David Nicol Campbell Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Eassie |
| Neutral Citation | [2015] HCJAC 28 |
| Published date | 12 March 2015 |
| Year | 2015 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2014 |
| Date | 14 January 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 28
HCA/2014/3483/XC
Lord Eassie
Lord Bracadale
OPINION OF THE COURT
delivered by LORD EASSIE
in
APPEAL AGAINST SENTENCE
by
DAVID NICOL CAMPBELL
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: C Fyffe, Solicitor Advocate; Paterson Bell Limited (for Bruce Short & Co, Dundee)
Respondent: Farquharson, AD; Crown Agent
14 January 2015
Introductory
[1] On 31 July 2008 the appellant was convicted in the Crown Court in Carlisle of a charge of robbery in terms of section 8 of the Theft Act 1968. He was sentenced by the Crown Court to a term of imprisonment of eight years. After he had begun serving that sentence he was transferred to a prison in Scotland on an “unrestricted” basis in terms of Schedule 1 to the Crime Sentences Act 1997 as applied by section 41 of the Act. He was later released at a point which accorded with the early release provisions set out in Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, namely on 29 November 2013.
[2] On 20 June 2014 at a sitting of the High Court of Justiciary in Livingston the appellant pled guilty to a number of offences committed in Scotland subsequent to his release from the sentence imposed by the Crown Court in England. The sentencing judge imposed terms of imprisonment on all of the charges, including as respects a group of three charges a cumulo extended sentence of nine years of which the custodial part was four years and six months. However, in addition, the sentencing judge pronounced an order under section 16(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 -“the 1993 Act”– that the appellant be returned to prison to serve 600 days of the sentence imposed by the Crown Court in England on 31 July 2008. The sentencing judge ordered that the period of 600 days be served prior to the sentences imposed in respect of the offences which were before the sentencing judge in Livingston. In this appeal against sentence, the principal point taken is whether it was within the competence or jurisdiction of the sentencing judge to make an order under section 16 of the 1993 Act in respect of a sentence imposed by a court in England and Wales.
[3] As, we think, became increasingly appreciated in the course of the hearing of this appeal before us, constituted as a two judge quorum, the issue is one which might more properly be considered by a bench of three judges. Having given further consideration to the submissions advanced and the various statutory provisions in issue (which includes an element of legislative archaeology) we have both come to the clear view that the issues present no obvious or unarguable answer and thus call for consideration by a larger bench.
[4] However, it may of some assistance for that future consideration if we set out something of the legislative history and endeavour to point to what appeared to us to be some relevant considerations affecting the competency point raised by the appeal.
Early release – England and Wales
[5] In 1988 there was published the report of a review committee chaired by Lord Carlisle of Bucklow QC on “The Parole System in England and Wales” (1988 Cmd. 532). In light of its recommendations, Parliament enacted Part II of the Criminal Justice Act 1991 – “CJA91”– dealing with the early release of prisoners. In brief summary, section 33 of the CJA91 introduced the concept of short and long term prisoners, the former being those sentenced to a term of less than four years in prison and the latter being those sentenced to four years or more. The category of short term prisoners was subdivided into those who had been sentenced to a term of less than 12 months and those who had been sentenced to a term of 12 months or more (but less than four years). The Secretary of State was required to release those in the first subcategory unconditionally once the prisoner had served one half of the sentence; a prisoner in the second category required to be released when he or she had served one half of the term, but in that case the release was to be on licence. A long term prisoner required to be released on licence once the prisoner had served two thirds of the sentence; but he or she might be released, on recommendation of the Parole Board, once one half of the term had been served. There are various qualifications to that basic structure in Part II of the CJA91 but it is, we think, unnecessary to detail them.
[6] Return to prison following conviction for a new offence during the currency of the term imposed for the original offence was treated principally in section 40 of the CJA91. Subsection 2 of that section provided:
“(2) Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which –
(a) begins with the date of the order; and
(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1) above [the date upon which, but for his release, the prisoner would have served his sentence in full].”
The qualification made in subsection (3) was that the power of a magistrates’ court to order return was restricted to a period of six months; but a magistrates’ court might commit the prisoner, on bail or in custody, to the Crown Court for sentence in accordance with section 42 of the Powers of Criminal Courts Act 1973. There are various other provisions within Part II CJA91 respecting life prisoners, young offenders, and persons extradited to the United Kingdom which, again, we think unnecessary to detail.
[7] More importantly for present purposes, none of the provisions of Part II CJA91 apply to Scotland or Northern Ireland – see CJA91, section 102. No power or jurisdiction was given to a court in Scotland or Northern Ireland to order a person who had previously been convicted in England and Wales and who, while on early release, committed an offence in those jurisdictions to be returned to prison to serve any part of the unexpired portion of the original English sentence.
[8] The provisions of Part II of the CJA91 have been largely replaced by the provisions in Part V of the Criminal Courts (Sentencing) Act 2000. We think it sufficient to say that as respects the power of a court in England and Wales to order a return to prison, section 116 of that Act appears to us to re‑enact grosso modo the earlier equivalent provisions of the CJA91, principally section 40. Again these provisions only apply to a court in England and Wales. No court outwith England and Wales which convicts a prisoner released from an English sentence is given any power to make any order in respect of that English sentence.
Early release – Scotland
[9] The review chaired by Lord Carlisle in England and Wales was matched, albeit somewhat later, by the Kincraig report on “Parole and Related Issues in Scotland” (1989 Cmd.598). Its recommendations form a background to the 1993 Act. As is well appreciated by those engaged in the criminal courts in Scotland, the 1993 Act adopted the basic approach of Carlisle and the CJA91. It made the same distinction between short term and long term prisoners; and it adopted the notions of early release unconditionally or on licence. But re‑offending while on early release was dealt with slightly differently.
[10] The leading section of the 1993 Act dealing with the commission of a new offence by a released prisoner prior to the expiry of the full term of his sentence is, of course, section 16. As enacted the relevant text provided:
“16 - Commission of offence by released prisoner.
(1) This section applies to a short-term or long-term prisoner sentenced to a term of imprisonment (in this section referred to as ‘the original sentence’) by a court in Scotland and released under this Part of this Act or Part II of the Criminal Justice Act 1991 if—
(a) before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment (other than an offence in respect of which imprisonment for life is mandatory); and
(b) whether before or after that date, he pleads guilty to or is found guilty of that offence (in this section referred to as “the new offence”) in a court in Scotland or England and Wales.
(2) Where the court mentioned in subsection (1)(b) above is in Scotland it may, instead of or in addition to making any other order in respect of the plea or finding—
(a) in a case other than that mentioned in paragraph (b) below, order the person to be returned to prison for the whole or any part of the period which—
(i) begins with the date of the order for his return; and
(ii) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(a) above; and
(b) in a case where that court is inferior to the court which imposed the sentence mentioned in the said subsection (1)(a), refer the case to the superior court in question; and a court to which a case is so referred may make such order with regard to it as is mentioned in paragraph (a) above.
(3)Where the court mentioned in subsection (1)(b) above is in England and Wales it may, instead of or in addition to making any other order in respect of the plea or finding, refer the case to the court which imposed the original sentence and shall, if it does so, send to that court such particulars of that case as may be relevant.
(4) The court to which a case is referred under subsection (3) above may make such an order as is mentioned in subsection (2)(a) above in respect of the person.
(5) The period for which a person to whom this section applies is ordered under subsection (2) or (4) above to be returned to prison—
(a) shall be taken to...
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