Linda Duncan V. Procurator Fiscal, Hamilton
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Sheriff Principal C.G.B. Nicholson |
| Court | High Court of Justiciary |
| Docket Number | XJ1270/07 |
| Date | 07 May 2008 |
| Published date | 07 May 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Johnston C.G.B. Nicholson, CBE, QC, | [2008HCJAC 27]
Appeal Nos: XJ 1269/07 XJ1270/07 OPINION OF THE COURT delivered by C.G.B. NICHOLSON, CBE, QC in APPEALS AGAINST SENTENCE in causa LINDA ELIZABETH DUNCAN Appellant; against PROCURATOR FISCAL, HAMILTON Respondent: _______ |
Respondent: McKenna, A.D.; Mackay, A.D.; Crown Agent
7 May 2008
Background
[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 address] in Wishaw. The appellant was found guilty of both charges after trial; and what the sheriff did then was to make an antisocial behaviour order ("ASBO") for a period of 10 years. That order prohibited the appellant from "conducting herself in a disorderly manner, shouting, swearing, uttering threats to [members of the aforementioned family] all residing at [the aforementioned address] in Wishaw and placing them in a state of fear and alarm". The sheriff also deferred sentence until 17 January 2007 for the appellant to be of good behaviour. On that date she further deferred sentence until 26 July 2007. She was then told that the appellant had been charged with a breach of section 9(1) of the Antisocial Behaviour Etc (Scotland) Act 2004, and she accordingly adjourned the case so that she could be advised of the outcome of that charge. In the result Sheriff Smart ultimately came to pass sentence in respect of the two charges of breach of the peace on 26 September 2007.
[3] Before coming to describe the sentences which were imposed by Sheriff Smart on that date it will be helpful to set out the progress of the charge under section 9(1) of the 2004 Act. That charge refers to the ASBO made by Sheriff Smart on 14 September 2006, and it goes on to allege that, on 12 April 2007, and in breach of the order, the appellant behaved in a disorderly manner at [the aforementioned address] in Wishaw, and uttered threats to [members of the aforementioned family]. The charge also sets out that this took place while the appellant was subject to a bail order which had been granted on 18 August 2006. The appellant maintained a plea of not guilty to the charge but, on 6 August 2007, she was found guilty after a trial which took place before Sheriff Stewart. He obtained various reports and, on 26 September 2007, he sentenced the appellant to three months imprisonment of which one month was attributed to the bail aggravation. In passing, we note that Sheriff Stewart appears to have been influenced to a significant extent by the fact that the appellant had "flouted the bail order of 18 August 2006". However, he seems to have taken that approach upon the mistaken view that the offence with which he was dealing had been committed on 14 September 2006, that is to say less than one month after bail had been granted. In fact, of course, 14 September 2006 was the date when Sheriff Smart made the ASBO, and the offence which was before Sheriff Stewart took place, some seven months later, on 12 April 2007. It is also, we consider, somewhat surprising that the bail aggravation in question was ever libelled at all given that it must, we think, have been superseded by the subsequent ASBO. However, we need not trouble ourselves further with those matters since, as will be seen, we consider that there is a more significant flaw in the whole proceedings in this case.
[4] Returning to the deferred sentences which were before Sheriff Smart, she was advised on 26 September 2007 of the disposal selected earlier that day by Sheriff Stewart in respect of the offence under the Antisocial Behaviour Act, and she was also provided with copies of the various reports which had been before him at the time of sentence. She then proceeded to sentence the appellant to a period of three months imprisonment on each of the breach of the peace charges, and she directed that those sentences should be served consecutively to each other, making a total of six months imprisonment. Those sentences were to commence on 26 September, being the same commencement date as the sentence imposed by Sheriff Stewart. The result of that is that, on that date, the appellant was effectively sentenced to a total period of six months imprisonment, and not nine months, as was suggested by Mr Paterson who appeared on behalf of the appellant at the appeal hearing. It appears that, following on the imposition of the sentences on 26 September 2007, the appellant in fact spent some 15 days in custody before being released on interim liberation on 11 October 2007.
[5] To complete this description of the background to the appeal we should note that the written submissions presented by Mr Paterson effectively canvassed three broad grounds of appeal. One was that it was incompetent for Sheriff Smart to make the sentences for the breach of the peace charges consecutive since that had the effect of exceeding the maximum sentence available for a single complaint. That ground is obviously sound (Nicholson v Lees 1996 SCCR 551), and it was subsequently accepted as such by the advocate depute. Mr Paterson's second ground of appeal was that, for various reasons, it was inappropriate for custodial sentences to be selected at all; and his third ground of appeal was that it was excessive for the ASBO to have been made for as long as ten years. In the course of our preparation for the hearing of this appeal, however, we detected what we considered to be a more fundamental flaw in relation to the competency of the proceedings in this case. It is always, of course, pars judicis for a court to take note of any apparent incompetency in proceedings even when that has not been raised by the parties; and, accordingly, we voiced our concerns at an early stage in the appeal hearing, giving both Mr Paterson and the advocate depute an opportunity to comment. At that stage, of course, our concerns were merely tentative.
The competency of the sheriff's disposal on 14 September 2006
[6] Our concerns arise from the fact that, when Sheriff Smart was dealing for the first time with the two charges of breach of the peace in September 2006, she made an ASBO and, at...
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