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The Power to Increase Sentence Ex Proprio Motu on Appeal

Document Cited authorities 19 Cited in Related
Vincent
AuthorAlasdair Shaw
Date01 May 2014
Published date01 May 2014
DOI10.3366/elr.2014.0210
Pages265-270
<p>The recent case of <italic>Murray v HM Advocate</italic> <xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p><a href="https://vlex.co.uk/vid/murray-v-hm-advocate-802306981">[2013] HCJAC 3</a>.</p> </fn> is a rare example of the High Court utilising its power to increase the sentence of an offender who challenges its “excessiveness” on appeal. <italic>Murray</italic> has already attracted attention for the way in which the High Court dealt with sentence discounting for guilty pleas,<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>See F Leverick, “The rise and fall of the sentence discount” 2013 SLT (News) 259.</p> </fn> but the ability of the court to increase sentence in these circumstances is also worthy of discussion. This note argues that while the power does raise concerns of fairness to individual offenders, on balance it should be retained in the public interest.</p> THE LEGISLATIVE FRAMEWORK

Section 118(4) of the Criminal Procedure (Scotland) Act 1995 (the “1995 Act”) states that when disposing of an appeal against sentence, the court may quash that sentence and pass “another sentence whether more or less severe in substitution”.3

Emphasis added. In summary procedure see s 189(1)(b).

The power of the High Court to increase sentence on an offender's appeal has existed since the advent of the criminal appeals process in Scotland.4

In the Criminal Appeal (Scotland) Act 1926 s 2(4).

It was initially available both in appeals against conviction and sentence5

Sections 2(3) and (4) of the 1926 Act. For an example of the use of this power in an appeal against conviction see Connelly v HM Advocate 1954 JC 90 where Connelly's conviction for attempted rape was upheld and his sentence increased from two to five years, despite no appeal against sentence having been lodged.

 until its removal in the former in 1980.6

Criminal Justice (Scotland) Act 1980 Sch 2.

 The reason why the court was given this power is not apparent either from preliminary governmental papers or parliamentary debates of the time. However academic commentary from that period provides some clues as to factors that may have motivated the provision's establishment. One possible reason is that it was intended to deter frivolous appeals. There existed a general concern that the establishment of an appellate court in Scotland would create a flood of appeals, overburdening the judiciary.7

Lord Salvesen, “Court of Criminal Appeal for Scotland” (1913) 25 JR 247 at 253.

 While one commentator noted that frivolous appeals might be deterred by the possibility of an increased sentence, he suggested that “such a check is likely to be otherwise provided”,8

A D Blacklock, “A Court of Criminal Appeal for Scotland II” (1892) 4 JR 209 at 221.

 most obviously by the fact that the four or five week period between the notice of appeal and its determination did not count as part of the appellant's term of imprisonment or penal servitude.9

Criminal Appeal (Scotland) Act 1926 s 9(4).

 Whilst it is not certain that deterrence of frivolous appeals was the motivation for the power to increase sentences, witnesses to the Thomson Committee, which was set up to review criminal appeals in Scotland in the 1970s, commended it for precisely this reason.10

Thomson Committee, Criminal Appeals in Scotland (Third Report) (Cmnd 7005: 1977) para 16.13.

Alternatively, it has been suggested that the power was useful as a means of remedying the disposals of a biased trial judge, be it in the imposition of too severe or too lenient a sentence.11

Lord Salvesen (n 7) at 259.

At the time the power was introduced, there existed a means to address instances of the former (through the Secretary of State for Scotland) but not the latter.12

At 263–264.

 Further, consistency in sentencing was considered a desirable end that this judicial power on appeal could help attain.13

At 258–259.

Since its introduction, the court has occasionally utilised this power, but has stressed that it was an “exceptional step” for it do so.14

O'Neil v HM Advocate 1976 SLT (Notes) 7. For other examples of the court's use of this power on appeal against sentence see Grant v HM Advocate 1985 SCCR 431; Donnelly v HM Advocate 1988 SCCR 386.

The two most recent examples are Murray and Spence v HM...

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