Appeal Under Section 194zb Of The Criminal Procedure (scotland) Act 1995 By Majid Iqbal Against Procurator Fiscal, Dumfries
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lady Smith,Lord Bracadale |
| Neutral Citation | [2016] HCJAC 38 |
| Docket Number | HCA/2016-000071 |
| Court | High Court of Justiciary |
| Date | 30 March 2016 |
| Published date | 27 April 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 38
HCA/2016-000071/XC
Lady Smith
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LADY DORRIAN
in
APPEAL UNDER SECTION 194ZB OF THE
CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
MAJID IQBAL
Appellant;
against
PROCURATOR FISCAL, DUMFRIES
Respondent:
Appellant: Ogg; Gilfedder McInnes
Respondent: Brown QC, AD; Crown Agent
30 March 2016
[1] On a charge of contravening section 2 of the Road Traffic Act 1988, the sheriff imposed a fine of £600, reduced from a figure of £800 on account of the plea, and disqualified for 20 months. He did not discount the latter and an appeal was presented on that basis. The sheriff’s report indicates that he considers he should have discounted the disqualification, and would have done so by reducing the period to 15 months. The sifting sheriff notes that fact, but observes that a discount to the disqualification period is only appropriate for any period beyond that required for public protection. In his view the whole 20 months was required for that purpose, so he refused leave. However, he noted that the sheriff should have imposed a mandatory requirement to sit the extended test, so he purported to specify that factor as an arguable ground of appeal for the purposes of section 187(6). The sheriff’s report makes absolutely no mention of the mandatory requirement and it appears that, in error, he overlooked it, notwithstanding that the sifting sheriff proceeded on the assumption that this was an “omission”. The sifting sheriff refused leave to appeal the ground stated, but purported to grant leave to appeal “only to allow the Sheriff Appeal Court to remit the proceedings under section 299 of the Criminal Procedure (Scotland) Act 1995 to the Sheriff Court in order for the entry to be corrected, or otherwise to alter the sentence in terms of section 167(8) of the 1995 Act or to substitute an entirely competent sentence, including the appropriate order to sit the extended test of competence to drive”.
[2] The appellant applied under section 187(7) of the Act, seeking to be allowed to argue the ground which had been disallowed. At the hearing on that matter, the court refused to allow the ground to be reinstated. Noting that there were thus no other grounds of appeal, save that inserted by the sifting sheriff, the Sheriff Appeal Court then purported to exercise the power available to it under section 299(4)(b) of the Act to remit to the sheriff to amend the entry in the record of proceedings or to alter the sentence in terms of section 167 or to substitute an otherwise competent sentence, including the requirement to sit the extended test.
[3] In our view the interlocutor of the Sheriff Appeal Court in this respect was incompetent.
[4] The terms of section 299 are not designed to cover the situation in which a sheriff has not in fact passed the sentence which he ought to have passed, even when that sentence is a mandatory one. It is not designed to alter or modify any sentence which has been passed, it is merely designed to correct “an entry in a) the record of proceedings or…b) the extract of a sentence passed…in so far as that entry constitutes an error of recording or is incomplete”.
[5] So, where it is clear that the record of proceedings or extract of sentence does not reflect the sentence which was in fact passed, section 299 may operate. Where the defect comes to light during an appeal, section 299(4)(b) allows the court hearing the appeal to remit the matter to the sentencing court for correction. However, this was not a case of an erroneous or incomplete record, it was a case where a...
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