APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lady Smith Lord Philip	[2013] HCJAC 64 Appeal No: XM9/12 OPINION OF THE COURT delivered by LORD PHILIP in Petition to the Nobile Officium by CHRISTOPHER IAN STEWART Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: Kerrigan QC et Mitchell; Paterson Bell, Edinburgh

Respondent: Edwards; Crown Agent

30 January 2013

[1] In this petition Christopher Ian Stewart challenges the competency of a sentence of twenty two months' imprisonment, imposed on him on 3 August 2012 in the High Court of Justiciary at Glasgow. He had been indicted, along with four others, on two charges, one of conspiring to defeat the ends of justice and the other of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. At a preliminary hearing on 14 May 2012, the petitioner pled guilty to the second charge, but tendered a plea of not guilty to the charge of conspiracy. His plea of guilty to the second charge was accepted by the Crown but his plea of not guilty to the first charge was not. The advocate depute made no motion for sentence and the preliminary hearing was continued until 4 July 2012. The minute of proceedings records:

"The court continued the preliminary hearing until 4 July 2012 in order that (sic) to allow the Crown to provide the telephony (sic) evidence in a suitable format to the defence in sufficient time to enable them to consider that matter before the next calling and continued consideration of the preliminary issue meantime ...".

[2] At the continued preliminary hearing on 4 July 2012, the petitioner was present and represented. It was intimated on his behalf that he adhered to his pleas. A number of matters relating to the disclosure of evidence were discussed and the hearing was continued to 2 August 2012. On that date the Crown accepted the petitioner's plea of not guilty to the first charge and pleas were tendered by all the other accused, which were also accepted by the Crown. The advocate depute moved for sentence against the petitioner in relation to the second charge. The court deferred sentence on all the accused until the following day, 3 August 2012. On that date the petitioner was sentenced to twenty two months' imprisonment.

[3] Mr Kerrigan, for the petitioner, submitted that since the Crown had failed to move for sentence in relation to the petitioner on the second charge at the initial preliminary hearing on 14 May 2012, or to state expressly that they wished the matter of sentence to be considered at a later diet, the sentence imposed on the petitioner on 3 August 2012 was incompetent. The effect of the failure to move for sentence on 14 May was that the indictment fell in relation to the petitioner.

[4] On behalf of the Crown, the advocate depute argued that the Crown had not at any stage explicitly indicated that they had no intention of moving for sentence. In these circumstances, the sentence was competent. Reference was made to HM Advocate v McGee & Best 2006 SCCR 31 in which Lord Hardie, sitting alone, in circumstances similar to the present case, said:

"It is normally preferable to sentence all accused at the same time and it is understandable that the advocate depute wished to achieve that objective by deferring sentence on the second and third accused until the conclusion of the trial of the first accused. While it would have been preferable for him to move for sentence on 6 September and thereafter to seek an adjournment of the case against the second and third accused until the trial diet fixed for the first accused, I do not consider that it was incompetent to continue the case in the absence of a motion for sentence."

Decision

[5] It is established by long practice, that it is not competent for a court to pass sentence in solemn proceedings in the absence of a motion for sentence. There is no statutory provision to that effect, but the rule recognises that there may be circumstances in which the Crown will deem it inappropriate to move for sentence, even in the event of conviction in a particular case. When that happens, the Crown normally indicate to the court that it is not their intention to move for sentence.

[6] In this case, the Crown did not at any stage give any indication of an intention to take such a course. When the petitioner pled guilty to the second charge on 14 May, the case was at the stage of preliminary hearing and the other accused were maintaining pleas of not guilty. No doubt the Crown and the court had in mind the almost universal practice that sentence should be imposed on all accused at the same time. The minute of proceedings reveals that the court and the parties were concerned that certain evidential matters required to be put in order before the case could proceed to trial. In those circumstances the preliminary hearing was continued to 4 July.

[7] In arguing that, in the absence of a motion for sentence at the preliminary hearing on 14 May, the indictment against the petitioner had fallen, Mr Kerrigan referred to the rule that, if solemn proceedings are not continued to a specific date, or there is a failure to convene a hearing on such a date, the indictment will fall. Apart from that, he cited no authority for his proposition nor was he able to explain why, in logic or in common sense, such a result should follow in the present case. In our view, there is no question of the indictment falling. On 14 May the advocate depute gave no indication whatsoever that it was not his intention to move for sentence. That preliminary hearing was competently continued to 4 July. There was then a further competent continuation to 2 August, when the advocate depute moved for sentence in respect of the charge to which the petitioner had pled guilty. Sentence was deferred until the following day, 3 August 2012, when sentence was imposed on the petitioner, and on his co-accused, who by that time had pled guilty to various parts of the charges. In all these circumstances, we have no hesitation in concluding that it was perfectly competent for the advocate depute to move for sentence on 2 August and for the judge to sentence the petitioner on the following day. The prayer of the petition is therefore refused.