James Mclaughlin V. Procurator Fiscal Stirling
| Jurisdiction | Scotland |
| Judge | Sheriff Principal C.G.B. Nicholson |
| Court | High Court of Justiciary |
| Date | 02 August 2005 |
| Docket Number | XJ87/05 |
| Published date | 02 August 2005 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Macfadyen Lord Kinclaven C.G.B.Nicholson, C.B.E., Q.C.
| Appeal No: XJ87/05 Opinion of the Court delivered by C.G.B.Nicholson, C.B.E., Q.C., in BILL OF SUSPENSION in causa JAMES McLAUGHLIN Complainer; Against PROCURATOR FISCAL, Stirling Respondent:
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Appellant: Brown, Advocate; Balfour & Manson, Solicitors
Respondent: MacNeill, A.D.; Crown Agent
2 August 2005
Background to the Bill
[1]On 17 December 2004, at an intermediate diet at Stirling Sheriff Court, the complainer tendered a plea of guilty to a charge of breach of the peace committed on 28 August 2004. The sheriff adjourned the diet in order to obtain social enquiry and community service reports, and after sundry further procedure, the case again called for sentence on 5 February 2005. On that date the sheriff made a probation order for a period of twelve months. The probation order contains the normal requirements but, in addition, it contains a further requirement (no. 4) in the following terms:
"That the offender attend court for a probation progress hearing on 04 May 2005 at 10am."
[2]What happened thereafter was that the above progress hearing called on 4 May 2005 when a progress report was available. However, the complainer was not present, and the sheriff then proceeded to fix a further review hearing for 2 November 2005 despite a challenge by the complainer's agent that the fixing of a further hearing would be incompetent as it would be amending the probation order without having regard to the provisions of section 231 and Schedule 6 of the Criminal Procedure (Scotland) Act 1995.
[3]Thereafter, the present Bill of Suspension was prepared and lodged on behalf of the complainer. In the Bill it is maintained, in the first place, that the fixing of any probation review hearing is incompetent. Secondly, it is maintained that, in any event, the fixing of a further review hearing subsequent to the one originally fixed for 4 May 2005 was itself incompetent. In support of those contentions two pleas-in-law have been stated in the Bill. They are:
"1.That in the circumstances complained of there was no proper statutory basis for making the complainer subject to further supervision by the court and that any requirement to attend review hearings before the sheriff was incompetent and should be suspended.
2.That the amendment of the probation order by the fixing of a second review hearing on 2nd November 2005 without reference to the provisions of section 231 and Schedule 6 of the Criminal Procedure (Scotland) Act was incompetent and should be suspended."
The approach of the sheriff
[4]In his report to this Court the sheriff has advised us that he regarded the basis for fixing a review hearing as being section 229(1)(a) of the Criminal Procedure (Scotland) Act 1995. He states that he considered that the fixing of a probation progress hearing would be conducive to securing the good conduct of the complainer in that he knew, at the time of sentence in February 2005, that he required to return to court at which time a progress report would be available. The sheriff goes on to state that, if that report was unsatisfactory, it could give rise to action under section 232 of the Act.
[5]We shall shortly set out the terms of the foregoing, and certain other, provisions in the 1995 Act. For the moment, however, it is simply to be noted that nowhere in his report does the sheriff expressly comment on the amendment point which is focused in the Bill's second plea-in-law which we have quoted above.
The relevant statutory provisions
[6]Probation orders are dealt with in sections 228 to 234 of the 1995 Act. Section 228 sets out the circumstances in which a probation order may be made, the general content of such an order, and the procedures which must attend the making of the order. Section 229 is headed "Probation orders: additional requirements", and subsection (1) is in the following terms:
"Subject to section 230 of this Act, a probation order may require the offender to comply during the whole or any part of the probation period with such requirements as the court, having regard to the circumstances of the case, considers -
- conducive to securing the good conduct of the offender or for preventing a repetition by him of the offence or the commission of other offences;
... "
Section 229 then goes on, "without prejudice to the generality of subsection (1)", to set out a number...
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