Donnelly v Orr

JurisdictionScotland
CourtSheriff Appeal Court
JudgeSheriff AL MacFadyen,Sheriff N McFadyen
Judgment Date17 Jan 2018
Docket NumberNo 6

[2018] SAC (Crim) 1

Sheriff AL MacFadyen and Sheriff N McFadyen

No 6
Donnelly
and
Orr
Cases referred to:

Duncan v Spiers [2008] HCJAC 27; 2008 JC 355; 2008 SLT 666; 2008 SCCR 629; 2008 SCL 843

McLaughlin v McQuaid [2005] HCJAC 87; 2005 JC 95; 2005 SLT 972; 2005 SCCR 630

Justiciary — Sentence — Non-harassment order — Non-harassment order imposed at the same time as deferring sentence — Whether competent — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 234A

Peter Donnelly was charged in the sheriffdom of Glasgow and Strathkelvin at Glasgow on a summary complaint at the instance of Moira Orr, procurator fiscal there, with contraventions of sec 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and of sec 47 of the Criminal Law (Consolidation) (Scotland) Act 1995. On 30 March 2017, the appellant was convicted after trial and the case was adjourned to 4 May 2017 for sentencing. On 4 May 2017, sentence was deferred for three months until 19 July 2017, at the same time as a non-harassment order was made in respect of the complainer on charge (001). The appellant thereafter appealed against sentence to the Sheriff Appeal Court.

Section 234A of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides that a person who is convicted of misconduct towards another person may be made subject to a non-harassment order (‘NHO’), being an order to refrain from specified conduct in relation to that other person for a specified period. The order may be imposed by the court instead of, or in addition to, dealing with the person in any other way. The order may be appealed against as if the order were a sentence.

The appellant appeared on a summary complaint alleging contraventions of sec 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) and sec 47 of the Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39). The appellant was convicted after trial. The sheriff adjourned sentence for the preparation of background reports. Once the reports were available the sheriff deferred sentence for three months. At the same time as deferring sentence the sheriff imposed an NHO. The appellant argued that the imposition of an NHO at the same time as deferring sentence was incompetent as the imposition of an NHO was itself a sentence, a court being functus after passing sentence.

Held that: (1) a non-harassment order was not a sentence (para 9); (2) an NHO could be imposed at the same time as otherwise deferring sentence (paras 10, 11); and appeal refused.

Observed that bail conditions had much the same effect as non-harassment orders and avoided difficulties of double jeopardy potentially arising from a breach of an NHO while sentence was otherwise deferred (para 15).

McLaughlin v McQuaid 2005 JC 95 and Duncan v Spiers2008 JC 355distinguished.

The appeal called before the Sheriff Appeal Court, comprising Sheriff AL MacFadyen and Sheriff N McFadyen, for a hearing, on 20 December 2017.

At advising, on 17 January 2018, the opinion of the Court was delivered by Sheriff N McFadyen—

Opinion of the Court— [1] This appeal concerns the question whether it is competent for a court to make a non-harassment order (‘NHO’) at the same time as deferring sentence. The appellant was found guilty after trial of charges of contravention of sec 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) and sec 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39) and the summary sheriff adjourned sentencing for the preparation of background reports. On 4 May 2017 the sheriff deferred sentence for a period of a little under three months, as she states for clarification of the appellant's ability to work, and for a community payback order progress report, although the minutes also record that the deferral was for the appellant to be of good behaviour and she imposed an NHO for a period of two years. Whatever the purpose of deferral of sentence, the sheriff was plainly acting under sec 202 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’). The appeal is now concerned only with the competency of the NHO and it was only on that ground, which was not initially raised by the appellant, that the appeal sheriffs at second sift allowed leave to appeal.

[2] The...

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