Stephen Henderson V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Clarke,Lord Carloway |
| Judgment Date | 07 September 2010 |
| Neutral Citation | [2010] HCJAC 107 |
| Published date | 21 October 2010 |
| Date | 07 September 2010 |
| Court | High Court of Justiciary |
| Docket Number | XC787/09 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Carloway Lord Clarke | [2010] HCJAC 107 Appeal No: XC787/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by STEPHEN MICHAEL HENDERSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, Prais; Gilfedder & McInnes, Edinburgh
Respondent: Allan, Q.C., A.D.; Crown Agent
Advocate General: Howie, Q.C.
7 September 2010
[1] The Firearms Act 1968 (as amended) is legislation of the United Kingdom Parliament. It makes provision for the regulation of firearms, including for criminal offences in relation to their possession and use. Section 51 and Part I of Schedule 6 provide for the way in which offences under the Act are punishable on conviction. As respects conviction for contravention of section 1 of the Act (possession of a firearm or ammunition without a firearms certificate) the maximum penalty on indictment is prescribed to be five years' imprisonment or a fine or both, save where the offence is committed in an aggravated form (where the maximum term of imprisonment is seven years).
[2] The appellant was on 4 August 2008 apprehended in a car park in Edinburgh in possession of a handgun. He was charged, under section 1 of the 1968 Act (as amended), with possession of a firearm without holding a firearms certificate in force at the time. Shortly thereafter he intimated his intention to plead guilty to that charge. An indictment under section 76 of the Criminal Procedure (Scotland) Act 1995 was served on him, a diet being fixed in the High Court. On 15 October 2008 he appeared at that diet and pled guilty to that charge. The Advocate depute stated to the sentencing judge that the Crown had been in error in indicting the case in the High Court; having regard to the maximum sentence, indictment in the Sheriff Court would, it was said, have been appropriate.
[3] The appellant has an extensive criminal record. He has been convicted on several occasions of crimes of violence, most recently having been sentenced for such a crime to six years' imprisonment. He has also been previously convicted of an offence of contravention of section 1(1)(a) of the 1968 Act, in that case as aggravated by section 4(4); he was sentenced for that contravention to two years' imprisonment.
[4] In the course of the diet the sentencing judge, at his own instance, raised the question whether the risk criteria, as defined in section 210E of the 1995 Act (as amended) might be met for the purposes of section 210B(2). The diet was continued in order that that matter might be fully debated. At the continued diet submissions were made on behalf of the appellant that it would not be open to the court to make a risk assessment order under section 210B(2), the pre-condition under section 210B(1) not being satisfied, and further that the imposition of any order for lifelong restriction under section 210F (introduced by the Criminal Justice (Scotland) Act 2003) would be incompetent, that being a penalty which exceeded the maximum laid down in the 1968 Act (as amended) for the contravention in question; firearms law was, it was submitted, a reserved matter under the Scotland Act 1998 and it was therefore outside the competence of the Scottish Parliament to override the penalty provisions made by the United Kingdom Parliament under the 1968 Act (as amended).
[5] The sentencing judge rejected these...
To continue reading
Request your trial
-
Barry Mccluskey V. Her Majesty's Advocate
...offences on the same indictment (see HM Advocate v Turner 2007 SCCR 194). The sifting judge, under reference to Henderson v HM Advocate 2011 JC 96, also granted leave to appeal on the competency of imposing a cumulative OLR upon charges for which there was a statutory maximum. Although the ......
-
Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill
...way in an ex tempore judgment of the High Court of Justiciary, by concession and without detailed argument, in Henderson v HM Advocate 2011 JC 96. In that case, a general provision creating a new order for lifelong restriction was read as not extending to certain convictions under the Firea......
-
Johnstone v HM Advocate
... ... [2007] EWHC 2960; [2008] QB 888; [2008] 3 WLR 465; [2008] 2 All ER 326 Henderson v HM AdvocateUNK [2010] HCJAC 107; 2011 SLT 488; 2010 SCCR 909; 2011 SCL 326 ... ...