Duncan v Spiers
| Jurisdiction | Scotland |
| Judgment Date | 07 May 2008 |
| Neutral Citation | [2008] HCJAC 27 |
| Docket Number | No 35 |
| Date | 07 May 2008 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Johnston, Temporary Judge CGB Nicholson CBE, QC
Justiciary - Sentencing - Antisocial behaviour order and deferment of sentence in respect of the same charges - Whether competent to impose an antisocial behaviour order and deferment of sentence at the same time
The appellant was convicted on a summary complaint of two charges of breach of the peace. On 14 September 2006 the sheriff imposed an antisocial behaviour order ('ASBO') for a period of 10 years and deferred sentence on the breach of the peace charges, for the appellant to be of good behaviour. During the period of a subsequent deferral the appellant was charged with an offence under sec 9(1) of the Antisocial Behaviour etc (Scotland) Act 2004, being in breach of the ASBO. On 26 September 2007 the appellant was sentenced to three months' imprisonment in respect of breaching the ASBO. Later that same day she was resentenced for the original breach of the peace charges and received three months' imprisonment on each, ordered to run consecutively. The effect of these sentences was that the appellant was to serve a term of six months' imprisonment. Following their imposition the appellant spent 15 days in custody before being released on interim liberation pending an appeal against sentence.
The appellant lodged grounds of appeal against the sentences of imprisonment. The court, however, raised the issue of the competency of the sheriff's original disposal on 14 September 2006. The court expressed concern about the competency of making an ASBO and at the same time deferring sentence in respect of the two charges before the sheriff.
Held that: (1) the disposal selected could have had at least two undesirable consequences (para 8); (2) the consequence of having an ASBO and a deferred sentence running concurrently would have been that the convicted person was at risk of receiving a more severe sentence for the original offence in respect of which the ASBO was made, if during the course of the operation of the ASBO, an incident had occurred which constituted an offence under sec 9(1) of the Antisocial Behaviour etc (Scotland) Act 2004 (para 9); (3) a further consequence related to rights of appeal (para 10); (4) statute did not provide for a right of appeal against the making, or the terms, of an ASBO in circumstances where, by the deferment of sentence, there had been no final disposal of the charge or charges which had been said to have justified the making of the order in the first place (para 9); (5) the original disposal, namely the making of an ASBO and at the same time a deferment of sentence had been incompetent (para 13); (6) given the age of the offences, couple with the possibility that the appellant's circumstances and attitudes could well have changed for the better and having regard to the fact that the appellant had spent 15 days in custody a pragmatic solution had to be called for; and appeal allowed, whole disposal quashed as incompetent and no further order made.
Observed that the problems (in respect of an appropriate sentence) which had arisen with the case could have been avoided if the original disposal had been made the subject of a bill of suspension. Such a bill would have been bound to succeed and in that event, the incompetent disposal would have been quashed with the case going back to the sheriff to resentence in a competent manner.
Linda Elizabeth Duncan was charged in the sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton at the instance of David Spiers, procurator fiscal there, on a summary complaint charged with two offences of breach of the peace.
The appellant pled not guilty and the cause came to trial before the sheriff (M Smart). On being convicted on 14 September 2006, the appellant was made the subject of an antisocial behaviour order for a period of 10 years and sentence was deferred for the appellant to be of good behaviour. During the period of deferral the appellant was convicted of breaching the ASBO. The appellant was sentenced on 26 September 2007 for the breach of the ASBO and the original breach of the peace offences and received a total period of six months' imprisonment.
The appellant thereafter appealed against sentence to their Lordships in the High Court of Justiciary.
Cases referred to:
Gordon v GriffithsSCUNK [2007] HCJAC 45; 2008 JC 87; 2007 SLT 954; 2007 SCCR 349; 2007 SCL 12
Nicholson v LeesSCUNK 1996 JC 173; 1996 SLT 706; 1996 SCCR 551
The cause called before the High Court of Justiciary, comprising Lord Johnston and Temporary Judge CGB Nicholson CBE, QC, for hearings on 12 March, 18 April and 7 May 2008.
At advising, on 7 May 2008, the opinion of the Court was delivered by Temporary Judge CGB Nicholson CBE, QC-
Opinion of the Court-
[1] The appellant, Linda Duncan, has appealed against custodial sentences which were imposed by two different sheriffs at Hamilton Sheriff Court on 26 September 2007 in respect of charges on two related complaints. The background to the imposition of those sentences is somewhat complicated, but it appears to be as follows.
[2] On 14 September 2006 the appellant went to trial before Sheriff Smart at Hamilton Sheriff Court on a complaint containing two charges of breach of the peace, the offences in question having been committed on, respectively, 7 August 2005 and 5 June 2006. Each of the charges involved disorderly conduct directed at members of 'a named family' who resided at 'a named...
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