APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Johnston
Lord Penrose
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[2006]
HCJAC 76
Appeal
No: XJ690/06
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
NOTE OF APPEAL
by
RODERICK URQUHART,
Procurator Fiscal, Dingwall
Appellant;
against
RONAN JOSEPH CAMPBELL
Respondent:
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Act: D.R. Bain, A.D.; Crown Agent
Alt: M.C. MacKenzie; Foggo Maciness
12 October 2006
[1] On 10 April 2006 at Dingwall Sheriff
Court the respondent, Ronan Joseph Campbell, pled guilty to a summary complaint
containing two charges, one of driving a motor car with excessive alcohol in
his breath, contrary to section 5(1)(a) of the Road
Traffic Act 1988, and one of driving without due care and attention, contrary
to section 3 (as amended) of the same Act.
The Sheriff fined the respondent £50 in respect of charge 1 and £10 in
respect of charge 2, and allowed the fines to be paid by instalments of £10 per
fortnight. In addition, the Sheriff
disqualified the respondent from holding or obtaining a driving licence for a
period of one year, and ordered endorsement of his driving licence in respect
of each charge.
[2] The appellant has appealed against the
sentences imposed by the Sheriff on the ground that they were unduly
lenient. Notwithstanding the somewhat
different statutory references given in the Note of Appeal, the appeal is
governed by section 175(4)(a) and (4A)(b)(i) of the Criminal Procedure
(Scotland) Act 1995 (the 1995 Act).
Subsection (4)(a) of section 175 provides that:
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"(4)
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The
prosecutor in summary proceedings , in any class of case specified by order
made by the [Scottish Ministers], may, in accordance with subsection (4A)
below, appeal to the High Court against any of the following disposals,
namely ―
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(a)
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a sentence passed on conviction".
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Subsection
(4A) provides inter alia as follows:
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"(4A)
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An
appeal under subsection (4) above may be made ―
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(b)
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where
it appears to the Lord Advocate, in relation to an appeal under ―
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(i)
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paragraph (a) ... of that subsection, that the disposal was
unduly lenient".
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In the
present case the contention to be advanced by the appellant is that both the
fines and the period of disqualification from holding or obtaining a driving
licence were unduly lenient.
[3] When the appeal called for hearing, the
respondent was represented by counsel and solicitor, but was not personally
present. No detailed explanation of that
state of affairs was available, but it appears that the view may have been
taken that his personal presence was not required. The court, ex proprio motu, invited submissions as to whether the appeal could
properly be heard in the absence of the respondent. Having heard brief submissions from the
Advocate depute and counsel for the respondent, we decided to continue the
appeal to a future date to enable the respondent to be personally present at
the hearing.
[4] In an appeal against sentence by the
prosecutor on the ground that the sentence was unduly lenient, the consequence,
if the appeal is allowed, is likely to be the imposition of a more severe
sentence than the one under appeal. We
are of opinion that, in principle, proceedings which may have that consequence
ought not to take place outwith the presence of the respondent. We do not consider that it would have been
satisfactory to hear the appeal in the respondent's absence, then, if it was
successful, continue it to enable the respondent to be present when the new
sentence was imposed.
[5] Although the matter has arisen before us
in an appeal in respect of summary proceedings, the observations which we have
made apply equally to appeals under section 108 of the 1995 Act against
sentence on the ground of undue leniency in solemn proceedings, if the
respondent is not in custody.
[6] Since it appears that there may be no
clear guidance on the matter, we take the view that for the future
consideration should be given to the adoption of a practice designed to ensure
or at least encourage the presence of the respondent at the hearing of such
appeals. That might, for example, be
done, when the diet for hearing of the appeal is intimated to the respondent,
by including in the intimation an indication of the respondent's right to be
personally present at that diet and the desirability of his exercising that
right.
