O'Hara v. Procurator Fiscal

[5 ] The statutory provision in question is section 5(2) of the Criminal Procedure ( Scotland ) Act 1995 which provides that a sheriff, on convicting any person of a common law offence, shall have power, inter alia , to "impose imprisonment, for any period not exceeding three months". However, the foregoing provision is modified by subsection (3) which provides that:

(a) a second or subsequent offence inferring dishonest appropriation of property, or attempt thereat,

he may ..... be sentenced to imprisonment for any period not exceeding six months."

[7 ] Mr Moll was unable to refer us to any relevant case law which might offer support for that submission. However, he sought to find support in another section in the 1995 Act, namely section 249, which is the one which deals with compensation orders. Subsection (3) of that section provides:

"Where, in the case of an offence involving dishonest appropriation, or the unlawful taking and using of property or a contravention of section 178(1) of the Road Traffic Act (taking motor vehicle without authority etc) the property is recovered but has been damaged while out of the owner's possession, that damage, however and by whomsoever it was in fact caused, shall be treated for the purposes of subsection (1) above as having been caused by the acts which constituted the offence."