Her Majesty’s Advocate v. Jake O’Doherty [2022] HCJAC 31

Crown appeal against sentence:- The respondent was convicted after trial at the High Court of a charge of attempted murder. The trial judge selected a headline sentence of 6 years imprisonment and reduced the overall sentence by 578 days (by doubling the period of 289 days the respondent had spent on remand before being granted bail) resulting in a sentence of 4 years and 152 days. The Crown appealed on a point of law, namely, that the trial judge erred in calculating the sentence in the way he did, in terms of section 108(2)(a) of the Criminal Procedure (Scotland) Act 1995. Section 210(1) of the 1995 Act provides (a) that in determining the period of imprisonment to impose a court “shall (a) have regard to any period of time spent in custody by the person on remand awaiting trial or sentence”; (b) specify the commencement date of the sentence; and (c) where there has been a period on remand and the date under (b) is not earlier than the date on which sentence was passed, state the reasons for not specifying an earlier date. In the case of Martin v HMA 2007 J.C. 70 the court stated that a non-continuous period spent on remand should be recognised by deduction not just of the period itself but of the length of sentence which would result in that period being served in custody so in relation to short-term prisoners accused persons (as in Martin), being entitled to release after half the period served, meant that the deduction would be double the period spent on remand. In relation to long term prisoners the position is different. Prisoners sentenced before 1 February 2016 would have been entitled to automatic release on licence at the two-thirds stage of the sentence or, if recommended by the Parole Board, after serving half their sentence. For long-term prisoners sentenced after 1 February 2016 who are not the subject of an extended sentence section 2A of the 1993 Act now provides that the automatic entitlement to release on licence does not arise until there is six months left to serve (albeit the prisoner may still be released half way through the long-term sentence on the recommendation of the Parole Board). Here it was submitted on behalf of the Crown that, whilst the approach in Martin might be appropriate for a short-term prisoner, in the case of a long-term prisoner in cases where the period of remand was not continuous, it is not possible to simply double the period of the remand as the basis for deducting that period from the headline sentence as issues of comparative justice would arise whereby prisoners who had spent continuous periods on remand or had not been remanded at all may be prejudiced. It was submitted on behalf of the Crown that in following the case of Martin the judge had erred. On behalf of the respondent it was submitted that it should remain open to the sentencer to reduce the sentence to be imposed by doubling the period spent on remand or to select a shorter period within the discretion afforded by section 210 of the 1995 Act. Here the court noted that there was nothing to prevent identifying a notional date for the commencement of the sentence, by calculating back a period equivalent to that spent on remand and, following a continuation to allow the Crown to check whether identifying such a date might present practical problems, both the Scottish Prison Service and Parole Board for Scotland confirmed that it would not. As such, the sentence imposed on the respondent on 28 March 2022 was quashed and substituted by a sentence of 6 years imprisonment backdated to commence on 16 May 2021.