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Cite as: 2008 SLT 1031, [2008] HCJAC 62, 2009 JC 33, 2008 GWD 35-534, 2008 SCCR 983, [2008] ScotHC HCJAC_62, 2009 SCL 94

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lady Paton

Lord Philip

[2008] HCJAC 62

Appeal No: XC802/07

OPINION OF THE COURT

delivered by LADY PATON

APPEAL AGAINST SENTENCE

JOSEPH McKNIGHT

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: O'Rourke; Hamilton Burns & Co

Respondent: McConnachie, Q.C., Advocate Depute; Crown Agent

28 October 2008

Consecutive sentence resulting in change in status from short-term to long-term prisoner

[1] The Prisoners and Criminal Proceedings (Scotland) Act 1993 introduced a regime of short-term and long-term prisoners. Section 27 defines a short-term prisoner as "a person serving a sentence of imprisonment for a term of less than four years". Such a prisoner, subject to certain qualifications not applicable in this case, is automatically entitled to unconditional release after serving one-half of his sentence: sections 1 and 27 of the 1993 Act. A long-term prisoner is also defined in section 27 as "a person serving a sentence of imprisonment for a term of four years or more". A prisoner in that category is automatically entitled to release on licence after serving two-thirds of his sentence, with the possibility of earlier release on licence on the recommendation of the Parole Board after serving at least one-half of the sentence. The Board's primary concern when making such a decision is the risk presented to the public on early release: cf dicta of Lord Justice Clerk Gill in Ansari v HM Advocate, 2003 J.C. 105, at paragraph [32].

[2] Section 27(5) of the 1993 Act provides:

"For the purposes of any reference, however expressed, in this Part of this Act to the term of imprisonment or other detention to which a person has been sentenced or which, or any part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term if-

(a) the sentences were passed at the same time; or

(b) where the sentences were passed at different times, the person has not

been released under this Part of this Act at any time during the period beginning with passing of the first sentence and ending with the passing of the last."

[4] A question arises in the present case whether the judge who imposed a 3-year consecutive sentence upon the appellant should have reduced that sentence to some extent, to reflect the fact that the prisoner's status was thereby changed from a short-term to a long-term prisoner, with a consequential effect on his date of early release. A second issue arising is whether the 3-year sentence should have been reduced to any extent to reflect an earlier 8-month sentence imposed in respect of a road traffic offence said to have arisen out of the same incident.

The appellant's circumstances

[5] On 16 November 2006 the appellant (then aged 56, date of birth 26 August 1950) was driving a Nissan Primera car in Great Western Road, Glasgow. He was stopped by police officers. He was found to be driving while disqualified. He was also found to have counterfeit bank notes. In particular, he produced a white envelope containing 25 counterfeit Bank of Scotland £20 notes. He told the officers that there was another envelope in the boot. When asked whether the counterfeits were sterling, dollars, or another currency, he replied "No, I don't want to say anything else. This goes into millions." In the boot of the car, there was an envelope containing 349 counterfeit Bank of Scotland £20 notes and a quantity of counterfeit €50 notes. In the course of being interviewed, the appellant told the police that the counterfeit notes were to have been delivered to another person.

[6] On 25 January 2007, the appellant was sentenced in the sheriff court to 8 months back-dated to 17 November 2006 in respect of the offence of driving while disqualified. He duly served that sentence as a short-term prisoner, and was released in March 2007. On 13 June 2007, the appellant appeared in the sheriff court charged with housebreaking. He was remanded in custody. On 30 July 2007, the appellant appeared as one of nine accused in a five-week trial in Edinburgh High Court, in which he faced charges relating to the counterfeit notes. He appeared each day from custody. On 4 September 2007, the jury found him guilty of a contravention of section 16(1) of the Forgery and Counterfeiting Act 1981. The appellant remained in custody. On 5 September 2007 the appellant appeared in the sheriff court and pled guilty to the housebreaking charge as amended. He was sentenced to 31 months, back-dated to 13 June 2007. On 27 September 2007 the appellant appeared in the sheriff court and pled guilty to further charges of housebreaking and assault. He was sentenced to a further 4 months, to run consecutively to the 31 months previously imposed. On 2 October 2007 in the High Court case, a plea in mitigation was presented on the appellant's behalf. No mention was made of the fact that the appellant had served the 8-month sentence in respect of driving while disqualified, or that he was currently serving a cumulo sentence of 35 months for unrelated offences of dishonesty. No submissions were presented on the question whether the sentence to be imposed in respect of the counterfeiting offence should be concurrent with or consecutive to the sentence of 35 months; whether the imposition of a consecutive sentence would alter the appellant's status as a prisoner from short-term to long-term; and if so, whether and for what reasons the sentencing judge should make any discount in the sentence he was about to impose.

[7] The sentencing judge (Lord Bracadale) noticed that the appellant had been appearing from custody during the trial. As he explains in his report:

" ... In addressing me in mitigation, Mr Burns [Solicitor Advocate] initially made no reference to the sentence of thirty-five months imprisonment which the appellant was serving. The appellant had been on bail in respect of the counterfeiting indictment, but it was obvious that he was appearing from custody throughout the trial. It was only when I asked Mr Burns for an explanation of that, that he explained that the appellant was serving a sentence of thirty-five months, which had been [back-dated to] 13 June 2007. I was given to understand that this sentence related to other, separate, matters of dishonesty. Mr Burns made no submissions to me as to whether I should impose any sentence consecutively or concurrently with the sentence already being served. I took the view that, because the matters for which the appellant had been sentenced to 35 months imprisonment [back-dated to] June of 2007 were entirely separate from the matter before me, it was appropriate for me to impose a consecutive sentence. I did not consider the effect of that on the appellant's status as a short or long term prisoner. I was not asked to do so, and in any event I would not have thought it appropriate to do so.

As far as I have noted or can recall, Mr Burns made no reference at all to the eight month sentence which had been imposed for the road traffic matters committed on 16 November 2006, and I was unaware of that sentence until I saw the grounds of appeal. It was therefore never suggested to me that I should take account of that sentence."

The sentencing judge imposed a sentence of 3 years in respect of the counterfeiting offence, to run consecutively to the 35 months. In terms of section 27(5)(b) of the 1993 Act (quoted in para. [2] above), the sentences were to be treated as a single term of 5 years 11 months, and the appellant's status accordingly changed from a short-term prisoner to a long-term prisoner, with a consequential postponement of his date of early release.

Appeal against sentence

[8] The appellant subsequently appealed against the sentence of 3 years. No criticism was made of the period selected, nor was it suggested that the sentence should have run concurrently with the sentence of 35 months. However the appellant argued that the sentencing judge should have taken into account (i) the sentence of 8 months already served in respect of the offence of driving while disqualified, arising (it was contended) out of the same facts or incident as the 3-year sentence for the breach of the Forgery and Counterfeiting Act 1981; and (ii) the fact that the consecutive sentence of 3 years altered the appellant's status from a short-term to a long-term prisoner, with a resultant postponement of his date of early release. Appropriate reductions in the 3-year sentence should have been made to reflect each of those matters.

Submissions for the appellant

Change in status to long-term prisoner

[9] Counsel submitted that the broad principle expressed in Shovlin v HM Advocate, 1999 S.C.C.R. 421, namely that sentencing courts in Scotland should concern themselves only with the period imposed as a sentence, and should not take into account practical consequences in the sense of the actual amount of time spent in prison, had been departed from or qualified by the decision of five judges in Ansari v HM Advocate, 2003 J.C. 105, particularly in paragraphs [20], [30], and [37] to [42]. In Ansari, when calculating an appropriate punishment part for a discretionary life sentence, the court looked at an equivalent fixed term sentence and assessed the prisoner's likely early release date and thus how much time would be spent in prison. Ansari had not been superseded or qualified by the recent appeal in Locke v HM Advocate, 1 February 2008 (unreported). The approach in Ansari tended to support the proposition that it was relevant for the sentencing judge to take into account the fact that the imposition of a consecutive sentence would result in a change from short-term to long-term status, thus altering the date of early release.

[10] Furthermore the English courts recognised such a change of status when imposing a consecutive sentence: R v Secretary of State for the Home Department, ex parte Francois [1999] 1 A.C. 43, Lord Slynn at pages 50F to 51A. The English regime created by the Criminal Justice Act 1991 was similar to the Scottish regime created by the Prisoners and Criminal Proceedings (Scotland) Act 1993. The approach of the English courts had been illustrated in Cozens [1996] 2 Cr. App. R.(S.) 321 (where a sentence of 6 months to run consecutively to a sentence of 42 months was reduced on appeal to 3 months); and Brown [1999] 1 Cr. App. R.(S.) 47 (where a sentence of 18 months to run consecutively to a sentence of 30 months was reduced on appeal to 15 months).

[11] Counsel did not contend that a reduction should be given in every case which involved a change of status from short-term to long-term. But where the imposition of a consecutive sentence would result in a change to long-term status with a consequential effect on the early release date, the sentencing judge should give reasons and justify his decision. Where a judge made clear that he had taken into account that change in status, and where the sentence in all other respects could not be said to be excessive, no criticism could be made: cf Parker [2000] 2 Cr. App. R.(S.) 294 (where a sentence of 12 months for affray involving a knife, to run consecutively to a sentence of 42 months, was upheld by the Court of Appeal); and Francois cit sup (where a sentence of 4 years for a drugs offence, to run consecutively to a sentence of 19 months for burglary and related matters, was not altered or reduced on appeal).

[12] English Practice Directions regarding single-terming issued by Lord Bingham on 22 January 1998 were in the following terms:

"Sentencers will bear in mind that where an offender is sentenced to terms which are consecutive, or wholly or partly concurrent, they are to be treated as a single term: Criminal Justice Act 1991, s.51(2)."

Counsel accepted that those Directions did not specifically state that the sentencer should take into account any alteration in status from short-term to long-term: but sentencers were directed to "bear in mind" the fact that those sentences were to be treated as a single term. There were no equivalent sentencing guidelines in Scotland, but the court could give general guidance in terms of section 118(7) of the Criminal Procedure (Scotland) Act 1995 by indicating, for example, that the general principle in Shovlin was erroneous.

[13] Finally, counsel drew attention to the fact that the Sentencing Commission for Scotland chaired by Lord Macfadyen had recommended the abolition of single-terming as being productive of undesirable and unintended consequences. Reference was made to paragraphs 3.11, 3.12, and 5.37 of the Commission's Report entitled "Early Release from Prison and Supervision of Prisoners on their Release" (2006). The Commission had also recommended the introduction in Scotland of sentencing guidelines prepared by a statutory body.

Sentence of 8 months for driving while disqualified

[14] As a separate argument, counsel submitted that the sentence of 3 years imposed for the counterfeiting offence was excessive, standing the fact that the appellant had already served a sentence of 8 months in respect of the driving offence. The counterfeit notes had been found in the car at the same time as the police discovered that the appellant was driving while disqualified. Counsel could provide no further details of the circumstances surrounding the car's journey.

Concluding submissions

[15] Counsel invited the court to quash the sentence of 3 years on the basis of error in law, and to impose of new a suitable sentence.

Submissions for the Crown

[16] At the outset, the Advocate Depute emphasised that no criticism could be made of the sentencing judge, as he had not been given appropriate information or submissions on the matters raised in the appeal.

Change in status to long-term prisoner

[17] The Advocate Depute submitted that it was difficult to understand why a repeat offender with two 3-year sentences should be entitled to a discount, whereas an offender with a 6-year sentence was not. Parliament had provided that the date of release should be postponed in each case. The English decisions of Cozens and Brown were borderline or threshold cases, where the imposition of an extra month or two had a practical result out of all proportion with the range of reasonable or legitimate sentences. By contrast where circumstances were not borderline, the appropriate consecutive sentence was imposed without any reduction: cf Parker. Lord Slynn in Francois was careful to restrict his comments to "some cases" in which justice "may" require an adjustment to take into account a change in status from short-term to long-term. Calculating any appropriate discount when the total resultant sentence was well over the four-year threshold would be a difficult exercise, as it would be impossible to predict what approach the Parole Board would take. The effect of a judicially-allowed discount, followed by a decision of the Board, might result in the offender being released on parole at a date earlier than that anticipated by the sentencing judge. In the present case, any sentence of less than 13 months (as 13 months added to 35 months brought about the 4-year threshold) would be unduly lenient. Accordingly it was irrelevant to what extent the appellant became a long-term prisoner. There was no basis in logic or in principle for a discount in the consecutive sentence. The sentence should be imposed in its entirety, and the practical management of that sentence left to the Parole Board.

Sentence of 8 months for driving while disqualified

[18] The Advocate Depute reiterated that the sentencing judge had not been told that the appellant had served a sentence of 8 months in respect of the driving offence. In any event, the offence of driving while disqualified could not be said to have arisen out of the same facts as the counterfeiting offence. The two offences were so distinct that there was no justification for the approach suggested on behalf of the appellant. Reference was made to Brian Bell v HM Advocate, 14 March 2003 (unreported).

Concluding submissions

[19] The Advocate Depute invited the court to refuse the appeal.

Final response for the appellant

[20] Counsel for the appellant conceded that the present case could not be described as borderline or threshold. Nevertheless he contended that the mischief sought to be addressed was not restricted to such cases. The English decisions did not provide a logical basis for a threshold argument. On the contrary, the dicta of Lord Slynn in Francois suggested that, where the prisoner would spend more time in custody as a result of the change in status, that was a factor which should be taken into account when imposing the consecutive sentence. In other words, the law required that the extra time spent in custody in relation to the first short-term sentence should be a factor which should be taken into account when imposing the consecutive sentence, contrary to the approach laid down in Shovlin. Thus when sentencing a repeat offender, the judge should take into account the fact that he had offended before and that his status might change from short-term to long-term prisoner. The guidance in Francois should be applied generally, and should not be restricted to threshold cases. Counsel accepted that such an approach might be difficult for sentencing judges to put into effect. Where a judge was able to state that he had taken the change of status into account when calculating the consecutive sentence to be imposed, that would normally be sufficient.

Discussion

Consecutive sentence resulting in alteration to long-term status

[21] Current sentencing law and practice in Scotland does not require a judge who is about to impose a consecutive sentence to consider (a) whether the offender might lose his short-term status, and/or (b) whether a lesser consecutive sentence which would have the effect of conserving the short-term status should (for that reason) be selected. On the contrary, the criminal appeal court in Shovlin v HM Advocate, 1999 S.C.C.R. 421, gave specific guidance that such an alteration in status and in early release date should not be taken into account: see dicta of Lord Prosser at page 422E et seq:

" ... [Having described the different early release provisions for short-term and long-term prisoners referred to in paragraph [1] above, Lord Prosser continued:] There is therefore in these practical terms, and judged in terms of normal release dates, a sharp upward step as one moves from those who are just below the four-year level to those who are at the four-year level. It is not for the courts to enquire into why parliament thought that that was an appropriate sharp upward step. It is the position in law and it applies equally to those who become long-term prisoners as a result of one sentence or as a result of two consecutive sentences.

What was submitted was that, where there is this sharp distinction, the courts, in imposing sentence, should consider that, and that effectively the sheriff here erred in ruling it out as he did as a matter which was not for him to consider. Reference was made to the case of Clayton, Petitioner, as showing that, on occasion, the courts will look at that kind of practical consequence. We consider that Clayton was a very special case and in the present case we do not feel able to draw any principle from it. It is clear in the context we are dealing with that Parliament does intend to have two distinct categories and that long-term prisoners are to be treated in this distinct and, one can say, more severe way.

We are not persuaded that this is a matter which the courts ought to take into account. It is for the courts to decide what the appropriate 'gross' sentence should be. The question for the courts and the appeal courts is whether a particular gross sentence in that sense is excessive and it is then a matter for others, in terms of what parliament has said, to work out its practical effects. We are not persuaded that this is a ground for holding that the sheriff has erred in any way. We are not persuaded that the consideration which we are asked to give effect to would be an appropriate one ... "

[22] In the present case, counsel contends that the principle stated in Shovlin is no longer good law in the light of the decision in the five-judge appeal in Ansari v HM Advocate, 2003 J.C. 105 and also developments in English sentencing law, and in particular R v Secretary of State for the Home Department, ex parte Francois [1999] 1 A.C. 43.

[23] We accept that Francois was apparently not drawn to the attention of the appeal court in Shovlin, and that the decision in Ansari was only available some years later. However in our view the principle enunciated in Shovlin remains unaffected, for the following reasons:

Ansari

[24] In our opinion, Ansari reaffirms the general principle that sentencing courts in Scotland should concern themselves only with the period of time which they regard as appropriate by way of sentence, without taking any account of the actual time which the offender will serve in prison. Ansari was concerned with a special exception which must be made to that principle when calculating punishment parts in discretionary life sentences. Discretionary life sentences are a special type of sentence. They have given rise to particular issues in the context of human rights, as described in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 and O'Neill v HM Advocate 1999 S.L.T. 958, at page 961D et seq. Thus a special approach (outlined in O'Neill) and resultant legislation has proved necessary. In Scotland, the legislation took the form of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by the Crime and Punishment (Scotland) Act 1997 and the Convention Rights (Compliance) (Scotland) Act 2001. In terms of section 2(2)(aa) of the 1993 Act as amended by the 2001 Act, a court, when calculating the punishment part of a discretionary life sentence, must take into account inter alia:

"(i) the period of imprisonment, if any, which the court considers would

have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life for it;

(ii) the part of that period of imprisonment which the court considers

would satisfy the requirements of retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public); and

(iii) the proportion of that part mentioned in sub-paragraph (ii) above which

a prisoner sentenced to it would or might serve before being released, whether unconditionally or on licence, under section 1 of this Act ..."

Accordingly in the context of the assessment of an appropriate punishment part in a discretionary life sentence, section 2(2)(aa)(iii) expressly directs the court to have regard to the question of early release, an approach which is wholly contrary to the general principle outlined in paragraph [21] above.

[25] The special approach outlined in O'Neill and section 2(2)(aa)(iii) amounted to a major change in Scottish sentencing practice, as was pointed out by Lord Macfadyen in Locke, when he noted at paragraph [34]:

"It is, in my view, clear that O'Neill v HM Advocate 1999 S.C.C.R. 300 represented a change in sentencing practice in relation to the selection of the designated part [now 'punishment part'] of discretionary life sentences. It introduced the view that regard should be had to the early release provisions applicable to determinate sentences. That had not been done in earlier cases such as Robertson v HM Advocate 1997 S.C.C.R. 534."

That major change in practice (restricted to the assessment of punishment parts in discretionary life sentences) was also acknowledged by the bench in Ansari. Thus Lord Justice Clerk Gill focused upon the statutory provision, and observed at paragraph [32]:

"Before the 1993 Act, the imposition of any determinate sentence in Scotland was based on the straightforward principle that the court assessed the appropriate sentence having regard to all the circumstances of the case, and left it to the minister to decide consequential questions as to early release. That principle duly observed the separation between the judicial and the executive functions in the penal system. The present legislation compromises that principle by requiring the court to take into account for discretionary life sentences considerations of early release that are applicable to determinate sentences ... "

Lords Kirkwood and Marnoch agreed with the Lord Justice Clerk. Lord McCluskey for his part commented at paragraph [90]:

" ... It was always the duty of the judge who imposed a custodial sentence to determine what the sentence should be, in the light of all the circumstances of the case and of the practice of the court. He had then to pronounce that sentence regardless of what the executive might subsequently choose to do, in the exercise of statutory or prerogative powers, to reduce the period actually served. After sentence had been pronounced, the executive, exercising whatever powers it then had, might choose to free the prisoner, whether unconditionally or on licence. That process might involve a body such as the Parole Board for Scotland. The executive might base its early release decisions on grounds that would have little or no relationship to any matters relevant to any decision the sentencing judge had to make ... Section 2, however, as now worded, imposes upon the court the duty of 'taking into account' the possible exercise by the executive at some future date of statutory early release powers. The court must perform that duty without regard to the possibility that such powers might be amended at some future time when the prisoner is still in custody serving his sentence of imprisonment ... The court ... must also perform its duty under section 2 without any possible knowledge of any other circumstances that it might be appropriate for the executive to take into account when considering early release ..."

[26] Those judgments clearly indicate, in our view, that the approach which the courts are now obliged by statute to follow in the context of the calculation of punishment parts in discretionary life sentences forms a clear exception to the general principle of Scottish sentencing law and practice as outlined in paragraph [21] above. We can see no basis in Ansari for extending that special approach to a case such as the appellant's. Thus in our view the sentencing judge was correct in not taking into account practical considerations such as early release provisions, including any change in status from short-term to long-term prisoner. Indeed it would have been remarkable had the judge done so, standing not only the well-established general principle of Scottish sentencing law, but also the fact that he had not been addressed on the matter by the appellant's lawyer.

Francois

[27] Turning to the House of Lords decision in Francois, it seems to us that the guidance given by Lord Slynn at pages 50 to 51 is peculiarly apposite to English sentencing law and practice, but not to Scottish sentencing law and practice. In the relevant passage, Lord Slynn draws attention to the totality principle as a rationale relied upon by one commentator (Dr David Thomas, Q.C., LL.D., Reader in Criminal Justice, University of Cambridge) when suggesting that a change in status from short-term to long-term prisoner should be taken into account. The totality principle is defined by Professor Ashworth, Professor of English Law at the University of Oxford, in his book "Sentencing and Criminal Justice" (4^th ed.) at para.8.4 as follows:

"Where it is appropriate to impose consecutive sentences rather than concurrent sentences ... the basic approach is for the court to calculate separate sentences for each of the offences and then to add them together. This could, however, lead to a high overall sentence ... The courts have therefore evolved a principle which Thomas has called "the totality principle", which requires a court to consider the overall sentence in relation to the totality of the offending and in relation to sentence levels for other crimes. Section 166 of the [Criminal Justice Act 2003, formerly section 28(2) of the Criminal Justice Act 1991] preserves the principle by stating that nothing in the Act should prevent a court, "in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences." Whether the principle has matured into a rule of law is a nice question, but the import of the provision is clear ..."

The totality principle is also referred to in one of the authorities cited by the appellant's counsel, namely Brown [1999] 1 Cr. App. R. (S.) 47.

[28] While the totality principle is recognised in Scottish sentencing practice (see McGill v HM Advocate, 1996 S.C.C.R. 35, and Renton & Brown, Criminal Procedure, paragraph 23-39) it has never been applied in such a way as to countenance consideration of the practical consequences of classification as a short-term or long-term prisoner. Indeed the opposite is the case: Shovlin v HM Advocate, 1999 S.C.C.R. 421. Standing the differing backgrounds of Scottish and English sentencing law and practice, we consider that the passage at pages 50 to 51 of Francois cannot be regarded as part of the law of Scotland. Indeed there are many other significant differences between sentencing law and practice in Scotland and that in England. Each has a separate statutory regime. Each has settled practices and procedures. For example, in England, a short-term prisoner's automatic release is only unconditional if his sentence is for a term of less than 12 months: otherwise his release is on licence. In Scotland, a short-term prisoner's automatic release is invariably unconditional. In England a judge, when sentencing, advises the offender precisely how long he will actually remain in custody (see the Practice Directions of Lord Chief Justice Bingham dated 22 January 1998; and cf the dicta of Lord Slynn at page 50H in Francois). By contrast in Scotland, the sentencing judge simply states the sentence imposed without entering into any detail about the actual time which the offender will spend in custody. Differences such as these illustrate the existence of two separate sentencing systems, each with its own body of rules, rendering the guidance at pages 50 to 51 of Francois (which is clearly directed to the English sentencing system) inappropriate for unquestioning acceptance in the Scottish system.

[29] We would add two further observations.

[30] First, it may be worth considering the intention of Parliament when it introduced the regime of short-term and long-term prisoners in the 1993 Act, and when giving the Parole Board power to recommend (or not to recommend) early release on licence of long-term prisoners after assessing the potential risk to the public. It seems to us that long-term prisoners are likely to be those who have committed more serious offences attracting longer sentences, and also those who are repeat offenders who have, as a consequence, received consecutive sentences resulting in a longer single term such that they qualify as long-term prisoners. Thus it may be thought to be Parliament's intention that an offender who attracts consecutive sentences such that he becomes a long-term prisoner should not be entitled to a discount arising solely from his alteration in status from short-term to long-term. On the contrary, it may be thought that the delayed release date and the consequent release on licence (rather than an unconditional release) may reflect Parliament's intention to provide greater protection for the public and more severe conditions for the offender.

[31] Secondly, any suggestion that the change in status from short-term to long-term, with the resultant change in the date of early release, could amount to a breach of Article 7 of the European Convention on Human Rights was negated by Lord Slynn at page 51D of Francois, when he observed:

"The sentence is not changed but because of the change in category due to a subsequent sentence a longer part of the original sentence will be spent in prison. As the European Commission of Human Rights held in an analogous case, Hogben v United Kingdom, Application No. 11653/85, 3 March 1986, 'such matters relate to the execution of the sentence as opposed to the penalty' ..."

[32] In the result we are not persuaded that the sentencing judge erred by not taking into account a change from short-term to long-term status (a fortiori when he was not addressed on the issue).

[33] For completeness we would add that even if (contrary to our decision) the approach in Francois were to be adopted in the appellant's case, it is notable from the reported decisions of the English courts that only in borderline cases has a potential alteration to long-term status affected the court's sentencing. Borderline cases might be defined as those in which a consecutive sentence at the lower end of the range of appropriate sentences could properly be selected by the sentencing judge in preference to a sentence at the higher end of the range, such that the combined effect of the sentences allowed the appellant to remain within the category of short-term prisoner. Thus in Cozens, a sentence to run consecutively to a sentence of 42 months was reduced from 6 months (which would change the prisoner's status to long-term) to 3 months. In Brown, a sentence to run consecutively to a sentence of 30 months was reduced from 18 months (which would change the prisoner's status to long-term) to 15 months. By contrast in Parker [2000] 2 Cr App R (S) 294 the appellant was already serving a sentence of 31/2 years for burglary. He was subsequently sentenced to 12 months for affray involving threats of violence and the brandishing of a knife. It was held by the Court of Appeal that a sentence of 5 months or less (thus maintaining the appellant's short-term status) fell outwith the range of sentences appropriate for the affray, and that the sentencing judge was entitled to exercise his discretion as he did. As Crane J observed at page 298:

"We have to consider, in the light of the authority of the House of Lords [Francois], whether the judge was wrong to exercise his discretion that way. We agree with the learned judge that a sentence of five months or less would not have been appropriate for what was plainly, on the agreed basis of plea, a serious offence of affray, and this is one of those cases in which, despite the conversion of the appellant to a long-term prisoner, it was appropriate, and the judge was certainly entitled, to pass the sentence he did. If it were not so, it would mean that, even if the first court had passed a sentence which deliberately kept the appellant below the four-year barrier, a second court would be barred from raising him above the barrier. That consequence cannot be right. For those reasons, we dismiss the appeal."

[34] Lord Slynn in Francois was also careful to emphasise that while any change in status from short-term to long-term prisoner was, in England, a factor to be taken into account, it would only be in certain cases that a reduction in the consecutive sentence might be appropriate. At page 50 he said:

"It has been suggested that since the change of categorisation [from short-term to long-term] results in a longer time in prison, that should be taken into account by the second judge when fixing the sentence for the second offence. Simon Brown LJ and Curtis J thought that this should happen. Dr David Thomas in commenting on the Divisional Court judgment in the present case [1997] Crim L R 838, 839 commented that it will presumably be appropriate to allow some discount (in the name of the totality principle) in the later sentence to avoid injustice. I agree that justice in some cases may [italics added] require this to be done. It will be a matter for the judge in each case to decide whether the sentence which he otherwise considers appropriate for the second offence should be reduced to allow for the fact that the prisoner will spend extra time in prison in respect of the first offence because the penalty on the second offence has converted him into a long-term prisoner."

[35] In the case of this particular appellant, the period of 3 years custody selected in respect of the counterfeiting offence was, very properly, not criticised, other than to contend that the 8-month sentence for the driving offence should have been taken into account, thus reducing the 3-year term to some extent (on which see paragraphs [36] and [37] below). It was not suggested that a sentence of less than 13 months (as 13 months added to 35 months brought about the 4-year threshold) would have been appropriate. In view of the nature and gravity of the counterfeiting offence, and the appellant's previous convictions, we agree with counsel's approach. Accordingly any sentence falling within the range of appropriate sentences must necessarily have resulted in the loss of the appellant's short-term prisoner status. In these circumstances, even if the approach outlined in Francois were to be adopted, we would not have been persuaded that the sentencing judge could be said to have erred in imposing the sentence he did. However for the reasons given earlier, we do not accept that the approach in Francois should be adopted by sentencing courts in Scotland.

Effect of sentence for road traffic offence

[36] As outlined in paragraph [6] above, the appellant was sentenced to 8 months for driving while disqualified. He had served that sentence before going to trial in respect of the counterfeiting charge in July 2007. It was contended on his behalf that the 8-month sentence was "an element which could be taken into account in a cumulo approach to sentencing in respect of the appellant's activities on 16 November 2006" (paragraph 7 of the appellant's Note of Appeal). In his submissions, counsel for the appellant contended that the sentence of 3 years imposed in respect of the counterfeiting charge should accordingly have been reduced to take into account the time served in respect of the driving offence.

[37] We note, in this context, that the sentencing judge was not advised of the fact that a sentence had been served in respect of the driving offence. Nor was any submission made that the sentence about to be imposed in respect of the counterfeiting charge should be reduced to reflect the driving offence sentence already served. Be that as it may, on the information placed before us, we are unable to accept that the driving offence arose out of, or was connected with, the counterfeiting offence such the sentence served in respect of the former offence ought to have been taken into account, and a discount given, when imposing a sentence in respect of the latter offence.

Decision

[38] For the reasons given above, the appeal is refused.