Scottish High Court of Justiciary Decisons
You are here:
BAILII >>
Databases >>
Scottish High Court of Justiciary Decisons >>
CROWN APPEAL AGAINST SENTENCE AGAINST JAKE O'DOHERTY [2022] ScotHC HCJAC_31 (11 August 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_31.html
Cite as:
[2022] ScotHC HCJAC_31,
2022 GWD 25-359,
[2022] HCJAC 31,
2022 JC 253,
2022 SLT 967,
2022 SCCR 253
[
New search]
[
Printable PDF version]
[
Help]
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 31
HCA/2022/000158/XC
Lady Dorrian
Lord Matthews
Lord Boyd of Duncansby
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
by
HER MAJESTY'S ADVOCATE
Appellant
against
JAKE O'DOHERTY
Respondent
Appellant: Edwards, QC, AD; Crown Agent
Respondent: Kerrigan, QC, RSC Solicitors
11 August 2022
Introduction
[1]
The respondent was convicted after trial of a charge of attempted murder. The trial
judge selected a headline sentence of 6 years, which is not challenged in this appeal. At a
prior stage of the proceedings the respondent had been remanded in custody for a period of
289 days, after which he was granted bail. The trial judge reduced the overall sentence on
2
that account by double the remand period, a period of 578 days, resulting in a sentence yet
to be served of 4 years and 152 days. In this appeal on a point of law in terms of section
108(2)(a) of the Criminal Procedure (Scotland) Act 1995, the Crown argue that he was wrong
to do so.
[2]
Section 210(1) of the Criminal Procedure (Scotland) Act 1995 provides (a) that in
determining the period of imprisonment to impose a court "shall (a) have regard to any
period of time spent in custody by the person on remand awaiting trial or sentence";
(b) specify the commencement date of the sentence; and (c) where there has been a period on
remand and the date under (b) is not earlier than the date on which sentence was passed,
state the reasons for not specifying an earlier date. In Martin (Ronald O'Neill) v HM Advocate
2007 JC 70 the court concluded that a non-continuous period spent on remand should
generally be recognised by deduction not just of the period itself but of the length of
sentence which would result in that period being served in custody. In Martin, a short term
case where the prisoner would be entitled to release after half the period served (Prisoners
and Criminal Proceedings (Scotland) Act 1993 section 1), that meant that the deduction,
barring other considerations, would be double the period spent on remand.
[3]
The position for a long term prisoner is different. At the time of Martin, a long term
prisoner would have been entitled to automatic release on licence at the two-thirds stage of
the sentence (1993 Act, section 1(2)), and any deduction for non-continuous remand would
have had to be adjusted accordingly. The prisoner would (section 1(3)) have been entitled to
be released on the recommendation of the Parole Board after serving half the sentence.
These provisions continue to apply in respect of prisoners sentenced before 1 February 2016.
However, for long term prisoners sentenced after that date, (and not sentenced to an
extended sentence) the 1993 Act now provides that the automatic entitlement to release on
3
licence does not arise until there is only six months left to serve (section 2A). Otherwise the
provisions of section 1(3), whereby release on licence may result from a recommendation of
the Parole Board at a stage no sooner than half way through the sentence continue to apply.
[4]
The core of the Crown argument was that whilst the approach in Martin might be
appropriate for a "short term prisoner", in the case of a long term prisoner it is not possible
to calculate in any clear or consistent manner the length of sentence which would result in a
specific period being served in custody. Doubling the period on remand, as the basis for a
deduction calculated to have regard to the time spent on remand, would risk comparative
injustice to other prisoners, including those who had not been remanded at all; or those
whose remand had been continuous. In other words, it would risk the kind of unfair
consequences which the court in Martin sought to avoid. Insofar as the trial judge followed
Martin he was in error.
[5]
For the respondent, the argument was that it should be open to sentencers to reduce
the sentence by double the period spent on remand (as was done in Martin) or to select some
shorter period within the discretion provided for by section 210. The approach of the trial
judge had not resulted in a sentence which was unduly lenient and the appeal should be
refused.
Analysis and decision
[6]
It is important to recognise that section 210(1) of the 1995 Act only provides that the
court must "have regard" to the relevant remand period, and explain clearly the effect
which it has had, including the reasons for any decision not to backdate. The statute does
not provide that it is always necessary to backdate a sentence where possible; that credit
must be given for the full period on remand, whether continuous or not; or that any
4
deduction made to reflect a period on remand must be increased by a given proportion
according to whether the accused qualifies as a long or short term prisoner, and the early
release provisions which apply as a consequence.
[7]
In Wojociechowski v McLeod 1992 SCCR 563 (dealing with a prior iteration of the
relevant section) the court confirmed that the question whether to backdate a sentence is a
matter entirely within the discretion of the sentencing judge, although of course that
discretion required to be exercised upon proper grounds. There may be cases where the
court concludes that backdating is not justified, for example where the accused was
remanded following an earlier failure to attend a diet of trial; where remand was partly or
wholly attributable to another matter; or where the period of remand had already been
reflected in the selection of the headline sentence (see Douglas v HMA 1997 SCCR 671;
Hutcheson v HMA 2001 SCCR 43). Other factors may be relevant to the consideration of the
matter, including any discrepancy between the charges as libelled and as convicted. Where
there are no particular considerations such as these, in a case where th e remand has been
continuous up to the time of sentencing, it is commonplace to deal with the period on
remand by backdating to the date of remand.
[8]
Following Martin, in cases where, as here, the remand had not been a continuous
one, the practice developed to deal with the issue by applying an overall deduction
commensurate with the relevant early release provisions which applied to the prisoner.
There was no absolute rule, nor was a fine arithmetical approach necessary, but in general
in the case of a short term prisoner, that would mean that the deduction would be double
the time spent on remand; in the case of a long term prisoner, it may have been one and a
half times the period so spent, subject to consideration of whether such an approach caused
the prisoner to be re-classified as a short-term prisoner. In either case, the issue would be
5
relatively straightforward, standing the clear, automatic and arithmetical basis upon which
the early release provisions then operated. The objective was that the deduction should
reflect (Martin para 8): "the length of sentence which would result in that period being
served in custody." The rationale for the decision is expressed in the next sentence:
"If that were not so, it would mean that someone who happened to have been
remanded for a period prior to the date of sentence but in circumstances where there
could not readily be backdating would be likely to end up being deprived of his or
her liberty for longer than, not merely a person who was never remanded at all, but
also someone remanded for the same length of time but throughout the period from
committal until sentence."
[9]
In the present case, the trial judge was satisfied that it was appropriate for him to
take account of the whole period spent on remand. The question facing him, in light of the
current legislation, was how to do that. The problem which has arisen is a consequence of
the amendment to the early release provisions. Automatic early release for long term
prisoners is much more limited, and arises only when there remains 6 months of the
sentence to serve, although release on parole may take place at the half way stage. The trial
judge considered that this created a dilemma, with potential unfairness and inconsistency
arising as between those long term prisoners subject to continuous remand and those whose
remand had been interrupted. In our view the trial judge was correct to say that any
attempt to anticipate whether, and if so when, parole might be granted would be fraught
with difficulty. Even a simple measure based on whether an accused was a first or prolific
offender would not be a safe guide. Such an attempt is not only fraught with difficulty, it
would be impossible. The trial judge was right to eschew it.
[10]
He was also correct to say that it would be artificial and unrealistic to approach the
matter on that basis that no credit should be given for time on remand, or to restrict it to an
allowance which reflected only the right to automatic release when only six months of th e
6
sentence was left to serve. It would surely be artificial to assume that in the vast majority of
cases a long term prisoner would not be granted early release before the automatic release
provisions applied. To proceed on such a basis could be productive of unfairness.
[11]
There is in fact now no satisfactory basis upon which the court can properly deal
with the issue by means of deduction from the sentence
.
It is important to recognise that the
matter relates not only to the date at which a prisoner might be entitled to automatic release,
but to the date when he might be eligible for parole. Take the example of a prisoner with a
proposed headline sentence of 6 years having spent one year on remand
.
If his remand had
been continuous he would be entitled to automatic release having spent a total of 5 years
and 6 months in custody; partly on remand and partly as a sentenced prisoner; and would
be eligible for parole having served a total of three years in custody. Where the remand for
one year was non-continuous, parity of eligibility for parole could only be achieved by a
deduction of double the relevant period and imposing a sentence of 4 years, in which case
however the effect would be that the prisoner became entitled to early release having served
only a total of 4 years and 6 months in custody. Deducting only the period spent on remand
and imposing a sentence of 5 years would create equivalence of early release dates, but
would mean that such a prisoner would have to spend an additional 6 months in custody
before becoming eligible for parole. On any of these approaches there would be no parity
between those given the same headline sentence and having spent the same period on
remand. It is in fact impossible to ensure a deduction which reflects "the length of sentence
which would result in that period being served in custody."
There is
in any event a danger
that approaches involving deduction would give inadequate deference to the role of the
Parole Board, the issues of risk, and the intention of Parliament.
7
[12]
As noted already, the prisoner in the present case would become eligible for parole at
the same time as a continuous remand prisoner, but would spend longer in custody before
being entitled to early release. A continued hearing of this case was fixed to take place on
the same day as the hearing in the appeal in Clark v HMA (HCA/2022/000196/XC) where the
trial judge had applied a deduction limited to the period spent on remand. The prisoner in
that case would become entitled to early release after serving the same time as a continuous
remand prisoner, but would have to serve longer before being eligible for parole. Moreover,
as between two equally placed non-continuous remand prisoners, the approach of the judge
in this case would be advantageous in both respects compared to the approach taken by the
judge in Clark. Such inequalities are iniquitous. It is important moreover that there should
be clarity, consistency and predictability in how non-continuous periods on remand are
dealt with. It is apparent that this is not the case.
[13]
In the course of the hearing of the appeal, the broad terms of section 210 identified at
para [6] above were noted, and the question raised whether it would not be possible to
identify a notional date for the commencement of the sentence, by calculating back a period
equivalent to that spent on remand. There is nothing in the statute which prevents this. It
seemed that the question had not arisen before, no doubt because (a) it had not been
necessary standing the very clear early release provisions; and (b) out of a concern that
doing so might introduce impossible complications for both the Scottish Prison Service and
the Parole Board. (We have since become aware of a case in which backdating to a notional
diet was applied by the sentencing judge HMA v Davidson, Mullarkey, Hardy and Smith
15 February 2022, unreported). As a potential solution it would have the advantages of
simplicity and clarity, and would achieve the true objective behind Martin of placing those
on non-continuous remand on exactly the same footing as those whose remand had been
8
continuous. Accordingly the court determined to continue the appeal for the Crown to
make inquiries of both the Scottish Prison Service and Parole Board for Scotland.
[14]
At the continued hearing the court was advised that the Scottish Prison Service have
confirmed that there is nothing in their processes or systems which would cause difficulties
with, or prevent, the Court imposing a sentence with a historical notional commencement
date. In respect of every single prisoner entering the prison environment, the Scottish Prison
Service will already always carry out a manual calculation on a prisoner's critical dates to
ensure accuracy. Any proposed change in practice relating to backdating would therefore
not result in any additional workload/change in practice or require any change in IT
systems. Opportunities for participation in programmes of rehabilitation and intervention
focused work would be unaffected. The Parole Board for Scotland does not believe that
there would be any adverse impact on the prisoner in relation to the factors considered
when a prisoner is eligible for potential release on licence. In short there is no barrier to the
imposition of a sentence backdated to a notional commencement date. Supplementary
written submissions were lodged on behalf of the respondent acknowledging that in these
circumstances the proposed solution "has much to commend it, not least its simplicity".
However, it was maintained that the trial judge had taken account of section 210, and that
the sentence could not be described as unduly lenient. These submissions appear to
overlook the fact that this appeal proceeds not on the provisions of section 108(2)(b) in
relation to unduly lenient or inappropriate sentences, but on section 108(2)(a) which
provides that an appeal against sentence at the instance of the crown may proceed on a
point of law. In the present case the sentence imposed on the respondent on 28 March 2022
will be quashed and substituted by a sentence of 6 years imprisonment backdated to
9
commence from 16 May 2021.
