Kevin Smith v. His Majesty’s Advocate [2024] HCJAC 34

Petition to the Nobile Officium:- On 22 June 2023, at the sheriff court, the petitioner pled guilty on summary complaint to a charge of theft by housebreaking. On 15 August 2023, the petitioner was sentenced to 8 months imprisonment, discounted from 12 months on account of the plea of guilty. On 15 September 2023, the appellant lodged a Note of Appeal against sentence. He was granted interim liberation by the sheriff. The appeal was refused on 4 October 2023, when a warrant was issued and the warrant was sent to the Crown Office and Procurator Fiscal Service, however, they had not sent it to the police for execution. The petitioner had not been arrested on the warrant despite having been arrested in April 2024 for road traffic offences. It was contended on behalf of the petitioner, having regard to the analogous circumstances in the cases of Beglan Petitioner 2002 S.C.C.R. 923 and Waugh v H.M.A. 2005 S.C.C.R. 102, that the Crown, in failing to execute the warrant were acting oppressively. Here the court refused the prayer of the petition. The court observed that, unlike in the case of Beglan, where the accused was a first offender, in the present petitioner’s case he had a significant schedule of previous convictions which was eloquent of the petitioner being a habitual thief and housebreaker with around 15 previous convictions for dishonesty. Whilst the court considered that the explanation provided by the Crown in relation to why the warrant appeared to go astray indicated a degree of negligence on the part of the Crown the conduct did not amount to oppression, the court being of the view that it would not be in the interests of justice for a persistent offender to avoid punishment for a further crime of dishonesty.