APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith

Lord Abernethy

[2007] HCJAC76

Appeal No: XC324/07 and XC388/07

OPINION OF THE COURT

delivered by LORD NIMMO SMITH

NOTE OF APPEAL AGAINST SENTENCE

JASON WILLIAM McCAFFERTY or SIMPSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

and

DENNIS CHRISTIE

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Paterson, Solicitor Advocate; (for appellant McCafferty)

Ms McKenzie (for appellant Christie)

Alt: Borthwick, A.D.; Crown Agent

7 December 2007

[1] In these two appeals we have to consider the law and practice of the backdating of sentences passed on persons prosecuted in solemn proceedings who have spent time in custody continuously from the date of committal for further examination to the date of conviction and the date (if different) of sentence. If the sentence is to be backdated, should it be to the date of committal for further examination, or to the date of committal until liberated in due course of law (full committal)?

[2] Section 210(1) of the Criminal Procedure (Scotland) Act 1995 provides inter alia:

"A court, in passing a sentence of imprisonment or detention on a person for an offence, shall -

(a) in determining the period of imprisonment or detention, have regard to any period of time spent in custody by the person on remand awaiting trial or sentence, or spent in custody awaiting extradition to the United Kingdom, or spent in hospital awaiting trial or sentence by virtue of an assessment order, a treatment order or an interim compulsion order or by virtue of an order made under section 200 of this Act;

(b) specify a date of commencement of the sentence; and

(i) has spent a period of time in custody on remand awaiting trial or sentence; or

(ii) is an extradited prisoner for the purposes of this section, or

(iii) has spent a period of time in hospital awaiting trial or sentence by virtue of an assessment order, a treatment order or an interim compulsion order or by virtue of an order under section 200 of this Act,

and the date specified under paragraph (b) above is not earlier than the date on which sentence was passed, state its reasons for not specifying an earlier date .....".

Sub-sections (2) and (3) contain provisions defining the expressions "extradited prisoner" and "extradited to the United Kingdom". An order made under section 200 of the Act is an order of committal to hospital for the purpose of an inquiry into the person's physical or mental condition; in terms of that section, such an order constitutes a remand.

[3] There can be little doubt that the general practice in solemn procedure, where a person has been remanded in custody prior to his trial, is to backdate his sentence to the date of committal for further examination. That this is the general practice is confirmed by our own experience, and by those who appeared before us in these two appeals both on behalf of the appellants and on behalf of the Crown. It is also confirmed by passages in two cases to which reference was made before us. In Elliott v HM Advocate (No.2) 1997 S.L.T.1229, Lord Justice Clerk Ross, in delivering the Opinion of the Court, said at page 1231L:

"The right to have a sentence backdated, or to receive reasons for that not being done, is a right enjoyed by all prisoners receiving sentences of imprisonment, and there is no reason for treating prisoners receiving mandatory life sentences any differently from any other prisoners in this respect."

The Court therefore allowed an appeal against a sentence of life imprisonment, which had not been backdated by the trial judge, to the extent of backdating the sentence to the date when the appellant first appeared on petition. In Martin v HM Advocate 2006 S.C.C.R.683 Lord Kingarth, in delivering the Opinion of the Court, said in paragraph 8, on page 685:

"Although ....a period on remand is different from a period spent in custody following sentence, the important point is that in both cases the prisoner is deprived of his or her liberty.....[T]he normal practice at least [in the case of someone remanded throughout the period from committal until sentence] is to backdate to the start of the remand period, so that the whole period of remand counts towards assessment of the appropriate date for release under section 1(1) of the [Prisoners and Criminal Proceedings (Scotland) Act 1993]".

Reference may also be made to Grant v HM Advocate 1998 S.C.C.R.113.

[4] The appellant Simpson was convicted at Dundee Sheriff Court on a charge of assault to severe injury and permanent disfigurement and was sentenced to two years' imprisonment. The appellant had been remanded in custody since his first appearance on petition on 20 December 2006. The Sheriff backdated the sentence to 27 December 2006, when the appellant was fully committed for trial. In his report to this Court, the Sheriff has written:

"I felt that it was appropriate to backdate, and as is my practice, I backdated to the date of full committal, namely 27 December 2006. This appears to me to be the correct interpretation of section 210 of the Criminal Procedure (Scotland) Act 1995 which requires the Court to have regard to any time spent in custody on remand awaiting trial or sentence. When an accused person is remanded on a petition which has been continued for further enquiries by the Crown, he is not remanded awaiting trial. He only achieves that status upon full committal."

[5] The appellant Christie was convicted at Dundee Sheriff Court on a charge of contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. On 14 May 2007 the same Sheriff sentenced the appellant to 21 months imprisonment, which was backdated to 28 February 2007, the date of the appellant's full committal. In his report to us, the Sheriff has written, after quoting the provisions of section 210 of the 1995 Act:

"The important words are 'on remand awaiting trial'. When an accused person first appears on petition, the normal procedure is for that accused to make neither plea nor declaration, and for the Crown to move the Court to continue the matter for further enquiries. Bail is granted, or the accused is remanded in custody. When the case next calls, the Crown motion is for full committal, and again bail is granted or the accused is remanded. This time, he is remanded 'awaiting trial' and thus falls under the provisions of section 210. Previously, he was remanded 'for further enquiries', and thus does not fall within the scope of section 210".

Reference is then made by the Sheriff to the language of section 65 of the 1995 Act, where at sub-section (1)(b) reference is made to "the first appearance of the accused on petition in respect of the offence" and sub-section (4), where reference is made to "an accused who is committed for any offence until liberated in due course of law". The Sheriff states:

"Both of these wordings imply that the relevant date is the date when an accused first appears on the petition. This is in contrast with the wording quoted above from section 210".

The Sheriff adds:

"In any event, I deemed it appropriate to backdate to the date of full committal and said so when passing sentence".

[6] The first matter for us to consider is the proper construction of section 210. In our opinion it is entirely clear, having regard to the various categories of person referred to in sub-section (1), that the emphasis is on time spent by a person in custody or in hospital by reason of the proceedings against him prior to sentence. The policy underlying the provision is, beyond doubt, to enable a person deprived of his liberty to have the period during which he has been so deprived taken into account when sentence is passed. We find ourselves unable to agree with the construction placed by the Sheriff on the words "on remand awaiting trial or sentence". In its context, this phrase means no more than that the person who has been remanded has not yet been tried or sentenced. It does not strain the language of the sub-section, particularly when looked at from the prisoner's point of view, to regard an untried prisoner on remand as one who is "awaiting trial" from the first point at which he is deprived of his liberty by virtue of an order of the Court, that is to say when he is committed for further examination. The Sheriff has accordingly, in our opinion, misdirected himself in concluding that the language of the sub-section in some way disentitled him from taking into account the period between committal for further examination and full committal.

[7] In any event, as the language of the sub-section makes clear, the backdating of a sentence is a discretionary exercise. For the reasons already discussed, that discretion would normally be exercised by backdating the sentence to the date of committal for further examination. Some sentencers might even think it appropriate to backdate to the date of arrest, particularly where the accused has been in police custody for more than one day, such as over a weekend. Different considerations arise where the accused has been released on bail after a period on remand - as in Martin v HM Advocate, supra - or whose remand has been superseded by his being sentenced on another matter. Where such events have occurred, so that it is not possible to backdate a sentence, the normal practice is for an appropriate period to be deducted from the sentence which would otherwise have been passed; in the straightforward case the deduction would be of twice the period spent in custody on remand. In the case of the appellant Simpson, the Sheriff has given no indication of what consideration he gave to the possibility of exercising his discretion to backdate the sentence to an earlier date than that of full committal; he has simply indicated that "as is my practice" he backdated to that date, having regard to his interpretation of section 210 of the 1995 Act. In the case of the appellant Christie, the Sheriff has adopted a similar approach, but has added that in any event he deemed it appropriate to backdate to the date of full committal. Again, he has given no reasons for doing so, apart from his interpretation of section 210. In proceeding in this way, the Sheriff has failed properly to exercise his discretion, and may indeed be regarded as having fettered his discretion by allowing his interpretation of section 210 to be the decisive factor.

[8] We have accordingly decided to allow both these appeals to the extent of backdating each of the sentences to the date of committal for further examination. We have issued this Opinion because there has not hitherto, so far as we are aware, been a decision of this Court about the proper interpretation and application of section 210 of the 1995 Act in the context of solemn proceedings. We can see no obvious reason why the same approach should not be applicable, mutatis mutandis, to summary proceedings.