Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Mackay of Drumadoon	[2010] HCJAC 114 Appeal Nos: XJ1700/05; XM16/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the petition to the nobile officium and bill of suspension by CHRISTOPHER SHEPHERD Petitioner; against PROCURATOR FISCAL, DORNOCH Respondent: _______

Appellant: Shead et MC Mackenzie; Drummond Miller WS (for Anderson Macarthur, Portree)

Respondent: Brodie QC, AD; the Crown Agent

12 November 2010

1. Initial Procedure

[1] On 10 November 2003, at Dornoch Sheriff Court, the petitioner was convicted of two charges prosecuted on summary complaint in respect of conduct occurring at his croft in Strathnaver in April 2001. The first was a contravention of sub-sections 1(1)(a) and (2) of the Protection of Animals (Scotland) Act 1912 whereby, as owner of a flock of sheep, the petitioner had caused a number of the sheep unnecessary suffering. Specifically, he had wantonly or unreasonably failed to provide adequate and sufficient feeding, supervision and sufficient veterinary care for the sheep whereby they became malnourished and emaciated and suffered from skin infestation or infection. The second was a contravention of article 5(1)(c) of the Animal By-Products Order 1999 and sections 1, 8(1) and 73 of the Animal Health Act 1981 by unduly delaying to dispose of a number of sheep carcasses, which lay unburied on open ground to which other animals and birds had access.

[2] On 8 December 2003, the Sheriff sentenced the petitioner to three months imprisonment on charge (1) and imposed a fine of £1,000 on charge (2) payable at £10 per week. A manuscript addition to the Minute records that: "The Court imposed the alternative period of imprisonment of 28 days in default of payment". The petitioner was also disqualified from keeping animals for ten years. Since the sentence imposed upon this summary matter occurred over seven years ago, an explanation for the passage of time which has now elapsed is undoubtedly called for.

[3] On the same day as the sentence was imposed, the petitioner's then law agent applied for a stated case. The matters which the petitioner wished to bring under review were handwritten as follows:

"(a) conviction charge 1 in respect that no evidence to support mens rea separatim evidence not sufficient to allow any court properly instructed to make a finding of fact that beyond reasonable doubt there was no reason to fail to provide feeding and veterinary attention.

b) conviction charge 2 in respect that there was insufficient evidence to convict or establish mens rea given that because of foot and mouth restrictions the appellant was unable to bury the animals et separatim had a reasonable excuse for not doing so.

c) sentence charge 1 (i) appellant has never before been sentenced to imprisonment and prison is not the only method of imposing sentence.

(ii) the sentence of 3 months is half the statutory maximum and the offence affected only some of the appellants animals and only due to the pressures of the foot and mouth restrictions

d) sentence charge 2 is excessive considering the number of animals and the foot and mouth restrictions that prevented the animals being buried et separatim the imposition of the alternative of imprisonment was not justified".

The application also sought interim liberation pending the appeal. This was granted by the High Court on 12 December 2003.

[4] On 31 December 2003, the petitioner's new law agent advised the Sheriff that a stated case would not be required as the petitioner intended to proceed by way of Bill of Suspension. The Sheriff accordingly returned his papers to the process. No Bill was presented. On 19 July 2004 an incidental application was presented by the respondent under section 134 of the Criminal Procedure (Scotland) Act 1995 to treat the appeal as abandoned. This application, together with the relevant warrant to arrest the petitioner, was granted on 21 July 2004 by a different sheriff. This appears to have caused a flurry of activity with the petitioner's agent explaining to the original sheriff that he had not after all intended to abandon his application for a stated case, even though the time for lodging such a case had long since expired. Rather, he had been advised by counsel that he should proceed by way of stated case and not by Bill of Suspension. The Sheriff agreed to state a case, notwithstanding the expiry of the statutory periods. He issued his draft on 17 February 2005 (i.e. over a year after the conviction). The respondent then lodged a Bill of Advocation complaining that the Sheriff's action, in issuing a draft outwith the statutory time period of three weeks set down in section 178(1) of the 1995 Act, was incompetent. Meantime, the Stated Case was adjusted and issued in final form on 11 April 2005.

2. The Stated Case

[5] In its final form, what was a very detailed stated case narrated a background whereby, between February and April 2001, the petitioner owned a flock of some 128 sheep. These were due to be culled, because of the foot and mouth disease outbreak, on 18 and 19 April 2001. When the slaughtermen arrived, a large number of the flock were seen to be malnourished and emaciated. Some were unable to stand. Most were classified, on a formal body count, as extremely thin and this had been caused by malnourishment and parasites. Notwithstanding the skin condition of the sheep, the appellant had not sought any veterinary advice or treatment. Rather he had treated a few sheep each day with "spot-on" for lice. This treatment was inadequate. The appellant did not provide the sheep with adequate supplemental feeding. The sheep had to compete with cattle for food at a ring-feeder. Several sheep were killed by the cattle in this competition. The feeding was in deep muddy ground rather than in troughs of concentrate on fresh ground. The Sheriff's findings in fact concluded:

"(9) The failure by the Appellant to provide adequate and sufficient feeding and supervision of said flock and his failure to provide veterinary attention was wanton and unreasonable.

(10) A large number of sheep carcasses were left unburied. One dozen had been killed by the cattle at the ring-feeder three to four days before the cull on 18 and 19 April. A further ten were left near the steading. Eighty four carcasses ranging from fresh to very old amounting to bones and wool were found by Mr [GC] on 18, 19 and 20 April throughout [the appellant's croft].

(11) These carcasses were of sheep owned by the Appellant and were not disposed of by the Appellant without undue delay. The majority of the carcasses would have been seen by a shepherd exercising reasonable animal husbandry".

The stated case posed three questions:

"1. Was I entitled to make finding-in-fact 9?.

2. Was I entitled to make finding-in-fact 11?

3. Were the sentences I imposed excessive?"

The state of the petitioner's flock had been described to the Sheriff by a very large number of witnesses, including: (i) two slaughtermen, who had been contracted to carry out the cull; (ii) at least two Animal Health Officers (AHOs) with the Department of Food and Rural Affairs, who had attended the cull; (iii) two AHOs, including Mr [GC] from Highland Council, who had also been at the cull; (iv) two AHOs from the Department of Agriculture, one of whom was also a vet and who had also been at the cull; and (v) an auctioneer and valuer, in attendance at the cull too. They all spoke to the flock being in what can only be described as an appalling condition and to the many carcasses lying on the petitioner's land at the time of the cull. A further AHO with the Council spoke to cautioning and interviewing the petitioner in July 2001, when he described the level of care which he had provided to the sheep.

[6] The petitioner had given evidence, stating that he was not working at the time of the trial and had been made bankrupt. He had accepted the presence of many dead sheep on his croft but made a number of excuses for their existence. He explained that he had experienced difficulties in obtaining concentrates for feed, but accepted that he had not obtained advice from the local vets, one of whom also gave evidence. The Sheriff reasoned as follows:

"I felt that the evidence submitted in respect of charge 1 by the Crown was overwhelming. I was impressed by the witnesses presented to me by the Crown who gave clear and unequivocal evidence regarding charge 1. I simply did not believe what the Appellant told me. His primary concern was the cattle and examination for foot and mouth disease. He did not handle the sheep and was not therefore able to comment on their body score...

Similarly I considered that the Crown had proved beyond reasonable doubt charge 2... Again I found the evidence of the prosecution witnesses very impressive and simply did not believe the Appellant. I found his explanation for the number of carcasses lying around, namely that neighbours with a grudge had dug up graves on his farm and littered his croft with carcasses simply so far fetched as to be totally unbelievable... ".

[7] In relation to sentence, the petitioner had two previous convictions, both dated 8 August 1997, for contraventions of sub-section 1(1) of the Dogs (Protection of Livestock) Act 1953. It had been explained to the Sheriff that the petitioner's financial position was very uncertain given his sequestration. Nevertheless, he was said to be in a position to pay a restricted fine. He was also in a position to perform community service. However, having considered the terms of the Social Enquiry Report, the Sheriff considered that there was no alternative to a custodial sentence on the first charge. He stated:

"The state of the sheep which had been brought about by the Appellant's lack of husbandry was appalling and I did not feel that any other punishment was appropriate...In respect of the second charge I again felt that having such a large number of carcasses lying around his croft unburied, displayed a callous disregard for his animals. He had no consideration for other members of the public."

Having fined him £1,000, to be paid at £10 per week, the Sheriff imposed the alternative of 28 days imprisonment should he fail to pay any instalment "given the nature of the offence".

3. Further Procedure

[8] The stated case proceeded to the first sift stage. Leave to appeal was refused on 16 May 2005. The judge wrote:

"As to the grounds of appeal against conviction the question is whether there was any or sufficient evidence. There appears no reasonable prospect of the appellant persuading the Court that there was no or no sufficient evidence. As to the appeal against sentence, the disposal is within the proper exercise of discretion by the Sheriff, and there is no reasonable prospect of persuading the Court otherwise".

The first sift judge noted the existence of the Bill of Advocation and recommended that it be heard first, were leave to be granted at second sift. In a somewhat circular turn of events, on 1 June 2005, the second sift judges, including the then Lord Justice General, considered that a decision on leave to appeal should await the outcome of the Bill. But, notwithstanding that decision, at the hearing of the Bill on 30 June 2005, the Court, of consent, continued the Bill to be heard along with the Stated Case, were leave to be granted for the latter. On 18 July 2005, leave to appeal was refused. The second sift judges, who included the Lord Justice-Clerk, commented:

"The appeal against conviction has no hope of success. Findings in fact 9 and 11 were amply warranted by the evidence and are the basis of the convictions.

In view of the serious nature of the offences, particularly in light of the findings in fact, and the Sheriff's narrative of the evidence which he accepted, the Sheriff was fully entitled to impose the sentences that he imposed".

This would, in normal course, have brought an end to this already prolonged litigation within a reasonable time. The refusal of leave to appeal carried with it a warrant for the petitioner's imprisonment in terms of the Sheriff's sentence. On 28 July 2005, the respondent abandoned the Bill of Advocation, since it was no longer required standing the refusal of leave to appeal. The problems which now face the Court were created by the procedure which the petitioner adopted and the Court tolerated for many years.

[9] On 18 November 2005, the petitioner lodged a Bill of Suspension. This explained that leave to appeal in respect of the stated case, which included an appeal against sentence, had been refused. However, the Bill maintained that the sentence of three months imprisonment was incompetent "standing section 1(2) of the 1912 Act" and that the imposition of a fine of £1,000 was incompetent "standing the terms of section 75(1)(c) of the 1891 Act". It also said that the alternative of imprisonment on charge 2 could not be justified by the reason stated, viz.: "the nature of the offence". In these regards it was said that the petitioner's previous law agent had

"failed to identify the grounds of appeal specified herein. Accordingly there was a failure on the part of the previously instructed agents to identify stateable grounds of appeal on behalf of the [petitioner]".

It will be remembered that, as noted above, the petitioner had appointed a second set of agents, who had apparently sought the advice of counsel, prior to the issue of the stated case.

[10] A hearing was appointed for 24 November 2005 to consider suspension of the warrant granted by the second sift judges. This hearing seems to have been continued until 13 December 2005 when interim suspension was granted. This proceeding involved three judges suspending the warrant issued after the refusal of leave to appeal by three judges at second sift.

[11] When the Bill called for a hearing on 27 July 2006, the petitioner objected to the composition of the bench because it included one of the three judges who had refused leave to appeal. That hearing was aborted for that reason. On 13 December 2006, the Court refused in hoc statu the respondent's motion to refuse the Bill as incompetent and continued the cause in respect of the petitioner's planned further change of agents and his proposal to lodge a petition to the nobile officium. The relevant interlocutor also records that a motion for a warrant to re-impose the sentence imposed by the Sheriff was refused on the same basis and that "Bail previously granted allowed to continue". There are two peculiarities with this. The first is that there was no need for a warrant, since that had already been granted by a bench of three judges when leave to appeal had been refused. Secondly, there was no previous "bail".

[12] The Bill called at a Procedural Hearing on 11 April 2007, when the Court was advised that the further change of agency had taken place. But there was still no petition to the nobile officium, although counsel expected to be in a position to lodge one within a month. However, the Court stated specifically that any future hearing "would be in respect of both cases" (i.e. the Bill and the Petition). It was only on 5 July 2007 that the petitioner eventually lodged his petition to the nobile officium. This complains of error on the part of the sifting judges when refusing leave to appeal against the sentences. It is accordingly a challenge to the finality of that decision in the sentencing appeal procedure. The petition now began to run in tandem with the Bill, which, as already observed, complains largely of the incompetency of the sentences.

[13] The cases called again only on 26 June 2009, almost two years after the presentation of the petition. At that stage the petitioner requested another discharge of the diet, this time to await the outcome of Akram v HM Advocate (sic) 2010 SCCR 30 and McIntrye v HM Advocate 2009 SCCR 719. This was not opposed and the hearing was discharged. The case called at a Procedural Hearing on 10 March 2010, when it was again appointed to a full hearing with half a day allocated. That hearing called before this Court first on 13 May 2010. Regrettably not only did it not conclude on that day, despite there being exactly half a day available, the petitioner's submissions had not ended by the close of that diet. The case called again on 12 October 2010.

4. Competency of the Sentences

[14] The Bill of Suspension raises the issue of the competency of the sentences; something which was not raised in the application for the stated case other than, perhaps, the reference to the imposition of the alternative of imprisonment not being justified. The first contention in the Bill is based upon the terms of sub-section 1(2) of the 1912 Act, which provides that:

"For purposes of this section, an owner shall be deemed to have permitted cruelty within the meaning of this Act if he shall have failed to exercise reasonable care and supervision in respect of the protection of the animal therefrom:

Provided that, where an owner is convicted of permitting cruelty within the meaning of this Act by reason only of his having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine".

The argument averred is that the proviso to the section makes imprisonment simpliciter incompetent in respect of the conviction on charge 1. The simple response from the respondent, and indeed the Sheriff in his Note on the Bill, is that the petitioner was not convicted of "permitting cruelty...by reason only of his having failed to exercise [reasonable] care and supervision". He was convicted of causing the sheep unnecessary suffering by failing to provide them with adequate and sufficient feeding, supervision and veterinary care.

[15] The court agrees with the submission that the petitioner was not convicted by reason only of a failure to exercise reasonable care and supervision. He had not provided the sheep with adequate feed and veterinary care. In these circumstances, the Sheriff was not required to fine the petitioner.

[16] The second contention in the Bill is based upon a construction of sub-section 75(1)(c) of the 1981 Act. Section 75 provides:

"(1) A person guilty of an offence against this Act for which a penalty is not provided by any other provision of this Act shall be liable on summary conviction -

(a)   to a fine not exceeding level 5 on the standard scale; or

(b)  if the offence is committed with respect to more than 10 animals, to a fine not exceeding level 3 on the standard scale for each animal;

(c)   where the offence is committed in relation to carcasses, fodder, litter, dung or other thing (exclusive of animals) to a fine not exceeding level 3 on the standard scale in respect of every 508 kilogrammes in weight thereof after the first 508 kilogrammes in addition to the first fine not exceeding £400".

The argument, which was departed from on the second day of the hearing, was that since the offence related to carcasses, the maximum fine was £400. The response, again straightforward and stated by the Sheriff in his Note, is that sub-sections (b) and (c) are alternatives to sub-section (a), which provides for a maximum fine of £5,000 (level 5). There was no weight proved at the trial so sub-section (c) could not be employed. The court agrees, for the reasons given by the Sheriff, that it was open to the Sheriff to impose a fine not exceeding level 5, which is what he did.

[17] The third contention in the Bill is that the imprisonment alternative on charge (2) could not be imposed simply because of the "nature of the offence" as narrated by the Sheriff in the stated case. In terms of section 214 of the 1995 Act:

"Where time is allowed for payment of a fine or payment by instalments is ordered, the court shall not, on the occasion of the imposition of a fine, impose imprisonment in the event of a future default in paying the fine or an instalment thereof unless... the court determines that, having regard to the gravity of the offence or to the character of the offender, or to other special reason, it is expedient that he should be imprisoned without further inquiry in default of payment; and where a court so determines, it shall state the special reason for its decision".

The basis for the challenge is that the Sheriff in the stated case used the phrase "nature of the offence" and this was not a relevant reason for imposing the alternative. Reference was made to Buchanan v Hamilton 1988 SCCR 379, where it was said that the "nature" of an offence, in that case a breathalyser conviction, was not a relevant reason. It had been followed in Hughes v HM Advocate 2002 SCCR 937, where a bare reference to the "nature of the offence", which was a contravention of section 58 of the Medicines Act 1968 by trading in veterinary medicines, was insufficient justification.

[18] It is no doubt correct that, if the Sheriff had used only the words "nature of the offence", that would have been insufficient to warrant immediate imprisonment. But the Sheriff did not simply use those words. He explained that he regarded the state of the sheep, as brought about by the appellant's husbandry, as "appalling" and that was why he acted as he did. It is plain that he was referring to the gravity of the petitioner's offending. In addition, in his Note on the Bill, the Sheriff stated that what caused him to impose the alternative was not just the "nature of the offence" but also the unsatisfactory explanation regarding the petitioner's financial position. It is worth commenting that the Sheriff's actions, when taken in conjunction with the imposition of the custodial sentence on charge (1), were of advantage to the petitioner in that the alternative sentence would run concurrently with the three months already imposed at least if the petitioner decided not to pay the instalments.

[19] For all of these reasons, the court does not consider any part of the sentences to have been incompetent and it will therefore refuse to pass the Bill. It only remains to comment that all of the matters raised in the Bill could quite easily have been included by the petitioner in his application for the stated case. Had he adopted that course of action, the procedural labyrinth ultimately created would have been greatly curtailed.

5. Excessive Nature of the Sentences

[20] The petition to the nobile officium complains "that the sifting judges erred by refusing to grant leave to appeal in relation to sentence" (statement of fact 6). It seeks an order to "set aside the decision complained of, to grant leave to appeal". In particular it states that the errors were as follows:

"7. That the petitioner has not served a custodial sentence before. He was therefore entitled to the relevant statutory protection. There is no express recognition of that protection in the reasons for refusal by the sifting judges. The test to be applied is whether an appeal is arguable. That is a low threshold which ought easily to be crossed. The offence which attracted the custodial sentence is prosecuted only infrequently. It is perhaps therefore more difficult to be confident about the proper approach to sentence. The measure of uncertainty also points to the fact that the point is arguable.

In any event it appears that the first sift judge misdirected himself in relation to the test to be applied. He referred to there being no reasonable prospect of persuading the court that the sentence was excessive. That was not the test to be applied at this stage. At the second sift the judges referred only to the serious nature of the offences to justify the refusal to grant leave. By itself that was insufficient to justify a refusal... In any event the nature of the offence is only one factor to be taken into account when the exercise required by section 204(2) of the 1995 act is to be undertaken.

8. That in any event no adequate reasons have been given for the refusal of leave in relation to the order made in connection with charge 2. There is no mention of this part of the disposal in either of the letters refusing leave".

There follow general references to the right to a fair hearing (statements 9 to 11).

[21] The first sift judge responded to the petition by saying that his use of the expression "no reasonable prospect" was "just another way of saying" that it was "not reasonably arguable" that the sentence was excessive. The difference was one of language and not substance. The only additional response from the second sift judges was that the petition was incompetent.

[22] In moving the Court to grant the prayer of the petition, the petitioner recognised the existence of Beck, Petitioner 2010 SCCR 222 but submitted that Akram v HM Advocate (supra) was binding upon this Court, thus making it competent for this Court to overturn the decision of the three second sift judges. Although it did not feature at all in the petition, the focus of the petitioner was initially on the competency of the sentences as also pleaded in the Bill, especially the imposition of the alternative. That imposition was not appropriate, and in any event excessive, for a non imprisonable offence (Dunlop v Allan 1984 SCCR 329; Buchanan v Hamilton 1998 SCCR 379; Paterson v McGlennan 1991 SCCR 616). Although not raised in the stated case, or in any proposed adjustment, it was said that the sift judges ought to have noticed the incompetency or excessive nature of the alternative being imposed. There was a duty on the sifting judges to consider all the papers including the Minutes (see 1995 Act ss 180(2)(a) and (b)). The argument was that, if the prayer were granted, the petitioner could introduce matters of competency at the sift stage, or even thereafter, even if they had not featured in the stated case. In any event, the level of fine on charge 2 was too high as it would take 100 weeks to pay it off.

[23] By the second day of the hearing, the petitioner had lodged "Outline Submissions" at the request of the court. These dealt in general terms with the competency of the use of the nobile officium as a mode of review. It was argued that Beck, Petitioner (supra) was authority for the proposition that where the court had breached the terms of the European Convention on Human Rights in refusing leave to appeal, the appropriate remedy was a petition to the nobile officium to review the refusal. In the present case, the sifting judges had not given adequate reasons for their decision and the petitioner's article 6(1) rights had thereby been breached. Reference was made to certain dicta from the European Court of Human Rights in: Pronina v Ukraine, 18 October 2006, 63566/00, (para 25); De Moor v Belgium [1994] 18 EHRR 372 (paras 54-55) and Beles v Czech Republic, 12 November 2002, 47273/99, (paras 60-62, 69). Under reference to Martin v United Kingdom 1999 SCCR 941, the petitioner felt constrained to state that he was not conceding that the sifting system was compatible with the Convention but presented no further submission in this area.

[24] The Crown had lodged a written response to the petitioner's submissions. This emphasised that the Crown were not conceding that the use of a petition to the nobile officium was competent to review the refusal of leave to appeal in respect of the stated case. Akram v HM Advocate (supra) had been wrongly decided. However, in any event, the reasons advanced for refusing leave to appeal were "unimpeachable". They had dealt with the issues raised in the stated case. The petition was an attempt to review that refusal on its merits, a procedure regarded as incompetent in Beck, Petitioner (supra) (para [39]). There was no requirement for judges to look for potential grounds of appeal not contained in the stated case. The obligation to give reasons was confined to the issues raised in what was a summary proceeding (McSorley, Petitioner 2005 SCCR 508 (para [15]). There was no requirement to give the type of reasoned opinion issued after a substantive hearing on an appeal. It was sufficient, in terms of Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, that the reasons left the well informed observer with no doubt that the issues raised had been dealt with and what the basis for the decisions were.

[25] The Crown continued by submitting that sentences here had not been excessive. On charge (1) a maximum of six months had been available to the Sheriff. He had considered that only imprisonment was appropriate for the reasons he had given in the stated case (pp 29-30). On charge (2) a maximum fine of £5,000 had been available and the Sheriff had been entitled to impose the alternative.

[26] It is not necessary, for the disposal of this case, to determine the issue of whether it is ever competent to attempt to review a decision to refuse leave to appeal by way of a petition to the nobile officium. Akram v HM Advocate (supra) is authority for the proposition that, in a summary case, it is competent to review such a decision by this method in cases where the judges sifting the appeal have failed to give adequate reasons; in that case to give reasons dealing with a point raised by the applicant between the first and second sift (cf 1995 Act ss 180 (1), (2) and (5)(a)). Akram has been subject to considerable criticism, especially by the Full Bench in Beck (at para [42]). The basis for the criticism is that the majority in Akram were effectively reviewing a decision taken on the merits of an application for leave to appeal rather than detecting an article 6 infringement. In that regard it is to be noted that the court in Akram did not have the advantage of having before it a substantive argument based on the need for finality (cf Beck at para [5]). It is sufficient for the disposal of the petition to find, as the court does, that there is no inadequacy in the reasons given at second sift. In that connection, the principle that adequate reasons require to be given for substantive decisions has been a feature of Scots law long before the introduction of article 6. The giving of reasons not only enables the parties and others to determine whether a fair trial has occurred but also assists a party in deciding whether to exercise any right of appeal. Where, as here, there is a statutory requirement to give reasons (s 180(5)(b)(i)), the court:

"must give proper and adequate reasons for [its] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader... in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it" (Wordie Property Co v Secretary of State for Scotland (supra), Lord President (Emslie) at 348).

[27] The petition is concerned only with the decision to refuse leave to appeal against sentence. There is some force in the proposition that the first sift judge applied the wrong test when sifting the case. He expressed this as whether there was a "reasonable prospect" of persuading the court that the Sheriff's disposal was "within the proper exercise of discretion". Although he later explained that what he had said was just another way of saying that it was "not reasonably arguable" that the sentence was excessive, the fact is that the two phraseologies are quite different. However, the matter proceeded to the second sift under section 180(4) of the 1995 Act and the first sift judge's reasoning was not adopted.

[28] It is important to notice the context of the second sift decision. The terms of the application for the stated case have already been noted. However, at the conclusion of the adjustment period for the stated case, the only question which was posed in relation to sentence was: "3. Were the sentences I imposed excessive?". There appears to have been no other question proposed by the petitioner at adjustment, such as one relating to the competency of the sentences or alleging a failure to take into account statutory provisions, such as section 204(2) of the 1995 Act. The only matter which the second sift judges required to determine on the issue of sentence was therefore whether they were "excessive". That is what was determined. The Sheriff had explained why he had imposed a period of imprisonment, which was, in practical terms, the only live issue. The second sift judges determined that there was no arguable ground of appeal on sentence because of "the serious nature of the offences" as described by the Sheriff. This was a clear, adequate and readily understandable explanation for the decision to refuse leave to appeal.

[29] The petition complains that the judges made no reference to the statutory protection contained in section 204(2) of the 1995 Act. That is correct, but there is no reason to suppose that the three highly experienced judges who refused leave or indeed the Sheriff, who is also very experienced, were unaware of what is such a well known statutory provision applied on a daily basis in the courts of first instance and appeal. No doubt had the matter been raised in the stated case, the Sheriff and the sifting judges would have made express reference to it. In any event, the court is content to proceed on the basis that the statutory provision, which restricts imprisonment for those not previously incarcerated unless there is no appropriate alternative, would inevitably have been to the forefront of the thinking of both the Sheriff and the sifting judges.

[30] The petition also complains that there is no adequate reason given in relation to the alternative disposal in charge (2). However, that is because there is no specific question raised in connection with that matter. In any event, as already noted, this was hardly the live issue. Were leave to appeal to be refused in respect of the sentence on charge (1), the sentence on charge (2) became effectively academic unless, as was not suggested , the petitioner had commenced paying the instalments.

[31] Finally, it should be affirmed that the power given to the court in section 180(7) of the 1995 Act to specify arguable grounds of appeal, whether or not they are contained in a stated case, does not carry with it an obligation to search for such grounds outwith those which the applicant himself raises (see Beck, para [39]) .

[32] The prayer of the petition is therefore refused.

6. Delay

[33] Despite the absence of any reference to it in any of the applications before the Court on the first day of the hearing, the petitioner also sought to persuade the Court that the delay which had occurred since the sentences had been pronounced made a return of the petitioner to prison inappropriate or unfair. Suffice it to say that the petitioner was tried within a reasonable time of the offences, being convicted after trial in November 2003 for offences occurring in April 2001. There was some delay in dealing with his appeal, but that was entirely because the petitioner's agent had told the Sheriff that he was not proceeding with his appeal by stated case. He was refused leave to appeal in July 2005. In terms of this decision, that ought to have brought an end to the proceedings. However, the petitioner elected to proceed with a Bill of Suspension in November 2005, which raised matters of competency which could have been dealt with in the Stated Case. He delayed presenting his petition to the nobile officium until July 2007. Although it is regrettable that it took until May 2010 for a hearing to take place (and the reasons for that are not apparent), the basis upon which the petition proceeded was unfounded; being effectively a belated attempt to review the merits of a decision on leave to appeal taken many years previously.