Scottish High Court of Justiciary Decisons

ALEXANDRINA BRANNIGAN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 34 (22nd February, 1999)

This is a petition to the nobile officium on behalf of Alexandrina Brannigan. It is yet another in what has recently been a series of such petitions arising out of a situation where a court has directed that the petitioner should cease to be entitled to criminal legal aid in connection with proceedings.

The petitioner was charged with assault and robbery on summary complaint. On 20 November 1997 she pled guilty to an amended charge and the case was adjourned until 12 December 1997 for preparation of the necessary reports. The sheriff was not available on 12 December and the case was further adjourned until 9 January 1998. On that date the petitioner was not present and a warrant was granted for her apprehension. On 6 February she appeared by invitation and the case was again adjourned until 27 February, but on that date the petitioner was not present and a further warrant was granted for her apprehension. She appeared from custody on 18 March when the case was adjourned until 20 March. After various steps in procedure the case called on 5 June when the petitioner again failed to attend and a third warrant was granted for her apprehension. In addition, "in respect of the accused's failure to comply with the requirements of the Court and the Social Work Department and her failures to appear" the sheriff directed that the petitioner should cease to be entitled to criminal legal aid in connexion with the proceedings.

In making this order the sheriff was purporting to act in terms of Rule 33.3(1)(iv) of the Act of Adjournal (Criminal Procedure Rules) 1996. It is, however, a precondition of the making of any direction under Rule 33.3(1), not only that the court should be satisfied that the relevant ground has been made out in respect of the relevant person, but that it should be so satisfied "after hearing that person". In this case on 5 June, when the sheriff made the direction, the petitioner was not present and so the sheriff could not, of course, hear her. On the other hand her agent was present and the sheriff did indeed ask him for an explanation of her absence. Not surprisingly, the agent was unable to offer one since he did not know why she was not present. It is apparent therefore that, at the time when the sheriff proceeded to make the direction under Rule 33.3, he had not been addressed by the petitioner or by her representative on the reason for her not being present at the diet on 5 June. None the less the sheriff says explicitly in his report to this court that the petitioner's failure to appear on that date constituted part of his reason for directing that she should no longer be entitled to criminal legal aid for the proceedings. It is apparent, therefore, that the sheriff made the direction in circumstances where he had not been addressed - and indeed could not have been addressed - by the petitioner or her agent on a matter which he took into account in deciding to make the direction, viz. the reason for her failure to attend that diet.

In those circumstances the sheriff proceeded without hearing the petitioner or her agent on this material matter and so did not act within the scope of his powers under Rule 33.3. Nor was there any reason why he should not have heard the petitioner or her agent before deciding whether to make such a direction. As Miss Ogg pointed out on behalf of the petitioner, what the sheriff should have done on 5 June was simply to grant the warrant for the petitioner's apprehension. Then, when in due course the petitioner appeared by virtue of the warrant, he could have heard anything which she or her agent put forward to explain her failure to attend the diet on 5 June. In the light of that explanation, and bearing in mind the observations of this court in Shaw and Milne Petitioners 1998 S.C.C.R. 672, the sheriff could then have considered whether to make a direction in terms of Rule 33.3(1).

For these reasons we are satisfied that the direction which the sheriff made cannot stand. We shall accordingly grant the prayer of the petition and quash the direction.