Julian Gilbey v. Her Majesty's Advocate [2011] HCJAC 30

Criminal Appeal Against Sentence:- On 19 October 2001 the appellant, a British national, was arrested attempting to board a plane bound for Taiwan at Don Muang Airport in Bangkok. In his possession was a bag containing 3.3kg of high purity heroin. On 19 September 2002 the appellant was convicted of drug trafficking, however, on account of his co-operation with the Thai authorities in the initial stages of the police investigation a death sentence was commuted to life imprisonment. The appellant remained in custody in Thailand until February 2010 when he was transferred to Scotland by virtue of a warrant issued by the Scottish Ministers under the Repatriation of Prisoners Act 1984, as amended. Subsequently, following a reference to the High Court by the Scottish Ministers, a hearing under section 10(2J) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended, took place and the court made an order specifying a period of ten years, to date from 19 October 2001, as the part of the appellant's life sentence which would have been the punishment part under section 2(2) of the Act if the appellant had been sentenced for the initial offence in Scotland. The appellant appealed against that sentence. The hearing under section 10(2J) had proceeded on 30 March 2010, and was continued to further hearings on 27 and 28 May 2010. On 16 July 2010 the court ordered:- "That a period of ten years from 19 October 2001 be specified as the punishment part of the above sentence under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 as amended, before his release on licence." Here the court observed that the effect of paragraph 2(1) of the Schedule to the 1984 Act is that the appellant's sentence was deemed, in determining the time which he has served for the purposes of sections 2(2) and (7) of the 1993 Act, to run from the date when he was delivered to HMP Barlinnie. It was noted that the warrant did not specify any period to be taken into account in accordance with paragraph 2(2) of the 1984 Act, and contained no provision enabling the period served in Thailand to be taken into account. As such if account was to be taken of the period served in Thailand, that period should have been specified in the warrant in accordance with paragraph 2(2) of the Schedule to the 1984 Act. As a result of that the court here considered afresh the appropriate period to be specified under section 10(2K) of the 1993 Act to run from the order made on 16 July 2010 having regard to the circumstances of the case.