APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lord Mackay of Drumadoon	XC371/06 2009 HCJAC 51 OPINION OF THE COURT delivered by LORD NIMMO SMITH in Proceedings under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in the cause HER MAJESTY'S ADVOCATE against TAHER JAVAID DIN _____________

Act: Stewart, AD; Crown Agent

Alt: Murphy; Graham Walker, Glasgow

20 February 2009

Introduction

[1] Taher Javaid Din ("the offender") was convicted at Glasgow Sheriff Court on 19 May 2006 and sentenced to a period of four years' imprisonment from that date. An appeal against that sentence was heard by this court on 7 June 2007, when the appeal was allowed, the sentence imposed by the sheriff was quashed, and the offender was instead sentenced to imprisonment for three years, to run from 30 January 2006.

[2] After he had been released on licence and before the expiry of the three-year sentence, the offender committed two new offences. He was convicted of those offences at Glasgow Sheriff Court on 21 January 2009. Before sentencing him for the new offences, the sheriff has referred the matter to this court to consider making an order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act").

Which court has jurisdiction in proceedings under section 16 of the 1993 Act?

[3] The first question we have to consider is one of jurisdiction. It may be put in this way: where a person has been sentenced in any court in Scotland, and on appeal this court has quashed the original sentence and imposed a different sentence, should the proceedings under section 16 of the 1993 Act take place before the original sentencing court or before this court?

[4] Section 16 of the 1993 Act, so far as relevant for present purposes, provides:

"(1) This section applies to a short-term or long-term prisoner sentenced to a term of imprisonment (in this section referred to as 'the original sentence') by a court in Scotland and released at any time under this Part of this Act or Part II of the Criminal Justice Act 1991 if -

(a)               before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment (other than an offence in respect of which imprisonment for life is mandatory); and

(b)              whether before or after that date, he pleads guilty or is found guilty of that offence (in this section referred to as 'the new offence') in a Court in Scotland or in England and Wales.

(2) Where the court mentioned in subsection (1)(b) above is in Scotland it may, instead of or in addition to making any other order in respect of the plea or finding -

(a) in a case other than that mentioned in paragraph (b) below, order the person to be returned to prison for the whole or any part of the period which -

(i) begins with the date of the order for his return; and

(ii) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(a) above; and

(b) in a case where that court is inferior to the court which imposed the sentence mentioned in the said subsection (1)(a), refer the case to the superior court in question; and a court to which the case is so referred may make such order with regard to it as is mentioned in paragraph (a) above.

...

(5) The period for which a person to whom this section applies is ordered under subsection (2) ....above to be returned to prison -

(a) shall be taken to be a sentence of imprisonment for the purposes of this Act and of any appeal; and

(b) shall, as the court making that order may direct, either be served before and be followed by, or be served concurrently with, any sentence of imprisonment imposed for the new offence (being in either case disregarded in determining the appropriate length of that sentence)...."

[5] The powers of this court in relation to appeals against sentence are contained in section 118(4) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), in solemn cases, and section 189(1), in summary cases.

[6] Section 118(4) provides:

"The High Court may....dispose of an appeal against sentence by -

(a) affirming such sentence; or

(b) if the Court thinks that, having regard to all the circumstances, including any evidence such as is mentioned in section 106(3) of this Act [fresh evidence], a different sentence should have been passed, quashing the sentence and passing another sentence whether more or less severe in substitution therefor,

and in this subsection, 'appeal against sentence' shall, without prejudice to the generality of the expression, be construed as including an appeal under section 106(1)(ba), (bb), (c), (d), (da), (dc), (e) or (f), and any appeal under section 108, of this Act; and other references to sentence shall be construed accordingly."

The provisions of section 106(1) relate to appeals against various disposals or orders, and an appeal under section 108 is a Crown appeal against any of the disposals listed in subsection (1) thereof on the ground inter alia that the disposal in question was unduly lenient.

[7] Section 189(1) provides:

"An appeal against sentence by note of appeal shall be heard by the High Court on such date as it may fix, and the High Court may....dispose of such appeal by -

(a)               affirming the sentence; or

(b)              if the Court thinks that, having regard to all the circumstances, including any evidence such as is mentioned in section 175(5) of this Act, a different sentence should have been passed, quashing the sentence and, subject to subsection (2) below, passing another sentence, whether more or less severe, in substitution therefor".

Subsection (2) restricts any increased sentence to the maximum sentence which could have been passed by the inferior court.

[8] It can be seen, therefore, that where this court does not affirm the original sentence, whether in summary or in solemn proceedings, it quashes the sentence and passes another sentence, whether more or less severe, in substitution therefor. In many cases the sentence which is passed is less severe than the original one. But in a successful Crown appeal against sentence under section 108 a more severe sentence is passed - sometimes a very much more severe one - and it is not unknown for this court, even where the appeal is brought by the person who has been sentenced, to exercise its power to pass a more severe sentence on the ground that the original sentence is inadequate: see Spence v HM Advocate 2007 SCCR 592 at paragraph 19. [9] It appears clear to us that, if this court has "passed" another sentence in exercise of its powers under section 118(4)(b) or 189(1)(b), this must be the court that "imposed the original sentence" for the purposes of section 16(2)(b) of the 1993 Act; and counsel were unable to suggest any alternative construction. Where this court has quashed the original sentence and passed another sentence, it will only have done so where it has taken the view that the sentence or other disposal which it has quashed was excessive, or unduly lenient, or inadequate, so there appear to us to be sound policy reasons, which are reflected in the legislation, why the section 16 proceedings should take place before this court and not before the court whose sentence has earned such a description.

[10] It has been suggested to us that the consequence of this construction of the legislation is to increase the administrative burden on this court. But the legislative provisions are clear; and in any event we have no means of determining the number of cases in which section 16 proceedings would take place before this court. We are well accustomed to dealing not only with sentence appeals themselves but with appeals which have been continued for good behaviour or for other reasons, with breaches of community service orders imposed on appeal, and so on.

[11] It has also been suggested to us that there is not a consistent practice among Sheriff Courts and that in some instances section 16 proceedings take place before the sheriff who first imposed the sentence which was quashed on appeal by this court, rather than referring the matter to this court as required by section 16(2)(b) of the 1993 Act. If this is so, it should be clearly understood that if the original sentence, whichever court has imposed it, has been quashed on appeal by this court, which has then passed a fresh sentence, section 16 proceedings should take place before this court.

[12] It remains to be added that in terms of section 103(3) of the 1995 Act, in solemn proceedings, and section 173(2), in summary proceedings, the quorum of this court when it hears sentence appeals is two judges. It follows that where, for the foregoing reasons, proceedings under section 16 of the 1993 Act require to take place before this court, the quorum to dispose of them is also two judges. Since, in terms of section 16(5)(a) of the 1993 Act the period for which a person is ordered to be returned to prison is to be taken to be a sentence of imprisonment for the purposes of any appeal, it would appear to follow that, where a section 16 order is made by this court, any appeal should be to a court of three judges.

The present case

[13] We turn now to the present case. The offender has a number of previous convictions, principally for sexual offences. His first such conviction was for indecent assault at Glasgow Sheriff Court on 23 October 1987, which led to his being placed on probation for two years. Three more convictions, for other categories of offence, followed until on 26 August 1999 at Glasgow Sheriff Court he was convicted of two charges of lewd, indecent and libidinous practices and behaviour and was sentenced to imprisonment for 12 months. On 22 August 2001 he pled guilty to rape in Manchester Magistrates' Court and was sentenced in the Crown Court to imprisonment for four years.

[14] On 3 November 2005 at Manchester Magistrates' Court a Sexual Offences Prevention Order ("SOPO") under section 104(1) of the Sexual Offences Act 2003 was made in respect of the offender, on the application of the police. In the SOPO a short description of the acts in question and further comments was in these terms:

"Acts of sexual misconduct and inappropriate sexual behaviour as alleged by the complainant [a police officer] and found to be proved. It is necessary to make this Order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant having regard to the behaviour heretofore referred to."

He was made subject to a number of prohibitions, of which the most important was:

"(1) Speaking, communicating in any way, either directly or indirectly, or be in the company of any person under the age of 16 years other than in the course of making any purchase or related activity upon retail premises save with his daughter [SJ] and supervised by Social Services."

[15] On 19 May 2006 the offender pled guilty at Glasgow Sheriff Court to a charge of breaking this condition without reasonable excuse, in that he was found within a motor vehicle with an unaccompanied child under the age of 16 years, contrary to section 113(1)(a) of the Sexual Offences Act 2003. The sheriff sentenced him to four years' imprisonment. He appealed against that sentence. On 7 June 2007 this court (Lord Macfadyen and Lord Philip) quashed the sentence of imprisonment imposed by the sheriff and in its place sentenced the offender to three years' imprisonment, backdated to 30 January 2006. The reasons which led the court to follow this course are set out in the Opinion which is reported as Din v HM Advocate 2007 SCCR 299. We note that at paragraphs 6 and 7 the court held that the sheriff did not err in characterising the situation in this way:

"From the information made available to the court it seemed that the appellant was, in effect, a serial sex offender who was prepared to ingratiate himself with families in order to secure direct contact with the children of those families."

The court added that he had been assessed as a high risk offender, and that in all of the circumstances the sheriff was entitled to take a serious view of the offence.

[16] The offender was released halfway through the three-year sentence, on 31 July 2007. This sentence was due to expire on 29 January 2009. As already stated, on 20 January 2009 he pled guilty at Glasgow Sheriff Court to two charges in an indictment. These were both further charges of contravening section 113(1)(a) and (b) of the Sexual Offences Act 2003.

[17] The first charge, as amended, libelled that he broke the terms of the SOPO without reasonable excuse on 24 July 2008 in a street in Glasgow in that he approached and communicated with or was in the company of a 13 year old boy and other children whose identities are meantime unknown. Before us, it was common ground that the boy, who was a stranger to the offender, was outside some shops with other children when the offender drove up, opened the window of his car, called over and asked if one of them would go to his girlfriend's mother's house nearby to say that his girlfriend had gone missing. He offered to pay £2 to any of them who ran this errand. The boy said that he would, ran the errand, and was duly paid the money.

[18] The second charge was that he broke the SOPO without reasonable excuse on an occasion between 20 and 30 July 2008 at an address in Glasgow in that he approached and communicated with or was in the company of an 8 year old boy and another child, whose identity was meantime unknown. The occupants of the address in question were the sister of the offender's girlfriend and her partner. Their young son lived with them. The offender visited the house and while he was there he sat down next to the boy and engaged him in conversation.

[19] Counsel for the offender submitted to us that these were minor infringement of the SOPO, and that there were innocent explanations for his conduct. Given the previous characterisation of the offender's conduct, we have difficulty in accepting this. It will, however, be for the sheriff in sentencing the offender for the new offences to decide what he makes of any plea in mitigation which is tendered to him. For our purposes, it is sufficient that the offender has a significant history of previous sexual offending, that the three-year sentence imposed on him by this court was for a directly analogous offence, and that in committing the new offences the offender was in breach of trust in two respects: in breaching the SOPO, and in breaching the position of trust in which he was placed on being granted his liberty halfway through serving the three-year sentence. This is a situation in which the protection of the public, and in particular that of children under the age of 16 years, is paramount.

[20] The relevant period for the purposes of section 16 starts on 20 July 2008, being the earliest date on which one of the new offences was committed, and ends on 29 January 2009, i.e. 193 days. Counsel for the offender drew attention to the fact that he had been in custody on remand in respect of the new offences since 3 August 2008, and that the period between that date and the present date was longer than the 193 days abovementioned. We are not persuaded that it is appropriate to take account of the period spent on remand for the purposes of making a section 16 order: it will be for the sheriff who sentences the offender for the fresh offences to take such account as he thinks appropriate of the period spent on remand. Given the offender's breach of trust, and the need for protection of the public, we have decided that he should be ordered to be returned to prison for most of the relevant period. The only factor which induces us to make an order for less than the maximum number of days available to us is that, on the information before us, the offender managed to stay out of trouble for the best part of a year before committing the new offences.

Decision

[21] In the whole circumstances we have decided, in exercise of this court's powers under section 16 of the 1993 Act, to order the offender's return to prison for a period of 150 days from today. We shall direct that any custodial sentence imposed by the sheriff in respect of the new offences shall take effect from the expiry of that 150-day period. As already indicated, we shall leave it to the sheriff to take such account as he thinks proper of the period since 3 August 2008 which the offender has spent in custody on remand.