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Appellant: C Fyffe, Solicitor Advocate; Paterson Bell Limited (for Bruce Short & Co, Dundee)
[3] As, we think, became increasingly appreciated in the course of the hearing of this appeal before us, constituted as a two judge quorum, the issue is one which might more properly be considered by a bench of three judges. Having given further consideration to the submissions advanced and the various statutory provisions in issue (which includes an element of legislative archaeology) we have both come to the clear view that the issues present no obvious or unarguable answer and thus call for consideration by a larger bench.
[4] However, it may of some assistance for that future consideration if we set out something of the legislative history and endeavour to point to what appeared to us to be some relevant considerations affecting the competency point raised by the appeal.
[6] Return to prison following conviction for a new offence during the currency of the term imposed for the original offence was treated principally in section 40 of the CJA91. Subsection 2 of that section provided:
“(2) Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which –
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