HM Advocate v O'Doherty
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Matthews,Lord Boyd of Duncansby |
| Judgment Date | 11 August 2022 |
| Court | High Court of Justiciary |
| Docket Number | No 24 |
[2022] HCJAC 31
Lord Justice Clerk (Dorrian), Lord Matthews and Lord Boyd of Duncansby
Justiciary — Sentence — Crown appeal on point of law — Accused remanded in custody and subsequently granted bail — Sentence reduced by double remand period — Whether trial judge erred as to basis of calculating deduction in circumstances of a long-term prisoner — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 210(1)
Section 108 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’) provides that, where a person has been convicted on indictment, the Lord Advocate may appeal against a sentence passed on conviction (sec 108(1)(a)) on a point of law (sec 108(2)(a)). Section 210(1) provides that a court, in passing a sentence of imprisonment, shall “(a) in determining the period of imprisonment … have regard to any period of time spent in custody by the person on remand awaiting trial or sentence …; (b) specify the date of commencement of the sentence; and (c) if … the date specified under paragraph (b) … is not earlier than the date on which sentence was passed, state its reasons for not specifying an earlier date”.
The respondent was convicted after trial of a charge of attempted murder. The trial judge selected a headline sentence of six years' imprisonment. The respondent had previously been remanded in custody for a period of 289 days, after which he was granted bail. The trial judge reduced the overall sentence on that account by 578 days, representing double the remand period.
The Crown appealed against sentence on a point of law that the trial judge erred in doubling the period on remand as the basis for a deduction calculated to have regard to the time spent on remand. In the circumstances of a long-term prisoner, it was not possible to calculate in any clear or consistent manner the length of sentence which would result in a specific period being served in custody. Therefore, doubling the period on remand would risk comparative injustice to other prisoners.
The respondent argued that it should be open to sentencers to reduce the sentence by double the period on remand, or to select some shorter period within the statutory discretion afforded by sec 210(1) of the 1995 Act.
Held that: (1) sec 210(1) of the 1995 Act provided only that the court required to “have regard” to the relevant remand period, and to explain clearly its effect, including the reasons for any decision not to backdate a sentence (para 6); (2) the trial judge had been satisfied that it was appropriate for him to take account of the whole period spent on remand, and he had been correct to eschew any attempt to anticipate whether, and if so when, parole might be granted as fraught with difficulty, and in fact, impossible (paras 9, 10); (3) as a consequence of amendment to the early release provisions, there was no satisfactory basis upon which the court could properly deal with the issue by means of deduction from the sentence to reflect the length of sentence which would result in that period being served in custody, as the matter related not only to the date at which a prisoner might be entitled to automatic release, but also to the date when he might be eligible for parole (para 11); (4) there was no barrier to the imposition of a sentence backdated to a notional commencement date, which would achieve the true objective of placing those on non-continuous remand on exactly the same footing as those whose remand had been continuous (paras 13, 14); and appeal allowed and sentence imposed on 28 March 2022 quashed and sentence of six years' imprisonment backdated to commence from 16 May 2021 substituted therefor.
Wojociechowski v McLeod 1992 SCCR 563 and Martin v HM Advocate2007 JC 70considered.
Advocate (HM) v Davidson, Mullarkey, Hardy and Smith HCJ (Edinburgh), Lord Boyd of Duncansby, 15 February 2022, unreported
Clark v HM Advocate [2022] HCJAC 32; 2022 GWD 25-356
Douglas v HM Advocate 1997 SCCR 671; 1997 GWD 35-1753
Hutcheson v HM Advocate 2001 SCCR 43; 2000 GWD 39-1450
Martin v HM Advocate [2006] HCJAC 86; 2007 JC 70; 2006 SCCR 683
Wojociechowski v McLeod 1992 SCCR 563; [1992] CLY 5770; The Scotsman, 3 June 1992
Jake O'Doherty was charged on indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with attempted murder. The accused was remanded in custody for a period of 289 days, and subsequently released on bail. He was convicted after trial and, on 28 March 2022, sentenced to six years' imprisonment, subject to deduction of 578 days having regard to the time spent on remand. The Crown thereafter appealed against the deduction from sentence to the High Court of Justiciary.
The cause called before the High Court of Justiciary, comprising the Lord Justice Clerk (Dorrian), Lord Matthews and Lord Boyd of Duncansby, for a hearing, on 23 June 2022.
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HM Advocate v LB
...(HM) v McPhee 1994 SLT 1292; 1994 SCCR 830 Advocate (HM) v May 1995 SLT 753; 1995 SCCR 375 Advocate (HM) v O'Doherty [2022] HCJAC 31; 2022 JC 253; 2022 SLT 967; 2022 SCCR 253 Advocate (HM) v Renton HCJ, Lady Scott, 10 March 2022, unreported Advocate (HM) v Shearer 2003 SLT 1354; 2003 SCCR 6......