APPEAL UNDER SECTION 194ZB OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY MAJID IQBAL AGAINST PROCURATOR FISCAL, DUMFRIES
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 38
HCA/2016-000071/XC
Lady Smith
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LADY DORRIAN
in
APPEAL UNDER SECTION 194ZB OF THE
CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
MAJID IQBAL
Appellant;
against
PROCURATOR FISCAL, DUMFRIES
Respondent:
Appellant: Ogg; Gilfedder McInnes
Respondent: Brown QC, AD; Crown Agent
30 March 2016
[1] On a charge of contravening section 2 of the Road Traffic Act 1988, the sheriff imposed a fine of £600, reduced from a figure of £800 on account of the plea, and disqualified for 20 months. He did not discount the latter and an appeal was presented on that basis. The sheriff’s report indicates that he considers he should have discounted the disqualification, and would have done so by reducing the period to 15 months. The sifting sheriff notes that fact, but observes that a discount to the disqualification period is only appropriate for any period beyond that required for public protection. In his view the whole 20 months was required for that purpose, so he refused leave. However, he noted that the sheriff should have imposed a mandatory requirement to sit the extended test, so he purported to specify that factor as an arguable ground of appeal for the purposes of section 187(6). The sheriff’s report makes absolutely no mention of the mandatory requirement and it appears that, in error, he overlooked it, notwithstanding that the sifting sheriff proceeded on the assumption that this was an “omission”. The sifting sheriff refused leave to appeal the ground stated, but purported to grant leave to appeal “only to allow the Sheriff Appeal Court to remit the proceedings under section 299 of the Criminal Procedure (Scotland) Act 1995 to the Sheriff Court in order for the entry to be corrected, or otherwise to alter the sentence in terms of section 167(8) of the 1995 Act or to substitute an entirely competent sentence, including the appropriate order to sit the extended test of competence to drive”.
[2] The appellant applied under section 187(7) of the Act, seeking to be allowed to argue the ground which had been disallowed. At the hearing on that matter, the court refused to allow the ground to be reinstated. Noting that there were thus no other grounds of appeal, save that inserted by the sifting sheriff, the Sheriff Appeal Court then purported to exercise the power available to it under section 299(4)(b) of the Act to remit to the sheriff to amend the entry in the record of proceedings or to alter the sentence in terms of section 167 or to substitute an otherwise competent sentence, including the requirement to sit the extended test.
[3] In our view the interlocutor of the Sheriff Appeal Court in this respect was incompetent.
[4] The terms of section 299 are not designed to cover the situation in which a sheriff has not in fact passed the sentence which he ought to have passed, even when that sentence is a mandatory one. It is not designed to alter or modify any sentence which has been passed, it is merely designed to correct “an entry in a) the record of proceedings or…b) the extract of a sentence passed…in so far as that entry constitutes an error of recording or is incomplete”.
[5] So, where it is clear that the record of proceedings or extract of sentence does not reflect the sentence which was in fact passed, section 299 may operate. Where the defect comes to light during an appeal, section 299(4)(b) allows the court hearing the appeal to remit the matter to the sentencing court for correction. However, this was not a case of an erroneous or incomplete record, it was a case where a mandatory element of the sentence was not actually imposed at all. In purporting to act under the power available to them in section 299(4) the Sheriff Appeal Court acted incompetently.
[6] Section 167(8) allows the sentencing court, at any time before imprisonment has followed on a sentence, to alter or modify the sentence, as long as it does not pass a higher sentence. Even if it were possible for the Sheriff Appeal Court to remit to the sentencing court, it is arguable that the sentence which was to be imposed was a higher sentence than the one originally passed, even though it be mandatory. More significantly, however, section 167 confers no power to an appeal court to remit the case to the sentencing court for such modification or alteration. That is not surprising, because where there has been an error in sentencing, the appellate court itself can, and should, correct the error.
[7] Finally, the Sheriff Appeal Court has no power to remit to the sheriff to “substitute a competent sentence”. The addition of the words “including” is rather baffling. It seems to imply that the Sheriff Appeal Court considered that the sheriff might otherwise alter the sentence, as well as add the mandatory test. It is quite clear that the Sheriff Appeal Court has no power to do this. The powers of that court regarding disposal of summary appeals are statutory. In respect of an appeal against sentence, the court’s powers are contained in section 189 and they are restricted to (a) affirming the sentence or (b) if it considers that a different sentence should have been passed, substituting that different sentence.
[8] Initially, the appellant attempted to appeal against the sift decision in this case, a course which in itself is not competent. However, that attempt was followed by an appeal against the decision of the Sheriff Appeal Court to decide the appeal and to impose the order to which we have just referred. Given that the order was not competent, leave to appeal was granted, and in the circumstances we consider that the whole matter of sentence is open to us.
[9] In our view, the fact that the sentencing sheriff did not specifically refer to the public protection in explaining the sentence which he selected does not mean he left it out of account altogether. It seems to us highly unlikely that a sheriff would do so, and we consider that in general the sheriff is the person best placed to determine the extent of the public protection element in the sentence which he imposed. Given that the sheriff considered that he should have discounted the disqualification to a period of 15 months, it would appear that he did not consider that a period in excess of that was required for public protection. Further, it is clear that the sentencing sheriff failed to realise he required to make an order to sit the extended test. The sitting of that test is a factor designed for the protection of the public, and is thus relevant to the question whether allowing a discount would prevent sufficient public protection being in place, and would have been a highly relevant factor in determining whether, and to what extent, to allow a discount to the period of disqualification.
[10] In the circumstances, we will quash the sentence of disqualification imposed by the sheriff and substitute a period of 15 months, with an order to sit the extended test.
[11] The history of this case serves to remind us of the observations in McGill v HM Advocate [2013] HCJAC 150, para [13] (following Murray v HM Advocate 2013 SCCR 88, para [32]) that in relation to appeals against sentence:
“…as a generality, it is less important to analyse each ground of appeal with the same degree of scrutiny as in a conviction appeal. If there appears to be an arguable ground stated, the whole sentence is likely to require review rather than an allowance or deduction made for a particular element omitted at first instance.”