CROWN APPEAL AGAINST SENTENCE AGAINST JAKE O'DOHERTY [2022] ScotHC HCJAC

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> CROWN APPEAL AGAINST SENTENCE AGAINST JAKE O'DOHERTY [2022] ScotHC HCJAC_31 (11 August 2022) URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_31.html Cite as: [2022] ScotHC HCJAC_31, 2022 GWD 25-359, 2022 SLT 967, [2022] HCJAC 31, 2022 SCCR 253, 2022 JC 253

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2022] HCJAC 31

HCA/2022/000158/XC

Lady Dorrian

Lord Matthews

Lord Boyd of Duncansby

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

CROWN APPEAL AGAINST SENTENCE

HER MAJESTY'S ADVOCATE

Appellant

against

JAKE O'DOHERTY

Respondent

Appellant: Edwards, QC, AD; Crown Agent

Respondent: Kerrigan, QC, RSC Solicitors

11 August 2022

Introduction

[1]

The respondent was convicted after trial of a charge of attempted murder. The trial

judge selected a headline sentence of 6 years, which is not challenged in this appeal. At a

prior stage of the proceedings the respondent had been remanded in custody for a period of

289 days, after which he was granted bail. The trial judge reduced the overall sentence on

that account by double the remand period, a period of 578 days, resulting in a sentence yet

to be served of 4 years and 152 days. In this appeal on a point of law in terms of section

108(2)(a) of the Criminal Procedure (Scotland) Act 1995, the Crown argue that he was wrong

to do so.

[2]

Section 210(1) of the Criminal Procedure (Scotland) Act 1995 provides (a) that in

determining the period of imprisonment to impose a court "shall (a) have regard to any

period of time spent in custody by the person on remand awaiting trial or sentence";

(b) specify the commencement date of the sentence; and (c) where there has been a period on

remand and the date under (b) is not earlier than the date on which sentence was passed,

state the reasons for not specifying an earlier date. In Martin (Ronald O'Neill) v HM Advocate

2007 JC 70 the court concluded that a non-continuous period spent on remand should

generally be recognised by deduction not just of the period itself but of the length of

sentence which would result in that period being served in custody. In Martin, a short term

case where the prisoner would be entitled to release after half the period served (Prisoners

and Criminal Proceedings (Scotland) Act 1993 section 1), that meant that the deduction,

barring other considerations, would be double the period spent on remand.

[3]

The position for a long term prisoner is different. At the time of Martin, a long term

prisoner would have been entitled to automatic release on licence at the two-thirds stage of

the sentence (1993 Act, section 1(2)), and any deduction for non-continuous remand would

have had to be adjusted accordingly. The prisoner would (section 1(3)) have been entitled to

be released on the recommendation of the Parole Board after serving half the sentence.

These provisions continue to apply in respect of prisoners sentenced before 1 February 2016.

However, for long term prisoners sentenced after that date, (and not sentenced to an

extended sentence) the 1993 Act now provides that the automatic entitlement to release on

licence does not arise until there is only six months left to serve (section 2A). Otherwise the

provisions of section 1(3), whereby release on licence may result from a recommendation of

the Parole Board at a stage no sooner than half way through the sentence continue to apply.

[4]

The core of the Crown argument was that whilst the approach in Martin might be

appropriate for a "short term prisoner", in the case of a long term prisoner it is not possible

to calculate in any clear or consistent manner the length of sentence which would result in a

specific period being served in custody. Doubling the period on remand, as the basis for a

deduction calculated to have regard to the time spent on remand, would risk comparative

injustice to other prisoners, including those who had not been remanded at all; or those

whose remand had been continuous. In other words, it would risk the kind of unfair

consequences which the court in Martin sought to avoid. Insofar as the trial judge followed

Martin he was in error.

[5]

For the respondent, the argument was that it should be open to sentencers to reduce

the sentence by double the period spent on remand (as was done in Martin) or to select some

shorter period within the discretion provided for by section 210. The approach of the trial

judge had not resulted in a sentence which was unduly lenient and the appeal should be

refused.

Analysis and decision

[6]

It is important to recognise that section 210(1) of the 1995 Act only provides that the

court must "have regard" to the relevant remand period, and explain clearly the effect

which it has had, including the reasons for any decision not to backdate. The statute does

not provide that it is always necessary to backdate a sentence where possible; that credit

must be given for the full period on remand, whether continuous or not; or that any

deduction made to reflect a period on remand must be increased by a given proportion

according to whether the accused qualifies as a long or short term prisoner, and the early

release provisions which apply as a consequence.

[7]

In Wojociechowski v McLeod 1992 SCCR 563 (dealing with a prior iteration of the

relevant section) the court confirmed that the question whether to backdate a sentence is a

matter entirely within the discretion of the sentencing judge, although of course that

discretion required to be exercised upon proper grounds. There may be cases where the

court concludes that backdating is not justified, for example where the accused was

remanded following an earlier failure to attend a diet of trial; where remand was partly or

wholly attributable to another matter; or where the period of remand had already been

reflected in the selection of the headline sentence (see Douglas v HMA 1997 SCCR 671;

Hutcheson v HMA 2001 SCCR 43). Other factors may be relevant to the consideration of the

matter, including any discrepancy between the charges as libelled and as convicted. Where

there are no particular considerations such as these, in a case where th e remand has been

continuous up to the time of sentencing, it is commonplace to deal with the period on

remand by backdating to the date of remand.

[8]

Following Martin, in cases where, as here, the remand had not been a continuous

one, the practice developed to deal with the issue by applying an overall deduction

commensurate with the relevant early release provisions which applied to the prisoner.

There was no absolute rule, nor was a fine arithmetical approach necessary, but in general

in the case of a short term prisoner, that would mean that the deduction would be double

the time spent on remand; in the case of a long term prisoner, it may have been one and a

half times the period so spent, subject to consideration of whether such an approach caused

the prisoner to be re-classified as a short-term prisoner. In either case, the issue would be

relatively straightforward, standing the clear, automatic and arithmetical basis upon which

the early release provisions then operated. The objective was that the deduction should

reflect (Martin para 8): "the length of sentence which would result in that period being

served in custody." The rationale for the decision is expressed in the next sentence:

"If that were not so, it would mean that someone who happened to have been

remanded for a period prior to the date of sentence but in circumstances where there

could not readily be backdating would be likely to end up being deprived of his or

her liberty for longer than, not merely a person who was never remanded at all, but

also someone remanded for the same length of time but throughout the period from

committal until sentence."

[9]

In the present case, the trial judge was satisfied that it was appropriate for him to

take account of the whole period spent on remand. The question facing him, in light of the

current legislation, was how to do that. The problem which has arisen is a consequence of

the amendment to the early release provisions. Automatic early release for long term

prisoners is much more limited, and arises only when there remains 6 months of the

sentence to serve, although release on parole may take place at the half way stage. The trial

judge considered that this created a dilemma, with potential unfairness and inconsistency

arising as between those long term prisoners subject to continuous remand and those whose

remand had been interrupted. In our view the trial judge was correct to say that any

attempt to anticipate whether, and if so when, parole might be granted would be fraught

with difficulty. Even a simple measure based on whether an accused was a first or prolific

offender would not be a safe guide. Such an attempt is not only fraught with difficulty, it

would be impossible. The trial judge was right to eschew it.

[10]

He was also correct to say that it would be artificial and unrealistic to approach the

matter on that basis that no credit should be given for time on remand, or to restrict it to an

allowance which reflected only the right to automatic release when only six months of th e

sentence was left to serve. It would surely be artificial to assume that in the vast majority of

cases a long term prisoner would not be granted early release before the automatic release

provisions applied. To proceed on such a basis could be productive of unfairness.

[11]

There is in fact now no satisfactory basis upon which the court can properly deal

with the issue by means of deduction from the sentence

It is important to recognise that the

matter relates not only to the date at which a prisoner might be entitled to automatic release,

but to the date when he might be eligible for parole. Take the example of a prisoner with a

proposed headline sentence of 6 years having spent one year on remand

If his remand had

been continuous he would be entitled to automatic release having spent a total of 5 years

and 6 months in custody; partly on remand and partly as a sentenced prisoner; and would

be eligible for parole having served a total of three years in custody. Where the remand for

one year was non-continuous, parity of eligibility for parole could only be achieved by a

deduction of double the relevant period and imposing a sentence of 4 years, in which case

however the effect would be that the prisoner became entitled to early release having served

only a total of 4 years and 6 months in custody. Deducting only the period spent on remand

and imposing a sentence of 5 years would create equivalence of early release dates, but

would mean that such a prisoner would have to spend an additional 6 months in custody

before becoming eligible for parole. On any of these approaches there would be no parity

between those given the same headline sentence and having spent the same period on

remand. It is in fact impossible to ensure a deduction which reflects "the length of sentence

which would result in that period being served in custody."

There is

in any event a danger

that approaches involving deduction would give inadequate deference to the role of the

Parole Board, the issues of risk, and the intention of Parliament.

[12]

As noted already, the prisoner in the present case would become eligible for parole at

the same time as a continuous remand prisoner, but would spend longer in custody before

being entitled to early release. A continued hearing of this case was fixed to take place on

the same day as the hearing in the appeal in Clark v HMA (HCA/2022/000196/XC) where the

trial judge had applied a deduction limited to the period spent on remand. The prisoner in

that case would become entitled to early release after serving the same time as a continuous

remand prisoner, but would have to serve longer before being eligible for parole. Moreover,

as between two equally placed non-continuous remand prisoners, the approach of the judge

in this case would be advantageous in both respects compared to the approach taken by the

judge in Clark. Such inequalities are iniquitous. It is important moreover that there should

be clarity, consistency and predictability in how non-continuous periods on remand are

dealt with. It is apparent that this is not the case.

[13]

In the course of the hearing of the appeal, the broad terms of section 210 identified at

para [6] above were noted, and the question raised whether it would not be possible to

identify a notional date for the commencement of the sentence, by calculating back a period

equivalent to that spent on remand. There is nothing in the statute which prevents this. It

seemed that the question had not arisen before, no doubt because (a) it had not been

necessary standing the very clear early release provisions; and (b) out of a concern that

doing so might introduce impossible complications for both the Scottish Prison Service and

the Parole Board. (We have since become aware of a case in which backdating to a notional

diet was applied by the sentencing judge HMA v Davidson, Mullarkey, Hardy and Smith

15 February 2022, unreported). As a potential solution it would have the advantages of

simplicity and clarity, and would achieve the true objective behind Martin of placing those

on non-continuous remand on exactly the same footing as those whose remand had been

continuous. Accordingly the court determined to continue the appeal for the Crown to

make inquiries of both the Scottish Prison Service and Parole Board for Scotland.

[14]

At the continued hearing the court was advised that the Scottish Prison Service have

confirmed that there is nothing in their processes or systems which would cause difficulties

with, or prevent, the Court imposing a sentence with a historical notional commencement

date. In respect of every single prisoner entering the prison environment, the Scottish Prison

Service will already always carry out a manual calculation on a prisoner's critical dates to

ensure accuracy. Any proposed change in practice relating to backdating would therefore

not result in any additional workload/change in practice or require any change in IT

systems. Opportunities for participation in programmes of rehabilitation and intervention

focused work would be unaffected. The Parole Board for Scotland does not believe that

there would be any adverse impact on the prisoner in relation to the factors considered

when a prisoner is eligible for potential release on licence. In short there is no barrier to the

imposition of a sentence backdated to a notional commencement date. Supplementary

written submissions were lodged on behalf of the respondent acknowledging that in these

circumstances the proposed solution "has much to commend it, not least its simplicity".

However, it was maintained that the trial judge had taken account of section 210, and that

the sentence could not be described as unduly lenient. These submissions appear to

overlook the fact that this appeal proceeds not on the provisions of section 108(2)(b) in

relation to unduly lenient or inappropriate sentences, but on section 108(2)(a) which

provides that an appeal against sentence at the instance of the crown may proceed on a

point of law. In the present case the sentence imposed on the respondent on 28 March 2022

will be quashed and substituted by a sentence of 6 years imprisonment backdated to

Scottish High Court of Justiciary Decisons