Criminal Appeal Court issues guidance on sentencing discounts for returned prisoners 

The High Court of Justiciary Appeal Court ruled that a period spent on remand required to be taken into account when selecting the length of the new sentence, with a discount for a guilty plea applied before the remand period is deducted - overruling a case from 2017.

‘Domestic assault’

The Lord Justice General, Lord Carloway, sitting with the Lord Justice Clerk, Lady Dorrian and Lord Turnbull heard that in May 2019 the appellant Andrew McCaw pled guilty at a continued preliminary hearing at the High Court in Glasgow to a charge which libelled that he assaulted his then partner by repeatedly punching her on the head and kicking her on the body, all to her injury and aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

The court was told that the appellant had an extensive criminal record, including 11 convictions for assault – eight of which were domestically aggravated.

His last conviction, which was for housebreaking with intent to rob involving a knife, was dated 1 December 2017, when he was sentenced to two years’ imprisonment.

He was released on licence on 4 September 2018, but he assaulted his then partner following a drunken row in the complainer’s home less than three months later on 23 November 2018 – at which point the time between the latest offence and the expiry of the appellant’s licence was 117 days.

‘Return order’

The sentencing judge made a “return order” under section 16 of the Prisoner and Criminal Proceedings (Scotland) Act 1993 of 117 days, which was to be served before the sentence for the new offence.

That sentence was three years’ imprisonment, of which three months were attributed to the aggravation, and which was ordered to run from 17 December 2018 when the appellant had been remanded in custody.

However, the appeal against sentence raised two issues: the first was whether, when ordering a sentence to run consecutive to a return order made under section 16 of the 1993 Act, the court can order that the sentence for the new offence can be backdated to that when the prisoner was originally remanded on the new offence.

The second, more difficult question, was whether, when applying section 210 of the Criminal Procedure (Scotland) Act 1995, the headline sentence should take into account any period which has been spent on remand before the application of a discount under section 196 of the 1995 Act.

In McLeod v HM Advocate, unreported, High Court of Justiciary, 13 June 2017, the court decided that the period on remand should be taken into account in determining the headline sentence before any discount is applied; the alternative being that the period on remand should only be considered once the discounted sentence is determined.

‘Remand period’

The appellant submitted that the “correct approach” to section 16 orders was to take account of the period spent on remand when imposing the sentence for the new offence, which involved a deduction reflecting the length of sentence which would result in the period of remand being served.

If this were done and the period of remand, from 17 December 2018 to 10 May 2019, were taken into account, the sentence would be reduced by a period of some 10 months.

It was argued that the “appropriate order” in the sentencing exercise, which was essentially accepted by the Crown, was: first, to determine the headline sentence, without taking into account any period spent on remand; secondly, to discount that sentence in terms of section 196 of the 1995 Act; and, thirdly, to take into account the period on remand.

If this were not done, a problem of “comparative justice” could arise in relation to identical co-accused convicted of identical offences if one pled guilty and the other did not.

The appropriate sentence in this case, which would reflect the intentions of the sentencing judge, would have been one of 17 months, to be served on completion of the section 16 order period.

‘Equitable result’

Allowing the appeal, the judges ruled that the McLeod case had been “wrongly decided”.

Delivering the opinion of the court, the Lord Justice General said: “It is accepted that a sentence, which is to be served after the imposition of a section 16 order, cannot be backdated to that of remand.

“The period spent on remand, or rather the length of sentence which would have resulted in that period, requires to be taken into account in selecting the length of the new sentence. In this case, therefore, where the period in remand was some five months, 10 months would require to be deducted from the sentence otherwise imposed.

“In order to achieve an equitable result in situations in which one offender has been remanded and another has not, it is necessary to apply the relevant discount, for a plea of guilty in terms of section 196, prior to taking into account the period of remand. In this respect, McLeod v HM Advocate, unreported, High Court of Justiciary, 13 June 2017, must be regarded as having been wrongly decided.

“The effect of this is that, instead of imposing the sentence of 27 months, a sentence of 17 months should be substituted. No order for backdating should be made and this sentence will start at the conclusion of the section 16 period.”