Sheriff erred in imposing supervised release order on long-term prisoner

The Appeal Court of the High Court of Justiciary ruled that the imposition of the order on a long-term prisoner, which was due to take effect after the expiry of his licence period, was “incompetent”.

Supervised release order

Lady Paton and Lord Turnbull heard that the appellant Gordon Loughlin pled guilty in July 2017 at Glasgow Sheriff Court under section 76 of the Criminal Procedure (Scotland) Act 1995 to six charges on an indictment which arose out of two separate incidents.

The first charge concerned the theft of a motor vehicle, while charges 2, 3, 4, 5 and 6 related to the reset of an Audi A5, failing to stop when required to do so by the police, driving dangerously in attempting to avoid apprehension, driving while disqualified and without insurance - all offences committed while he was on bail.

The appellant, who had a lengthy record of previous convictions stretching back to 1997, was admonished on charges 3 and 6, but the sheriff imposed sentences of imprisonment in respect of the remaining charges totalling two years and two months, reduced from three-and-a-half years from the early guilty plea.

In addition, the sheriff disqualified him from driving and made supervised release order in terms of section 209 of the 1995 Act for a period of 12 months, which was to commence upon expiry of all the other periods of imprisonment which the appellant was already subject to.

Appeal against sentence

However, the appellant was granted leave to appeal to challenge the competence of imposing a supervised release order, the effect of which is that the offender will be under the supervision of an officer of the local authority and be subject to such requirements as may be imposed by the court, or specified by the officer, “for securing the good conduct of the offender or lessening the possibility of his committing a further offence”.

On behalf of the appellant, solicitor advocate Ann Ogg drew attention to the fact that by the date of the sentencing hearing the appellant was serving a custodial term of 35 months and nine days as an accumulation of other sentences passed on him and ordered to run consecutively.

As a result of his sentence in the present case he was serving a sentence of five years, one month and nine days - which exceeded a period of four years - and therefore fell to be treated as a long-term prisoner.

As a long-term prisoner he would be eligible to apply to the Parole Board for release on licence after serving half of his sentence and if unsuccessful he would be entitled to be released on licence as soon as he had six months left to serve.

‘Sheriff acted incompetently’

However, section 209(4)(c) of the 1995 Act would prevent a supervised release order having affect during either period of licence and section 209(7) would prevent such an order having any effect after the expiry of either licence period.

In these circumstances, it was submitted that the sheriff had acted “incompetently” in imposing the supervised release order.

In his report to the appeal court, the sheriff explained that he considered that if the appellant was released subject to a licence period of six months, then the 12-month order he imposed would take effect on expiry of that licence period.

On behalf of the Crown, advocate depute Kathleen Harper initially appeared to support the sheriff’s interpretation of section 209, but she ultimately conceded that the appellant’s submissions were correct.

Order quashed

The appeal judges observed that the sheriff appeared to have “overlooked” the terms of section 209(7) of the 1995 Act, which provide that the relevant period for which a supervised release order may be imposed is defined as being a period “no part of which is later than the date by which the entire term of imprisonment specified in the sentence has elapsed”.

Delivering the opinion of the court, Lord Turnbull said: “Since the entire term of imprisonment imposed on the appellant would elapse at the end of any licence period to which he might be subject, it cannot be the case that a supervised release order could commence at that point.

“In our opinion, the submissions made by Ms Ogg were well founded and we therefore agreed that the imposition of a supervised release order was incompetent in the appellant’s case.”