Appellant: Fyffe, solicitor advocate; Paterson Bell, solicitors (for Bruce Short, Solicitors, Dundee)

Respondent: Brown QC, AD; Crown Agent

14 March 2012

Section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993

[1] Where a released prisoner or detainee is convicted of any further offence committed prior to the expiry of a previous custodial sentence, section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act") empowers the court to order his return to custody for a maximum potential return period equivalent to the length of time between the date of the new offence and the expiry date of the original sentence. In the exercise of a wide discretion, subsection (2)(a) envisages that the court may make a return order of lesser duration or even no such order at all. That discretion, as is well settled, falls to be exercised by reference to the whole circumstances of a given case, including the nature and gravity of both former and new offences and the offender's record generally. For the purposes of these proceedings, we do not understand it to be disputed that account may also be taken of the timing of the new offence with regard to the post-release period, and in addition of the conduct and personal circumstances of the offender himself.

[2] In implement of subsection (5)(b), such a return order is most commonly made to be served before, and to be followed by, whatever sentence may then independently be imposed for the new offence. The independence of the two exercises is perhaps at its most striking where the previous custodial sentence was imposed by a higher court, necessitating a referral to that court (under subsection (2)(b)) for section 16 purposes before the lower court can then proceed to sentence for the new offence.

[3] Furthermore, in terms of subsection (5)(a), a return order under section 16 is only "...taken to be a sentence of imprisonment for the purposes of this Act and of any appeal". This has the effect of bringing into play the early release provisions contained in section 1 of the same Act, and also permits the offender (or for that matter the Crown) to take advantage of the sentence appeal provisions contained in the Criminal Procedure (Scotland) Act 1995. Significantly, however, the deeming definition does not ex facie extend to other provisions of the 1995 Act, nor have we been made aware of any provisions of that later Act which expressly refer back to section 16.

The present appeal

[4] For offences of reset to which he pled guilty at Dundee Sheriff Court on 22 September 2011, the appellant was, first, made subject to a 3-month return order under section 16 of the 1993 Act and, second, sentenced to 22 days and 5 months imprisonment respectively for the two new offences. In challenging the length of the sentences imposed for the new offences, the appellant maintains that he should have received a full discount for an early plea whereas the custodial terms of 22 days and 5 months were identical to those imposed on a co-accused who had not pled guilty at all. At para [7] of his report, in a burst of Latin, the sheriff concedes that this was an inadvertent error on his part and that after discount the terms should have been 14 days and 100 days respectively. So far so good.

[5] But the appellant here goes further in maintaining that he should also have had a full discount on the 3-month return order which the sheriff made against him under section 16 of the 1993 Act. In developing that proposition before us today, and under brief reference to Stuart v HM Advocate 2010 SCCR 498 and McKimm v Carnegie 2000 SCCR 466, Mr Fyffe's primary point was that the terms of section 196 of the 1995 Act, regulating sentencing discounts, were wide enough to encompass what was a punitive order under section 16 as well as the subsequent sentence for a new offence.

[6] So far as relevant for present purposes, section 196 provides as follows:-

"(1) In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court shall take into account -

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which that indication was given.

(1A) In passing sentence on an offender referred to in subsection (1) above, the court shall -

(a) state whether, having taken account of the matters mentioned in paragraphs (a) and (b) of that subsection, the sentence imposed in respect of the offence is different from that which the court would otherwise have imposed, and

(b) if it is not, state reasons why it is not.

....."

[7] According to Mr Fyffe a section 16 return order was an "order" falling within the scope of section 196(1). Conviction for a new offence was the trigger for such an order, and there was no reason in principle why a section 16 order should be any less susceptible to discount than the sentence which would follow on the same conviction. Admittedly the plea of guilty had no extra utilitarian value for section 16 purposes, since section 16 was triggered automatically by the conviction and required no plea or proof on its own account. Nevertheless, the same might be said of a libelled bail aggravation which would normally attract discount although in practice no additional proof would be required.

[8] All in all, it was said, the sheriff here should have applied the same discount to the section 16 return order as to the sentences imposed for the new offences to which the appellant had pled guilty. Quite simply that was what section 196, on the natural and ordinary meaning of its terms, required.

Discussion

[9] In our opinion, however, agreeing with the contrary position advanced by the Crown, there are a number of considerations which tend to indicate that the appellant's argument is unsound. First, the breach of trust inherent in the commission of a new offence by a released prisoner or detainee during the unexpired portion of a previous sentence is not of itself the subject of any charge to which a plea of guilty may be tendered. On the contrary, the potential for a section 16 return order arises automatically, and without the necessity for any proof or plea, as soon as the conviction for a new offence is recorded.

[10] Second, the maximum potential length of a return period under section 16 is precisely the same whether the fresh conviction proceeds on a plea of guilty or after trial.

[11] Third, the maximum potential return period will frequently be restricted in consequence of a discount having been applied at the time when the original sentence was imposed. In such a case, any further discounting of an already discounted period would seem inappropriate.

[12] Fourth, the making of a section 16 return order and the subsequent passing of sentence for the new offence are acknowledged to be separate and distinct exercises. They may indeed be undertaken (as for example on a referral under subsection (2)(b)) by different courts at different dates and in different circumstances. In that context cooperative behaviour in the lower court may be matched by a lack of cooperation in the higher, and we are certainly not attracted by the proposition that section 196 of the 1995 Act somehow requires the same level of discount to be applied at each independent stage.

[13] Fifth, as Mr Fyffe very fairly acknowledged, it is thought to be the objective utilitarian value of a plea of guilty which merits a discount rather than subjective considerations of remorse or contrition: cf. the decision of the majority in Gemmell v HM Advocate 2011 HCJAC 129. However, Mr Fyffe was unable to identify any extra utilitarian value which might flow from a plea for section 16 purposes, especially where the triggering of the section 16 jurisdiction frequently increases, rather than diminishes, demands on judicial and administrative resources.

[14] Sixth, the terms of section 196(1A), which provide the statutory mechanism for discounting under the 1995 Act, appear to be framed with the ultimate sentencing exercise in mind (that is, the passing of "a sentence...in respect of a crime or offence..." in terms of section 307(1)) rather than the antecedent imposition of any return order which, as defined in section 16(5)(a) of the 1993 Act, would not have been a "sentence" for section 196 purposes. To our mind this again tends to indicate that the intended scope of subsection (1) is not as wide as Mr Fyffe contended. If subsection (1A) would not be applicable at the section 16 stage, in other words, then it is hard to see why subsection (1) should apply then either.

[15] Seventh, on a straightforward reading of its terms, there is no obvious reason why the intended scope of section 196(1) should be taken to extend beyond whatever sentence, disposal or other order may be imposed for a new offence to which the offender has pled guilty. In that context, it may be noted that the section is headed "Sentence following guilty plea"; the term "offender" seems to us to refer to the perpetrator of a libelled new offence to which a plea of guilty may competently be tendered; in the same vein the phrase "...the proceedings for the offence" would appear to concern the new offence and the stage at which the offender indicates an intention to plead guilty to that; and in our judgment it would be straining the language of the subsection to apply it to a deemed breach of trust to which the relevant complaint or indictment makes no reference and to which no plea of guilty can competently relate.

[16] Taking all of these considerations into account, we have come to the conclusion that this aspect of the appeal must fail. While a court may potentially take some account of a released prisoner's conduct as one of the factors relevant to the exercise of a wide discretion under section 16 of the 1993 Act, there is in our view no warrant for going further and holding that, at that stage, the offender has any claim to discount by virtue of section 196 of the Act of 1995. These statutory provisions and their equivalents south of the border have of course now been in operation for some time, and as the learned Advocate Depute submitted it is not without significance that the appellant could identify neither practice nor authority capable of supporting his primary argument.

Disposal

[17] In the result, we are not persuaded that the sheriff erred in imposing an undiscounted section 16 return order in this case. In the exercise of a wide discretion, he was well entitled to select 3 months as an appropriate return period for both the appellant and his co-accused, and we can see no basis on which this court might now properly interfere. In line with the sheriff's concession, however, we propose to quash the new sentences which he imposed, and in their place to substitute consecutive sentences of 14 days and 100 days respectively. The 3-month return period under section 16 will remain as it is, and the substituted new sentences will, in turn, run consecutive to that.