Skip to content
Law Society of Scotland
Search
Find a Solicitor
Contact us
About us
Sign in
Search
Find a Solicitor
Contact us
About us
Sign in
  • For members

    • For members

    • CPD & Training

    • Membership and fees

    • Rules and guidance

    • Regulation and compliance

    • Journal

    • Business support

    • Career growth

    • Member benefits

    • Professional support

    • Lawscot Wellbeing

    • Lawscot Sustainability

  • News and events

    • News and events

    • Law Society news

    • Blogs & opinions

    • CPD & Training

    • Events

  • Qualifying and education

    • Qualifying and education

    • Qualifying as a Scottish solicitor

    • Career support and advice

    • Our work with schools

    • Lawscot Foundation

    • Funding your education

    • Social mobility

  • Research and policy

    • Research and policy

    • Research

    • Influencing the law and policy

    • Equality and diversity

    • Our international work

    • Legal Services Review

    • Meet the Policy team

  • For the public

    • For the public

    • What solicitors can do for you

    • Making a complaint

    • Client protection

    • Find a Solicitor

    • Frequently asked questions

    • Your Scottish solicitor

  • About us

    • About us

    • Contact us

    • Who we are

    • Our strategy, reports and plans

    • Help and advice

    • Our standards

    • Work with us

    • Our logo and branding

    • Equality and diversity

  1. Home
  2. News and events
  3. Legal news
  4. Failure to note reasons did not vitiate short jail term

Failure to note reasons did not vitiate short jail term

9th May 2022 | criminal law | Criminal court work

A sheriff’s failure to set out why he considered that no disposal other than a short custodial sentence was appropriate despite the statutory presumption against such sentences, did not invalidate the sentence imposed, the Sheriff Appeal Court has ruled.

Sheriff Principal Mhairi Stephen and Appeal Sheriff Thomas McCartney gave the decision in refusing an appeal by Timothy Humphreys against a cumulo sentence of six months’ imprisonment (discounted from nine months) for driving an articulated lorry dangerously and with a breath alcohol count of 98, the offences having been committed while he was on bail. His record included an analogous drink driving offence in 2010 and a custodial sentence for burglary in 1982.

For the appellant it was argued that the sheriff had not stated in sufficiently clear and informative terms why no disposal other than a short custodial sentence was appropriate, nor had he recorded his reasons for passing a custodial sentence of short duration in the minute or record as required by the Criminal Procedure (Scotland) Act 1995, s 204(3A) and (3B). This vitiated the sentence. The gravity of the offending and sentencing objectives could have been met by “a tough community based disposal”.

Giving an extempore opinion of the court, Sheriff Principal Stephen said the drink driving offence was “eloquent of a high degree of negligence and culpability”. The absence of any accident was fortuitous. The sheriff had stated that a custodial sentence was required to mark the court’s disapproval, deter others from such behaviour and punish the appellant for his dangerous and irresponsible actions; and the sheriff was entitled to take an approach based on punishment and deterrence.

Although s 204(3B) required the court to comply with certain procedural requirements, there was “no absolute rule as to the effect of failure to comply with these requirements”. There was no indication that it would invalidate the sentence; the policy memorandum stated that judicial discretion “remains intact”, and there would be “significant public concern” if serious offenders could escape a custodial sentence for entirely technical reasons. The court followed and applied Heywood v SJSB 1994 SCCR 554 and R v Soneji [2006] 1 AC 340. The accused’s remedy was to exercise the right of appeal.

The existence of the requirement did not mean it was never appropriate to impose a custodial sentence of 12 months or less; rather that such a sentence required to be justified on the facts and circumstances of the case. Here, if the reason for imposing a short custodial term was not minuted nor specifically and separately addressed, “it was hiding in plain sight”.

The sheriff principal concluded: “Nonetheless, it is important that when the clerk in a summary criminal court minutes a custodial disposal brief reasons must be given for a sentence of 12 months or less (and indeed for a first prison sentence). Section 204(3A) certainly does not prohibit a court from imposing a custodial sentence on summary complaint even where there is no aggravation libelled. The imposition of such a sentence requires to be justified by reference to the facts and circumstances of the case.”

Read the opinion of the court.

 

Add To Favorites

Additional

  • News and events

In this section

  • Law Society news
  • CPD & Training
  • Blogs & opinions
  • Events
  • 75th Anniversary

Categories

  • civil litigation
  • criminal law
  • employment
  • obituary
  • careers
  • practice management
  • law society of scotland
  • government-administration
  • welfare/benefits
  • family-child law
  • reparation
  • professional regulation
  • property (non-commercial)
  • insolvency
  • consumer
  • human rights
  • mental health-adult incapacity
  • planning/environment
  • europe
  • information technology
  • immigration
  • education-training
  • executries
  • corporate
  • commercial property
  • agriculture-crofting
  • dispute resolution
  • risk management
  • intellectual property
  • client relations
  • tax
  • licensing
  • banking-financial services
  • trusts-asset management
  • reviews
  • opinion
  • For the public
  • Research and policy
  • Regulation
  • Journal online news
  • interview

News Archive

  • 2023
  • 2022
  • 2021
  • 2020
  • 2019
  • 2018
  • 2017
  • 2016
  • 2015
  • 2014
  • 2013

Related articles

  • Jury trials to return to the islands in spring
  • SCTS revises criminal case backlog predictions
  • Current justice funding model unsustainable: MSP report
  • Crime figures up 3% in first full post-Covid year
Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh
EH3 8EX
If you’re looking for a solicitor, visit FindaSolicitor.scot
T: +44(0) 131 226 7411
E: lawscot@lawscot.org.uk
About us
  • Contact us
  • Who we are
  • Strategy reports plans
  • Help and advice
  • Our standards
  • Work with us
Useful links
  • Find a Solicitor
  • Sign in
  • CPD & Training
  • Rules and guidance
  • Website terms and conditions
Law Society of Scotland | © 2025
Made by Gecko Agency Limited