Sheriff Appeal Court has ‘no power’ to remit to a sheriff to ‘substitute a competent sentence’, appeal judges rule

The High Court of Justiciary Appeal Court held that the Sheriff Appeal Court “acted incompetently” in purporting to exercise a power available to it under section 299 of the Criminal Procedure (Scotland) Act 1995 to remit the matter to the Sheriff Court in order to substitute an entirely competent sentence after the sheriff failed to impose a mandatory requirement to sit an extended test.

Lady Smith, Lady Dorrian and Lord Bracadale heard that the appellant Majid Iqbal was fined £600, reduced from a figure of £800, and banned from driving for 20 months after he pleaded to a charge of contravening section 2 of the Road Traffic Act 1988.

He appealed on the basis that the sheriff failed to discount to the period of disqualification, and the sheriff’s report indicated that he should have and would have done so by reducing it to 15 months.

The sifting sheriff refused leave to appeal on the basis that a discount to the disqualification period is only appropriate for any period beyond that required for public protection and 20 months was required for that purpose, but observed that the sheriff should have imposed a mandatory requirement to sit the extended test.

The sifting sheriff therefore purported to grant leave to appeal “only to allow the Sheriff Appeal Court to remit the proceedings under section 299 of the Criminal Procedure (Scotland) Act 1995 to the Sheriff Court in order for the entry to be corrected, or otherwise to alter the sentence in terms of section 167(8) of the 1995 Act or to substitute an entirely competent sentence, including the appropriate order to sit the extended test of competence to drive”.

The Sheriff Appeal Court subsequently purported to exercise the power available to it under section 299(4)(b) of the 1995 Act to remit to the sheriff to amend the entry in the record of proceedings or to alter the sentence in terms of section 167 or to substitute an otherwise competent sentence, including the requirement to sit the extended test, but in the appeal judges’ view the interlocutor of the Sheriff Appeal Court was “incompetent”.

Delivering the opinion of the court, Lady Dorrian said: “The terms of section 299 are not designed to cover the situation in which a sheriff has not in fact passed the sentence which he ought to have passed, even when that sentence is a mandatory one. It is not designed to alter or modify any sentence which has been passed, it is merely designed to correct ‘an entry in a) the record of proceedings or…b) the extract of a sentence passed…in so far as that entry constitutes an error of recording or is incomplete’.

“So, where it is clear that the record of proceedings or extract of sentence does not reflect the sentence which was in fact passed, section 299 may operate. Where the defect comes to light during an appeal, section 299(4)(b) allows the court hearing the appeal to remit the matter to the sentencing court for correction.

“However, this was not a case of an erroneous or incomplete record, it was a case where a mandatory element of the sentence was not actually imposed at all. In purporting to act under the power available to them in section 299(4) the Sheriff Appeal Court acted incompetently.

“Section 167(8) allows the sentencing court, at any time before imprisonment has followed on a sentence, to alter or modify the sentence, as long as it does not pass a higher sentence. Even if it were possible for the Sheriff Appeal Court to remit to the sentencing court, it is arguable that the sentence which was to be imposed was a higher sentence than the one originally passed, even though it be mandatory.

“More significantly, however, section 167 confers no power to an appeal court to remit the case to the sentencing court for such modification or alteration. That is not surprising, because where there has been an error in sentencing, the appellate court itself can, and should, correct the error.”

The judges also observed that the Sheriff Appeal Court has “no power” to remit to the sheriff to “substitute a competent sentence”.

Lady Dorrian added: “The powers of that court regarding disposal of summary appeals are statutory. In respect of an appeal against sentence, the court’s powers are contained in section 189 and they are restricted to (a) affirming the sentence or (b) if it considers that a different sentence should have been passed, substituting that different sentence.”

In the circumstances, the judges considered that the whole matter of sentence was open to them.

“Given that the sheriff considered that he should have discounted the disqualification to a period of 15 months, it would appear that he did not consider that a period in excess of that was required for public protection,” Lady Dorrian said.

“Further,” she continued, “it is clear that the sentencing sheriff failed to realise he required to make an order to sit the extended test.

“The sitting of that test is a factor designed for the protection of the public, and is thus relevant to the question whether allowing a discount would prevent sufficient public protection being in place, and would have been a highly relevant factor in determining whether, and to what extent, to allow a discount to the period of disqualification.

“In the circumstances, we will quash the sentence of disqualification imposed by the sheriff and substitute a period of 15 months, with an order to sit the extended test.”