Scottish High Court of Justiciary Decisons

PROCURATOR FISCAL, LINLITHGOW v. JAMIE GRAHAM BORLAND [2000] ScotHC 25 (25th February, 2000)

This Bill of Advocation seeks to quash a decision of Sheriff Fleming at Linlithgow Sheriff Court whereby, at a continued intermediate diet, he held that it would be incompetent for him to hear various motions before him on the ground that they required to be heard by Sheriff McLean in respect that the trial of the respondent had commenced by the tendering of a plea of not guilty before Sheriff McLean at an earlier trial diet.

To understand what happened it is necessary to rehearse the history of this case which does not make edifying reading. The complaint against the respondent contained two charges of assault. The complaint called on 23 June 1998 when the diet was adjourned and the respondent ordained to appear. After further adjournments on defence motion, on 25 August pleas of not guilty were tendered and the case was adjourned for trial on 30 November with an intermediate diet on 16 November. The minute of the proceedings on 16 November narrates

The respondent failed to appear on 30 November and warrant was granted for his apprehension. On 1 December he appeared and the minute narrates that

On 10 February 1999 it is narrated that

At the trial diet of 5 March the respondent appeared before Sheriff Maclean. The minute reads:

That is the minute which, according to Sheriff Fleming, indicates that the trial commenced before Sheriff Maclean. Thereafter there were further appearances at intermediate diets, continuations of diets and failures to appear. Ultimately, on 15 November 1999 the respondent's solicitor sought leave to state a plea to the competency of the proceedings in respect that on certain dates the case had called before a temporary sheriff. On 1 December Sheriff Fleming held that it would be incompetent for him to determine these matters and that they required to be determined by Sheriff Maclean. In respect that Sheriff Maclean was temporarily absent from duty through illness, the clerk of court adjourned the intermediate diet and the diet of debate on the plea to the competency until 2 December.

In his report to this court Sheriff Fleming explains his reasons for taking the stance which he did. It appears that, ex proprio motu, he raised with the respondent's solicitor the fact that having regard to the decisions in Mitchell v. Vannet 1999 S.C.C.R. 547 and Handley v. Pirie 1976 J.C. 65, it might be said that the trial had commenced before Sheriff Maclean on 5 March 1999 and that only he could deal with the motions. The respondent's solicitor stated that in his view nothing had happened to cause the instance to fall and all the trial diets had been properly adjourned. He indicated, however, that he would be happy for Sheriff Fleming to deal with the motions himself and did not propose to present any argument that he should not. The procurator fiscal depute conceded at the outset that the trial had commenced before Sheriff Maclean on 5 March 1999. His argument was that there was a difference between a trial which commenced without evidence being led and a trial in which the evidence had started. He pointed out that in the case of Handley it had first called for trial before one sheriff who, after the accused had maintained his plea of not guilty, granted the motion of the prosecutor to adjourn the trial to a later date. On the later date the case called before a different sheriff who then heard the evidence and convicted the accused. A similar situation had probably arisen in Mitchell. No issue was made in either case by the High Court of the fact that a different sheriff had heard the evidence from the one before whom the trial had commenced, and he submitted that this indicated tacit acceptance by the Appeal Court that this was competent. The sheriff says that he can find nothing in Mitchell or Handley to justify the distinction between a summary trial commencing and a summary trial in which the evidence has partly been led. No authority was cited to him that a summary trial commences for some purposes at one stage and for other purposes at another. His opinion was that once one sheriff was seized of the case at the commencement of the trial, that sheriff could not step aside and it was not open for another sheriff to grant leave to raise inter alia a devolution issue.

Before this court the Advocate Depute submitted that, on the assumption that it is correct that a trial starts on the tendering of a plea of not guilty at a trial diet, nevertheless the court retains power to adjourn to a fresh diet. It also retains power at common law to regulate procedure within the statutory framework. The essence of summary procedure is that it should be flexible and should secure both the interests of the accused and the interests of the public. There is no rule of law which requires a case to be called before the same sheriff after it has been adjourned, provided there is no prejudice to the accused, and he accepted that in the event of evidence having started then there would be prejudice to the accused by the trial being dealt with by another sheriff. There are a number of statutory provisions which provide for a trial commencing only at the stage of the first witness being sworn; see for example section 147(4), section 152(1), section 151(1)(b) and section 148(1) of the 1995 Act. In the report of the Thomson Committee at paragraph 34.02 it is said:

There was no suggestion in that paragraph that if a trial had to be transferred to a different sheriff after the procedures suggested had been carried out there would be any difficulty about that other sheriff taking the trial.

In Handley it is clear that the accused had originally pled not guilty before one sheriff and the case was adjourned and came to trial before a different sheriff. The Advocate depute accepted that the point was not taken in the appeal, but it was certainly no part of the reasoning of the court that there was a change of sheriff after the initial plea. In Deigan v. Wilson 1992 S.C.C.R. 840 it was accepted that the calling over of cases at the beginning of the day did not form part of the trial of the accused. That being so, on no view could the trial commence until the case appeared before the sheriff for the second time in order for it to be adjourned to another date. His basic submission, however, was that there is no delectus personae where there is no evidence led before the sheriff, even if the trial has commenced technically, and that being so there is no reason why a different sheriff should not hear the evidence and deal with the case in the normal way. Finally, he submitted that if we were against his submissions we should remit to five judges to reconsider the cases of Handley and Mitchell. Counsel for the respondent indicated that he did not wish to submit any argument against the Crown submission. As far as the respondent was concerned he was perfectly content to have the motions heard before any sheriff.

The statutory framework is contained in Part IX of the Criminal Procedure (Scotland) Act 1995. Section 144 deals with the procedure at a first diet and provides that where the accused is present at the first calling, unless any objection is taken to the competency or relevancy of the charge, he will, unless the case is adjourned for enquiry "be asked to plead to the charge". Where the accused pleads not guilty, under section 146(3) "the court may adjourn the case for trial to as early a diet as is consistent with the just interest of both parties...". Section 148 deals with the intermediate diet and provides

In terms of subsection (7) for present purposes the word "may" where it first appears in subsection (1) shall be substituted by the word "shall". Section 137 deals with alteration of diets and provides inter alia that where the prosecutor and the accused make joint application to the court, whether orally or in writing, for postponement of a diet which has been fixed, the court shall discharge the diet and fix a later diet in lieu unless the court considers that it should not do so because there has been unnecessary delay. Finally, for the sake of completeness, paragraph 18.1 of the Act of Adjournal (Criminal Procedure Rules) 1996 provides that in any summary proceedings where a person accused in those proceedings is present in court, that person shall personally plead to the charge against him, whether or not he is represented.

Although the Thomson Committee recommended formal recognition of the practice of a call-over, the statutory framework makes no such provision. It follows, therefore, that a call-over is an informal procedure. We do not suggest for one moment that this renders the practice one which is in any way improper or incompetent. It is plainly desirable in a busy court, and there are very few which are not, to have an informal procedure to make the most efficient use of court time and avoid inconvenience to witnesses and parties. Because this is an informal procedure, however, it follows that the accused should not be asked to plead, which is a formal step, but should merely be asked what are his intentions, in other words the same sort of procedure which is carried out under section 148(1)(a). If he indicates an intention to plead guilty then, if the court is so minded, that plea may then be formally taken from him in accordance with paragraph 18.1 of the Criminal Procedure Rules and dealt with. If he indicates an intention to adhere to a plea of not guilty the case will, in due course, during the course of the day appear again before the same or a different sheriff. If the case can proceed to trial, the plea will then be formally taken and the trial then commences and will proceed. This would be in accordance with the decisions in Handley and Mitchell.

The problem that arises from these decisions, however, is that the trial must, having started, proceed before the same sheriff, even if, for some unforeseen reason, no witness can be called and the trial has to be adjourned. Such a situation would be rare, but while we can see the common sense of a different sheriff being permitted to take the adjourned trial if nothing has happened at the original diet other than the formal taking of a plea, we can find no statutory warrant for such a course, and in our opinion, having regard to these decisions, once a trial commences before a particular sheriff, any adjournments or any further procedure must be dealt with by that same sheriff. One answer may be that if it transpires during the course of the day that the availability of court time will not enable the trial to commence, or if it is discovered either by the procurator fiscal or the defence that there is some reason why the trial should not commence, the case has to be called, the diet being peremptory, and at that stage, before proceeding to the taking of a formal plea, a motion can be made by either party for the future disposal of the case. This raises the question as to whether the appropriate course is to adjourn the trial diet, although it is arguable that if no plea has been taken there is nothing to adjourn, or whether the proper procedure is for the diet to be discharged and the case, not the diet, adjourned to a future fixed date (with or without the fixing of a further intermediate diet). The importance of the distinction between adjourning the case and adjourning the diet was made quite clear in Reith v. Bates 1998 S.C.C.R. 426, as also was the importance of the minutes being worded in accordance with the relevant statutory provisions. The question may also arise as to what is meant by "the diet". In Fraser (1852) 1 Irv. 1, admittedly under very different procedural rules, the diet was construed as meaning the whole case.

We have very carefully considered the various constructions which can be placed on the terms of the minute relating to the proceedings on 5 March 1999 and indeed on the events at that hearing. We are not, however, satisfied that on the argument presented to us, without a contradictor, we can reach any firm conclusion. The interaction between the basic principle enunciated in Fraser, the subsequent statutory provisions resulting in reference to first diet, intermediate diet, and trial diet, the distinction between adjourning a case and adjourning a diet, and the decisions in Handley and Mitchell, has resulted in a substantial degree of confusion, which is clearly indicated in the minutes in this case. In order that an attempt be made to regularise the position and present a clear understanding of what precisely is happening at each stage of a case in summary proceedings, we consider it appropriate to have this case put out before five judges when this whole area can be considered. There are various procedural questions which arise, however, not least in relation to the need for a contradictor, and we have accordingly put the appeal out By Order for those questions to be discussed.