Sheriff’s decision to impose supervised release order in addition to long-term sentence ‘incompetent’

The Appeal Court of the High Court of Justiciary allowed the appeal following a reference by the Scottish Criminal Cases Review Commission (SCCRC), having held that an SRO can only be made where the accused has been sentenced to a single custodial term of less than four years, meaning the sheriff’s order was “incompetent”.

Supervised release order

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Turnbull, heard that in August 2017 the appellant Alan Baker pled guilty inn summary complaint to an aggravated contravention of section 38(1) of the Criminal Justice & Licensing (Scotland) Act 2010. 

Sentence was deferred twice, before the case finally called the following month alongside an indictment in respect of which the appellant had been convicted of assault and attempted robbery in shop premises, during which a knife was brandished at an employee.

In relation to the indictment, the sheriff imposed a sentence of three years and six months

imprisonment with a 12-month supervised released order (SRO). 

On the summary complaint, he imposed a sentence of six months to run consecutively to the first sentence – resulting in a total single term of four years’ imprisonment.

The SCCRC did not consider that the sentences, separately or in cumulo, could be considered excessive, and did not criticise the imposition of a consecutive sentence. 

‘Incompetent sentence’

However, by imposing a consecutive sentence, the sheriff deliberately imposed a sentence in excess of four years, making the imposition of an SRO “incompetent”.

It was submitted that the effect of section 27(5)(a) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 was that the sentences passed on the appellant constituted a single term of imprisonment of four years, but under section 209(1) of the Criminal Procedure (Scotland) Act 1995 an SRO can only be made where the accused has been sentenced to a period of imprisonment of less than four years. 

Separately, the effect of the “single terming” of the sentences was that the appellant became a long-term prisoner, subject to the release provisions relevant to such a prisoner, namely release on licence. 

However, section 209(4) of the 1995 Act provides that an SRO will have no effect during any period spent by an offender on licence; the licence period would come to an end when the single term sentence had elapsed. 

Were the SRO then to come into effect, it would be contrary to the terms of section 209(7)(b) of the 1995 Act, which provides that no part of the relevant period of the SRO is to be later than the date on which the entire term of imprisonment specified in the sentence has elapsed. 

On that basis also the sentence was incompetent, it was argued.

SRO revoked

Allowing the appeal, the court agreed that the imposition of the SRO was not competent and that the order should be revoked.

Delivering the opinion of the court, the Lord Justice Clerk said: “Had the sheriff been sentencing the appellant only for the indictment offence, or had he imposed concurrent sentences in respect of both the indictment and complaint, there would have been no difficulty, because the appellant would have remained a short term prisoner, and the SRO would have taken effect on his release.

“Had the sheriff considered that a longer sentence was required (something to which he did give consideration) there would equally have been no difficulty, because any release would automatically have rendered the appellant subject to supervision in the form of licence. Moreover, an extended sentence could have been imposed.

“However, the effect of section 27(5)(a) is that the consecutive sentences, passed at the same time, are to be treated for the purposes of the 1993 Act as a single term, in this case a term of four years. The appellant thus falls within the category of a long term prisoner, and his release will, under the 1993 Act, be subject to licence. 

“The effect of this, taken together with section 209(4)(c) of the 1995 Act and the definition of ‘relevant period’ in section 209(7) of that same Act means that it was not competent for the sheriff to impose an SRO, since such a component of the sentence could not be given effect.”

On behalf of the appellant the court was invited either to make the sentences concurrent with each other, leaving the SRO in place, or to remove the SRO element of the sentence. 

The judges observed that at the time of sentence, the sheriff considered that a sentence over four years, indeed an extended sentence, might be appropriate. 

He moderated the sentence which he did impose, but added an SRO and made the summary sentence consecutive. 

Lady Dorrian added: “It appears therefore, that the sheriff was concerned that the appellant should serve a considerable period in custody, and should also be subject to supervision on release. 

“Making the two sentences concurrent would not achieve the first of these objectives in the same way as simply removing the SRO would. We agree with the commission that in this case the latter course of action is to be preferred.”