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Judges clarify backdating rules

10 January 2008

The time in custody to be taken into account when backdating sentence is the whole period from when the accused is initially committed to custody (committal for further examination), rather than the later full committal for trial, appeal judges have confirmed.

Lord Nimmo Smith and Lord Abernethy were hearing two appeals from Dundee Sheriff Court where the sheriff had backdated to the date of full committal, normally a week later, on the view that the Criminal Procedure (Scotland) Act referred to the accused being "on remand awaiting trial", and the initial committal was simply "pending further enquiries".

The appeal judges said it was clear that the emphasis in section 210 of the Act "is on time spent by a person in custody or in hospital by reason of the proceedings against him prior to sentence. The policy underlying the provision is, beyond doubt, to enable a person deprived of his liberty to have the period during which he has been so deprived taken into account when sentence is passed".

Backdating, they added, was a discretionary exercise and some might consider it appropriate to backdate to the date of arrest, for example if a weekend intervened before an accused appeared in court. Here the sheriff had wrongly fettered his discretion.

The court allowed the appeals to the extent of backdating to the date of committal for further examination.

The decision can be read at http://www.scotcourts.gov.uk/opinions/2007HCJAC76.html .