Connelly v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 27 May 1954 |
| Docket Number | No. 16. |
| Date | 27 May 1954 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General, Lord Carmont,Lord Russell.
Review—Sentence—Sheriff—Conviction on indictment in Sheriff Court—Appeal against conviction—Refusal of appeal—Adequacy of sentence—Power of High Court to vary sentence—Competency of imposing sentence in excess of Sheriff's powers—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 2 (3) and (4).
The Criminal Appeal (Scotland) Act, 1926, by sec. 2, enacts:—"(3) On any appeal against conviction the Court shall have the like power to quash the sentence passed and to pass another sentence as is conferred on the Court by the immediately succeeding subsection of this section in the case of an appeal against sentence. (4) On any appeal against sentence the Court shall, if they think that a different sentence should have been passed, quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as they think ought to have been passed…"
A panel was convicted on indictment in the Sheriff Court on a charge of attempted rape and was sentenced to two years' imprisonment. Thereafter he appealed under the Act of 1926 against his conviction. His appeal having been dismissed, the question arose whether the sentence imposed by the Sheriff-substitute had been adequate in the circumstances of the case.
Held that in an appeal under the Act of 1926, whether against conviction or sentence, the Court required to consider the adequacy of the sentence in the circumstances and not the powers of the judge imposing the sentence, unless these powers had been exceeded; that there was no restriction on the power of the superior Court to increase sentence in a case in which the inferior judge had had the power to remit to a higher Court when his own powers of sentence were inadequate; and that the suitable sentence in the circumstances was one of five years' imprisonment.
James Connelly was charged in the Sheriff Court at Glasgow on an indictment at the instance of Her Majesty's Advocate which set forth that "you did on 23rd January 1954, in M'Farlane Street, Glasgow, at a point thereof near Gallowgate, and in the common close and back-court at No. 15 M'Farlane Street aforesaid, assault Sadie Carroll, aged 12 years…and did attempt to ravish her."
The panel was tried before the Sheriff-substitute (A. G. Walker) and a jury on 30th March 1954, when the jury, by a majority, found him guilty as...
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The Power to Increase Sentence Ex Proprio Motu on Appeal
...5 Sections 2(3) and (4) of the 1926 Act. For an example of the use of this power in an appeal against conviction see Connelly v HM Advocate 1954 JC 90 where Connelly's conviction for attempted rape was upheld and his sentence increased from two to five years, despite no appeal against sente......