Binnie v Farrell
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1972 |
| Date | 28 June 1972 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
FULL BENCH.
L. J.-G. Emslie, L. J.-C. Grant, Lords Wheatley, Cameron, Milligan.
Summary Procedure—Conduct of trial—Record of proceedings—Failure to enter reason for sentencing first offender to imprisonment—Whether sentence inept—First Offenders (Scotland) Act, 1960 (8 and 9 Eliz. II, cap. 23), sec. 1—Criminal Justice (Scotland) Act, 1963 (cap. 39), secs. 1 (3), 52, and Sched. 5.
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Sec. 1 of the First Offenders (Scotland) Act, 1960, as amended by the Criminal Justice (Scotland) Act, 1963, secs. 1 (3) and 52 and Sched. 5, provides that a court of summary jurisdiction shall not impose a sentence of imprisonment on a first offender of or over the age of twenty-one, unless it is of opinion that no other method of dealing with him is appropriate. The section, as amended, further provides that, if the court imposes a sentence of imprisonment on a first offender, it shall state the reason for its opinion that no other method of dealing with him is appropriate, "and the reason shall be entered in the record of the proceedings along with the finding and sentence."
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After summary trial in the Sheriff Court a man aged twenty-two, who fell to be treated as a first offender, was convicted of housebreaking and theft. The Sheriff, having obtained a social inquiry report, sentenced him to thirty days' imprisonment. In passing sentence he said to the accused that he considered that no other method of dealing with him was appropriate in respect that "this was a particularly mean crime, being a theft from a previous employer's premises." In recording the sentence the clerk of court omitted the reason, and in support of a bill of suspension it was contended for the accused that this omission rendered the sentence inept.
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Held that, as the parties were agreed that the Sheriff had stated his reason in open court, and also as to what his reason was, the accused and the court of review were in possession of all the information necessary to a consideration of the sentence; and accordingly that, there being no suggestion of prejudice or a miscarriage of justice, and harshness and oppression not having been made out, the sentence should stand.
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Observed that any sentence of imprisonment recorded against a first offender will be inept if the reason for it has not been stated and recorded along with it, and that failure to record the reason will normally demonstrate such prejudice or potential prejudice to the first offender as to be fatal to the sentence unless it is clearly shown that the failure has not deprived him of any of the essential protection which the legislature intended him to have.
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Winslow v. Farrell, 1965 J.C. 49, and Bruce v. Hogg, 1966 J.C. 33, considered andexplained.
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Silk v. Middleton, 1921 J.C. 69, doubted by Lord Cameron.
William Binnie, aged 22, was charged in the Sheriff Court at Airdrie on a complaint at the instance of James Farrell, Procurator-fiscal, which set forth that "on 11th or 12th October 1971 you did break into the premises in Saline Street, Airdrie, Lanarkshire, occupied by David Pollock and Company Limited, and there steal a tool box containing a socket set and an assortment of spanners, a tool box containing an assortment of spanners, a chain breaker, a stud extractor, a set of taps and dies, an electric power drill, an electric power sander and a torch." The only previous conviction laid before the court was dated 25th February 1960.
The accused pled not guilty but on 6th December 1971, after trial, he was found guilty as libelled. The temporary Sheriff (A. A. Bell, Q.C.) deferred sentence to enable a social inquiry report to be obtained. On 20th December 1971, after the report had been obtained, he sentenced the accused to thirty days' imprisonment. When imposing the sentence, he informed the accused that he considered that no other method of dealing with him was appropriate in respect that "this was a particularly mean crime, being a theft from a previous employer's premises." In recording the finding and sentence the clerk of court omitted to record the Sheriff's reason for imposing imprisonment.
The accused presented a bill of suspension and liberation against his sentence, from which the foregoing narrative has been taken. In his answers the respondent admitted that the statement of facts was accurate, and that the complainer was entitled to be treated as a first offender.
The complainer pleaded:—"(1) The sentence of imprisonment imposed by the Sheriff, being inept, should be suspended and an alternative substituted. (2) The sentence imposed by the Sheriff, having regard to the whole relevant circumstances, being harsh and oppressive, the same should be suspended and an alternative substituted."
The case was heard before the High Court of Justiciary (consisting of the Lord Justice-General, Lord Migdale and Lord Johnston) on 3rd May 1972, when, in view of the alleged inconsistencies between the opinions expressed in Winslow v. FarrellSC, 1965 J.C. 49, andBruce v. HoggSC, 1966 J.C. 33, it was sent for hearing before a larger court.
The case was heard before a Full Bench of the High Court of Justiciary (consisting of the Lord Justice-General, the Lord Justice-Clerk, Lord Wheatley, Lord Cameron and Lord Milligan) on 15th June 1972.
At advising on 28th June 1972,—
LORD JUSTICE-GENERAL (Emslie).—The complainer in this bill of suspension was on 6th December 1971 found guilty of housebreaking and theft, as charged in a summary complaint at the instance of the respondent. Sentence was then deferred. A social inquiry report was obtained by the temporary Sheriff and on 20th December 1971 the complainer was sentenced to imprisonment for thirty days. For the complainer it was maintained that this sentence was inept, or at least harsh and oppressive, and that another sentence should be substituted by this court.
It is common ground that the complainer was entitled to be treated as a first offender and that it was necessary for the temporary Sheriff, in deciding upon the appropriate disposal in the matter of sentence, to have regard to the terms of the First Offenders (Scotland) Act, 1960,5 as extended and amended by the Criminal Justice (Scotland) Act, 1963.6 The net effect of the amendments, so far as relevant to this case, is as follows:—
(a) In terms of section 1 (1) of the Act of 19605 it is provided that no court of summary jurisdiction shall impose imprisonment on a first offender of or over the age of twenty-one unless the court is of opinion that no other method of dealing with him is appropriate.
(b) For the purpose of deciding whether any other method of dealing with a first offender is appropriate the court is required by section 1 (2) of the Act of 19636 to obtain certain information (for example, a social inquiry report) about the first offender's circumstances and consider that information; and to take into account any information before it relevant to the character and physical and mental condition of the first offender.
(c) Section 1 (3) of the Act of 1963,6 as modified and applied by section 1 (2) of the Act of 1960,5 falls to be read thus: "Where a court of summary jurisdiction imposes imprisonment on a first offender of or over the age of twenty-one, the court shall state the reason for the opinion that no other
method of dealing with him is appropriate, and the reason shall be entered in the record of the proceedings along with the finding and sentence."It will be seen that, before deciding to sentence a first offender to imprisonment, the court is obliged to secure and consider the information prescribed by section 1 (2) of the Act of 1963,1and to take into account certain other information. Having decided to impose a sentence of imprisonment, the court at the time of sentencing must state its reason for its opinion that no other method of dealing with the first offender is appropriate. It is not in dispute that in this case the temporary Sheriff took all the steps which I have mentioned so far, and in particular disclosed in open court, when imposing sentence, his reason for considering that no other method of dealing with the complainer was appropriate. That reason was and is known to the complainer and to the respondent, and it is accordingly, since it is set out in the bill, known to this court.
The statutory provisions which I have mentioned, however, require that a further step shall be taken after a sentence of imprisonment has been imposed, and that is that the court's reason shall be recorded in the record of proceedings along with the finding and sentence. The complainer's contention that the sentence imposed upon him was inept rests solely upon the admitted fact that in this case this step was not taken. The argument, simply stated, was that the language of section 1(3) is peremptory and any sentence of imprisonment is inept when there has been a failure to record the court's reason. In presenting this argument counsel for the complainer founded strongly upon the opinion expressed obiter by Lord Wheatley, with which Lord Strachan and Lord Walker agreed, in Winslow v. FarrellSC,2at p. 51. He also, very properly, drew our attention to what appeared to be an opinion to the opposite effect expressed by the Lord Justice-General (Clyde), with which Lord Migdale and Lord Cameron agreed, in Bruce v. HoggSC,3 at p. 36. Upon an examination of these cases it is clear that in neither was the point now taken by the complainer sharply in focus; and, when they are properly understood, each was rightly decided for the right reasons.
In WinslowSC,2 which was a bill of suspension, it appeared that it could not be held that the Sheriff treated the complainer as a first offender, or that he stated in...
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