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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
C.G.B.
Nicholson, CBE, QC,
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[2008HCJAC 27]
Appeal Nos: XJ 1269/07
XJ1270/07
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEALS AGAINST SENTENCE
in causa
LINDA ELIZABETH DUNCAN
Appellant;
against
PROCURATOR FISCAL,
HAMILTON
Respondent:
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Appellant: Paterson, Solicitor
Advocate; Purdie & Co
Respondent: McKenna, A.D.; Mackay, A.D.; Crown Agent
7
May 2008
Background
[1] The
appellant, Linda Duncan, has appealed against custodial sentences which were
imposed by two different sheriffs at Hamilton Sheriff Court on 26 September
2007 in
respect of charges on two related complaints. The background to the imposition
of those sentences is somewhat complicated, but it appears to be as follows.
[2] On 14
September 2006 the appellant went to trial before Sheriff Smart at Hamilton Sheriff Court on a complaint containing two
charges of breach of the peace, the offences in question having been committed
on, respectively, 7 August 2005 and 5 June
2006. Each
of the charges involved disorderly conduct directed at members of [a named
family] who resided at [a named address] in Wishaw. The appellant was found
guilty of both charges after trial; and what the sheriff did then was to make
an antisocial behaviour order ("ASBO") for a period of 10 years. That order
prohibited the appellant from "conducting herself in a disorderly manner,
shouting, swearing, uttering threats to [members of the aforementioned family]
all residing at [the aforementioned address] in Wishaw and placing them in a
state of fear and alarm". The sheriff also deferred sentence until 17
January 2007
for the appellant to be of good behaviour. On that date she further deferred
sentence until 26 July 2007.
She was then told that the appellant had been charged with a breach of
section 9(1) of the Antisocial Behaviour Etc (Scotland) Act 2004, and she accordingly
adjourned the case so that she could be advised of the outcome of that charge.
In the result Sheriff Smart ultimately came to pass sentence in respect of the
two charges of breach of the peace on 26 September 2007.
[3] Before coming
to describe the sentences which were imposed by Sheriff Smart on that date it
will be helpful to set out the progress of the charge under section 9(1) of the
2004 Act. That charge refers to the ASBO made by Sheriff Smart on 14 September
2006, and it goes on to allege that, on 12 April 2007, and in breach of the
order, the appellant behaved in a disorderly manner at [the aforementioned
address] in Wishaw, and uttered threats to [members of the aforementioned
family]. The charge also sets out that this took place while the appellant was
subject to a bail order which had been granted on 18 August
2006. The
appellant maintained a plea of not guilty to the charge but, on 6
August 2007,
she was found guilty after a trial which took place before Sheriff Stewart. He obtained various reports and, on 26
September 2007, he sentenced the appellant to three months imprisonment of which one
month was attributed to the bail aggravation. In passing, we note that Sheriff
Stewart appears to have been influenced to a significant extent by the fact
that the appellant had "flouted the bail order of 18 August
2006".
However, he seems to have taken that approach upon the mistaken view that the
offence with which he was dealing had been committed on 14
September 2006, that is to say less than one month after bail had been granted. In
fact, of course, 14 September 2006 was the date when Sheriff Smart made
the ASBO, and the offence which was before Sheriff Stewart took place, some
seven months later, on 12 April 2007. It is also, we consider, somewhat surprising
that the bail aggravation in question was ever libelled at all given that it
must, we think, have been superseded by the subsequent ASBO. However, we need
not trouble ourselves further with those matters since, as will be seen, we
consider that there is a more significant flaw in the whole proceedings in this
case.
[4] Returning to
the deferred sentences which were before Sheriff Smart, she was advised on 26
September 2007 of the disposal selected earlier that day by Sheriff Stewart in
respect of the offence under the Antisocial Behaviour Act, and she was also
provided with copies of the various reports which had been before him at the
time of sentence. She then proceeded to sentence the appellant to a period of
three months imprisonment on each of the breach of the peace charges, and she
directed that those sentences should be served consecutively to each other,
making a total of six months imprisonment. Those sentences were to commence on
26 September, being the same commencement date as the sentence imposed by
Sheriff Stewart. The result of that is that, on that date, the appellant was
effectively sentenced to a total period of six months imprisonment, and not
nine months, as was suggested by Mr Paterson who appeared on behalf of the
appellant at the appeal hearing. It appears that, following on the imposition
of the sentences on 26 September 2007, the appellant in fact spent some 15
days in custody before being released on interim liberation on 11
October 2007.
[5] To complete
this description of the background to the appeal we should note that the
written submissions presented by Mr Paterson effectively canvassed three broad
grounds of appeal. One was that it was incompetent for Sheriff Smart to make
the sentences for the breach of the peace charges consecutive since that had
the effect of exceeding the maximum sentence available for a single complaint. That
ground is obviously sound (Nicholson v Lees 1996 SCCR 551), and
it was subsequently accepted as such by the advocate depute. Mr Paterson's
second ground of appeal was that, for various reasons, it was inappropriate for
custodial sentences to be selected at all; and his third ground of appeal was
that it was excessive for the ASBO to have been made for as long as ten years.
In the course of our preparation for the hearing of this appeal, however, we
detected what we considered to be a more fundamental flaw in relation to the
competency of the proceedings in this case. It is always, of course, pars
judicis for a court to take note of any apparent incompetency in
proceedings even when that has not been raised by the parties; and,
accordingly, we voiced our concerns at an early stage in the appeal hearing,
giving both Mr Paterson and the advocate depute an opportunity to comment. At
that stage, of course, our concerns were merely tentative.
The competency of the sheriff's disposal on 14 September 2006
[6] Our concerns
arise from the fact that, when Sheriff Smart was dealing for the first time
with the two charges of breach of the peace in September 2006, she made an ASBO
and, at the same time, deferred sentence in respect of the two charges which
were before her. We note that an ASBO is a sentence for the purposes of an
appeal (Criminal Procedure (Scotland) Act 1995, section 234AA(10)); and
that means that what the sheriff did was to pass sentence in respect of the
charges before her while simultaneously deferring sentence on the same charges.
In our opinion, that is plainly incompetent. We are unaware of any authority to
the effect that it is incompetent for a court to impose a sentence in respect
of a charge or charges while, at one and the same time, deferring sentence so
that the nature and extent of that sentence can be considered at a later date:
but, in our opinion, the reason for that lack of authority must be that what we
have just said is blindingly obvious. Our view is also, we note, echoed in the
statutory provision which enables a court to make an ASBO.
The statutory provision
[7] The
statutory provision enabling a court to make an ASBO is to be found in what is
now section 234AA of the Criminal Procedure (Scotland) Act 1995. Subsection (1) of that
section provides that, where an offender is convicted of an offence, and where
certain other conditions (which are satisfied in the present case) apply:
".... the court may, instead of or in
addition to imposing any sentence which it could impose, make an antisocial
behaviour order in respect of a person (the 'offender')."
For present purposes the important words in this provision
are "instead of or in addition to imposing any sentence which it could impose".
In the present case the order was plainly not made instead of imposing
any other sentence but, at the same time, it was plainly not made in
addition to imposing another sentence. It is quite clear to us that, by its
careful wording, the statutory provision which we have quoted is entirely
consistent with our view as to the competency of combining a sentence with a
deferment of sentence.
The consequences of the sheriff's disposal
[8] In our
opinion the disposal selected by Sheriff Smart in September 2006 can have at
least two undesirable - indeed unacceptable - consequences. The first involves
the possibility of a kind of double jeopardy.
[9] In that connection
we note that the 2004 Act itself contains express provision to avoid the
possibility of double jeopardy. Section 9(3) provides that, if the "thing done"
by a person subject to an ASBO itself constitutes an offence (a "separate
offence"), and the person concerned is charged with the separate offence, that
person will not be liable to be proceeded against for an offence under section
9(1). In other words, in such circumstances the Crown must elect whether to
proceed against the person concerned for the separate offence or for an offence
under section 9(1) of the Act (see Gordon v Griffiths 2007 SCCR 349). The situation envisaged by section 9(3) is not, of course, the situation
which we have here. However, it seems to us that similar considerations apply
since, in a case like the present one, the consequence of having an ASBO and a
deferred sentence running concurrently will be, as happened here, that the
convicted person will be at risk of receiving a more severe sentence for the
original offence in respect of which the ASBO was made if, during the course of
the operation of the ASBO, an incident occurs which constitutes an offence
under section 9(1). That, in our view, is a consideration which confirms that
section 234AA(1) of the 1995 Act was deliberately drafted in the terms
which we have set out above so as to avoid just that possible outcome.
[10] A further
consequence relates to rights of appeal. As noted above, it is clear that the
making of an ASBO may competently be the subject of an appeal (1995 Act, section 234AA(10)).
It is also clear that an order deferring sentence may itself be the subject of
an appeal (1995 Act, section 175(2)(c)). However, what is not provided for in
the statute is a right of appeal against the making, or the terms, of an ASBO
in circumstances where, by the deferment of sentence, there has been no final
disposal of the charge or charges which are said to have justified the making
of the order in the first place. Having regard to the view which we have formed
on the matter of competency, the absence of any such provision is unsurprising:
but the disposal selected by Sheriff Smart has had unfortunate consequences in
relation to rights of appeal. In the present cases the ASBO was not made the
subject of appeal until after Sheriff Smart's final disposal of the complaint
on 26 September 2007, that is to say, just over a year after the order had
been made, presumably on the view that no appeal would be competent until the
cases had been finally disposed of. That cannot be what was intended by section
234AA(10), and it is at least possible that the appellant may have been caused
prejudice thereby.
The consequences of our thinking
[11] Having
tentatively reached the foregoing conclusions prior to the hearing of this
appeal we explained them to parties at the beginning of the hearing which took
place on 12 March 2008, having apologised for the fact that we had been unable
in the circumstances to forewarn them of our concerns. Both Mr Paterson and Ms
McKenna, who was the advocate depute on
that occasion, indicated to us that they
saw force in the provisional view on the matter of competency which we had
formed at that stage, though there was some uncertainty as to what the
consequences should be if effect were to be given to that view. We, for our
part, indicated that we would not take a final view at that time, and that we
would instead take the appeals to avizandum so as to enable us to consider the
whole matter at greater leisure. We also indicated that, if that further
consideration gave rise to additional problems, we would put the appeals out
for a further hearing so that we could be addressed in more detail by parties.
[12] In the result,
we came to the conclusion, while preparing the Opinion of the Court, that we
would welcome further assistance from parties as to the consequences which
should flow if we were to adhere to our tentative view that the course adopted
by Sheriff Smart on 14 September 2006 was fundamentally incompetent. We
were also conscious of the possibility that, having had more time to consider
the position, either, or both, of the parties might now wish to take issue with
our tentative view on that matter. Accordingly, the appeal was put out for a
further hearing which took place on 18 April 2008. On that occasion the Crown was
represented by Mr Mackay, A.D.
The further hearing
[13] At the further
hearing, both Mr Paterson and the advocate depute advised us that, having
considered the matter further, they were satisfied that what we have hitherto
referred to as our tentative view on competency is correct. We also remain of that view, and it
therefore follows that we now formally state it as our opinion that the
disposal selected by Sheriff Smart on 14 September 2006, namely the making of an ASBO and,
at the same time, a deferment of sentence, was incompetent. Having reached that
conclusion, however, it is then necessary to consider what its consequences are
in respect of the sentences imposed by Sheriff Smart and by Sheriff Stewart
on 26 September 2007.
[14] What makes
this case particularly difficult is the fact that each of the parts of the
disposal selected by Sheriff Smart on 14 September 2006 was, on its own, perfectly
competent. In the circumstances presented to her at that time it was competent
for her to make an ASBO; and, given the facts in this case, that would probably
have been a reasonable disposal. By the same token, it would have been
competent for her to defer sentence for good behaviour, and that too would
probably have been a reasonable disposal in the circumstances. What she could
not competently do, as we have found, was to order both of these disposals
simultaneously.
[15] In that
situation, Mr Paterson suggested to us that we might quash the ASBO but leave
the deferment of sentence standing. We are not attracted by that suggestion. It
would, of course, have the consequence that the proceedings before Sheriff
Stewart were inept, and the sentence imposed by him would have to be quashed.
However, that would then leave a wholly unrealistic situation surrounding the
circumstances in which Sheriff Smart ultimately came to impose custodial
sentences on 26 September 2007. It is clear that she selected the
sentences which she did almost entirely on the basis that, by that date, the
appellant had been convicted and sentenced for a breach of the ASBO which she
had made a year earlier. But, of course, if that ASBO is in effect to be
regarded as pro non scripto, its breach can no longer be regarded as the
basis for the selection of sentences by Sheriff Smart. It is possible that, if
the ASBO had never been made, the events which gave rise to the breach
proceedings might have been prosecuted in a different way, possibly as a breach
of the peace. However, we simply do not know if that would have been the case; and
we consider that it would be improper for us to speculate on such a matter. For
all of these reasons, we do not consider that the proposal advanced by Mr
Paterson is one which we should adopt. In that regard, we should also add that
it is one which involves a degree of "second-guessing" as to the course which
Sheriff Smart might have taken in September 2006 had she been aware at that
stage that she could either make an ASBO or defer sentence, but could not do
both.
[16] A different
suggestion was advanced by the advocate depute. He suggested that we might
consider it appropriate to quash the whole disposal selected by Sheriff Smart
on 14 September 2006 (with, of course, the consequential quashing of all that
followed thereafter), and then to substitute a new sentence for the original
breaches of the peace, possibly in the form of a new ASBO. We are not attracted
by that suggestion either. The breaches of the peace which led to the making of
an ASBO by Sheriff Smart are now quite old, having been committed in August
2005 and June 2006, and we venture to doubt whether such elderly offences
could properly be seen as providing an acceptable basis for an ASBO in 2008. In
that connection, we note that, in terms of section 234AA(2)(d) of the 1995 Act,
one of the factors to which regard must be given before an ASBO is made is
that:
"... the court is satisfied, on a
balance of probabilities, that the making of an [ASBO] is necessary for the
purpose of protecting other persons from further antisocial behaviour by the offender."
Given the age of the offences here, coupled with the
possibility that the appellant's circumstances and attitudes may well have
changed for the better in the course of the last two or so years, and also
having regard to the fact that, as noted earlier, the appellant has in fact
spent some 15 days in custody in respect of this matter, we do not consider
that it would even be possible now to make a realistic assessment of the kind
required by subsection (2)(d).
[17] The problem
which has arisen in this case is, in our experience, quite novel. Very often an
incompetent sentence can be dealt with on appeal simply by quashing it and
substituting something which is competent: but, for the reasons which we have
given above, we do not consider that such a course is open to us in this case.
Similarly, where only part of a sentence is incompetent (for example, in the
present case, Sheriff Smart's order that the sentences of three months'
imprisonment imposed by her on 26 September 2007 should be consecutive to each
other), an appeal court can put matters right simply by quashing the
incompetent part of the sentence. Again, for reasons which we have already
given, such a course is not open to us in this case, not least on account of
the fact that it was the whole disposal selected by Sheriff Smart in
September 2006 which was incompetent.
[18] In all the
circumstances we have come to the conclusion that an essentially pragmatic
solution is called for here. It is clear that the behaviour which led to the
appellant's appearances before the sheriffs in Hamilton was wholly
unacceptable; but, having spent some 15 days in prison as a result, she has not
entirely escaped punishment, and to that extent justice has been done. That
being so, we have decided that what we will do in this case is simply to quash
as incompetent the whole disposal selected by Sheriff Smart on 14 September
2006, and we shall make no further order in respect of the convictions which
were recorded on that date. The consequence of that is that the sentences of
imprisonment which were imposed by Sheriff Smart and by Sheriff Stewart on 26
September 2007 will be treated as quashed on the basis that they followed on
proceedings which ought not to have taken place.
[19] We should say
that this outcome is in many respects unsatisfactory, but we consider that it
has been forced upon us in the very special circumstances of this case. To an
extent, the appellant has enjoyed a measure of good fortune as a result. We
trust, however, that she will have learned a lesson from all that has taken
place, and we hope that she will understand that serious consequences may well
follow were there to be any repetition in future of the conduct which led to
the present appeals.
[20] Finally, we
simply wish to add that the problems which have arisen in this case might have
been avoided if Sheriff Smart's disposal on 14 September
2006 had
been made the subject of an appeal by way of a Bill of Suspension. We consider
that such a Bill would have been bound to succeed, and in that event, of
course, the incompetent disposal would have been quashed with the case then
going back to Sheriff Smart to re-sentence in a competent manner. In the
circumstances, however, we do not criticise those acting for the appellant for
not having detected this avenue of appeal.
