Scottish High Court of Justiciary Decisons

CAMERON McCARTNEY v. PROCURATOR FISCAL, INVERNESS [1999] ScotHC 7 (13th January, 1999)

This is a Bill of Suspension taken by Cameron McCartney arising out of proceedings in the Sheriff Court at Inverness on 24 August 1998. On that date a letter from the complainer was tendered to the Sheriff containing a plea of guilty to a charge of breach of the peace. There had been an earlier complaint specifying the date of the alleged breach of the peace. However, the complaint to which the complainer pled guilty was one which did not contain any date, merely referring back to a date aforementioned which in this complaint was not there. It is not suggested that the complaint as it stood was anything other than irrelevant for want of date. When presenting the complainer's letter pleading guilty it appears that the fiscal also moved to amend the complaint in order to insert dates.

The submission is that the Bill should be passed and the appeal should thus succeed on two bases. First, that the plea of guilty was to the initial irrelevant charge, and that there was never a plea of guilty to the amended and dated charge, even assuming that the amendment was validly made. That appears to us to be a sound submission and to be sufficient to dispose of the matter.

There is also, however, considerable doubt as to whether the amendment can be regarded as having been validly made even in itself. The complaint bears a note of the dates in the sheriff's hand but it is in no way authenticated and while we are told that the fiscal moved the amendment there is no minute of that having been done.

In the whole circumstances it was suggested, on behalf of the Crown, that there was nonetheless no miscarriage of justice as the complainer had been aware of the date contained in the earlier complaint. The suggestion appeared to be that that being so one could effectively, as a matter of justice, regard him as having pled guilty in knowledge of the date which was in the mind of the prosecution and that therefore there was no miscarriage of justice.

We are not prepared to see matters in that way. He had not pled guilty to the charge as eventually relied upon and in the whole circumstances we will pass the Bill and set aside the decision.