Imposing a non-harassment order when deferring sentence is ‘competent’, Sheriff Appeal Court rules

The appellant challenged the competency of the imposition of the order, but the Sheriff Appeal Court held that there was “nothing inherently problematic” with making an NHO at the same time as deferring sentence.

Deferral of sentence

Appeal Sheriff Alasdair MacFadyen and Appeal Sheriff Norman McFadyen heard that the appellant Peter Donnelly was convicted after trial of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and carrying an “offensive weapon” in terms of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995.

The summary sheriff adjourned sentencing for the preparation of background reports and on 4 May 2017 the sheriff deferred sentence for a period of a little under three months, as she stated for clarification of the appellant’s ability to work, and for a community payback order progress report, although the minutes also recorded that the deferral was for the appellant to be of good behaviour and she imposed an NHO for a period of two years.

Whatever the purpose of deferral of sentence, the sheriff was plainly acting under section 202 of the Criminal Procedure (Scotland) Act 1995.

The appeal was concerned only with the competency of the NHO and it was only on that ground, which was not initially raised by the appellant, that the appeal sheriffs at second sift allowed leave to appeal.

NHO was ‘incompetent’

On behalf of the appellant, advocate Fred Macintosh referred to McLaughlin v McQuaid 2005 JC 95, where it was held that, in the absence of an express provision enabling the sheriff to sit again in the same case, a requirement purporting to set up a further hearing as a progress review in relation to a probation order was incompetent and that “as a general rule, a court is functus after passing sentence, and has no power to sit again in the same case”.

He also referred to Duncan v Spiers 2008 JC 355, in which the High Court held that the making of an antisocial behaviour order (ASBO) at the time of deferring sentence for good behaviour was incompetent, as the effect of section 234AA of the 1995 Act was that the ASBO was also a sentence, against which there was no right of appeal.

For the Crown, advocate depute Margaret McFarlane accepted that the wording of the provisions in section 234A and the approach taken by the High Court in Duncan caused some difficulty, but did not go so far as to concede that the order made in this case was incompetent.

Refusing the appeal, the appeal sheriffs held that it is competent for a court to make a non-harassment order at the same time as deferring sentence.

Disposal was competent

Delivering the opinion of the court Sheriff McFadyen said: “We consider that the difference in the wording of the general power to make the relevant order is more significant. Thus in an ASBO the power is to make the order ‘instead of or in addition to imposing any sentence’ (section 234AA(1)), whereas in an NHO it is to make the order ‘instead of or in addition to dealing with the accused in any other way’ (section 234A(1A)).

“We consider that a sheriff who defers sentence is dealing with the case. If the legislature intended to limit the power to make an NHO to the time of sentence or final disposal of the case it could readily have made that clear, most obviously by using the same or similar language to that adopted for ASBOs.

“It seems clear to us that a court which defers sentence under section 202 of the 1995 Act is dealing with the accused (and of course a deferred sentence can be the subject of appeal in the same way as an appeal against sentence: see section 175(2)(c) and section 186(2)). Section 234A(1A) does not require that an NHO is made at the time of final disposal of the case and we are driven to the conclusion that the NHO was not incompetent.”

He added: “As far as concerns the matter of appeal, whatever may be the position as regards an ASBO, we do not see how an appellant who wished to have an NHO brought under review would be prevented from doing so while sentence remained deferred. If the NHO can be appealed as if it were a sentence, we cannot see how the fact that sentence was also deferred would present an obstacle to that statutory appeal – and as we have already noted a deferred sentence can itself be appealed.

“In any event, it would have been open to the sheriff to leave the matter as one for special conditions of bail, which would have had much the same effect as an NHO and in such a case, a breach of bail would be a matter for the sheriff to consider when it came to sentence, while no doubt avoiding punishing the appellant twice for the same behaviour on general principles. We see nothing inherently problematic in an NHO running alongside a deferral of sentence and we certainly find no reason to hold that the NHO imposed in this case was incompetent.”