Nicholson v Lees

JurisdictionScotland
Judgment Date16 May 1996
Neutral Citation1996 SCCR 551
Date16 May 1996
Docket NumberNo 27
CourtHigh Court of Justiciary

Full Bench

LJ-C Ross, Lords Morison, Weir, Kirkwood and Mayfield

No 27
NICHOLSON
and
LEES

Procedure—Summary procedure—Sentence—Consecutive sentences—Charges on separate complaints relating to same incident—Whether consecutive sentence competent or appropriate

A pannel pled guilty to charges on separate complaints. In respect of the first complaint one charge related to a contravention of sec 41(1)(a) of the Police (Scotland) Act 1967 and the other to a charge of contravening sec 40A of the Road Traffic Act 1988. In respect of the first charge on that complaint the pannel was sentenced to six months' imprisonment and, in respect of the second, a fine was imposed with no time for payment and in default of payment the alternative of 28 days' imprisonment concurrent was imposed. In respect of the second complaint, the pannel pled guilty to a charge of contravening sec 103(1)(b) of the 1988 Act and a charge of contravening sec 143(1) and (2) of the Act. In respect of the first charge the pannel was sentenced to six months' imprisonment and in respect of the second a fine was imposed. Again no time for payment was made and in default of payment the pannel was sentenced to 28 days' imprisonment as the alternative. That period was ordered to run concurrently with the sentence imposed in respect of the first charge on that complaint. The sentences imposed on the two complaints were ordered to run consecutively. All charges, however, to which the pannel had pled guilty on the complaints were committed on the same day. They related to an incident in which a police constable stopped the pannel's car and the appellant got out of the car and assaulted him. The pannel appealed against the consecutive sentences.

Held (by a court of five judges) (1) that where two or more charges were contained in a single complaint, the court could not competently impose a total period of imprisonment which exceeded in aggregate the upper limit permitted for that court and in particular the case by common law or statute and that the highest custodial penalty which could competently be imposed was the maximum prescribed for the charge which carried the highest penalty, albeit that that rule did not apply to fines; (2) that the same rule applied where the charges were contained in more than one complaint or indictment but fairness required the various complaints to be treated as if they were one; (3) that where two or more charges were contained in more than one complaint and fairness did not require that they be treated as one, it was competent to impose sentences of imprisonment which added up to more than the maximum which could have been imposed in respect of one complaint, the question then being whether it was appropriate for the court, within the limit of its overall sentencing power, to impose consecutive rather than concurrent sentences; (4) that there was no rule of law that both sentences should normally be concurrent or that they should normally be consecutive for, apart from cases where only one sentence was prescribed by law, a judge or sheriff when imposing sentence was exercising his or her discretion and where more than one sentence of imprisonment was being imposed, the starting point had to be that a court at common law was entitled to impose concurrent or consecutive sentences subject to the proviso that where consecutive sentences were imposed, the sentences had not in aggregate to exceed the limit of the court's sentencing powers; (5) that where charges against an accused appeared in two or more separate complaints which were being dealt with at the same time, the court required to consider why the charges had appeared on separate complaints and, if the charges had appeared for technical reasons on separate complaints, as in the present case, the charges fell to be treated as if they had appeared on one complaint, with the result that, while consecutive sentences might be imposed, the sentences in aggregate could not exceed the limit of the court's sentencing power on one complaint; (6) that in other cases, where a number of charges against an accused appeared on two or more separate complaints and that had not been done merely for technical reasons, the court had simply to determine in the circumstances whether any sentences of imprisonment imposed should be concurrent or consecutive, and in doing so might wish to consider the overall effect of the sentence, whether it appeared to be equitable that the charges were brought on separate complaints, having regard in particular to whether it would have been possible for them to be on one complaint, whether charges on two or more separate occasions were to be taken into consideration and disposed of at the same diet, whether the accused gained an improper or illegitimate advantage because the complaints were being heard together, and whether the accused had brought about or contributed to a situation in which a series of complaints were being dealt with at the same diet or on the same day; (7) that there was no absolute rule to the effect that sentences had to be concurrent if the charges arose out of the same course of conduct, but the court might consider it appropriate that sentences should be concurrent or that they should be consecutive, or, subject to the requirement that separate sentences might be required for any statutory offence and provided that in the event of an appeal all the charges would stand or fall together, the court might also consider it appropriate to impose a cumulo sentence; (8) that where two or more offences were truly distinct in nature, or arose at different times and at different places, the court might well consider that consecutive sentences were appropriate; and (9) that (the crown conceding) as the charges on the second complaint should have been treated by the sheriff as if they had appeared in the first complaint since they had appeared in the second complaint for technical reasons, the maximum sentence which could be pronounced was six months' imprisonment, having regard to the sheriff's decision to fix a sentence of six months' for the contravention of sec 41(1)(a) of the 1967 Act, bearing in mind the time spent on remand and the maximum sentence of six months for a contravention of sec 103(1)(b) of the 1988 Act; and appealallowed and sentence on the second complaint ordered to run concurrently with that on the first.

Observed that the general rule remained in relation to consecutive sentences for breach of a bail condition or failing to attend a diet in terms of the Bail etc. (Scotland) Act 1980.

Ferguson v HM AdvocateUNK 1995 SCCR 241 andMcEwan v HM AdvocateUNK 1995 SCCR 509 approved.

McGuigan v WilsonUNK 1988 SCCR 474; Sargent v HendersonUNK 1993 SCCR 338; Steven v LeesUNK 1994 SCCR 778; and Shand v NormandUNK 1993 SCCR 274disapproved.

Brian George Nicholson was charged in the sheriffdom of Lothian and Borders at Edinburgh on two separate complaints at the instance of Robert Ferguson Lees, procurator fiscal there, the terms of which are adequately set forth in the opinion of the court.

On the sheriff imposing consecutive sentences in respect of each complaint, the pannel appealed to the High Court of Justiciary.

Cases referred to:

Allan v LockhartUNK 1986 SCCR 395

Ferguson v HM AdvocateUNK 1995 SCCR 241

Garner v LockhartUNK 1990 SCCR 385

Haggerty v TudhopeUNK 1985 SCCR 121

Kesson v HeatlySC 1994 JC 40

McEwan v HM AdvocateUNK 1995 SCCR 509

McGuigan v WilsonUNK 1988 SCCR 474

MacRae v Orr 1994 SLT 332

Maguiness v MacDonaldSC 1953 JC 31

Montgomery v HM AdvocateUNK 1987 SCCR 264

Moore v HM AdvocateSC 1990 JC 371

O'Lone v TudhopeUNK 1987 SCCR 211

Sargent v HendersonUNK 1993 SCCR 338

Shand v NormandUNK 1993 SCCR 274

Steven v LeesUNK 1994 SCCR 778

Thomson v SmithSC 1982 JC 40

Wann v MacmillanSC 1957 JC 20

Williamson v Farrell 1975 SLT (Notes) 92

Wishart v HeatlySC 1953 JC 42

The cause called before the High Court of Justiciary, comprising Lord Allanbridge, Lord Wylie and Lord Brand for a hearing on 5 September 1995. Eo die their Lordships remitted the cause to be heard by a quorum of five Lords Commissioners of Justiciary.

The cause called again before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord Morison, Lord Weir, Lord Kirkwood and Lord Mayfield for a hearing on 14 and 15 March...

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15 cases
  • Crown Appeals Against Sentence By Hma Against Lb, Ji, And Jt
    • United Kingdom
    • High Court of Justiciary
    • 20 December 2022
    ...[26] Whether to impose a consecutive, concurrent, or cumulo sentence is a matter of discretion for the sentencing judge (Nicholson v Lees 1996 JC 173). The judge gives cogent reasons for making the sentences concurrent, namely the respondent’s lack of intellectual and emotional maturity, an......
  • Barry Mccluskey V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 19 September 2012
    ...had been entitled to impose consecutive sentences for quite separate offending on the remaining charges (1995 Act s 204B; Nicholson v Lees 1996 JC 173, LJ-C (Ross) at 182). The penalty for the remaining offences had not been included by the judge in the OLR. The reference to "taking into ac......
  • Pilecki v Circuit Court of Legnica, Poland
    • United Kingdom
    • House of Lords
    • 6 February 2008
    ...Scotland may impose an overall, or "cumulo", sentence in respect of offences arising as a course of conduct or from the same incident: Nicholson v Lees, 1996 SLT 760, 712G-H. Where this is done no part of the overall sentence is allocated to any of the individual offences. The form of sente......
  • Martin Kyle V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 11 March 2010
    ...in this general field. These were - Connal v Crowe 1996 S.C.C.R. 716, Hamilton v Heywood 1998 SLT 133; 1997 S.C.C.R 783.; Nicolson v Lees 1996 J.C. 173; 1996 S.L.T. 706; 1996 S.C.C.R. 551; Wilson v HM Advocate 1997 S.C.C.R. 674; Jackson v McFadyen 2001 S.C.C.R. 224; and Penman v Bott 2006 J......
  • Request a trial to view additional results

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