By Grant Smith

A DUNDEE sheriff made a mistake when sentencing two men, appeal court judges have ruled.

Sheriff Grant McCulloch jailed Jason William McCafferty or Simpson for two years for assault to severe injury and permanent disfigurement.

He also jailed Dennis Christie for 21 months for being concerned in the supply of heroin.

The men appealed against the way their sentences were backdated to take account of the time they spent in custody.

In both cases the sheriff ordered it to be done from the time Simpson and Christie were fully committed.

The men argued their sentences should have been deemed to have begun prior to that.

When an accused person appears on petition before a sheriff, the normal procedure is that the Crown moves for the matter to be continued for further examination.

The sheriff then decides whether to grant the person bail or remand him in custody.

When the case next calls the Crown motion is for full committal and again it is to up the sheriff whether the accused is released.

Simpson and Christie claimed that, since they were both held in custody from the point where their cases were continued for further examination, their sentences should be held to run from that date.

Their appeals were heard by Lord Nimmo Smith and Lord Abernethy.

Sheriff McCulloch was asked to explain his reasoning.

He told the judges he believed he had correctly interpreted the relevant legislation, section 210 of the Criminal Procedure (Scotland) Act 1995.

It requires the court to have regard to “any time spent in custody on remand awaiting trial or sentence.”

He went on, “When an accused person is remanded on a petition which has been continued for further inquiries by the Crown, he is not remanded awaiting trial.

“He only achieves that status upon full committal.”

Therefore, he felt it was appropriate to backdate Simpson’s sentence to December 27, 2006, when he was fully committed, and likewise for Christie’s full committal on February 28, 2007.

In their written judgment, Lords Nimmo Smith and Abernethy said, “We find ourselves unable to agree with the construction placed by the sheriff on the words ‘on remand awaiting trial or sentence.’

“In its context, this phrase means no more than that the person who has been remanded has not yet been tried or sentenced.

“The sheriff has accordingly, in our opinion, misdirected himself in concluding that the language (of the section of the Act) is some way disentitled him from taking into account the period between committal for further examination and full committal.”

In his report to them, the judges said, Sheriff McCulloch had given no indication of what consideration he had given to the possibility of exercising his discretion to backdate the sentences to an earlier date.

Lords Nimmo Smith and Abernethy said, “In proceeding in this way, the sheriff has failed properly to exercise his discretion and may indeed be regarded as having fettered his discretion by allowing his interpretation of section 210 to be the decisive factor.

“We have accordingly decided to allow both these appeals to the extent of backdating each of sentences to the date of committal for further examination.”

It means Simpson’s sentence has been backdated by a week.

The judgment does not state when Christie was committed for further examination.