Appellant: F Mackintosh; John Pryde & Co

Respondent: A Prentice, QC AD; the Crown Agent

21 February 2013

[1] The appellant pled guilty at a trial diet on 24 April 2012. The case was adjourned for a social work report. By May 2012 the appellant had been remanded in custody in England for new offences. At an adjourned diet in Scotland on 8 November 2012, the appellant had by then been sentenced in England for those new offences, receiving sentences of two years and nine months. The sheriff in Scotland, on 8 November 2012, imposed sentences of: charge 1 - seven months; charge 3 - seven months to run concurrently with charge 1; and charge 4 - three months to run consecutively, in other words a total of ten months. He ordered that the sentences should "run consecutively to any other sentence currently being served".

[2] Today Mr Mackintosh argued that it was incompetent for the sheriff to make the sentence consecutive to the English sentence. He referred to section 167(7) of the Criminal Procedure (Scotland) Act 1995 Act and its precursor, section 430(4) of the Criminal Procedure (Scotland) Act 1975. He also referred to Beattie v McLellan 1990 SCCR 497 and Russell v Macphail 1990 SCCR 628. He pointed out that there were two important differences in relation to the present case. First, there is now a statutory definition of "conviction" in section 307(1) of the 1995 Act, relating to convictions outside Scotland. That definition referred to a final decision of the court, establishing the guilt of a criminal offence, and was not therefore related to sentencing. The other difference, pointed out by Mr Mackintosh, were the periods of delay which had occurred in the present case.

[3] In response the advocate depute referred to the introductory words of section 307, namely: "In this Act, unless the context otherwise requires". He further referred to the High Court ruling in Russell v Macphail. In that case it was held that a court has a common law power to impose consecutive sentences of imprisonment in all circumstances where they are merited, on the principle that a custodial sentence should be effective where it is merited, and that that power is independent of section 430(4), that being the precursor of section 167(7). The advocate depute also referred to two passages, at pages 636F and 637E. We quote only the latter passage:

"We think that in all these cases the proper approach to the matter is simply this, that a power to impose consecutive periods of detention or imprisonment is available at common law in all circumstances which merit this disposal unless there is some provision in the statute which states expressly, or by necessary implication, that this cannot be done."

The advocate depute submitted that there was no provision in the statute which either expressly, or by implication, altered the common law power referred to in Russell v Macphail.

[4] We agree with the advocate depute and therefore, in our opinion, the court's common law power entitled the sheriff to do as he did. In relation to the periods of delay which have occurred in this case, that may go to the length of sentence imposed, but not to the competency of the sentence, or the consecutive nature of it.

[5] Turning then to the appropriateness, or length, of the sentences imposed, we take into account all the mitigatory factors put before us by Mr Mackintosh, but having regard to the nature of the offences, we are not persuaded that the sheriff erred. In the result the appeal is refused.

DL