McLaughlin v McQuaid

CourtHigh Court of Justiciary
Judgment Date02 August 2005
Neutral Citation[2005] HCJAC 87,2005 SCCR 630
Date02 August 2005
Docket NumberNo 18

Appeal Court, High Court of Justiciary

Lord Macfadyen, Lord Kinclaven, CGB Nicholson CBE, QC

No 18

Justiciary - Sentencing - Probation order with additional requirement - Probation progress review hearing fixed - Additional requirement involved further participation by the court - Whether a competent additional requirement - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 229(1)

Justiciary - Sentencing - Probation order with additional requirement - Probation progress review hearing - Further progress review hearing fixed - Whether that constituted an amendment of the probation order - Whether competent - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 229(1)

Section 229(1) of the Criminal Procedure (Scotland) Act 1995 enables a court to require an offender who is to be the subject of a probation order to comply with additional requirements having regard to the circumstances of the case.

The complainer had tendered a plea of guilty to a breach of the peace and was sentenced to a twelve-month probation order with an additional requirement that he attend a probation progress review hearing on a specified date in May 2005. When that progress review hearing called in May 2005 a report was available but the complainer did not attend. Notwithstanding a challenge to its competency the sheriff fixed a further review hearing on a date in November 2005. A bill of suspension was lodged in which two pleas in law were stated.

The complainer argued: (1) while sec 229(1) of the Criminal Procedure (Scotland) Act 1995 was expressed in wide terms, it did not when properly construed give authority to the fixing of a review hearing once the probation order had been made. Moreover it was argued that any additional requirement should relate to the probation order itself and could not be one which involved a further participation by the court; and (2) notwithstanding the above, the additional requirement inserted into the complainer's probation order referred only to a progress hearing in May 2005 and provided no basis for a further hearing thereafter. Any such further hearing would require an amendment of the probation order which had not been done in this case and could not be done without an application by the supervising officer.

Held that: (1) in the absence of express statutory authority a court was functus having finally disposed of a case by passing sentence (para 13); (2) as a consequence a court had no power to sit again in the same case (para 13); (3) sec 229(1) of the Criminal Procedure (Scotland) Act 1995, notwithstanding its wide terms, did not by express provision enable a sheriff to sit again in the same case (para 14); (4) a requirement which purported to set up a further hearing by the court after sentence had been passed was incompetent (para 14); (5) it would only be competent if the statute were amended in order to make it so (para 14); (6) the first plea in law sustained (para 14); and bill passed.

Observed that: (1) even if the sheriff had been entitled to add the special requirement which he did, that made for only one post sentencing hearing (para 15); (2) as a consequence the sheriff had no power to fix a further hearing without an amendment of the probation order (para 15); (3) that had been something the sheriff could not do at his own hand far less simply by implication (para 15).

James McLaughlin was charged in the sheriffdom of Tayside Central and Fife at Stirling at the instance of Ruth Elizabeth McQuaid, procurator fiscal there, on a summary complaint charged with an offence of committing a breach of the peace. The complainer tendered a plea of guilty at an intermediate diet on 17 December 2004 and was given a 12-month...

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1 cases
  • Donnelly v Orr
    • United Kingdom
    • Sheriff Appeal Court
    • 17 Enero 2018
    ...and Orr Cases referred to: Duncan v Spiers [2008] HCJAC 27; 2008 JC 355; 2008 SLT 666; 2008 SCCR 629; 2008 SCL 843 McLaughlin v McQuaid [2005] HCJAC 87; 2005 JC 95; 2005 SLT 972; 2005 SCCR 630 Justiciary — Sentence — Non-harassment order — Non-harassment order imposed at the same time as de......

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