Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 93

HCA/2015-002450/XJ

Lady Smith

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY SMITH

in

BILL OF SUSPENSION

by

SCOTT STEWART

Complainer ;

against

THE PROCURATOR FISCAL, STIRLING

Respondent :

Appellant: Mitchell; Faculty Services Limited

Respondent: Di Rollo AD; Crown Agent

28 October 2015

Introduction

[1]       In this Bill of Suspension, the complainer seeks to suspend two orders. First, an order of the sheriff dated 6 May 2015 in the following terms:

“…having considered the application to vary the Community Payback Order dated 19/01/2015, grants same and in terms thereof extends the period in which the order may be completed by three months.”

and, secondly, an order of a different sheriff dated 24 June 2015 in which he:

“...Revoked the Order and deferred sentence until 26 ^th August 2015…”.

[2]       The case had previously called on 2 June 2015 and was continued to 24 June 2015 because other matters relating to the complainer were due to call on that date.

[3]       The two orders of 6 May and 24 June are challenged as being incompetent.

Background

[4]       The factual background is as follows.

[5]       The complainer was, on 19 January 2015, sentenced by the sheriff at Stirling in relation to a contravention of the Misuse of Drugs Act 1971 sec 5(2) by the imposition of a community payback order (“CPO”). The only requirement of the CPO was that he undertake 60 hours of unpaid work. The time limit specified by the court for completion of the unpaid work requirement was within three months of the date of imposition of the CPO.

[6]       The complainer did not complete the 60 hours unpaid work within that three month period because, according to the Bill, “he received various custodial sentences/ remands which meant that it was impossible for him to do so”.

[7]       A “Criminal Justice Officer”, Pauline Blair, presented a form to the complainer headed “Extension Request” in terms which stated:

“The foregoing application requesting an extension of time to my Order has been explained to me and I agree to the application being processed in my absence.”

The complainer signed that form on 29 April 2015. Ms Blair lodged, at the sheriff court, a written application for variation of the CPO, requesting “a 3 month extension to allow Mr Stewart to attend and complete this order”. At no time did the complainer object to the application.

[8]       The order of 6 May (referred to above) was issued in response to that application.

[9]       However, the complainer then received another custodial sentence and Ms Blair lodged another application, dated 13 May, in which she advised:

“Mr Stewart has received a further custodial sentence, and will not be in a position of completing this Order within the given timescales. I therefore have no alternative but to alert the Court of Mr Stewart’s circumstances and return this Order to Court.”

[10]     The complainer was then, having been duly cited, brought before the court on 2 June for the application of 13 May to be considered and it was continued to 24 June, on which date the sheriff revoked the order and deferred sentence until 26 August.

Community payback orders: the relevant statutory provisions

[11]     The CPO is a creature of statute and it is necessary, when resolving the issue that arises, to consider the relevant statutory context. The provisions relating to CPOs are, in stark contrast to those relating to their predecessor – community service orders - complex and extensive. They are set out at length over 41 sections and in a schedule to the Criminal Procedure (Scotland) Act 1995: ss 227A-Z, 227ZA – ZO and Schedule 13.

[12]     The issue raised in the present appeal requires, in particular, consideration of the following provisions:

“ 227A. – (1) Where a person (“the offender”) is convicted of an offence punishable by imprisonment, the court may, instead of imposing a sentence of imprisonment, impose a community payback order on the offender.

(2) A community payback order is an order imposing one or more of the following requirements –

…

(c) an unpaid work or other activity requirement,

…

227I. – (1) In this Act, an “unpaid work or other activity requirement” is, in relation to an offender, a requirement that the offender must , for the specified number of hours, undertake –

1. unpaid work,

…

(5) An unpaid work or other activity requirement which requires the work or activity to be undertaken for a number of hours totalling no more than 100 is referred to in this Act as a ‘level 1 unpaid work or other activity requirement’.

…

227L. – (1) The number of hours of unpaid work and any other activity that the offender is required to undertake in pursuance of an unpaid work or other activity requirement must be completed by the offender before the end of the specified period beginning with the imposition of the requirement.

(2) The “specified period” is –

(a) in relation to a level 1 unpaid work or other activity requirement, 3 months or such longer period as the court may specify in the requirement,

…

227Y. – (1) The appropriate court may, on the application of either of the persons mentioned in subsection (2), vary, revoke or discharge a community payback order in accordance with section 227Z.

(2) Those persons are –

(a) the offender on whom the order was imposed,

(b) the responsible officer in relation to the offender.

227Z. – (1) This section applies where a court is considering varying, revoking or discharging a community payback order imposed on an offender.

(2) The court may vary, revoke or discharge the order only if satisfied that it is in the interests of justice to do so having regard to circumstances which have arisen since the order was imposed.

…

(4) In varying an order, the court may, in particular –

(a) add to the requirements imposed by the order,

(b) revoke or discharge any requirement imposed by the order,

(c ) vary any requirement imposed by the order,

(d) include provision for progress

…

(5) In varying a requirement imposed by the order, the court may, in particular-

(a) extend or shorten any period or other time limit specified in the requirement,

…

227ZA. – (1) This section applies where a court is considering varying a community payback order imposed on an offender…”.

[13]     Section 227ZA then sets out various provisions which require the court, in most circumstances, to obtain a report from the responsible officer, to provide a copy of the report to the offender and his solicitor, to explain the purpose and effect of the variation to the offender, and confirm that the offender understands and is willing to comply with the order as varied, all before varying the CPO.

[14]     We should also refer to some of the provisions which confer powers on the court to deal with an offender’s failure to comply with a requirement of a CPO. They include:

“ 227ZC. – (1) This section applies where it appears to the appropriate court that an offender on whom a community payback order has been imposed has failed to comply with a requirement imposed by the order.

…

(7) Where the order was imposed under section 227A(1), if the court is satisfied that the offender has failed without reasonable excuse to comply with a requirement imposed by the order, the court may –

…”

and section 227ZC continues in terms which empower the court to deal with the offender’s breach in various ways; they include dealing with it by varying an existing requirement (s.227ZC(7)(d)).

Submissions for the complainer

[15]     For the complainer, Ms Mitchell submitted that the order of 6 May was incompetent. The calling of the case on 2 June, when it was continued to 24 June, was, accordingly not competent and, likewise, the order of 24 June was also incompetent. Section 227Y presupposes that any application for variation must be made within the currency of the order. So, in this case, the application to extend the time limit had to be made on or before 18 April 2015. That was because the CPO expired on 18 April 2015. Nowhere in the current 1995 Act was it stated that an unpaid work requirement would remain in force until the offender had performed the specified number of hours of work. That was in contrast to the provisions of s.239(2) – now repealed – relating to community service orders. There, it was expressly provided that “unless revoked, the order shall remain in force until the offender has worked under it for the number of hours specified in it”. To regard the CPO as being unlimited in time so long as any hours of unpaid work remained undone would be prejudicial to the offender; he could, for instance, be called to account for a breach of the CPO, many years later.

[16]     Ms Mitchell submitted that the CPO was a single entity; in this case it was to the effect that 60 hours of unpaid work required to be completed within three months. Its constituent parts were not separable. The time limit was an essential part of the requirement. Variation of time limits was covered by s.227Z(5), any such variation required to be applied for before the previous time limit expired and then 227ZA applied; the offender would have an opportunity to indicate whether or not he agreed with the variation in the time limit.

[17]     In these circumstances, it was, she submitted, not open to the sheriff to proceed on 6 May or 2 or 24 June on the basis that there was a valid and subsisting CPO. It had, put shortly, fallen at midnight on 18 April.

Submissions for the Crown

[18]     For the Crown, the advocate depute submitted that the complainer’s submissions were misconceived. The CPO did not expire on 18 April. The court was able, competently, to make orders in respect of it on all three dates referred to. It was fundamentally wrong to conflate the time limit within which the unpaid work was to be performed with the overall life of the CPO. Where, as in the present case, the CPO contained a single requirement – to carry out a certain number of hours of unpaid work - it remains ‘alive’ until those hours are completed. On the complainer’s analysis, responsible officers would require to make anticipatory applications for variation; that made a nonsense of the statutory scheme. The provisions relating to the court’s powers on breach were not relevant to the issue.

Discussion and decision

[19]     The complainer’s various contentions all flow from a single proposition, namely that the CPO expired at midnight on 18 April and, accordingly, there was then no CPO in existence; its requirements fell at that point and could not thereafter be varied.

[20]     It is necessary first to consider the nature of a CPO. As is clear from the terms of s.227A(2), a CPO is an order which imposes one or more “requirements”. In this case, it was made a requirement of the CPO that the complainer perform 60 hours of unpaid work. As for the time limit within which unpaid work is to be performed, it is ancillary to the requirement to perform unpaid work; the time limit provisions are in a separate section of the Act (s.227L) and the court has the power to depart from the statutory default periods of three and six months. The CPO in this case which is, we understand, in standard terms, reflects that analysis:

“Requires the offender to undertake 60 hours unpaid work, or unpaid work and other activity, as determined by the responsible officer; said unpaid work or unpaid work and other activity to be completed within a period of 3 months from the date of this requirement.”

The statutory structure shows that the nub of the punishment being imposed is the requirement to carry out unpaid work. That is the primary concern. Time limits, whilst important, are of secondary importance and the default periods provided for in section 227L(2) often require, in practice, to yield for pragmatic reasons such as where the offender is in full time employment and, however desirable it may be, it is not realistic to expect him to complete the hours within three or six months.

[21]     As for variation, sections 227Y and 227Z confer wide powers on the court. They sensibly recognise that circumstances may change and they afford the sentencer an important degree of flexibility with a view to facilitating the continuation of a CPO. It may often seem appropriate to the sentencing judge to afford the offender a further period to complete the hours thereby, hopefully, achieving the dual objective of rehabilitation and compelling the offender to make a positive contribution to the community. The court may vary the CPO by, amongst other things, varying a requirement (s.227Z(4)(c )). It may also add to the existing requirements (s.227Z(4)(a)); an example would be where experience has shown that it would be beneficial to add a supervision requirement to an unpaid work requirement.

[22]     If the court decides to vary an existing requirement, s.227Z(5) applies; in terms of those provisions, the court may extend any time limit specified as part of an existing requirement. As for the timing of any application to extend the time limit, the Act is silent. It does not, for instance, state that the application must be presented to the court prior to the expiry of the subsisting time limit. That makes sense. There are bound to be cases where the responsible officer cannot conclude, in advance, that the hours of unpaid work will not be completed in time. As the advocate depute observed, if the complainer’s interpretation was correct, such officers would be driven to making anticipatory applications. Such applications could prove to have been unnecessary. For the legislature to have intended to impose such a regime seems absurd. Also, the offender could suffer prejudice. He is entitled to apply for a variation of the time limit but, on the complainer’s interpretation, if he failed to do so in advance of its expiry, he could find himself facing breach proceedings – under the provisions of s.227ZC - when, had he been able to present an application for an extension of time at that stage, it might have been successful and the s.227ZC procedure would thereby have been elided. It seems highly unlikely that Parliament intended such results; they seem absurd when considered in the context of legislation directed towards achieving practical implementation of effective community sentences. We are readily satisfied that there is no basis on which it could be concluded that the power to extend a time limit specified in a requirement is limited to those cases where the time limit had not expired before the date when the application was presented.

[23]     We turn to the complainer’s contention that the procedure in section 227ZA would require to be applied to an application to extend a time limit to complete unpaid work. We are satisfied that if a court decides to vary a CPO by adding to its existing requirements – such as in the example of adding a supervision requirement to which we refer above - , then, but only then, s.227ZA applies. The terms of s.227ZA make that clear; it applies to variations of a “community payback order” which is to be contrasted with s.227Z(5), which applies to variations of a “requirement”. We consider it is clear from the tenor of its provisions that it only applies where the offender may, for the first time, be facing the imposition of one of the requirements listed in s.227A(2). The provisions of s.227ZA then ensure that, essentially, the same procedure is applied as would have been the case if the requirement had been included when the CPO was originally imposed (see: s. 227B).

[24]     Finally, we observe that nowhere is it provided that failure to complete the required hours of unpaid work within the time limit provided by the court will bring an end to the CPO. We do not find that surprising. On the contrary, for the above reasons it would be surprising if that were the statutory intention.

[25]     We will, accordingly, refuse to pass this Bill.