Guidance on how to take into account time spent on remand, along with backdating and a sentence discount following a plea of guilty, has been given by the Criminal Appeal Court, as it overruled a case from 2017.

Lord Justice General Carloway, Lord Justice Clerk Lady Dorrian and Lord Turnbull allowed an appeal by Andrew McCaw, reducing his sentence from 27 months to 17 on a charge of domestic assault to injury, an offence for which the appellant had several previous convictions.

The appellant was released on licence from a two year sentence for housebreaking with intent to rob, involving a knife, on 18 September 2018. The present offence took place on 23 November 2018, when his previous sentence had 117 days still to run. He was remanded on 17 December and pled guilty on 10 May 2019. The sentencing judge ordered the 117 days to be served before the sentence for the new offence.

On appeal it was argued that the period of remand should have ben taken into account in sentencing for the new offence, after applying any discount for the guilty plea. If this were not done, a problem of comparative justice could arise in relation to co-accused. The Crown essentially accepted this approach.

Lord Carloway, delivering the opinion the court, said it was accepted that a sentence to be served after the imposition of a return order could not be backdated to the date of remand: the length of sentence which would have resulted in the period on remand required to be taken into account in selecting the length of the new sentence. In this case, where the period in remand was some five months, 10 months would require to be deducted from the sentence otherwise imposed.

He continued: "In order to achieve an equitable result in situations in which one offender has been remanded and another has not, it is necessary to apply the relevant discount, for a plea of guilty in terms of s 196 [of the Criminal Procedure (Scotland) Act 1995], prior to taking into account the period of remand. In this respect, McLeod v HM Advocate, unreported, High Court of Justiciary, 13 June 2017, must be regarded as having been wrongly decided. The effect of this is that, instead of imposing the sentence of 27 months, a sentence of 17 months should be substituted. No order for backdating should be made and this sentence will start at the conclusion of the [117 day] period."

Click here to view the opinion of the court.