Steele v. Her Majesty's Advocate [2002] ScotHC 41 (28 March 2002)
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Kirkwood
Lord Osborne
Lord Sutherland
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Appeal No:C767/01
OPINION OF THE COURT
delivered by
LORD OSBORNE
in
NOTE OF APPEAL
by
ROBERT STEELE
Appellant;
Against
HER MAJESTY'S ADVOCATE
Respondent:
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Appellant: J. Barr; Bennett & Robertson
Respondent: N. Beynon; Crown Agent
28 March 2002
- The appellant in this appeal against sentence on 11 August 1999 pled guilty that on 24 July 1998 at Greenend View, Bellshill, he assaulted a husband and wife by driving a car at them and causing the man to step out of his path and striking the woman on the body, to her severe injury. The sentencing judge imposed a sentence of imprisonment of four years duration and disqualified the appellant from holding or obtaining a licence to drive a motor vehicle for a period of five years. In this appeal, no issue is taken as to the sentence of imprisonment; however, it is contended that the order disqualifying the appellant from holding or obtaining a licence to drive a motor vehicle involves a miscarriage of justice and should be quashed.
- The circumstances out of which the appeal arises, as described by the sentencing judge in his report, are these. Having narrated the details of the incident which gave rise to the charge, the sentencing judge indicates that, since the vehicle involved had been used as a weapon, albeit with the initial intention of frightening the victims, it was necessary for him to impose a sentence which would reflect the gravity of the offence and provide a warning to others that the deliberate misuse of motor vehicles would not be tolerated. For that reason, the sentence of imprisonment mentioned was imposed. The sentencing judge goes on to explain that he disqualified the appellant from holding or obtaining a driving licence and ordered the endorsation of his driving licence. He states that it is against that order that the appellant appeals on the basis that the order was made one hour after the prison sentence was imposed, the appellant having been brought back into court and the additional order made. He explains that he made no notes of these events, but did recall the case. He had also sought the recollection of the clerk of court as to the matter. The latter had written on the subject as follows:
"I do remember this case. There was indeed a gap. As soon as Lord Bonomy left the bench I attended in chambers and he indicated that he meant to disqualify. The court was reconvened within a matter of minutes, certainly not an hour, and before any extract was issued. This was the case where we had great difficulty identifying a DVLA code. The charge was reduced from attempted murder."
- The sentencing judge explains that his own recollection is of realising, as he made his way from the court to the chambers, that he ought to have imposed a period of disqualification. He immediately summoned the clerk of court and discussed the situation with him. His recollection is that the court was reconvened immediately, that counsel took no objection to the course followed, and that he then made the order which is now challenged. He says that, since the charge was one of assault and not a motoring offence, regrettably he overlooked the obvious need to impose a driving ban. He acted immediately to correct his mistake.
- When this matter came before us, it was submitted by counsel for the appellant that the manner of the imposition of the five year disqualification was incompetent because the sentencing judge had been functus officio at the time when that was done. In this connection, he referred to Tudhope v. Campbell 1979 J.C. 24 and Williams and Another v. Linton (1878) 6R. (J.) 12. Our attention was also drawn to section 198(1) of the Criminal Procedure (Scotland) Act 1995. Counsel for the appellant pointed out that the moment when any sentence was entered in the record was dependent upon the whim of the clerk of court. That moment could not readily be ascertained by a person affected by the sentence. Accordingly, the moment when the panel left the courtroom, the sentence having been announced by the judge, ought to be seen as the time when the proceedings were finally determined. However, counsel for the appellant recognised that the institutional writers did not wholly support his submission. In Macdonald on the Criminal Law of Scotland, 5th edition, at pages 351 - 352 it was indicated that a sentence was announced by the presiding judge and minuted and signed by the clerk of court. No alteration or amendment of a sentence could be made after the sentence had been regularly delivered and recorded. However, Alison ii at pages 661 - 662 made clear that, after a sentence had been pronounced, the court was functus officio and therefore could not make any alteration of it. In Hume ii at pages 476 - 477, it was observed that a sentence, once regularly delivered, could not be retracted or altered; a criminal sentence was irreversible "as soon as it receives the subscription of the judge". Counsel for the appellant also drew to our attention section 167(8) of the 1995 Act, which authorised alteration or modification of a sentence at any time before imprisonment has followed on it, with the proviso that no higher sentence than that originally pronounced was competent, an enactment applying to summary cases. An example of the operation of that enactment was to be found in Skeen v. Sim 1975 39 J.C.L. 276.
- In reply, the advocate depute submitted that no irregularity had been involved in what had occurred in the present case. The starting point in any consideration of the matter was section 198(1) of the 1995 Act. It required that the sentence should be announced by the judge in "open court". In this case that had been done as regards both the sentence of imprisonment and the disqualification, the appellant having been brought back into court for the disqualification. Subsequently the sentence which had been announced by the sentencing judge had been properly entered in the record by the clerk of court in a single entry made following upon the disqualification. It was plain from the terms of section 198(1) that before any sentence was "pronounced" it had to be "announced" by the judge and "entered in the record" by the clerk of court. Each of these things had been done in the present case. So far as the latter requirement was concerned, it was unnecessary to write out or sign the sentence in the presence of the accused, as appeared from Renton and Browns' Criminal Procedure, 6th edition, para. 22 - 14.
- In our opinion, the provisions of section 198(1) of the 1995 Act are crucial to the resolution of the issue which has arisen in this appeal. It is there enacted:
"In any case the sentence to be pronounced shall be announced by the judge in open court and shall be entered in the record in the form prescribed by Act of Adjournal."
Thus this provision makes plain that for a valid sentence to be "pronounced" it requires to be "announced by the judge in open court" and "entered in the record in the form prescribed by Act of Adjournal." What occurred in this case was that, first of all, the sentencing judge in open court announced the imposition of the sentence of imprisonment. Some short time later - and in our opinion it does not matter exactly how long - having recalled that the imposition of a disqualification was appropriate, the sentencing judge announced that step in open court. Following these events the clerk of court entered details of the sentence of imprisonment and the disqualification in the record of the proceedings. In these circumstances and, in particular, having regard to the order in which these things were done, we consider that the sentence which the sentencing judge announced, including the disqualification, having been duly recorded, was in accordance with the requirements of the legislation. While, in our view, it is sufficient for the determination of this appeal that what was done was in conformity with the provisions of section 198(1) of the 1995 Act, it is of interest to note that the authorities which pre-date that legislation appear to us to point in the direction of validity. Hume in volume ii at page 477, although not dealing with the two elements of the pronouncement of a sentence, makes it clear that "a criminal sentence" is irreversible "as soon as it receives the subscription of the judge." At the time when he was writing, we understand that the recording of the sentence was signed by the judge himself, rather than the clerk of court. Further, Alison in volume ii at page 661 indicates that a judgement becomes irreversible when "embodied in the form of a sentence against the prisoner", the use of the word "form" implying though not expressing the requirement of a record of what was done. Macdonald, op cit at page 352 also recognises the dual requirement of the delivery and recording of the sentence, after which alteration or amendment is impossible. In Tudhope v. Campbell, a case in which the court was dealing with a sentence pronounced in summary proceedings, to which sections 430 and 434 of the Criminal Procedure (Scotland) Act 1975 applied, the court expressed the view that the entry of the sentence into the record of the proceedings constituted the time when the case was finally determined, subject to any modification thereof in terms of statute.
- During the course of the argument before us, counsel for the appellant submitted that the moment of recording of the sentence should not be seen as the final determination of the matter, since that moment is dependent upon the whim of the clerk of court. While there is a sense in which that may be true, in our opinion, the point is of no importance. In terms of section 198(2) of the Act of 1995 "an entry of sentence, signed by the clerk of court, shall be full warrant and authority for any subsequent execution of the sentence and for the clerk to issue extracts for the purposes of execution or otherwise." Thus, where imprisonment is involved, the entry of the sentence must necessarily be made before an extract can be issued to the prison to which the prisoner is to be sent. In practical terms, plainly the entry must be made and the extract issued prior to the departure of the prisoner from the precincts of the court. Having regard to this constraint, it is clear that, while the precise moment of the making of the entry is at the discretion of the clerk of court, the making of the entry must necessarily closely follow upon the announcement of the sentence.
- In all of these circumstances we conclude that this appeal possesses no merit and must be refused.
