|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Nimmo Smith
Lord Abernethy
|
[2007] HCJAC76
Appeal No: XC324/07 and XC388/07
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
NOTE OF APPEAL AGAINST SENTENCE
by
JASON
WILLIAM McCAFFERTY or SIMPSON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
and
DENNIS CHRISTIE
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Paterson, Solicitor
Advocate; (for appellant McCafferty)
Ms McKenzie (for appellant Christie)
Alt: Borthwick, A.D.; Crown
Agent
7 December 2007
[1] In these two
appeals we have to consider the law and practice of the backdating of sentences
passed on persons prosecuted in solemn proceedings who have spent time in
custody continuously from the date of committal for further examination to the
date of conviction and the date (if different) of sentence. If the sentence is to be backdated, should it
be to the date of committal for further examination, or to the date of
committal until liberated in due course of law (full committal)?
[2] Section
210(1) of the Criminal Procedure (Scotland) Act 1995 provides inter alia:
"A court, in passing a sentence of
imprisonment or detention on a person for an offence, shall -
(a) in
determining the period of imprisonment or detention, have regard to any period
of time spent in custody by the person on remand awaiting trial or sentence, or
spent in custody awaiting extradition to the United Kingdom, or spent in
hospital awaiting trial or sentence by virtue of an assessment order, a
treatment order or an interim compulsion order or by virtue of an order made
under section 200 of this Act;
(b) specify
a date of commencement of the sentence; and
(c) if
the person -
(i) has
spent a period of time in custody on remand awaiting trial or sentence; or
(ii) is
an extradited prisoner for the purposes of this section, or
(iii) has
spent a period of time in hospital awaiting trial or sentence by virtue of an
assessment order, a treatment order or an interim compulsion order or by virtue
of an order under section 200 of this Act,
and the date specified under paragraph (b)
above is not earlier than the date on which sentence was passed, state its
reasons for not specifying an earlier date .....".
Sub-sections (2) and (3) contain provisions defining the
expressions "extradited prisoner" and "extradited to the United Kingdom".
An order made under section 200 of the Act is an order of committal
to hospital for the purpose of an inquiry into the person's physical or mental
condition; in terms of that section,
such an order constitutes a remand.
[3] There can be
little doubt that the general practice in solemn procedure, where a person has
been remanded in custody prior to his trial, is to backdate his sentence to the
date of committal for further examination.
That this is the general practice is confirmed by our own experience,
and by those who appeared before us in these two appeals both on behalf of the
appellants and on behalf of the Crown.
It is also confirmed by passages in two cases to which reference was
made before us. In Elliott v HM Advocate
(No.2) 1997 S.L.T.1229, Lord Justice Clerk Ross, in delivering
the Opinion of the Court, said at page 1231L:
"The right to have a sentence
backdated, or to receive reasons for that not being done, is a right enjoyed by
all prisoners receiving sentences of imprisonment, and there is no reason for
treating prisoners receiving mandatory life sentences any differently from any
other prisoners in this respect."
The Court therefore allowed an appeal against a sentence of
life imprisonment, which had not been backdated by the trial judge, to the
extent of backdating the sentence to the date when the appellant first appeared
on petition. In Martin v HM Advocate 2006 S.C.C.R.683 Lord
Kingarth, in delivering the Opinion of the Court, said in paragraph 8, on page
685:
"Although ....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.....[T]he normal practice at least [in the case of someone remanded
throughout the period from committal until sentence] is to backdate to the
start of the remand period, so that the whole period of remand counts towards
assessment of the appropriate date for release under section 1(1) of the
[Prisoners and Criminal Proceedings (Scotland) Act 1993]".
Reference may also be made to Grant v HM Advocate
1998 S.C.C.R.113.
[4] The appellant
Simpson was convicted at Dundee Sheriff Court on a charge of assault to severe
injury and permanent disfigurement and was sentenced to two years'
imprisonment. The appellant had been
remanded in custody since his first appearance on petition on 20
December 2006. The Sheriff backdated the sentence to 27 December
2006, when
the appellant was fully committed for trial.
In his report to this Court, the Sheriff has written:
"I felt that it was appropriate to
backdate, and as is my practice, I backdated to the date of full committal,
namely 27 December 2006.
This appears to me to be the correct interpretation of section 210 of
the Criminal Procedure (Scotland) Act 1995 which requires the Court
to have regard to any time spent in custody on remand awaiting trial or
sentence. When an accused person is
remanded on a petition which has been continued for further enquiries by the Crown,
he is not remanded awaiting trial. He
only achieves that status upon full committal."
[5] The appellant
Christie was convicted at Dundee Sheriff Court on a charge of contravention of
section 4(3)(b) of the Misuse of Drugs Act 1971. On 14 May 2007 the same Sheriff sentenced the
appellant to 21 months imprisonment, which was backdated to 28
February 2007,
the date of the appellant's full committal.
In his report to us, the Sheriff has written, after quoting the
provisions of section 210 of the 1995 Act:
"The important words are 'on remand awaiting
trial'. When an accused person first
appears on petition, the normal procedure is for that accused to make neither
plea nor declaration, and for the Crown to move the Court to continue the
matter for further enquiries. Bail is
granted, or the accused is remanded in custody.
When the case next calls, the Crown motion is for full committal, and
again bail is granted or the accused is remanded. This time, he is remanded 'awaiting trial'
and thus falls under the provisions of section 210. Previously, he was remanded 'for further
enquiries', and thus does not fall within the scope of section 210".
Reference is then made by the Sheriff to the language of
section 65 of the 1995 Act, where at sub-section (1)(b) reference is made to
"the first appearance of the accused on petition in respect of the offence" and
sub-section (4), where reference is made to "an accused who is committed for
any offence until liberated in due course of law". The Sheriff states:
"Both of these wordings imply that
the relevant date is the date when an accused first appears on the
petition. This is in contrast with the
wording quoted above from section 210".
The Sheriff adds:
"In any event, I deemed it
appropriate to backdate to the date of full committal and said so when passing
sentence".
[6] The first
matter for us to consider is the proper construction of section 210. In our opinion it is entirely clear, having
regard to the various categories of person referred to in sub-section (1), that
the emphasis is on time spent by a person in custody or in hospital by reason
of the proceedings against him prior to sentence. The policy underlying the provision is,
beyond doubt, to enable a person deprived of his liberty to have the period
during which he has been so deprived taken into account when sentence is
passed. We find ourselves unable to
agree with the construction placed by the Sheriff on the words "on remand
awaiting trial or sentence". In its
context, this phrase means no more than that the person who has been remanded
has not yet been tried or sentenced. It
does not strain the language of the sub-section, particularly when looked at
from the prisoner's point of view, to regard an untried prisoner on remand as
one who is "awaiting trial" from the first point at which he is deprived of his
liberty by virtue of an order of the Court, that is to say when he is committed
for further examination. The Sheriff has
accordingly, in our opinion, misdirected himself in concluding that the
language of the sub-section in some way disentitled him from taking into
account the period between committal for further examination and full
committal.
[7] In any event,
as the language of the sub-section makes clear, the backdating of a sentence is
a discretionary exercise. For the
reasons already discussed, that discretion would normally be exercised by
backdating the sentence to the date of committal for further examination. Some sentencers might even think it
appropriate to backdate to the date of arrest, particularly where the accused
has been in police custody for more than one day, such as over a weekend. Different considerations arise where the
accused has been released on bail after a period on remand - as in Martin v HM Advocate, supra - or
whose remand has been superseded by his being sentenced on another matter. Where such events have occurred, so that it
is not possible to backdate a sentence, the normal practice is for an
appropriate period to be deducted from the sentence which would otherwise have
been passed; in the straightforward case
the deduction would be of twice the period spent in custody on remand. In the case of the appellant Simpson, the
Sheriff has given no indication of what consideration he gave to the
possibility of exercising his discretion to backdate the sentence to an earlier
date than that of full committal; he has
simply indicated that "as is my practice" he backdated to that date, having
regard to his interpretation of section 210 of the 1995 Act. In the case of the appellant Christie, the
Sheriff has adopted a similar approach, but has added that in any event he
deemed it appropriate to backdate to the date of full committal. Again, he has given no reasons for doing so,
apart from his interpretation of section 210. In proceeding in this way, the Sheriff has
failed properly to exercise his discretion, and may indeed be regarded as
having fettered his discretion by allowing his interpretation of section 210 to
be the decisive factor.
[8] We have
accordingly decided to allow both these appeals to the extent of backdating
each of the sentences to the date of committal for further examination. We have issued this Opinion because there has
not hitherto, so far as we are aware, been a decision of this Court about the
proper interpretation and application of section 210 of the 1995 Act in
the context of solemn proceedings. We
can see no obvious reason why the same approach should not be applicable, mutatis mutandis, to summary
proceedings.
