APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lord Eassie Lord Bonomy	[2010] HCJAC 23 Appeal Nos: XJ891/09 XJ434/09 OPINION OF THE COURT delivered by LORD BONOMY in BILLS OF SUSPENSION by STEPHEN WILSON Complainer; against PROCURATOR FISCAL, EDINBURGH Respondent: _______

Complainer: Farquharson; Beaumont & Co, Edinburgh

Respondent: Cherry, QC, AD; Crown Agent

8 January 2010

[1] As part of an ongoing programme of reform of criminal procedure, Parliament provided in the Criminal Proceedings etc Reform (Scotland) Act 2007 for inter alia increases in the sentences which can be imposed in summary proceedings. Section 43 of that Act amended section 5 of the Criminal Procedure (Scotland) Act 1995, which deals with the sheriff's power of imprisonment for common law offences. That amendment was brought into effect by the Criminal Proceedings etc Reform (Scotland) Act 2007 (Commencement No 2 and Transitional Provisions and Savings) Order 2007 (SSI 479) Article 12. The result was that with effect from 10 December 2007 a sheriff could impose a sentence of imprisonment up to twelve months on summary complaint where previously the maximum was three months or six, depending on the circumstances.

[2] Article 12 of the above Commencement Order is in these terms:

"(1) The provisions of sections 43 ... of the 2007 Act shall apply only to proceedings where either of the requirements of paragraph (2) are met.

(2)              The requirements are that -

(a) a first calling took place on or after 10 December 2007; or

(b) a first calling has not taken place, but a warrant ... was granted on or after 10 December 2007."

The Commencement Order thus ensured that the increased power would apply only in cases which first called, or where a warrant was granted, on or after 10 December. However, it did not exclude cases relating to offences committed before that date.

[3] On 22 September 2008 the complainer was sentenced on two complaints. In the case of one, that date was the intermediate diet at which he pled guilty to two charges, each involving theft of a bicycle. The other complaint had been adjourned for sentence to that date following upon the complainer's plea of guilty at the trial diet on 8 September to two charges of theft by housebreaking, both committed whilst on bail. The bicycle thefts had been committed on 1 October 2007 and 20 November 2007. The housebreakings occurred on 3 and 4 December 2007. For the bicycle thefts the complainer was sentenced to a total of six months, three months on each charge, discounted in each case from a term of four months to take account of the timing of the plea; for the offences of housebreaking he was sentenced to a total of twelve months imprisonment, six months on each charge, discounted in each case by one-seventh.

[4] The complainer presented two Bills of Suspension in each of which he challenges the sentence as incompetent since it exceeded the sheriff's summary sentencing powers as at the dates the offences were committed. On each complaint he maintained that the maximum available to the sheriff was six months imprisonment.

[5] At the outset of the hearing Miss Farquharson for the complainer moved us to allow the complainer to present argument in terms of devolution minutes tendered at the bar in relation to each of the Bills. The minutes related to two issues, namely that the introduction of increased sentencing powers which could apply to offences committed before they were introduced was outside the legislative competency of the Scottish Parliament as being incompatible with article 7 of the European Convention on Human Rights and Fundamental Freedoms, and secondly that in moving for sentence and thereafter supporting the conviction the Lord Advocate acted ultra vires and in a manner incompatible with the complainer's right to a fair trial. Counsel recognised that the complainer could only be allowed to raise devolution issues in terms of the minutes on cause shown and that they came at an extremely late stage in the proceedings at which they would have the effect of requiring the hearing to be adjourned to enable intimation to be made to the Advocate General. The only cause she could advance was the fact that she had been instructed the day before the hearing, combined with the unexplained failure of counsel previously instructed to submit minutes. Since we did not consider that to be an adequate explanation amounting to cause in circumstances where the hearing would require to be postponed, we refused the motion, observing that the minutes were of very doubtful relevancy having regard to the omission of any reference to the possibility of construing the legislative provisions in a manner compatible with the provisions of article 7 and the failure to identify any apparently ultra vires act of the Lord Advocate. Moreover, it did not appear to the court that in the absence of the minutes the complainer would be disabled from presenting the basic submissions she wished to make.

[6] The submissions of counsel for the complainer and the Advocate depute were presented against the following background: that the critical provision of article 7(1) of the Convention was in these terms - "Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."; that for each of the offences to which the complainer pled guilty there was no statutory maximum sentence and that sentences of imprisonment of years rather than months could be imposed both before and after the change; that what restricted the sentence which the sheriff could impose was the choice of forum by the Crown instituting proceedings on summary complaints; and that the complainer had a very bad record including sentences on indictment for analogous offences, 18 months imprisonment on two occasions and two years and three years imprisonment on others.

[7] Miss Farquharson made three submissions in support of a narrow interpretation of article 7(1). She founded upon the statement of Lord Carswell in Flynn v HM Advocate 2004 SLT 873 at para 109, subsequently endorsed in R (Uttley) v Secretary of State for the Home Department [2004] UKHL 38, in these terms:-

"It seems to me difficult to escape the conclusion that the meaning of the provision is that the penalty which was 'applicable' at the time the criminal offence was committed is that which a sentencer could have imposed at that time, ie, the maximum sentence then prescribed by law for the particular offence."

She invited us to construe "a sentencer" as referring in this context to the particular sentencer before whom an accused appeared, that is a sentencer in summary proceedings. Secondly, she reinforced that submission by suggesting that the complainer, having received a summary complaint, had a reasonable expectation that he would receive only a sentence competent on a summary complaint at the time of the offence. She, thirdly, invited us to follow the course taken in Kevin Michael Monk v Procurator Fiscal, Dundee, unreported, 24 June 2008, where in an appeal on a similar ground the following interlocutor was pronounced:

"In the appeal against sentence, the Court having heard counsel and being of the opinion that the sheriff had exceeded his powers in respect that the offence libelled had been committed prior to 10.12.07, sustained the appeal, quashed the sentence of six months' imprisonment imposed on the appellant in the Lower Court on 12.2.08; Substituted therefore a sentence of four months' imprisonment to date from 12.2.08, (sentence now served)."

[8] In relation to the case of Monk the Advocate depute had established that no opinion had been issued, and explained that her researches had indicated that there may also have been a question of procedural fairness and that it was not clear that the decision was one as to the competency of the sentence, bearing in mind that in the interlocutor there was no reference to article 7. The interlocutor was not, therefore, a reliable foundation for a decision in relation to the competency of the sentence. In any event the judgment was one of a bench of two judges, thus allowing this court to reach a different decision. We agreed with the Advocate depute that there was insufficient information before us about the judgment in Monks to say that it has a bearing on the question of competency posed in this appeal.

[9] In relation to the first and second submissions of Miss Farquharson, we agreed with the Advocate depute that the passage from the speech of Lord Carswell, as endorsed in R (Uttley), does not bear the interpretation that Miss Farquharson sought to place upon it. We considered that the expression "a sentencer" was used in a very general sense extending to any judge who could be called upon to impose sentence for such an offence, since Lord Carswell immediately went on to refer to the sentence that he had in mind as "the maximum sentence then prescribed by law for the particular offence". In the case of theft that was in effect a period of imprisonment well in excess of twelve months. We also agreed with the submission of the Advocate depute that the complainer could have had no reasonable expectation of a summary sentence at the time he committed the offences, bearing in mind his record and the nature of these offences. Indeed we suspect that the eventual arrival of summary complaints may have been a cause for relief rather than disappointment on the part of the complainer. Of course he might be said to have been unfortunate in one respect since, had the proceedings been instituted prior to 10 December by summary complaints, he would then have been entitled to be sentenced on the basis of the previous limits.

[10] What the sheriff did in these cases was entirely consistent with the opinions expressed in both Flynn and R (Uttley). Further, he imposed sentences which he was entitled to impose in terms of the increased powers of imprisonment on summary complaint given to him with effect from 10 December 2007, twelve months being a modest proportion of the maximum "applicable" at the time the offences were committed. We therefore refused to pass both Bills.