Sillars v Copeland
| Jurisdiction | Scotland |
| Judgment Date | 22 December 1965 |
| Date | 22 December 1965 |
| Docket Number | No. 2. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Strachan. Lord Wheatley.
Youthful Offenders—Young offender—Previous convictions disclosed in report, but not expressly admitted or proved—Right of court to take into account—Criminal Justice (Scotland) Act, 1963 (cap. 39), sec. 1 (1) and (2).
The Criminal Justice (Scotland) Act, 1963, enacts by sec. 1:—"(1) No court shall impose detention on a person under twenty-one years of age, unless the court is of opinion that no other method of dealing with him is appropriate. (2) For the purposes of determining … whether any other method … is appropriate, the court shall obtain information about [the] person's circumstances from a probation officer or otherwise and shall consider that information; and the court shall take into account any information before it which is relevant to his character and to his physical and mental condition."
A youth aged eighteen having pleaded guilty, the Sheriff-substitute deferred sentence for the purpose of obtaining reports. The report lodged disclosed previous findings of guilt and convictions. A copy was given to the accused two days before the adjourned diet, and he did not dispute its accuracy, but he was not specifically asked at the diet whether he admitted the previous findings of guilt and convictions.
Held that in disposing of the case the Sheriff-substitute was entitled to have regard to the accused's previous court appearances.
Observed that the accused ought to have been asked whether he admitted the previous findings of guilt and convictions.
Opinion, per Lord Wheatley, that absence of notice under sec. 31 of the Summary Jurisdiction (Scotland) Act, 1954, did not debar the Sheriff-substitute from taking into account the previous findings of guilt and convictions.
M'Govern v. H. M. Advocate, 1952 S. C. L. Y. No. 3883, and Sharp v. Stevenson, 1948 S. L. T. (Notes) 79,referred to.
Youthful Offenders—Young offender—Reports—Criminal Justice (Scotland) Act, 1963 (11 and 12 Eliz. II, cap. 39), sec. 1 (2).
A Sheriff-substitute having adjourned a case for the purpose of obtaining probation, borstal and other reports on a young offender, there was placed before him at the adjourned diet only a report by the governor of a remand institution, which was based partly on information obtained from a probation officer.
Observed that there ought to have been a separate probation report.
Angus Sillars was charged in the Sheriff Court of Lanarkshire at Hamilton on a complaint at the instance of David Borland Copeland, Procurator-fiscal, Hamilton, containing eight charges of contravening the Road Traffic Act, 1960, and the Motor Vehicles Regulations. No notice of intention to lay previous convictions before the court in the event of his being found guilty was served on him.
The accused, who was eighteen years of age, pleaded guilty, and the Sheriff-substitute deferred sentence for the purpose of obtaining probation, borstal, young offenders institution and detention centre reports. At the adjourned diet the only report laid before the Sheriff-substitute was a report by the governor of the remand institution in which the accused had been detained. It bore to be submitted in terms of the Criminal Justice (Scotland) Act, 1949, section 20 (which deals only with borstal reports) and to be "based on statements obtained from Cambuslang police, probation officer assigned to the case by phone, detention centre, from the lad's parents and two employers." It disclosed three previous findings of guilt and two previous convictions. A copy of the report was handed to the accused two days before the adjourned diet, and he did not challenge its accuracy, but he was not asked specifically at the diet whether he admitted the findings of guilt and convictions.
The Sheriff-substitute (Dickson) imposed a sentence of borstal training, and at the request of the accused he stated a case for appeal to the High Court of Justiciary.
The case narrated the foregoing facts and stated that the Sheriff-substitute in imposing sentence had taken into account the findings of guilt and convictions disclosed in the report.
The questions of law submitted for the opinion of the High Court included:—"(2) Was I entitled to have regard to the appellant's previous court appearances when determining as to the correct disposal of the appellant for the charges to which he had pleaded guilty?"
The case was heard before the High Court of Justiciary on 18th November 1965.
At advising on 22nd December 1965,—
LORD JUSTICE-CLERK (Grant).—The appellant, who at the relevant time was eighteen years of age, was charged on summary complaint with eight offences under various provisions of the Road Traffic Acts and Regulations. On 10th July 1965 he pleaded guilty through a solicitor and the Sheriff-substitute deferred conviction and sentence until 23rd July 1965 "for the purpose of obtaining probation, borstal, young offender's institution and detention centre reports." In view of the nature of the offences, the question whether no method of dealing with the appellant other than some form of detention was appropriate was obviously a live issue in the case. Accordingly, in calling for these reports, the Sheriff-substitute was rightly and properly following the procedure which is laid down by section 20 (3) of the Criminal Justice (Scotland) Act, 1949,1and section 1 (2) of the Criminal Justice (Scotland) Act, 1963.2
What the Sheriff-substitute received in response to his request for "reports" was in fact a single composite report compiled by the governor of the remand institution where the appellant had been detained and "based on statements obtained from Cambuslang police, probation officer assigned to the case by phone, detention centre, from the lad's parents and two employers." This report bears to be submitted in terms of section 20 of the 1949 Act (which deals with borstal only), but, for the moment, I would merely remark that it appears to me to provide also such information as the Court is enjoined to obtain under section 1 (2) of the 1963 Act.3 The Sheriff-substitute was thus in a position, having received the report, to decide under section 1 (1) of the 1963 Act3 whether no method of dealing with the appellant other than detention was appropriate.
It is at this stage that the main problem raised by this case arises. The Procurator-fiscal had not served on the appellant any notice of previous convictions under section 31 (1) (a) of the Summary
Jurisdiction (Scotland) Act, 19541 (as amended by Schedule 5 of the 1963 Act). It was thus not open to him to lay such convictions before the judge and naturally and properly he at no stage attempted to do so or made any reference to them. However, in the governor's report it was disclosed that according to the "police report" the appellant had a substantial criminal record, which included two sentences of detention.The governor's report was handed to the appellant on 21st July 1965 (presumably to comply with the "two clear days" provision of section 20 (5) of the 1949 Act), and on 23rd July the appellant appeared in court, again represented by a solicitor, at the continued diet. At that diet, the Sheriff-substitute, inter alia, ordered the appellant to be sent to borstal training. In deciding that this was the proper course to adopt, the Sheriff-substitute took into account and gave weight to the appellant's criminal record as disclosed in the governor's report. The fundamental issue in the case is whether, in the circumstances here, he was entitled so to do.
[His Lordship noted that counsel for the appellant had, in view of the decisions in M'Govern v. H. M. Advocate2 andSharp v. Stevenson,3 abandoned an argument that the Sheriff-substitute was not entitled to take the...
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Appeal Against Sentence By Terence Ryan
...to challenge anything in that report which they claim to be inaccurate: Sharp v Stevenson 1948 SLT (Notes) 79, Sillar v Copeland 1966 JC 8, Penman v HMA 1999 SCCR 740 at 744. Miss Moore accepted that it was clear from the terms of the sheriff’s report that the appellant’s agent had discusse......
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Andrew Walker Penman V. Her Majesty's Advocate
...within the meaning of section 69. On the other hand it was mentioned in the social enquiry report on the appellant. In Sillars v. Copeland 1966 J.C. 8 it was held that the sentencing court was entitled to have regard to the accused's previous court appearances, as set out in a report which ......
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