APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Carloway Lord Clarke	[2010] HCJAC 107 Appeal No: XC787/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by STEPHEN MICHAEL HENDERSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Prais; Gilfedder & McInnes, Edinburgh

Respondent: Allan, Q.C., A.D.; Crown Agent

Advocate General: Howie, Q.C.

7 September 2010

[1] The Firearms Act 1968 (as amended) is legislation of the United Kingdom Parliament. It makes provision for the regulation of firearms, including for criminal offences in relation to their possession and use. Section 51 and Part I of Schedule 6 provide for the way in which offences under the Act are punishable on conviction. As respects conviction for contravention of section 1 of the Act (possession of a firearm or ammunition without a firearms certificate) the maximum penalty on indictment is prescribed to be five years' imprisonment or a fine or both, save where the offence is committed in an aggravated form (where the maximum term of imprisonment is seven years).

[2] The appellant was on 4 August 2008 apprehended in a car park in Edinburgh in possession of a handgun. He was charged, under section 1 of the 1968 Act (as amended), with possession of a firearm without holding a firearms certificate in force at the time. Shortly thereafter he intimated his intention to plead guilty to that charge. An indictment under section 76 of the Criminal Procedure (Scotland) Act 1995 was served on him, a diet being fixed in the High Court. On 15 October 2008 he appeared at that diet and pled guilty to that charge. The Advocate depute stated to the sentencing judge that the Crown had been in error in indicting the case in the High Court; having regard to the maximum sentence, indictment in the Sheriff Court would, it was said, have been appropriate.

[3] The appellant has an extensive criminal record. He has been convicted on several occasions of crimes of violence, most recently having been sentenced for such a crime to six years' imprisonment. He has also been previously convicted of an offence of contravention of section 1(1)(a) of the 1968 Act, in that case as aggravated by section 4(4); he was sentenced for that contravention to two years' imprisonment.

[4] In the course of the diet the sentencing judge, at his own instance, raised the question whether the risk criteria, as defined in section 210E of the 1995 Act (as amended) might be met for the purposes of section 210B(2). The diet was continued in order that that matter might be fully debated. At the continued diet submissions were made on behalf of the appellant that it would not be open to the court to make a risk assessment order under section 210B(2), the pre-condition under section 210B(1) not being satisfied, and further that the imposition of any order for lifelong restriction under section 210F (introduced by the Criminal Justice (Scotland) Act 2003) would be incompetent, that being a penalty which exceeded the maximum laid down in the 1968 Act (as amended) for the contravention in question; firearms law was, it was submitted, a reserved matter under the Scotland Act 1998 and it was therefore outside the competence of the Scottish Parliament to override the penalty provisions made by the United Kingdom Parliament under the 1968 Act (as amended).

[5] The sentencing judge rejected these submissions. He ordered a risk assessment report, and having received and considered it, in due course made an order for lifelong restriction in respect of the appellant. Having taken into account the appellant's early plea of guilty to the contravention he specified one year and eight months as the punishment part of the sentence.

[6] The appellant appealed against his sentence on a number of grounds. These included that none of the conditions specified in section 210B(1) had been satisfied, with the result that it was not open to the sentencing judge to make a risk assessment order. He also contended that the imposition of an order for lifelong restriction was, regard being had to the legislative competence of the Scottish Parliament, incompetent. A relative devolution minute was lodged.

[7] When the appeal called for hearing the Advocate depute stated to the Court that the Crown would not be resisting the appeal. That was solely on the basis that it was conceded that the effect of the sentence imposed was to increase the maximum penalty specified for the offence in the Firearms Act 1968 (as amended), that that was a matter reserved to the United Kingdom Parliament and that the order made was incompetent. The Advocate depute invited the Court to allow the appeal on that basis, to quash the order for lifelong restriction and to substitute an appropriate determinate sentence. In the course of his address the Advocate depute referred to section 210F(2) of the 1995 Act (as amended).

[8] Mr Howie who appeared for the Advocate General also accepted that the order made, being above the maximum prescribed for this offence in the 1968 Act (as amended) was incompetent. Reference is made to the Scotland Act 1998, section 29(2)(c) and to Schedule 4, para 2.

[9] Mr Shead for the appellant invited the Court to allow the appeal on the basis of the Crown's concession.

[10] The subject-matter of the Firearms Acts 1968 to 1997 is a reserved matter (Scotland Act 1998, Schedule 5, section B4). Accordingly, an Act of the Scottish Parliament cannot modify the law on such a matter (Schedule 4, para 2(1)). The 1968 Act (as amended) prescribes five years' imprisonment as the maximum custodial sentence which can be imposed for a contravention of that section, save where committed in aggravated form. An order for lifelong restriction constitutes a sentence of imprisonment (or detention) for an indeterminate period (1995 Act, section 210F(2)). Accordingly, notwithstanding that its primary purpose may be the protection of the public rather than the punishment of the offender, it is a sentence of imprisonment and, being for an indefinite period, is a more severe sentence than imprisonment for five years. It is therefore outside the legislative competence of the Scottish Parliament to pass legislation having the effect of authorising the making of an order for lifelong restriction on an offender convicted of a contravention of section 1 of the 1968 Act. Section 101 of the Scotland Act provides:

"(1) This section applies to -

(a) any provision of an Act of the Scottish Parliament ...

...

which could be read in such a way as to be outside competence.

(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly."

The effect of these provisions is that, notwithstanding the broad terms of section 1 of the Criminal Justice (Scotland) Act 2003 (which inserted among other sections section 210F of the 1995 Act), the latter section is to be read and have effect as not extending the requirement to make an order for lifelong restriction to a situation in which the offender has been convicted of an offence under the Firearms Act 1968 (as amended) which prescribes a determinate number of years as the maximum penalty by way of imprisonment. The order for lifelong restriction made in this case was accordingly incompetent and falls to be quashed.

[11] It should be noted that the Advocate depute made no concession in relation to whether the pre-condition to making a risk assessment order had been satisfied. Nor did he make any concession as to the effect of section 210F(1) where another statute passed by the Scottish Parliament or applicable only in Scotland had prescribed determinate maximum sentences. That issue was for another day.

[12] Finally, it may be noticed that there is reason to believe that the appellant's possession of the firearm in question involved a more serious contravention of the 1968 Act than an unaggravated contravention of section 1. But it was the latter section which was libelled in the indictment served on him and to which he pled guilty. The court must proceed on that basis.

[13] Having quashed the sentence we heard Mr Shead in respect of alternative disposal of the case. We determined that, having regard to the serious record of the appellant, the starting point for the sentence to be imposed on him was the maximum of five years' imprisonment. Having regard to his early plea of guilty we moderated that to a sentence of three years and four months' imprisonment.