Majid Iqbal v. Procurator Fiscal, Dumfries [2016] HCJAC 38

Appeal under section 194ZB of the Criminal Procedure (Scotland) Act 1995:- The appellant pled guilty to a contravention of section 2 of the Road Traffic Act 1988, namely, dangerous driving. The appellant was fined £600, discounted from £800 on account of the plea of guilty. He was disqualified from driving for 20 months, however, that was not discounted and it was on that basis that the appellant appealed against his sentence. In his report to the court the sheriff stated that he considers he should have discounted the disqualification, and would have done so by reducing the period to 15 months. The sifting sheriff refused leave to appeal and observed that a discount to the disqualification period is only appropriate for any period beyond that required for public protection and he considered the whole 20 months was required for the protection of the public. It was noted, however, that the sheriff should have imposed a mandatory requirement to sit the extended test, so he stated that factor as an arguable ground of appeal for the purposes of section 187(6). The sifting sheriff refused leave to appeal the ground stated, but granted leave to appeal “only to allow the Sheriff Appeal Court to remit the proceedings under section 299 of the Criminal Procedure (Scotland) Act 1995 to the Sheriff Court in order for the entry to be corrected, or otherwise to alter the sentence in terms of section 167(8) of the 1995 Act or to substitute an entirely competent sentence, including the appropriate order to sit the extended test of competence to drive”. The appellant applied under section 187(7) of the Act, however, the court refused to allow the ground to be reinstated. The Sheriff Appeal Court then purported to exercise the power available to it under section 299(4)(b) of the Act to remit to the sheriff to amend the entry in the record of proceedings or to alter the sentence in terms of section 167, however, the court’s view here was that the interlocutor of the Sheriff Appeal Court was incompetent as section 299 was not designed to cover the situation in which a sheriff has not in fact passed the sentence which he ought to have passed, even when that sentence is a mandatory one. Here the appellant appealed against the decision of the Sheriff Appeal Court to decide the appeal and to impose the order including the requirement to sit the extended test. As the order was not competent leave to appeal was granted and the court considered the whole issue of sentence. Here the court quashed the sentence of disqualification imposed and substituted a period of 15 months together with an order to sit the extended test. The court stated that simply because the sentencing sheriff did not specifically refer to the public protection did not mean it was left out of account and the fact that the sheriff considered that he should have discounted the disqualification to a period of 15 months showed that he did not consider that a period in excess of that was required for public protection.