Birrell v HM Advocate [2010] ScotHC HCJAC_58 (10 June 2010)

Birrell v HM Advocate [2010] ScotHC HCJAC_58 (10 June 2010)

The financial reporting order was not imposed following an incompetent adjournment because the statutory time limits did not apply post-sentencing; any challenge to the order's competency should have been raised in the original appeal, and the nobile officium is not available where such remedy existed; any further...

Source-derived case information.

Citation
[2010] ScotHC HCJAC_58
Parties
Petitioner: Donald Birrell; Respondent: Her Majesty's Advocate
Jurisdiction
Scotland
Judgment Date
10 June 2010
Procedural Posture
Petition to the Nobile Officium and Appeal Against Refusal of Extension of Time / Appellate
Outcome
Petition and appeal refused
Legal Topics
Financial Reporting Orders, Appeals, Sentencing, Nobile Officium, Procedural Competency
Criminal Law Criminal Procedure Financial Reporting Orders Appeals Sentencing Nobile Officium Procedural Competency

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Parties

Donald Birrell

Petitioner

Her Majesty's Advocate

Respondent

Procedural Posture

Petition to the Nobile Officium and Appeal Against Refusal of Extension of Time / Appellate

Legal Issues

  1. 1 Whether the financial reporting order was imposed following an incompetent adjournment and is therefore unlawful
  2. 2 Whether a petition to the nobile officium is competent to challenge a financial reporting order
  3. 3 Whether the reduction in sentence on appeal constitutes a material change justifying review of the financial reporting order

Ratio Decidendi

The financial reporting order was not imposed following an incompetent adjournment because the statutory time limits did not apply post-sentencing; any challenge to the order's competency should have been raised in the original appeal, and the nobile officium is not available where such remedy existed; any further challenge based on change of circumstances should be made by application to the trial judge under section 80 of the 2005 Act.

Court Disposition

Petition and appeal refused

Orders

  • Petition to the nobile officium refused
  • Appeal against refusal of extension of time refused