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"The court continued the preliminary hearing until 4 July 2012 in order that ( sic ) to allow the Crown to provide the telephony (sic) evidence in a suitable format to the defence in sufficient time to enable them to consider that matter before the next calling and continued consideration of the preliminary issue meantime ...".
[3] Mr Kerrigan, for the petitioner, submitted that since the Crown had failed to move for sentence in relation to the petitioner on the second charge at the initial preliminary hearing on 14 May 2012, or to state expressly that they wished the matter of sentence to be considered at a later diet, the sentence imposed on the petitioner on 3 August 2012 was incompetent. The effect of the failure to move for sentence on 14 May was that the indictment fell in relation to the petitioner.
[4] On behalf of the Crown, the advocate depute argued that the Crown had not at any stage explicitly indicated that they had no intention of moving for sentence. In these circumstances, the sentence was competent. Reference was made to HM Advocate v McGee & Best 2006 SCCR 31 in which Lord Hardie, sitting alone, in circumstances similar to the present case, said:
"It is normally preferable to sentence all accused at the same time and it is understandable that the advocate depute wished to achieve that objective by deferring sentence on the second and third accused until the conclusion of the trial of the first accused. While it would have been preferable for him to move for sentence on 6 September and thereafter to seek an adjournment of the case against the second and third accused until the trial diet fixed for the first accused, I do not consider that it was incompetent to continue the case in the absence of a motion for sentence."
[5] It is established by long practice, that it is not competent for a court to pass sentence in solemn proceedings in the absence of a motion for sentence. There is no statutory provision to that effect, but the rule recognises that there may be circumstances in which the Crown will deem it inappropriate to move for sentence, even in the event of conviction in a particular case. When that happens, the Crown normally indicate to the court that it is not their intention to move for sentence.
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