submitted, there would be little practical
utility in returning the appellant to prison for no more than a week,
particularly since he has been in no further trouble since the end of 2005, and
is now in full-time employment.
[12] We were persuaded by the foregoing submissions. Like the
sheriff, we considered that the offence in question was a serious one. However,
in the circumstances we came to the view that matters could, and should,
properly be dealt with by the imposition of a financial penalty. We accordingly
quashed the prison sentence appealed against, and in its place we substituted a
fine of £500.
