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URL: http://www.bailii.org/scot/cases/ScotHC/2002/47.html
Cite as: [2002] ScotHC 47

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McPherson v. Procurator Fiscal [2002] ScotHC 47 (18 April 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord MacLean

Lord Caplan

 

 

 

 

 

 

 

 

 

 

 

Appeal No: 522/02

OPINION OF THE COURT

delivered by LORD MacLEAN

in

NOTE OF APPEAL

by

BRIAN McPHERSON

Appellant;

Against

PROCURATOR FISCAL, Airdrie

Respondent:

_______

 

 

Appellant: Shead; Balfour & Manson

Respondent: Beynon AD; Crown Agent

18 April 2002
  1. The appellant is Brian McPherson who appeals against a sentence of three months detention imposed by the Sheriff at Airdrie on 27 February 2002 which the Sheriff ordered to run consecutively to a sentence of six months detention imposed on the same date on a separate complaint. On 11 February 2002 the appellant had pleaded guilty to contraventions of sections 143(1) and 103(1)(b) of the Road Traffic Act 1988 which appeared on one complaint. He also pled guilty to a charge in another complaint which libelled theft of a motor car and contraventions of sections 2 and 5(1)(a) of the 1988 Act. Both complaints arose out of events on 18 and 19 January 2002.

  2. In his grounds of appeal the appellant submitted that the Sheriff had failed to have sufficient regard to the facts that the road traffic charges on both complaints occurred on the same day and flowed from the theft of the car. In any event, it was only because of the nature of the disqualified driving charge that that charge appeared on a second complaint. While that was done as a matter of fairness to the appellant, it had the effect of prejudicing the appellant by having consecutive sentences imposed.

  3. In his report the Sheriff responded to these grounds of appeal by referring to McLean v H.M. Advocate an unreported decision of the Appeal Court dated 14 October 1999. With regard to that case the Sheriff said that the Court had regarded the offences of drink driving and driving while disqualified as entirely separate, for which concurrent sentences were inappropriate. Lord Sutherland said this:

    4. "The two offences are entirely separate. Driving while disqualified is one thing, driving while under the influence of drink is something entirely different and we consider the sentences should appropriately be made consecutive."

    With that expression of opinion the Sheriff said he humbly agreed.

  4. Before us, Mr Shead, who appeared for the appellant, drew our attention to the five judge case of Nicholson v Lees 1996 SCCR 551. In that case the Lord Justice Clerk (Ross) who delivered the Opinion of the Court said at page 559C to D:

    5. "Where charges against an accused appear in two or more separate complaints which are being dealt with at the same time, the Court requires to consider why the charges have appeared on separate complaints. If the charges have appeared on separate complaints for technical reasons, as in the present case where, for example, a charge of driving while disqualified has to appear on a separate complaint since otherwise it would reveal that the accused had a previous conviction, the charges fall to be treated as if they had appeared on one complaint, with the result that, while consecutive sentences may be imposed, the sentences in aggregate cannot exceed the limit of the Courts'sentencing power on one complaint."

  5. Mr Shead submitted that the present case fell entirely within that description. We agree. It is also agreed that the Court's sentencing power on one complaint was a total period of six months. That of course is not the case when proceedings are taken on indictment, as in the case of McLean v. H.M. Advocate referred to above. Accordingly, the Sheriff in this case, although he had two complaints before him, was restricted to a total of six months' detention for the offences with which he had to deal. We should add that the Crown agreed with Mr Shead's submission and consented to this appeal being granted. We will, therefore, quash the sentence of three months' detention so far as it has to be served consecutively and substitute therefor a period of three months' detention to be served concurrently with the period of six months' detention.

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URL: http://www.bailii.org/scot/cases/ScotHC/2002/47.html