APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Mackay of Drumadoon Lord Malcolm	[2010] HCJAC 58 Appeal No: XM27/09 and XC541/08 OPINION OF THE COURT delivered by LORD MALCOLM in PETITION TO THE NOBILE OFFICIUM by DONALD BIRRELL Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______

Petitioner: Ms Richards QC; Ms Farquharson, advocate,; Beaumont & Co

Respondent: Mackay, advocate depute; Crown Agent

10 June 2010

[1] The petitioner appeared for trial at the High Court sitting at Aberdeen on 4 August 2008 and pled guilty to charges of fraud (manufacturing a false entitlement to a bank loan) and money laundering (the purchase of a motorcar with the proceeds of drugs dealing). When moving for sentence the advocate depute applied for a confiscation order and invited the court to make a financial reporting order in terms of section 77 of the Serious Organised Crime and Police Act 2005 (the 2005 Act). The next day the petitioner was sentenced on the first charge to a period of imprisonment of three years and, in respect of the money laundering charge, to a consecutive sentence of seven years imprisonment. The court continued consideration of the application for a financial reporting order until 16 September 2008. In the meantime an application for leave to appeal against the sentence of imprisonment was lodged within the requisite period of fourteen days. On 17 September 2008 leave to appeal was granted in respect of certain of the grounds of appeal. On 16 September 2008 counsel for the petitioner addressed the trial judge on the Crown's application for a financial reporting order. Consideration of the matter was continued to a hearing on 31 October 2008 when the court made an order covering a period of seven years six months.

[2] On 27 March 2009 the Appeal Court upheld the petitioner's appeal to the extent of substituting a sentence of eighteen months imprisonment in respect of the fraud charge and, for the other charge, by substituting a sentence of four years imprisonment, the sentences to be served consecutively. On 29 October 2009 a confiscation order in the sum of £61, 442 (reduced from the proposed £1.5 million) was agreed.

[3] In November 2009 the current petition to the nobile officium was lodged challenging the financial reporting order. At a procedural hearing on 9 December 2009 a question was raised as to the competency of that procedure. As a result the petitioner lodged an application under section 111(2) of the 1995 Act for an extension of time in order to lodge a note of appeal against the financial reporting order. On 17 December 2009 that application was refused by a single judge. This was on the basis that a challenge to the order could and should have been raised in the course of the original appeal proceedings. On 15 April 2010 this court heard submissions in respect of both the petition and an appeal against the refusal of the application for an extension of time.

The written submissions

[4] In the written submissions presented in support of the petition it was contended that the imposition of a financial reporting order was incompetent in that the court purported to adjourn proceedings on 5 August 2008 in accordance with a non-existent provision, namely rule 49.32(a) of the Act of Adjournal (Criminal Procedure Rules) 1996. Plainly this was a typographical error in that there is no such rule. The intention may have been to refer to rule 49.3(2)(a), but in any event this was inapt since that rule relates to an application for the variation or revocation of a financial reporting order. It was also submitted that the periods of adjournment granted by the court exceeded the time limit set out in section 201 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) in that they exceeded four weeks with no "cause shown" recorded in the court minutes. The financial reporting order had been imposed after an incompetent adjournment, and therefore was unlawful and should be quashed.

[5] The written submissions stated that there is no statutory right of appeal in the 2005 Act against a financial reporting order. Attention was drawn to section 80 of the Act which provides for an application for variation or revocation of a financial reporting order. Such an application is to be made to the court which made the order. It was suggested that, given the excessive sentencing of the offender, justice would not be seen to be done if the same judge was asked to review the financial reporting order. In the absence of a statutory right of appeal, a petition to the nobile officium is the appropriate remedy to challenge the making of a financial reporting order. Alternatively if a financial reporting order can be appealed as part of the sentence of the court following upon a conviction, it was submitted that section 106 of the 1995 Act does not preclude separate and distinct appeals against sentence. On that hypothesis the petitioner should be permitted to proceed with an appeal against sentence in respect of the order, contrary to the earlier decision of the single judge, and notwithstanding that the petitioner had already pursued an appeal against sentence to determination without any attempt to challenge the financial reporting order.

[6] The Crown's written submissions contended that a financial reporting order comes within the definition of a sentence for the purposes of section 106 of the 1995 Act. Reliance was placed upon the broad definition of "sentence" in section 132 of the Act. In these circumstances there was no room for the exercise of the nobile officium of the High Court, which is confined to extraordinary and unforeseen circumstances when no other remedy is provided for by the law.

The oral submissions

[7] At the hearing before this court Ms Richards made it clear that, apart from the alleged incompetency, the only challenge to the order is that the petitioner's sentence was reduced by the Appeal Court to such an extent that the order should be reviewed. In other words, and leaving aside the incompetency argument, the matter should be revisited because of a change of circumstances. Ms Richards accepted that if the financial reporting order was part of the original sentence, the completed appeal process could not be reopened. On that hypothesis there had been an opportunity to introduce a challenge to the competency of the order in that appeal, but that opportunity had not been taken.

[8] In respect of the alleged incompetency, the advocate depute submitted that section 201 of the 1995 Act does not apply in respect of an application for a financial reporting order, thus the court was not bound by the time limits on adjournments. There was an erroneous reference to a non-existent paragraph in the 1996 Act of Adjournal. However that does not invalidate the subsequent decision. In any event, if section 201 did apply, this court could excuse the procedural irregularity under and in terms of section 300A of the Act. In addition, section 299 grants power to correct any error in the minutes. Any concern as to the competency of the order could and should have been raised in the original appeal proceedings. That matter cannot be revisited now. Finally it was submitted that the complaint based on the reduced sentence on appeal can be progressed by an application in terms of section 80 of the 2005 Act.

Discussion and Decision

[9] The first issue we address is the alleged incompetency in the procedure leading up to the imposition of the financial reporting order. In our opinion there is no merit in that submission. Section 201 of the 1995 Act provides that after conviction and pending sentence the court can adjourn the case for inquiries or for determining the most suitable disposal The adjournment may be for a period of up to four weeks or, on cause shown, for up to eight weeks. In the present case the petitioner was sentenced to imprisonment for ten years on 5 August 2008. The case was then continued on two occasions for periods exceeding four weeks but without any minuted reference to a cause being shown for an adjournment in excess of four weeks. The adjournments were for the purpose of consideration of the possible imposition of a financial reporting order, which in the event was imposed on 31 October 2008. In terms of section 307(1) of the 1995 Act a "sentence" is either a period of imprisonment or of detention passed in respect of a crime or offence. It follows that for these purposes the petitioner was sentenced on 5 August 2008. The subsequent adjournments related to the issue of a financial reporting order, not to the sentence, therefore the time limits in section 201 did not apply. The appropriate duration of the adjournments fell within the discretion of the court. All of this makes sense since plainly the purpose of section 201 is to limit the time a convicted person will remain on remand or bail pending a decision on whether there is to be a custodial disposal. So far as the erroneous reference to the Act of Adjournal is concerned, that does not strike at the validity of the ultimate decision of the court. In any event, if required, this error could have been corrected under the court's powers contained in section 299 of the 1995 Act.

[10] The next question is whether the alleged incompetency could have been added to the grounds of appeal in the original proceedings which led to the reduction in sentence. In our view the answer to this question is yes. For the purposes of appeal proceedings under Part VIII of the 1995 Act, and in particular under section 106, "sentence" is given a broad definition. In terms of section 132 it includes "any order of the High Court made on conviction with reference to the person convicted or his wife or children....". This can be contrasted with the narrower definition applicable to the rest of the statute in section 307(1). It follows that the petitioner could have asked the court to allow a challenge to the competency of the order to be added to the grounds of his appeal against sentence. Given the chronology of events it is almost certain that an application of that nature would have been granted. For whatever reason the petitioner did not take advantage of that opportunity. That omission cannot be corrected by a petition to the nobile officium which is a process of last resort to be used only in extraordinary or unforeseen circumstances and in the absence of any other remedy.

[11] An attempt to revive the original appeal proceedings for the purpose of challenging the financial order was refused as incompetent by a single judge. Notwithstanding the lodging of an appeal against that refusal, in the hearing before this court, and in our view quite rightly, Ms Richards made no attempt to challenge that decision.

[12] Ms Richards explained that, leaving aside the issue of competency, the petitioner wishes to challenge the financial reporting order on the basis of the significant reduction in the sentence of imprisonment, namely from ten years to five and a half years. In our view it would have been open to the petitioner to raise this issue as part and parcel of the challenge to the original sentence. However the reduction in the periods of imprisonment may be seen as a material change of circumstances which could warrant an application to the trial judge under section 80 of the 2005 Act. In the circumstances we consider that such an application is the appropriate procedural route for any challenge to the continuing appropriateness of the existing order. In all the circumstances the petition and the appeal against the refusal of the application for an extension of time are refused.

[13] For completeness it can be recorded that questions were raised before us as to whether the fundamental competency of a financial reporting order can be addressed by way of an application under section 80 of the 2005 Act, or whether that procedure is limited to the review of an order after a material change in circumstances. In addition questions might be asked as to the appropriate method of appeal, if any, against a decision taken on a section 80 application. However neither issue arises in the circumstances of the present proceedings. We express no opinion upon them.