Short-term sentences and short-term problems

From the BBC News website today, a report of a sheriff livid at not being able to impose a longer custodial sentence. Sheriff Liddle sentenced two youths to 72 days in custody for an unprovoked attack on a stranger, remarking:

"You two are young thugs, nothing more, nothing less. I tell you this, right here and now, you are lucky this charge was not brought on indictment, because if it had been that would have allowed me to pass the custodial sentence this case deserves. I can't because you are first offenders and it is on summary complaint. The maximum I can sentence you to is three months, which is woefully inadequate. Worse than that, I can't even do that, because you are entitled to a discount for the early plea."

They were lucky in more ways than one. Thirteen days from today, on the 10th of December, the sentencing powers of sheriffs in summary cases are to increase to twelve months’ imprisonment (click here for the order implementing the relevant section (43) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007). Had proceedings against these accused been taken at a later date, matters could have been rather different.

“Retrospective” use of these sentencing powers would not seem to be contrary to the ECHR. Although article 7 prevents courts from imposing “a heavier penalty… than the one that was applicable at the time the criminal offence was committed”, that does not seem to be relevant here unless the crime concerned is one which cannot be prosecuted on indictment: if it is, penalties of 12 months (or more) would always have been “applicable”.

But full retrospectivity would probably have led to all sorts of distortions and difficult calculations about how and when to prosecute cases and whether to tender or accept pleas – and no doubt, appeals from aggrieved persons sentenced just after the 10th of next month. Accordingly, the implementing order makes transitional provisions (see article 12): the increased sentencing powers are only to be available in cases where a first calling took place on or after the 10th, or there has been no first calling but a warrant was granted on or after that date. All is not lost to armchair commentators who look for trouble, however: interesting questions may arise in respect of any proceedings which are commenced before the 10th but abandoned and restarted de novo at a later date.