Scott Stewart v. The Procurator Fiscal, Stirling [2015] HCJAC 93

Bill of Suspension:- Here the complainer sought to challenge the competency of two orders made by sheriffs at Stirling on 6 May 2015 and 24 June 2015 by way of a Bill of Suspension. The circumstances were that, on 19 January 2015, the complainer was sentenced, in relation to a contravention of the Misuse of Drugs Act 1971, to the imposition of a Community Payback Order including an additional requirement that he undertake 60 hours of unpaid work within three months of the date of imposition of the CPO. The complainer did not complete the 60 hours unpaid work within that three month period because he was in custody in relation to other matters. On 29 April 2015 an application was made by a Criminal Justice Officer to the sheriff court for an extension to the order for the work requirement to be completed. On 6 May 2015 the sheriff made the following order:- “...having considered the application to vary the Community Payback Order dated 19/01/2015, grants same and in terms thereof extends the period in which the order may be completed by three months.” A different sheriff made an order dated 24 June 2015 in which he:-“...Revoked the Order and deferred sentence until 26th August 2015...”. Here it was submitted on behalf of the complainer that the order of 6 May 2015 was incompetent and, as such, the following callings of the case on 2 June and June 24 when the second order was made were also incompetent. It was submitted that any application to extend the order had to be made within the currency of the order, namely, on or before 18 April 2015, and in the present case it was not made until 29 April 2015. It was further submitted that there is no reference in the 1995 Act that an unpaid work requirement would remain in force until the offender had performed the specified number of hours of work and to regard the CPO as being unlimited in time would be prejudicial to the complainer. In all of the circumstances it was submitted that there was no CPO in existence on 6 May and it was not open for the sheriffs to proceed as they had. On behalf of the Crown it was submitted that the CPO did not expire on 18 April 2015 and the single requirement of the CPO remained live until the unpaid hours work were completed. Here the court refused the Bill. The court considered that the argument advanced by the complainer was based upon the CPO having expired on 18 April 2015. The court considered that it had not. Sections 227Y and 227Z of the 1995 Act confer wide powers of variation of the CPO to the court including varying a requirement (section 227Z(4)(c)). The court considered that for the argument advanced on behalf of the complainer to be correct then a Criminal Justice Officer would require to present the application for extension to the court prior to the expiry of the time limit that was in place at that time which would mean that officers would require to make anticipatory applications which made no sense. As such the court considered that the power to extend a time limit specified in a requirement is not limited to cases where the time limit had not expired before the date when the application was presented.