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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Cunningham v. Her Majesty's Advocate [2005] ScotHC HCJAC_127 (25 November 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_127.html
Cite as: [2005] HCJAC 127, [2005] ScotHC HCJAC_127

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Cunningham v. Her Majesty's Advocate [2005] ScotHC HCJAC_127 (25 November 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Wheatley

 

 

 

 

 

 

 

 

 

 

[2005HCJAC127]

Appeal No: XC556/05

OPINION OF THE COURT

delivered by LORD JOHNSTON

in

NOTE OF APPEAL AGAINST SENTENCE

by

HUGH CUNNINGHAM

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

 

 

Appellant: J. Keenan, Solicitor Advocate; Gilfedder McInnes

Respondent: D.J.T. Logan, A.D. ad hoc; Crown Agent

25 November 2005

[1]      This appeal is concerned with the fact that when the indictment to which the accused pled partially guilty called before the presiding sheriff she in fact deferred sentence for one day beyond the four weeks that is allowed by section 201 of the Criminal Procedure (Scotland) Act. Subsection (3) of that section is in the following terms:

"A court shall not adjourn a hearing of a case as mentioned in subsection (1) above for any single period exceeding four weeks or on cause shown eight weeks".

 [2]      The sheriff in her very detailed report makes it clear that she was aware of a problem which was to do with pressure of business and it is maintained by her but not, unfortunately, supported by anybody else involved in the matter that she discussed the issue at the beginning of the particular day, indicated that certain deferrals might be beyond the four week period. The Crown could not assist as to whether or not the accused or his representative, or both, were present at the time and therefore we have to proceed on the basis that in fact the reason for the deferral in question beyond the statutory minimum was neither communicated in open court to the particular individual, namely the appellant, nor reported or recorded in the minutes.

[3]      Against that background Mr. Keenan on behalf of the appellant submitted that in terms of the statute it was necessary that there should be either a statement in open court as to why the deferral was being exercised beyond the statutory minimum or some record in the minutes or both, and he said in this case neither had happened. Therefore, he submitted, the appellant was entitled to maintain that he had no reason to know why his deferral had gone beyond the minimum period and the subsequent sentencing by the sheriff on the day to which she deferred sentence was therefore incompetent. The sentence in question was 300 hours of community service.

[4]      We were referred to two cases Dingwall v Vannet 1997 S.C.C.R. 515 and, more importantly, Smith v H.M. Advocate 2004 S.C.C.R. 521.

[5]      In the former case, the Lord Justice General asserts that if the minutes of the court proceedings in question refers to the words "cause shown" without specifying what it is that is sufficient. More importantly, however, in our view in the case of Smith Lord Penrose makes it clear that in terms of the statute the reason for the extension, if that is the way of putting it, need be neither stated nor recorded.

[6]      We are in no doubt that the appropriate procedure to follow in these matters is that if, for any reason, the presiding judge wishes to defer beyond the minimum period he or she should state so in open court and have the matter, as a matter of the reason, recorded in the minutes. However, we are equally satisfied, having regard to the terms of section 201(3) of the Act, that that is not necessary as a statutory requirement. The fundamental statutory requirement is that the presiding judge should have a cause for doing what he or she did in relation to the extension of the period, even by one day. In this case it is perfectly clear that the sheriff had reached, in her own mind, a serious procedural problem which she quite appropriately addressed. As she herself recognised, it might have been better if the minutes had recorded that fact or if she had stated so in open court. But this court is mindful of the heavy pressure of business that a sheriff finds, particularly in Glasgow, in the type of situation which was obvious to us and we therefore do not criticise her in any way for not doing so.

[7]      In these circumstances we are prepared to follow Lord Penrose's dicta in Smith. We are therefore satisfied that the absence of any reference in the minute or indeed to any record of anything being said in relation to this particular man's case is to the point. The sheriff had a reason for what she did and therefore, in our opinion, the statutory alternative is met.

[8]      For these reasons this appeal is refused.

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URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_127.html