Scottish High Court of Justiciary Decisons

Appellant: G Jackson, Q.C., C Mitchell; McClure Collins, Edinburgh

Respondent: D Bain, Q.C., A.D.; Crown Agent

19 June 2009

The background circumstances

[1] The appellant faced a complaint in Hamilton Sheriff Court containing six charges. His plea of guilty to charges 1, 3 and 6 was accepted by the respondent. Charge 1 was a charge of assault; charge 3 was one brought under section 41(1)(a) of the Police (Scotland) Act 1967, "the 1967 Act"; and charge 6 was a charge of breach of the peace. On charge 1 a sentence of four months' imprisonment was imposed. On charge 3, the sentence was one of six months' imprisonment. On charge 6, the appellant was sentenced to two months imprisonment. The sentences of four months on charge 1 and six months on charge 3 were ordered to run consecutively. Thus the sentences imposed totalled ten months' imprisonment. The offences in charges 1 and 3 were committed on separate dates.

[2] The grounds of appeal tabled by the appellant, so far as they are relevant to this opinion, were in the following terms:

"The sheriff did not have power to impose a sentence of ten months. This is a summary matter and the maximum sentence which could have been imposed on one complaint provided that complaint included the charge of contravening the Police (Scotland) Act 1967 which it does is 9 months ... It is submitted that the sheriff exceeded her powers in respect of ordering charges 1 and 3 to run consecutive to each other. The said total sentences imposed could not exceed 6 months in these circumstances. Had the sheriff imposed a sentence of 9 months imprisonment in respect of charge 3 on the complaint then that would have been entirely competent in all the circumstances but said sentences [sic] of imprisonment in respect of charge 3 was limited to one of 6 months. As a consequence the total sentence to be imposed by the sheriff should not have exceeded 6 months. In making the 4 months for charge 1 consecutive with the 6 months then the sentencing power of the sheriff has exceeded the maximum level of 6 months. ...".

[3] This appeal came before a court constituted by two judges on 7 March 2007. On that occasion that court decided to remit the appeal to a court of five judges for the reasons set out in the opinion issued on that date. It is appropriate to reproduce in part what was said in that opinion:

"
[2] The Sheriff has now recognised that the sentence which she imposed was not a competent one, upon the basis that she was confined to a maximum sentence of nine months' imprisonment, upon the reasoning that the maximum sentence available in relation to the section 41(1)(a) of the Police (Scotland) Act 1967 charge was one of nine months' imprisonment and also upon the basis of what was said in Nicholson v Lees 1996 S.C.C.R. 551.

[3] When the matter came before us today, it was submitted on behalf of the appellant that, in fact, the maximum sentence available to the Sheriff was one of only six months' imprisonment. That submission was made because six months' imprisonment was the duration of the sentence actually imposed on charge 3, the charge under section 41(1)(a) of the Police (Scotland) Act 1967; it was said that that result followed from the decision in Fleming v Munro 1997 S.C.C.R. 527. That case apparently decided that what the Sheriff did there was contrary to the 'spirit of the legislation'. The circumstances were that the complainer in a Bill of Suspension was convicted on summary complaint of two charges of breach of the peace, for which the maximum penalty available was three months' imprisonment, and three contraventions of the Police (Scotland) Act 1967, section 41, for which the maximum penalty available was nine months' imprisonment. The Sheriff sentenced the complainer to three months' imprisonment on one of the breach of the peace charges and to six months' concurrent imprisonment on each of the other charges, these to be consecutive to the three-month sentence, that is to say, to a total of nine months' imprisonment.

[4] Having considered what was said in Fleming v Munro, it appears that the Court's decision, which we have had some difficulty in following, proceeded on the basis of a concession by the Crown. We have been unable to understand exactly what principle was being applied in Fleming v Munro and we have doubts as to its soundness. In these circumstances, we consider that that case, which was a decision by three judges, should be the subject of consideration by a larger court, since it deals with a situation which is of relatively common occurrence. We think that the issue involved ought to be the subject of clarification. We do not see Fleming v Munro as in any way following or implementing what was said in Nicholson v Lees, although that was what the Court purported to do. In these circumstances, we shall remit this case to a Court of five judges for the purpose of a reconsideration of Fleming v Munro."

Submissions of the appellant

[4] The sheriff in the present case had accepted that she had misdirected herself in imposing a total sentence of ten months imprisonment; she considered that the maximum sentence available to her in the circumstances was one of nine months imprisonment. However, at the earlier stage of the appeal, it had been submitted that the sheriff was not entitled to impose a sentence of nine months duration, following dicta in Fleming v Munro 1997 S.C.C.R. 527, at pages 528 to 529. In that case, a Bill of Suspension had been brought in respect of sentence following the complainer's conviction on two charges of breach of the peace, for which the maximum penalty was three months' imprisonment, and three contraventions of section 41(1)(a) of the 1967 Act, for which the maximum penalty was nine months' imprisonment. The sheriff had sentenced the complainer to a total of nine months' imprisonment, being three months' imprisonment on one of the breach of the peace charges and six months concurrent on each of the other charges, but those sentences were to be consecutive to the three month sentence previously referred to. Accordingly the overall sentence imposed was one of nine months' imprisonment. It had been argued that it was not competent to impose a sentence in excess of six months' imprisonment, as the sheriff had restricted his sentencing power by not imposing a sentence in excess of six months' imprisonment on the charge under section 41(1)(a) of the 1967 Act. The court had accepted that the sheriff had so restricted his powers, upon the basis of a Crown concession; if it were proposed to impose sentences which totalled the maximum available on a particular charge in the complaint, it had to be done by way of imposing the maximum penalty for the offence which attracted the greatest penalty.

[5] Senior counsel submitted that the case of Fleming v Munro had been correctly decided and should be followed in the present case. When Parliament had authorised the maximum sentence available on a charge under section 41(1)(a) of the 1967 Act, it had intended only to give the court additional powers in relation to sentencing for that particular kind of offence. It was submitted therefore that, where the sentence actually imposed on the charge which could attract the largest sentence did not exceed six months, the sheriff ought not to use his sentencing power on that charge to increase any sentence on other charges. Senior counsel went on to draw our attention to the decisions in Nicholson v Lees; Jackson v McFadyen 2001 S.C.C.R. 224; and Hepburn v Howdle 1998 J.C. 204; 1998 S.C.C.R. 363. He then went on to address us on the sentences actually imposed, having regard to the particular circumstances of the case, to which it is unnecessary to refer in detail.

Submissions of the respondent
[6] The original position taken up on behalf of the respondent by the Advocate depute was that, in the particular circumstances of this case, the sheriff would have been entitled to impose a maximum sentence of only six months' imprisonment, if appropriate, taking the form of consecutive sentences up to an aggregate of that period. The Advocate depute drew our attention to several authorities considered relevant to the circumstances. The first of these was Maguiness v MacDonald 1953 J.C. 31, which was concerned with the imposition of a cumulo penalty. In that case, the appellant had pled guilty on a summary complaint to having, on eight different occasions, made to officials of the National Assistance Board statements and representations which he knew to be false, for the purpose of obtaining benefit for himself, contrary to section 52(1)(a) of the National Assistance Act 1948. That enactment authorised the imposition of imprisonment for a term not exceeding three months. The sheriff imposed a sentence of nine months' imprisonment in cumulo. The court held that the sentence was incompetent in respect that, although the complaint fell to be read as embracing eight charges and the sheriff was therefore entitled to impose a cumulo penalty, the Act of 1948 had not extended the powers of the sheriff court in regard to imprisonment beyond the limits laid down in the Summary Jurisdiction (Scotland) Act 1908 and, accordingly, the sentence should not have exceeded the limit of three months' imprisonment provided by section 11 of the 1908 Act.

[7] Wishart v Heatly 1953 J.C. 42 dealt with the matter of consecutive sentences. The appellant in that case had pled guilty in the Burgh Court to a complaint containing three charges of breach of the peace, two charges of assaulting his wife and one charge of malicious mischief. He was sentenced to twenty days' imprisonment in respect of two charges taken together and to twenty days' imprisonment in respect of each of the remaining four charges, the sentences to run consecutively, with the result that he was required to serve in all a period of 100 days imprisonment. The court held that the sentence was incompetent since, under section 7 of the Summary Jurisdiction (Scotland) Act 1908, the magistrate was entitled on convicting of a common law offence only to award imprisonment for any period not exceeding sixty days. But despite the fact that it was within the power of the magistrate to impose consecutive sentences, it was held that that power did not supersede the restriction contained in section 7 of the 1908 Act.

[8] The Advocate depute went on to draw our attention to Nicholson v Lees. Reference was made particularly to the observations of Lord Justice Clerk Ross at page 558. That case showed that the power to impose a particular sentence had to be prescribed by statute. It appeared to state that it was the maximum possible sentence and not the actual sentence imposed on a particular charge which dictated the highest aggregate sentence that could be imposed. In Nicholson v Lees however the Crown had made a concession which appeared subsequently to have been followed in Fleming v Munro. The terms of that concession were explained at page 557. It was to the effect that the maximum sentence which could be pronounced in the circumstances was limited to six months' imprisonment, having regard to the sheriff's decision to fix the sentence of six months for the contravention of section 41(1)(a) of the 1967 Act.

[9] It was submitted that, although that concession was referred to and not criticised by Lord Prosser in Jackson v McFadyen, it was not in fact accepted by the court itself in Nicholson v Lees. The concession was however disapproved in Hepburn v Howdle at pages 366 to 367 by Lord Justice Clerk Cullen. In Fleming v Munro the decision appeared to have been based on the assertion that it was implicit in Nicholson v Lees that the maximum available aggregate sentence must be limited to the highest sentence actually imposed on the single charge with the highest penalty. However it was submitted that that was not the basis of the decision in Nicholson v Lees. In Fleming v Munro, it was said that the approach there taken was based upon "the spirit of the legislation". It was submitted that that was an assertion without foundation; it was not clear what legislation was intended to be referred to. In any event, if the decision in Fleming v Munro were correct the total aggregate sentence could never exceed the maximum sentence imposed in fact on any of the charges in a complaint. If that were the case, effectively it would be impossible to impose consecutive sentences. Yet the competence of consecutive sentences had been emphasised in a number of cases. In support of that, reference was made to Thomson v Smith 1982 S.C.C.R. 57, McEwan v HM Advocate 1995 S.C.C.R. 509 and Nicholson v Lees, particularly the observations of Lord Justice Clerk Ross at page 559. In all these circumstances it could be argued that Fleming v Munro had been wrongly decided. After further consideration, the final position of the Crown on the powers of the sheriff in the present case was that, in the particular circumstances of this appeal, the sheriff would have been entitled to impose a maximum sentence of nine months' imprisonment and consecutive sentences up to an aggregate of that sum, upon the basis of the powers available to her derived from the provisions of the 1967 Act. At the material time the maximum penalty applicable to any contravention of section 41 of that Act was nine months' imprisonment.

The decision

[10] Whatever may have been the position in the more distant past, since the enactment of the Summary Jurisdiction (Scotland) Act 1908, section 11(4), the powers of the sheriff to award imprisonment as a sentence upon a summary conviction have been generally limited by statute. That enactment provided for imprisonment not exceeding three months in duration. That general limit has subsequently been modified and increased. The position now, of course, is that, where the first calling is, or warrant under section 135 or 139(1)(b) in relation to a summary complaint was granted on or after 10 December 2007, the maximum is twelve months' imprisonment in terms of section 5(2)(b) of the Criminal Procedure (Scotland) Act 1995, as amended by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. For cases before that date the maximum was three months, or six months for a second or subsequent offence inferring dishonesty or personal violence. It was, however, the position, at least prior to 10 December 2007, that certain particular statutes provided for sentences of imprisonment, on summary conviction, in excess of the maxima described. An example of such a statute was the 1967 Act.

[11] As we understand matters, the Crown is not aware of any statutory offence for which the legislature has prescribed a maximum prison sentence on conviction in summary proceedings which is greater than the increased, general limit of twelve months' imprisonment applying after 10 December 2007, following the amendment of section 5(2)(b) of the 1995 Act. So the issue presented for decision in the current appeal is one which, for the present, is less likely to arise than formerly.

[12] Reverting to that issue, the importance of the general limits on the power to award imprisonment following upon summary conviction was emphasised in Maguiness v MacDonald, in the context of a recognition of the power of the sheriff to select a cumulo penalty. The particular circumstances of that case are not significant in the present context, but the observations of Lord Justice General Cooper appear to us to be important. Having considered the hierarchical structure of the criminal courts in Scotland and the power, then enshrined in section 53 of the 1908 Act, to impose a cumulo sentence, the Lord Justice General went on to observe at page 35:

"... but that power must be read subject to the overriding limitations on the Court's powers of punishment. ... Only clear and explicit provision would suffice in my view to justify the conclusion that it was intended to impart to minor Courts a penal jurisdiction out of harmony with our established system, the presumption being that, in the absence of direction to the contrary, each Court is to remain vested with the powers conferred upon it by our common law or the public general statutes regulating criminal procedure."

Thus, while acknowledging the power of the sheriff to select a cumulo sentence where he was dealing with convictions on several charges under summary procedure, the dominance, or over-riding effect, of the general limit on the power to impose imprisonment was affirmed. In Wishart v Heatly the court was concerned with the imposition by a magistrate in a burgh court of sentences which were ordered to run consecutively and which, in total, exceeded the upper limit of sixty days' imprisonment applicable in a burgh court by virtue of section 7 of the 1908 Act. Once again the court affirmed the overall dominance of that general limit on sentencing power.

[13] The sentencing powers of a sheriff sitting in summary proceedings were considered in detail in Nicholson v Lees, a decision by a bench of five judges. The sheriff had been dealing with a situation in which the appellant had pleaded guilty (a) to a charge of police assault, contrary to section 41(1)(a) of the 1967 Act, the maximum penalty for which was nine months' imprisonment, and (b) to a charge of driving while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988, for which the maximum penalty was six months' imprisonment. The charges were on two separate complaints for technical reasons, but related to a single incident in which a police constable had stopped the appellant's car, whereupon the appellant had got out of the car and assaulted the constable. The sheriff sentenced the appellant to six months' imprisonment on each charge and ordered the sentences to run consecutively. The appellant appealed to the High Court against that order. The court affirmed that the sheriff was entitled to impose concurrent or consecutive sentences. Where two or more charges appeared on one complaint, the highest custodial penalty which could competently be imposed was the maximum prescribed for the charge which carried the highest penalty. The same rule applied where the charges were contained in more than one complaint or indictment, but fairness required the various complaints to be treated as if they were one. As appears from page 557 of the report, in the narrative given by Lord Justice Clerk Ross, it is recorded that the Solicitor General accepted that the maximum sentence which could have been pronounced in the circumstances was six months' imprisonment, having regard to the sheriff's decision to fix a sentence of six months for the contravention of section 41(1)(a) of the 1967 Act. The maximum sentence which could be imposed in respect of a contravention of section 103(1)(b) of the 1988 Act was six months and the sheriff was not entitled to impose on the two complaints sentences which exceeded that maximum. He considered that the correct course for the court to follow was to quash the sentence of imprisonment imposed on the second complaint and to substitute for that a sentence of six months' imprisonment to run concurrently with the sentence imposed on the first complaint. At page 558, the Lord Justice Clerk set out certain rules relating to the maximum sentencing power of a summary court in this way:

"1. Where two or more charges are contained in a single complaint, the court cannot competently impose a total period of imprisonment which exceeds in aggregate the upper limit permitted for that court in the particular case by common law or statute. That rule is to be found in the case of a cumulo sentence of imprisonment in Maguiness v MacDonald and in the case of consecutive sentences in Wishart v Heatly.

Where two or more charges each attract a different maximum, the highest penalty which can competently be imposed is the maximum prescribed for the charge which carries the highest penalty. So, for example, in the present case in the first complaint, since the maximum sentence permitted for charge (6) was nine months, that was the maximum sentence which could be imposed on that complaint. ...

2. The same rule applies in cases where two or more charges are contained in more than one complaint, but fairness requires the various complaints to be treated as if they were one. ...

3. Where two or more charges are contained in more than one complaint, and fairness does not require that they be treated as one, it is competent to impose sentences of imprisonment which add up to more than the maximum which could have been imposed in respect of one complaint. ...".

[14] In the formulation of the first of these rules, the Lord Justice Clerk did not enter upon a consideration of how the maximum sentence permitted for charge (6) on the first complaint, the charge of contravention of section 41(1)(a) of the 1967 Act, could affect, if at all, the maximum sentence which could be imposed overall, if the particular maximum sentence on the first complaint had not been imposed respecting the offence on that complaint. As will appear from what we say subsequently, that issue has been dealt with in other cases. What the Lord Justice Clerk said in the second part of his exposition of Rule 1 must be understood in the light of those subsequent cases.

[15] It is necessary next to examine Fleming v Munro, which was the subject of some controversy in the discussion before us. In that case the complainer in a Bill of Suspension was convicted on summary complaint of two charges of breach of the peace, for which the maximum penalty available was three months' imprisonment, and three contraventions of the 1967 Act section 41, for which the maximum penalty available was nine months' imprisonment. The sheriff sentenced him to three months' imprisonment on one of the breach of the peace charges and to six months' concurrent imprisonment on each of the other charges, those sentences to be consecutive to the three months sentence. Thus the total sentence was one of nine months' imprisonment. That sentence was challenged as incompetent. What the court did in that case was to pass the Bill and make the consecutive sentence of three months' imprisonment concurrent with the six month sentences. It is appropriate to note how the complaint concerning the competency of the sentence originally imposed was formulated. Lord Justice Clerk Cullen, at page 528 of that case said this:

"The fundamental point that he [Mr Wheatley, the solicitor for the complainer] put forward was that the sheriff had exceeded his sentencing power. While it was no doubt open to him in respect of each of the charges of contravention of the Police (Scotland) Act 1967 to impose up to a maximum of nine months, the sheriff plainly did not do so. He referred us to the terms of the sheriff's report in which he indicated that he limited himself to a sentence of six months' imprisonment, having regard to the fact that the complainer had little record for violence and none for any previous contravention of section 41. In these circumstances, by sentencing the complainer to nine months overall, the sheriff had gone beyond what was open to him in exercising his sentencing powers. Mr Wheatley pointed out that, if what the sheriff had done was correct, it could mean that a person who had had the benefit of a reduction from the maximum in regard to one charge, might be placed in a worse position than someone who did not enjoy that reduction. In those circumstances, what the sheriff had done was contrary to the spirit of the legislation. His motion was that we should quash the consecutive three-month sentence and make that three-month sentence concurrent.

The advocate-depute did not resist that motion. He drew our attention to what had been said in the case of Nicholson v Lees and indicated that in that case it was implicit that the court had taken a view which was in line with the submission which Mr Wheatley advanced in the present case. We are entirely satisfied that the complaint in the bill of suspension is well founded."

[16] We are satisfied that the decision which the court reached in Fleming v Munro was correct. It is our view that where some particular statutory enactment provides for a sentence of imprisonment in respect of an offence greater than the sentence which a sheriff may impose generally and that enhanced power is used within its own limits, in respect of the charge libelling that particular statutory offence, then plainly the sentence imposed will be a competent one. However, if a sheriff does not avail himself of that enhanced power, that power cannot be seen as, in some way, authorising a departure from the more general limitation on the sheriff's power to imprison. As regards the position taken up by the Crown in that case, we see it as a correct one. The example was canvassed in argument of the Crown having included in a summary complaint a charge of a contravention of section 41 of the Police (Scotland) Act 1967 which was so minor that the sheriff appropriately admonished the accused on that charge. There is no reason why the inclusion of that charge should give the sheriff an enhanced sentencing power respecting some other, common law offence. Nor why the inclusion of that charge should affect, by increasing, the limit in section 5(2) of the 1995 Act, but not, apparently, other express limits applicable to other specific statutory offences, which might dictate a lower maximum than the general limit.

[17] Turning now to Hepburn v Howdle, the background to the case was that the provisions of section 5(2)(d) of the 1995 Act, as then in force, provided that the sheriff, in exercising summary jurisdiction, had a power to impose a sentence of not more than three months for any common law offence. Section 5(3)(a), since repealed, provided that, in the case of a person convicted of a second or subsequent offence inferring dishonest appropriation of property the maximum period of imprisonment available was six months. The appellant, who had a long record for dishonesty, pleaded guilty to a summary complaint containing a charge of theft and a charge of breach of the peace. He was sentenced to three months' imprisonment on each charge, the sentences being ordered to be consecutive. He appealed to the High Court against sentence on the ground, inter alia, that the sentence was incompetent because the sheriff had no power to impose a total sentence exceeding that actually imposed for the offence carrying the greater penalty. He relied on the concessions made by the Crown in Fleming v Munro and Hamilton v Heywood. The court actually held that the general limit provided by section 5(3)(a) replaced that under section 5(2)(d) in cases where there was a charge which attracted the former provision and that it was of no consequence what combination of sentences was adopted, so long as the overall total of six months was not exceeded. It also held that, where Parliament had provided a higher maximum sentence, there was no principle which would justify placing a limit on the maximum sentence other than that derived from the maximum available on any single charge and that the concessions had been wrongly made. The appeal was refused.

[18] At page 206B-C [J.C. Report]; 365B-C [S.C.C. Report], the Lord Justice Clerk, delivering the opinion of the court, observed:

"In our view the plain meaning of subsection (3)(a) is to increase the general limit of the sheriff's sentencing power in regard to offences at common law where there is a charge which attracts the application of that provision. In that situation the general limit provided by subsection (3)(a) replaces that under subsection (2)(d). Accordingly it is of no consequence what combination of sentences is adopted, so long as the overall total of six months is not exceeded. Likewise it is of no consequence what sentence is imposed in respect of the charge which attracted the application of the provision and whether the sentences imposed are consecutive or concurrent."

However, having gone on to consider what the court thought to be the wider arguments presented with reference to Nicholson v Lees, at page 207G-208C/366F-367C, the Lord Justice Clerk said:

"It was, however, recognised that Parliament might increase the sentence which could be imposed in summary proceedings if it were so minded. Where Parliament has provided a higher maximum sentence, we do not see that there is any principle which would justify placing a limit on the maximum sentence other than the limit stated in the first rule in Nicholson v Lees, namely that derived from the maximum available on any single charge. To adopt the argument advanced on behalf of the appellant would create a situation where the prosecutor could not predict what was the greatest sentence which could be imposed on a complaint. Thus, in a case in which the complaint included the charge of police assault, the maximum sentence would be nine months' imprisonment if the sheriff chose to impose that sentence, but if he chose to impose only a six-month sentence or a three-month sentence on that charge, that would become the maximum available on the whole complaint. Such a rule would be unduly restrictive and we do not see that there is any compelling reason to adopt it. Thus, if Parliament has extended the power of a court of summary jurisdiction in regard to a particular type of charge, we see no reason why that extension should not have the effect of extending the power of the court in regard to the complaint as a whole. In the light of the full argument which we have heard, we regard the concession made by the Crown and accepted by the court in Fleming v Munro and Hamilton v Haywood as having been wrongly made and we do not follow the decisions in those cases. In all these circumstances, we reject the appellant's argument."

[19] We have come to the view that the observations just quoted, which were unnecessary for the decision, are erroneous. As we see matters, where Parliament enacts a power to award imprisonment up to a specified maximum, following upon conviction for some particular offence, in relation to which the enactment is made, that power is available only in respect of the particular offence to which it relates. In our view, that rule must be seen as in accordance with the intention of Parliament in making such an enactment. We cannot accept that by some process of transference, which we do not understand, where there are other charges to which the power does not expressly relate, that power can be seen as enhancing the sentencing power of the court in relation to those other charges. As we have pointed out, in Maguiness v MacDonald the court was at pains to emphasise that a sheriff in summary proceedings had to adhere to the sentencing limitations imposed by Parliament.

[20] We do not agree with the observation made by the Lord Justice Clerk to the effect that to adopt the argument advanced by the appellant in Hepburn v Howdle would create a situation in which the prosecutor could not predict what was the greatest sentence which could be imposed on the complaint. It seems plain to us that no such situation would follow. In a complaint containing several charges, the prosecutor could readily understand that the maximum sentences which could be imposed would be those embodied in statute applicable to the particular charges in the complaint. Thus, for example, in a case in which the complaint included a contravention of section 41 of the 1967 Act, the maximum sentence available on that charge would be one of nine months. If the sheriff chose not to impose that maximum sentence, then, so far as other charges in the complaint are concerned he would be limited by the general limit on his sentencing power in summary cases, or alternatively by any specific limits imposed by statute in relation to those other charges.

[21] The Lord Justice Clerk goes on to observe that the rule contended for by the appellant in Hepburn v Howdle was one which would be unduly restrictive without any compelling reason for its adoption. As we see it, such a rule is neither unduly restrictive nor is there no compelling reason to adopt it. On the contrary, we detect a compelling reason not to do so in the need to respect the legislative intention of Parliament. Where Parliament has enacted an enhanced sentencing power in relation to a particular kind of offence, we see no logic or principle which would justify the use of that power in relation to other offences in respect of which it was not conferred. Indeed, to include within a summary complaint a technical allegation of a contravention of section 41 of the Police (Scotland) Act 1967, for example, in order to enhance the penalty available for a common law offence, such as breach of the peace, would, in our view be improper. We do not consider that it can have been the intention of Parliament, in enacting specific, higher specific penalties for a specific offence, to open up the road to such a practice. Thus we consider that the concessions discussed in Hepburn v Howdle made by the Crown and referred to by the Lord Justice Clerk were properly made. The decision in Hepburn v Howdle turned upon section 5(3)(a) of the 1995 Act. That subsection has now been repealed. It is unnecessary for us to express a view on whether the decision in Hepburn v Howdle was correct or not. We should make clear that the view which we have taken in relation to that case, in our opinion, can be reconciled with what was said by Lord Justice Clerk Ross in Nicholson v Lees at page 558.

[22] Having heard the submissions made to us in respect of the sentences actually imposed by the sheriff in this case and in light of the views which we have formed regarding the competence of the sheriff's sentence, we sustain the appeal. The consecutive sentences of four months' and six months' imprisonment imposed in respect of charges 1 and 3 in the complaint are quashed; we shall substitute therefor concurrent sentences of two months' imprisonment on each charge, resulting in a total sentence of two months' imprisonment commencing from 10 July 2006. We take that course because of the history of this case: the appellant pled guilty and was sentenced on 10 July 2006; after about five weeks in custody he was granted bail by the High Court; he has not been in trouble of any kind since then; his health is poor. A return to custody would not be justified. We shall direct that any period of imprisonment already undergone by the appellant under the sentences now quashed, which would have been taken account of in implement of those sentences shall reckon towards the implement of the substituted sentence.