Friday 11 January 2008

Friday miscellanea number 4 [UPDATED]

(a) Aamer Anwar, again

Mr Anwar is not having a happy time of it at the moment. Not only is he awaiting a High Court hearing regarding allegations of contempt of court (see
earlier post), judicial aspersions were cast upon his credibility as a witness at Glasgow Sheriff Court yesterday. After trial, Lorraine Ferrie was acquitted of a having committed a racially aggravated breach of the peace directed against Mr Anwar and his wife. According to the BBC News website, Sheriff Coutts said:

There were certain aspects in which the Crown witnesses Mr and Mrs Anwar were not credible… I find Miss Ferrie a reliable witness and, where her story was not consistent to that given by the Anwars, I preferred her evidence.”

(b) Backdating sentences

Simpson v HM Advocate; Christie v HM Advocate [2007] HCJAC 76, the appeal court has given guidance on the proper practice in backdating sentences to take into account time spent in custody before trial, in accordance with section 210(1) of the Criminal Procedure (Scotland) Act 1995. The question, as the court puts it, is straightforward: if a sentence is to be backdated, “should it be to the date of committal for further examination, or to the date of committal until liberated in due course of law (full committal)?” (para 1).

The normal practice, as the court observes, is to backdate to the earlier of these two dates (committal for further examination). It would be strange if it were otherwise, as that would fail to give any recognition to a period during which the accused had been deprived of his liberty. Nevertheless, in respect of Mr Simpson and Mr Christie, a Dundee sheriff – not named in the court’s opinion – took the view that because the statutory provisions refer to time spent in custody “awaiting trial or sentence”, backdating should only go so far as the date of full committal. This result arose, in his view, because an accused committed for further examination could not be regarded as “awaiting trial”.

In a brief opinion, Lords Nimmo Smith and Abernethy confirm that the normal practice is correct and that the sheriff’s approach in these two cases was wrong. They consider the sheriff’s construction of the phrase “awaiting trial or sentence” to have been incorrect, but argue that even if it was correct backdating is nevertheless a discretionary exercise and suggest that backdating might go back beyond even the date of committal for further examination, for example where the accused spent the weekend in police custody before that date.

Lords Nimmo Smith and Abernethy say that they felt it appropriate to issue their opinion because “there has not hitherto, so far as we are aware, been a decision of this Court about the proper interpretation and application of section 210 of the 1995 Act” (para 8). It is interesting that, despite the point of law involved, they were happy to proceed with the bare quorum appropriate for an appeal against sentence and did not consider it necessary for the case to be heard by a bench of three judges: that may indicate just how little persuasion they required in respect of the appellants’ cases.

[Update (11/01)] (c) HM Advocate v Tracey

An earlier post on this blog noted the procedural mess that had arisen in the case of HM Advocate v Tracey [2007] HCJ 14, after a judge purported to reject a guilty plea tendered by Mr Tracey which had been accepted by the Crown and signed by both Mr Tracey and that same judge. Mr Tracey was today sentenced to 21 months' imprisonment and put on the sex offenders register. From the report on the BBC News website, there is no indication of any point having been taken as to the competency of the proceedings.

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