McCaw v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Justice Clerk (Dorrian),Lord Turnbull |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] HCJAC 94 |
| Docket Number | No 13 |
| Court | High Court of Justiciary |
| Date | 12 December 2019 |
[2019] HCJAC 94
Lord Justice General (Carloway), Lord Justice Clerk (Dorrian) and Lord Turnbull
Barr v HM Advocate 1997 SLT 1004; 1997 SCCR 506
Crichton v HM Advocate 2007 SCCR 339
Du Plooy v HM Advocate (No 1) 2005 1 JC 1; 2003 SLT 1237; 2003 SCCR 640
Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223; 2012 SLT 484; 2012 SCCR 176; 2012 SCL 385
Ghafoor v HM Advocate 2007 SCCR 342
McLeod v HM Advocate HCJ, 13 June 2017, unreported
Martin v HM Advocate [2006] HCJAC 86; 2007 JC 70; 2006 SCCR 683; 2006 GWD 37–740
Justiciary — Sentence — Order to serve unexpired portion of licence consecutively to sentence for new offence — Whether sentence on new matter could be backdated to date of initial remand — Prisoners and Criminal Proceedings (Scotland) Act 1993 (cap 9), sec 16(2)(a)
Justiciary — Sentence — Discount for early plea and consideration of time spent in custody — Whether headline sentence should take into account any period spent on remand before application of discount for early plea — Criminal Procedure (Scotland) Act 1995 (cap 46), secs 196, 210
Andrew McCaw was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling a charge of assault. On 10 May 2019, at a continued preliminary hearing at the High Court of Justiciary in Glasgow, he pled guilty to the charge and was sentenced. The appellant was made the subject of a return order under sec 16 of the 1993 Act for a period of 117 days. He was sentenced to two years and three months' imprisonment, consecutive to a sec 16 order and backdated to the date of his initial remand. The appellant thereafter appealed against sentence to their Lordships in the High Court of Justiciary.
The Prisoners and Criminal Proceedings (Scotland) Act 1993 (cap 9) (‘the 1993 Act’), sec 16(2)(a), provides that when a person commits an offence, having been released from prison on licence in respect of an earlier offence, the court may order that person to be returned to prison for the whole or any part of the period which begins with the date of the order for his return and which is equal in length to the period between the date on which the new offence was committed and the date on which the person would have served his sentence for the previous offence in full. Section 16(5)(b) provides that the court may order that the period of such an order should run either concurrently or consecutively with the new sentence imposed.
The Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), sec 210(1), provides that, when a court passes a sentence of imprisonment, it shall, in determining the period of imprisonment, have regard to any time spent in custody awaiting trial or sentence.
The appellant was released on licence on 4 September 2018 in respect of a sentence of two years' imprisonment. On 17 December 2018, he was remanded in custody in respect of a charge of assault. On 10 May 2019, he pled guilty to that charge. The sentencing judge made a return order under sec 16 of the 1993 Act for the unexpired portion of the appellant's licence to be served before the commencement of the sentence for the new offence. The judge selected a headline sentence of three years' imprisonment, discounted to two years and three months to reflect the timing of the plea. He backdated the sentence to 17 December 2018. The appellant appealed against sentence. He argued that the correct approach to return orders was to...
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Appeal Against Sentence By Bradley Young Against Procurator Fiscal, Aberdeen
...identified, his approach to sentencing achieved an “equitable result” between the appellant and a nominal co-accused (McCaw v HM Advocate 2020 J.C. 128). Were a sentence discount of one-third to have applied to the headline disqualification period of 54 months (24 months plus an additional ......