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Beglan, Petition To the Nobile Officium by [2002] ScotHC 103 (15 August 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord MacLean Lord Kingarth	210/02   OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in Petition to the nobile officium by ANTHONY BEGLAN Petitioner _____________

Petitioner: J. Carroll, Solicitor Advocate; Carr & Co.

Respondent: J. Johnston, A.D.; Crown Agent

15 August 2002

This is a petition to the nobile officium in which the petitioner craves the court to suspend a warrant for his apprehension dated 25 September 2001 issued by this court and to quash a sentence of nine months imprisonment to which that warrant relates.

On 23 April 2001 at Paisley Sheriff Court the petitioner pled guilty to a charge of having embezzled £27,772.92. The petitioner was a chartered accountant. The complainers, Mr and Mrs David McLeod, ran a landscape gardening business. The petitioner was responsible for their VAT, PAYE and income tax accounting and looked after their finances generally. He embezzled the money between 1994 and 1996.

In November 1996 when the matter came to light, the petitioner co-operated fully with the authorities. He thereafter re-paid the entire sum to the complainers. The petitioner was a first offender.

On 21 May 2001, after considering reports, the sheriff decided that a custodial sentence was necessary, but in view of the petitioner's having repaid the money, she restricted the sentence to nine months imprisonment. The petitioner appealed against sentence and on 30 May 2001 was granted interim liberation.

On 13 August 2001 the petitioner formally abandoned his appeal against sentence. His interim liberation thereupon fell to be revoked.

The petitioner was anxious to get on with his sentence. On 17 August 2001 his solicitors wrote to the Warrants Officer of Strathclyde Police in Glasgow setting out the petitioner's domicile of citation and explaining that his appeal against sentence had been abandoned. They said:

"Our client is anxious to hand himself in whenever you have the warrant in your possession and we are certain that in order to save public expense and waste the time of officers [sic], you will be happy to make such an arrangement with him. We would be happy for you to telephone our office as soon as you have that warrant in your possession and we will make arrangements for him to hand himself in."

That letter, it seems, was not replied to.

On 24 August the petitioner's solicitors again wrote to the Warrants Officer of Strathclyde Police as follows:

"We refer to the above matter and to our letter dated 17 August 2001. We should be obliged if you would advise us as soon as possible if you have a warrant for our client so that we can arrange for him to hand himself in."

This letter was not replied to.

On 6 September 2001 the petitioner's solicitors wrote to the Warrants Officer of Strathclyde Police as follows:

"We refer to previous correspondence and should be obliged if you would advise us as soon as possible if you have a warrant for our above named client in order that we can arrange for him to hand himself in."

This letter was not replied to.

On 25 September 2001, after some administrative delay, this court issued a warrant for the petitioner's apprehension. On 4 October 2001 the petitioner's solicitors wrote to the Procurator Fiscal at Paisley as follows:

"We refer to the above matter and write to advise you that the appeal against sentence was abandoned on 14 August 2001. Our client is anxious to hand himself in but the warrant has not yet been forwarded to the Police. We would be grateful if you would advise us by return so that our client can make arrangements to serve his sentence."

On 11 October 2001, the petitioner's solicitors wrote to their Edinburgh correspondents stating that in view of the petitioner's anxiety they would be grateful if their correspondents "could perhaps have a word with somebody at Justiciary Office to determine whether or not this process can be helped along". The process was, of course, the prompt execution of the warrant to give the petitioner the opportunity that he so anxiously sought to serve his sentence.

None of these letters produced any action on the part of the police. The petitioner has now been kept in suspense for about a year while awaiting the execution of the warrant. The learned Advocate Depute has told us that around the time when the warrant was issued there was some confusion on the part of the police as to the whereabouts of the petitioner; but it seems to us, on the face of it, that any such confusion could speedily have been resolved by a simple enquiry to the petitioner's solicitors. However, the learned Advocate Depute has been unable to give us any explanation for the delay since that time.

So far as we can see, there is no reason why the present unsatisfactory situation could not continue for years to come. All that the petitioner can do is to await the uncertain day when the warrant will be executed.

If the petitioner had been given the opportunity to serve his sentence promptly, he would have been at liberty long ago. In the meantime, he has attempted to rebuild his life. He has received an unconditional offer of a place on a university course leading to the degree of BA Hons. in business studies. The course will begin in October next.

The learned Advocate Depute agrees that in the circumstances of this case the court has the power both to suspend the warrant and to quash the sentence. The question for us is therefore whether that would be the appropriate course to take in these highly unusual circumstances.

Since we have been given no satisfactory explanation why this warrant has not been executed, we conclude that the failure of the authorities to execute it is oppressive. In addition to his sentence of nine months imprisonment, inaction on the part of the authorities has in effect sentenced the petitioner to a period of almost one year's anxiety while he has waited for the warrant to be executed.

In our opinion, these facts and circumstances are so prejudicial and unfair to the petitioner that both the warrant and the sentence should be quashed. We shall grant the prayer of the petition.