Scottish High Court of Justiciary Decisons

PROCURATOR FISCAL, LINLITHGOW v. JAMIE BORLAND [2000] ScotHC 48 (7th April, 2000)

[1] On 23 June 1998, a complaint against the respondent Jamie Borland, containing two charges of assault, called in the Sheriff Court at Linlithgow. After a number of adjournments, pleas of not guilty were tendered on 25 August, and the case was adjourned for trial on 30 November, with an intermediate diet on 16 November. The respondent failed to appear on 30 November, and subsequently the court adjourned the diet for trial until 5 March 1999. After an intermediate diet on 10 February, the respondent appeared at the trial diet of 5 March, before Sheriff Maclean. According to the minute of proceedings, on being asked to confirm the plea previously tendered, he pled not guilty to each charge. Thereafter, without any evidence having been led, the court adjourned the trial diet until 4 June 1999. After further procedure, the details of which are not now material, the case called for an intermediate diet on 15 November 1999, before Sheriff Fleming. The respondent's solicitor sought leave to state a plea to competency (related to the fact that the case had on occasion been called before a temporary sheriff) and the case was continued to a further intermediate diet and diet of debate on 1 December 1999. On that date, Sheriff Fleming refused to allow a defence motion to be raised before him, on the basis that the trial had commenced before Sheriff Maclean on 5 March 1999 when the accused had tendered a plea of not guilty to the two charges; and that as a result, the respondent's motion and any other matters could only be dealt with by Sheriff Maclean.

[2] The present Bill seeks recall of Sheriff Fleming's decision, and a remit of the case to him or another sheriff, to proceed with the trial. The matter came before a court of three judges, who considered it appropriate to have the case put out before five judges.

[3] Before we come to consider the issues upon which we were addressed, it is important to note what Sheriff Fleming considered the issues to be, and the parties' positions in relation to those issues when the matter was before him. The fundamental question which faced Sheriff Fleming, and which gave him concern, was whether, at the stage which the case had reached, it was competent for him to deal with the motions made at the intermediate diet. If the position was that the respondent's trial had not yet commenced, there would be no problem: Sheriff Fleming could deal with the matters before him. But in the light of Mitchell v. Vannet 1999 S.C.C.R. 547, and Handley v. Pirie 1976 J.C. 65, Sheriff Fleming raised the question of whether the trial had perhaps commenced before Sheriff Maclean on 5 March 1999, by virtue of the fact that at the trial diet on that date the accused had pled not guilty. The question of whether the trial had thus commenced at a prior date was clearly seen by Sheriff Fleming as crucial to the question of whether he could deal with the matters before him, because he could see no basis upon which, in the course of a trial which had commenced, one sheriff could be replaced by another.

[4] When Sheriff Fleming raised these issues, the position of the Crown was apparently that the trial had indeed commenced on 5 March, but that this did not determine the question of whether Sheriff Fleming could deal with matters at the intermediate diet: that depended not upon whether there had been a formal commencement of the trial on 5 March, but upon whether the leading of evidence had begun, which was described as the "de facto" commencement of the trial. The situation could thus be distinguished from that which had arisen in Starrs and Chalmers v. P.F. Linlithgow, where a second sheriff became involved in proceedings after the hearing of evidence was under way. Neither the Crown's concession as to the formal commencement date, nor their contention as to the competency of Sheriff Fleming dealing with matters since no evidence had been led, was argued or contradicted by the respondent's solicitor, who contented himself with saying that he was happy for Sheriff Fleming to deal with matters.

[5] When the Bill came before the three judge court, wider ranging arguments were presented. But before this court, there was a live issue between the parties as to when the trial had commenced: the Lord Advocate submitted that it commenced only when the first witness was sworn, whereas Mr. Bovey for the respondent submitted that Sheriff Fleming was right in holding that the trial had commenced on 5 March. On the other hand, there was no live issue between the parties as to the competency of a sheriff other than Sheriff Maclean dealing with any matters which might arise at a subsequent intermediate diet or trial diet. If the trial had not commenced on 5 March, it was not suggested on behalf of either party that there would be any problem in a new sheriff presiding at such subsequent diets. But in addition, even if the trial had commenced on 5 March, the Crown's submission was (as it had been before Sheriff Fleming) that with no evidence having been led on 5 March, these later stages of the trial could be presided over by a different sheriff. On behalf of the respondent, that was not disputed: the Bill should therefore be passed, not because the trial had not commenced on 5 March - which it had - but because it was nonetheless competent, with no evidence having been led then, for a different sheriff to "take over" prior to evidence being led.

[6] It being common ground that it was competent for Sheriff Fleming to deal with the motions before him, matters not yet having reached the crucial stage of evidence being led, we heard no argument upon that issue. Even if the trial was envisaged as having commenced at an earlier date, there was no suggestion that anything in principle or practice would make it necessary or even desirable for the sheriff who heard the evidence to be the same sheriff as might have dealt with prior stages in the case. Despite not having heard argument upon the point, we are satisfied that for this purpose the commencement of evidence is indeed the crux, and that whether or not any prior stages are to be regarded as part of the trial, there is no reason why those prior stages should not be dealt with by one sheriff, with another sheriff dealing with the trial from and after the point when evidence begins. That being so, we are satisfied that Sheriff Fleming was in error in holding that he could not deal with the matters which were before him at the intermediate diet, whether or not the trial had commenced at a prior date. And that being so, we are satisfied that the Bill should be passed, and the case remitted to Sheriff Fleming to proceed as accords. So far as the disposal of this particular case is concerned, therefore, there is no need for us to determine the question of whether the trial had commenced on 5 March.

[7] It is, however, appropriate for us to consider that matter, and the general issues upon which submissions were made to us in that connection. It is clear that there is substantial confusion as to what is happening, or should happen, at the various stages of summary proceedings, not merely on the specific question of whether the trial has commenced, but in relation to the fundamental issue of how and when pleas are to be dealt with, and the interrelation between the different stages which occur, either informally or as required by statute. While some of the relevant principles - and some of the confusion - have their roots in previous practice and past statutes and decisions, it is convenient to take as a starting point some of the current statutory provisions contained in the Criminal Procedure (Scotland) Act 1995.

[8] The 1995 Act provides for a number of different "diets". While historically that expression has been used in a wider sense, it is clear that in the 1995 Act it is at least usually used in relation to specific occasions, "fixed" or "assigned" in advance, and which can be "discharged", "postponed" or "adjourned". See for example sections 137(1) and (2), 139(1)(a), 140(1)(b), and the specific provisions in relation to particular diets which we shall require to consider in greater detail.

[9] It is not necessary for present purposes to consider the endless variety of possible events at any diet. But putting the matter in simple terms, and assuming what one may call ordinary circumstances, the first diet is used for the "first calling of the case". If a complaint has been served on an accused and he is present, to take a straightforward example, then in terms of section 144(1), unless the court adjourns the case under section 145, he shall "be asked to plead to the charge". It is to be noted that in terms of section 144(1) it is not the diet which is adjourned under section 145 but "the case"; while section 144(9) mentions "any adjourned diet fixed by virtue of section 145", and section 145, after referring to adjournment of the case for such period as the court considers appropriate, provides for an accused being ordered to appear at "the diet thus fixed". Moreover, the relevant form contained in the 1966 Act of Adjournal (Form 16.5-C) provides for a minute to the effect that the court "continued" the case - a term evidently derived from the language of the Summary Jurisdiction (Scotland) Act 1954). But we do not see such variations in language as requiring analysis.

[10] Section 146 provides inter alia as follows:

[11] Section 148(1) as amended provides that the court may, when adjourning a case for trial in terms of section 146(3) of the Act, and may also, at any time thereafter, whether before, on or after any date assigned as a trial diet, fix a diet (to be known as an intermediate diet)

Subsection (2) provides for postponement of the trial diet, and fixing of a further intermediate diet, where at an intermediate diet the court concludes that the case is "unlikely to proceed to trial on the date assigned for the trial diet". Subsection (6) provides that a plea of guilty may be tendered at the intermediate diet.

[12] Section 152(1) provides that it shall be competent "at the diet of trial, at any time before the first witness is sworn for the court, on the application of the prosecutor, to desert the diet pro loco et tempore". And subsection (2) provides that the court shall desert the diet simpliciter if at a diet of trial the prosecutor is unable or unwilling "to proceed with the trial". The point of time "when the first witness is sworn" is also significant for the purposes of section 147. The provision that a person is not to be detained for a total of more than 40 days unless his trial is "commenced" within that period is followed at subsection (4) by a provision that "For the purposes of this section, a trial shall be taken to commence when the first witness is sworn".

[13] These are the main statutory provisions. However, the Lord Advocate began by considering a stage in summary proceedings which is normal, but not provided for by statute. Noting the background which is to be found in paragraph 34.02 of the second Report of the Thomson Committee on Criminal Procedure in Scotland (1975), the Lord Advocate described some of the features of the now familiar practice of "call-over". Practice varies from court to court. Each case in turn will be formally called, but practice apparently varies as to whether the accused is asked to "plead" at this stage, or is asked how he "intends" to plead. There are variations in practice as to how matters will be dealt with, both where the accused pleads or says that he intends to plead guilty, and in cases where he indicates a plea, or intended plea, which is in whole or in part a plea of not guilty. What is clear is that the trial diet being a peremptory diet, it must be called formally, whatever may follow after that formal calling. Such formal calling of the trial diet will be necessary whether the matter is going to be disposed of on a guilty plea, or proceed to trial that day, or be adjourned for trial at a future date. Whether at a call-over or otherwise, we understand it to be the usual (and in our opinion sensible) practice, before evidence commences, for the court to ascertain the accused's up-to-date position in relation to his plea.

[14] However, it appears that there is no clear or general understanding, or uniform practice, as to whether or how the question of how an accused pleads must be raised, if he has already pled at a previous diet; or as to whether (if he has already so pled) there is any place for his pleading again to the same effect, at the trial diet, rather than simply intimating that he confirms or adheres to his prior plea. Reference was made to the Act of Adjournal (Criminal Procedure Rules) 1996, Rule 18.1(1), requiring 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. That provision derives from section 3(1) of the Act of Adjournal (Sentencing Powers etc.) 1978 which gave effect to recommendation 85 of the second Report of the Thomson Committee. Paragraph 22.06 of the Report confirms that the recommendation was designed to clarify who was to tender any plea rather than to specify the occasions on which a plea was to be tendered. Therefore, if a person has already pled to the charge, we are satisfied that this rule does not require him to plead again, in the required way, at a subsequent diet. Given the general structure, whereby an accused person will have pled at the first diet, we cannot read this rule as imposing a general obligation on accused persons to plead at a trial diet. In general, the sequence envisaged by the statute appears to us to be that after an initial plea of not guilty, normally at the first diet, what is envisaged as occurring at the trial diet (whether on call-over or subsequently) is that the accused will "adhere" to that plea, and that at the prior intermediate diet he will not have been asked either to plead or to adhere to his plea, but simply to say whether he intends (at a future trial diet) to adhere to that plea.

[15] It is of course always possible that at the intermediate diet, or indeed the trial diet, he will intimate that he is changing his plea to one of guilty, or one of partial guilt. And it is indeed possible that the prosecutor will accept such a change of plea, or indeed the original plea. That possibility underlies both the introduction of intermediate diets, and the practice of call-over. But in our opinion there is nothing in the statutory provisions which envisages that once a plea has been tendered it requires to be re-tendered, at any subsequent diet, if it is not being changed.

[16] While both the Lord Advocate and counsel for the respondent tended, in their submissions, to assume that a plea would be tendered, rather than merely adhered to, at the outset of a trial diet, it does not appear to us that this distinction makes any basic difference to their submissions upon the question of whether the trial commences when the accused pleads (or adheres to his plea) or at the subsequent point in time when the first witness is sworn. Moreover, it is to be noted that the contention advanced on behalf of the respondent was not that a trial begins whenever a plea of not guilty is tendered. The contention is rather that the trial begins when, at a trial diet, the plea is dealt with. It was not suggested in any way that the plea of its nature represents the beginning of a trial. The argument is placed in the context of a diet which has been specified as a "trial" diet, and is to the effect that dealing with the plea is the first substantive step in the trial which is the intended business at that diet.

[17] This submission is founded, of course, in part upon the structure of the 1995 Act, with its express provisions for a trial diet. But like Sheriff Fleming's decision, the submission on behalf of the respondent rested substantially upon what was said and done in Handley and Mitchell. The Lord Advocate on the other hand relied primarily upon those provisions in the Act which can be read as indicating that trial is something separate from, although necessitated by, a not guilty plea, together with the significance which is attached to the swearing of the first witness (in sections 147(4) and 152(1)) and on the concession made by the respondent, that it is only with the swearing of the first witness that one has reached the stage where the matter must remain with one sheriff. Against that background, it was submitted that it was indeed only when the evidence began to be led that one had, in any real sense, embarked upon the trial. As regards Handley, the Lord Advocate submitted that it did not rule the matter, could be distinguished and was in any event unsound.

[18] It is not necessary to go into the procedural history of Handley. The submission for the complainer, which the court upheld, was a simple one. The minutes of procedure showed that 3 November 1975 was assigned as "the diet of trial". On that date the diet was called. The accused then pled, or renewed his plea of, not guilty. And it was submitted that

The argument for the Crown in Handley was rather more complex. It was submitted that it is only after a trial has "begun" that desertion pro loco ceases to be competent. In solemn procedure, desertion pro loco is competent at any time until the jury has been sworn - that being the point in time when, as the court put it, the accused is "in the position of a man who has elected to put the Crown to the proof of guilt before a Court competent to try him." While the Crown suggested that the equivalent point of time in summary procedure was the leading of the first witness, the court held that in summary proceedings "when the diet of trial has been called and the accused has pled not guilty he is then in the same position as the accused on indictment when the jury has been sworn, for he is then, upon his plea of not guilty, before the Court competent to try him having by his plea elected to put the Crown to the proof of guilt".

[19] In making his submissions to this court, the Lord Advocate did not rely upon analogy with solemn proceedings. And in relation to desertion pro loco et tempore, he did not go so far as to submit that the point in time when the right to desert ceased must necessarily be identical with the beginning of the trial. But he pointed out that at a first calling, upon the accused pleading not guilty, he was "before the court competent to try him". He had also at that early stage by his plea "elected to put the Crown to the proof of guilt". And the court was not merely competent to try him in a general sense, but in terms of section 146(1) was competent to try him there and then. If the court in terms of that section proceeded to trial, it was plain that the trial began when a witness was sworn. Unless and until that happened, the trial had not begun, and after the plea, the court could, and frequently would, adjourn the case "for trial", to another diet. Moreover, the fact of an accused being before a court "competent to try" him did not mean that the court had in fact begun to try him. Nor did his election to put the Crown to proof of guilt mean that the Crown had embarked upon proof of guilt. The Crown embarked on proof of guilt when it called its first witness. And the court began to try the accused when that happened. There was no explanation in Handley for the apparent view that the plea of not guilty represented the commencement of trial and proof. And there was no reason why, after the plea had been taken, so that trial appeared necessary, it might not be appropriate, rather than starting the trial immediately, to adjourn the case for trial at a future date. That was the position not merely under section 146, but also at trial diets.

[20] The argument which had been advanced in Handley to the effect that "the trial must have begun since you cannot adjourn what has not even started" was also unsound. Such an argument would fail to meet the reality, which was that the case, rather than the trial, could be adjourned after the plea and before evidence was taken. But in any event, the word "adjourn" was not so restricted in its meaning: it could be used as meaning "postpone" or "put off", and in ordinary language one could speak of either proceeding with the trial, or adjourning it to a future date, before it had actually begun.

[21] In any event, it was submitted that Handley had been in effect superseded. When Handley was decided, the Criminal Procedure (Scotland) Act 1975 did not yet contain section 331A, which had been inserted by section 14(2) of the Criminal Justice (Scotland) Act 1980. Section 331A(4) was the predecessor of section 147(4) of the 1995 Act. While it was true that the subsection was enacted "for the purposes of this section" that did not imply that for other purposes the trial commenced at some other time. Parliament was not to be understood as having intended that a trial should commence at different times for different purposes. The context of section 331A(4), and of section 147(4), was one where it was of particular importance, for a computation which affected liberty, to be explicit and precise; and while it would have been inappropriate in such a section to lay down a general commencement date, the limitation to "the purposes of this section" should be read as consistent with the general law as to commencement, rather than as an exception to the general position. The corresponding but different provision in section 65(9) of the 1995 Act, relating to solemn procedure, which provided that for the purposes of that section, a trial should be taken to commence when the oath was administered to the jury, confirmed that the tendering of a plea, or adherence to a prior plea, was not naturally to be regarded as the commencement of the trial, but as a prior event which made a trial necessary.

[22] Overall, the Lord Advocate submitted that it was important, when interpreting statutes in criminal proceedings, to prefer that construction which allowed for the most efficient disposal of business - provided of course that the interpretation was consistent with law and not prejudicial to the interests of accused persons. The court of three judges had erred, in expressing the view that it would be a rare situation for a trial, which might have "commenced" by a plea being tendered or adhered to, to be adjourned without a witness being called. That was in fact a common situation. Even if, in accordance with the concession made on behalf of the respondent, an adjournment before a witness was called meant that a new sheriff could preside at the adjourned hearing, the more natural and sensible interpretation would be to hold that the trial was indeed the procedure of trying the accused, which began when evidence was first led against him.

[23] In submitting that a summary trial began when the trial diet called and the accused pled, counsel for the respondent drew attention to a number of provisions in the 1995 Act which related to steps which had or had not been taken at earlier stages. He drew attention to a number of sections which provided that a party "shall, not less than 14 days before the trial diet" take some step which will have evidential consequences. He referred in particular to section 258(2), 282(3), 283(2) and 284(2). He also drew our attention to the rather different provisions contained in section 277(2), whereby a provision that certain certified documents shall be received in evidence is not to apply unless a copy has been served "not less than 14 days before his trial", or if the accused "not less than 6 days before his trial" has served notice of challenge. Rather similarly, section 280(6) provides that certain prior subsections are not to apply to certain documents unless a copy has been served on the other party "not less than 14 days before the trial". The prior subsections are again concerned with documents being sufficient evidence of certain matters. The submission appeared to be that the "trial" and the "diet of trial" were being treated as being one and the same; but it appears to us that the diet of trial is referred to where the provision envisages a party contemplating a course of action in advance of a trial, whereas the trial is referred where the provision envisages an issue arising at the trial as to the evidential value of the material in question. The distinction appears to us to be a sensible one demonstrating that in advance one may know that there will be a trial diet, but will not know whether, at that trial diet, there will be a trial.

[24] Contending that section 147(4) was providing a specific commencement moment different from the normal one, counsel for the respondent submitted that it was desirable that for other purposes the trial be regarded as starting as soon as the plea was taken, at a trial diet. The appropriate moment to regard as the start of a trial was the moment when "issue was joined". In solemn procedure, that required not merely a plea at a trial diet, but the jury being sworn. But in summary procedure, all that was required was the plea at a trial diet. For the various provisions which required notice, service or the like in advance of trial, it was again appropriate to regard the tendering of the plea at the trial diet as the start of the trial. If the trial were treated as commencing only when the first witness was sworn, the calling of a trial diet and taking of a plea, with an adjournment rather than the leading of evidence, could be misused. A procurator fiscal could simply proceed to trial in those cases where he was ready, obtaining an adjournment where he was not. Counsel cited Hume's Commentaries vol. ii at page 263, quoted in Barr v. Ingram 1977 S.L.T. 173 at 176, to the effect that the prosecutor "ought to be finally resolved, and fully prepared, before he stir in a matter of such importance". If a trial was not treated as beginning as soon as the trial diet had called and a plea had been taken, the way was opened up to dilatory adjournments, when that suited the procurator fiscal. And having regard to the large number of provisions in which notices and the like required to be served in advance, it would again be undesirable if these were geared to a trial diet which might turn out not to involve trial. In such circumstances there would be uncertainty as to what evidence would or would not be part of the case against the accused.

[25] It was acknowledged that the trial had not commenced when an accused at a trial diet was asked how he pled, or when his answer was "guilty". Whether the trial commenced would depend upon his answer, but if or in so far as he pled not guilty, and that was not accepted, trial would not merely have become necessary, but would in effect have taken its first steps. In cases which fell under section 146(2), the commencement of the trial must be the moment when the court either refused a motion for adjournment, or if no such motion was made, decided to proceed with the trial. Handley and Mitchell were correct in treating a trial diet as a trial if, and as soon as, the proceedings at the trial diet involved the tendering or adherence to a plea when the diet called. The fact that it was accepted that there could be a change of sheriff unless and until a particular sheriff had become "seized of the issue" by hearing evidence did not assist in identifying the commencement of the trial. The commencement of evidence was crucial in relation to that specific issue of whether there could be a change of sheriff thereafter. It was accepted that the plea was a formality. But while the start of evidence was crucial on the issue of who could thereafter participate in the trial, the taking of the plea was no less crucial in relation to the question of when the trial began.

[26] There is of course some attraction in the proposition that when a trial diet has been fixed, the events which occur at it should all be regarded as part of the trial. That is what the diet was for, so that is what it is. But we are not persuaded that such an argument is sound. While not formally required, it is no doubt sensible, once a trial diet has been called, to confirm whether an accused person is still adhering to his not guilty plea, in whole or in part. But we would be reluctant to hold that such intimation of the accused's position was or was not part of a trial according to whether he pled guilty, or not guilty, or partly guilty, with further complications depending on acceptance by the procurator fiscal. It appears to us to be much more natural, unless statute require otherwise, to regard this particular stage of events as of the same nature, whatever the terms of the plea. Either disposal on the basis of a guilty plea, or trial in so far as guilt is disputed, would upon that view be the next stage. The tendering of the plea would thus be seen as the point at which these alternative avenues part, rather than itself constituting a step up either avenue.

[27] Nothing in the statutory provisions appears to us to indicate that in stating a not guilty plea an accused has in any sense taken the first step in a trial, as opposed to stating a position which makes it necessary for the procurator fiscal to initiate the trial, either then or after an adjournment. On the contrary, the language of the statute appears to us to acknowledge that trial is subsequent to, and does not include, any plea tendered by an accused, or any statement that he adheres to a plea previously tendered.

[28] We are not satisfied that any real light is thrown upon this question by a consideration of solemn procedure, or by the rules which regulate desertion pro loco et tempore. But upon the view that a summary trial commences when the first Crown evidence is tendered, usually but not invariably with the swearing of the first witness, we consider that the express provision contained in section 147(4) is consistent with the general position, and need not be read as implying a contrast. Section 152(1) is also consistent, in our opinion, with the view that until the first witness is sworn, procedures may occur at a diet of trial which are not themselves part of the trial. As regards Handley, the Lord Advocate appears to us to be well-founded in suggesting that there is no evident explanation for the view there expressed: a plea of not guilty can be seen as an election to put the Crown to proof, but it is an oral election, rather than an implied election by embarking upon a given course. And while the court is of course one which is competent to try him, on an occasion assigned for his trial, that seems to us to fall short of any act which could be said to constitute the actual commencement of the trial. In our opinion, Handley was wrongly decided, and the decision in Mitchell, which we regard as dependent on Handley, is also in our opinion unsound.

[29] The fact that the swearing of the first witness is a significant or crucial moment for other purposes does not contribute to our conclusion that it is also the commencement of the trial. But the overall structure appears to us to be more coherent if that is the crucial moment for commencement as well as for other purposes. And while problems as to changes of sheriff would not arise on either view, it is more satisfactory if the crucial moment for that purpose is the commencement of the trial.

[30] We accordingly pass the Bill, and recall Sheriff Fleming's decision of 1 December 1999. In the circumstances, we remit the case to him to proceed as accords.