Arthur v. Her Majesty's Advocate [2002] ScotHC 324 (22 November 2002)

Arthur v. Her Majesty's Advocate [2002] ScotHC 324 (22 November 2002)

The sentence of life imprisonment imposed by the trial judge was irregular because the prosecutor was not given the opportunity to move for sentence. The irregularity did not cause the instance to fall, but the sentence cannot stand. The nobile officium should be exercised to restore the opportunity for the prosecutor to move for sentence.

Citation
[2002] ScotHC 324
Parties
Petitioner: Alexander Arthur; Respondent: Her Majesty's Advocate
Jurisdiction
Scotland
Judgment Date
22 November 2002
Procedural Posture
Petition to the Nobile Officium / Post Conviction, Post Sentence, Appellate Review
Outcome
sentence quashed, matter remitted for sentencing
Legal Topics
Competency of Sentence, Role of Prosecutor in Sentencing, Nobile Officium Jurisdiction, Irregularity in Sentencing Procedure
Criminal Law Criminal Procedure Competency of Sentence Role of Prosecutor in Sentencing Nobile Officium Jurisdiction Irregularity in Sentencing Procedure

Case Brief

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Parties

Alexander Arthur

Petitioner

Her Majesty's Advocate

Respondent

Procedural Posture

Petition to the Nobile Officium / Post Conviction, Post Sentence, Appellate Review

Legal Issues

  1. 1 Whether the trial judge's passing of sentence without the prosecutor moving for sentence rendered the sentence incompetent or irregular
  2. 2 Whether the instance fell due to procedural irregularity
  3. 3 Appropriate remedy for procedural defect in sentencing

Ratio Decidendi

The sentence of life imprisonment imposed by the trial judge was irregular because the prosecutor was not given the opportunity to move for sentence. The irregularity did not cause the instance to fall, but the sentence cannot stand. The nobile officium should be exercised to restore the opportunity for the prosecutor to move for sentence.

Court Disposition

sentence quashed, matter remitted for sentencing

Orders

  • Quash the sentence of life imprisonment imposed by the trial judge.
  • Adjourn the diet until 25 November 2002.