Scottish High Court of Justiciary Decisons

CANTONE LIMITED v. PROCURATOR FISCAL, KILMARNOCK [2000] ScotHC 5 (19th January, 2000)

The appellants were found guilty after trial of a contravention of section 4(6) of the Sea Fish (Conservation) Act 1967 as amended. The nature of the charge was that the appellants took and retained on board 10.792 tonnes of monkfish in contravention of the licence which allowed only 1.25 tonnes per month. The appellants appealed against conviction on the ground that certain evidence accepted by the sheriff should not have been admitted. Counsel, on the appellants' behalf, before this court, however, accepted that standing the decision in Bellgrade v. McGlennan 2000 S.L.T. 14 this proposition could no longer be maintained. Accordingly, of consent, we shall answer question 1 in the stated case in the affirmative.

Counsel, however, raised a new matter and the Crown accepted that this was a matter which could properly be considered by the court, even though there was no mention of it in the stated case. The proposition was that there was a fundamental nullity in the proceedings in that, on 5 December 1997, the case was continued until 30 March 1998 and that this was a breach of section 145(3) of the Criminal Procedure (Scotland) Act 1995 which allowed adjournment only for a period of 28 days. In order to consider this matter it is necessary to set out the procedure in this case. The case first called on 21 August 1997 when the minute reads: "The court, on the motion of the defence, adjourned the diet without plea until 11 September 1997". Similar interlocutors were pronounced on 11 September 1997, 2 October 1997 and 23 October 1997. It is quite clear, therefore, that all of these adjournments were in accordance with the requirements of section 145. On 13 November 1997 the minute reads:

We shall consider the effect of this minute in due course, but even if it could be regarded as an adjournment under section 145 it was still competent as the adjournment was for a period of less than 28 days. By joint minute the diet was accelerated to 5 December 1997, on which date the minute reads: "The court, on the motion of the prosecutor, continued the case until 30 March 1998 at 10 a.m.". Quite plainly this continuation was in excess of 28 days and the appellants' contention was that this was a continuation or adjournment still under section 145 and therefore contravened the provisions of section 145(3). On 30 March 1998 the minute reads "The court on the motion of the prosecutor and on cause shown continued the case for debate - to await outcome of judicial review until 14 May 1998". Nothing further seems to have happened about this diet of debate, as on 14 May 1998 the minute reads:

The case duly went to trial and the appellants were convicted. No point was taken at any stage of the proceedings about the alleged incompetence of the interlocutor of 5 December but the advocate depute accepted, before this court, that if there was in fact a breach of the statutory procedure this would result in a fundamental nullity and there would be no question of acquiescence on the part of the appellants.

Section 145 provides:

For present purposes the crucial words in section 145(1) are "without calling on the accused to plead to any charge against him". The interlocutors of 21 August to 23 October inclusive plainly fall within the terms of section 145, as there is no mention of the accused being asked to plead. What then has to be considered is what happened on 13 November and for this purpose it is necessary to look at section 144 which deals with procedure at first diet. Section 144(1) provides:

Subsection (4) provides:

It is in this context that the wording of the minute of 13 November is of significance. The words "the accused in answer to the complaint" are the words which are customarily incorporated in a minute relating to a first diet where the accused tenders a plea of guilty or not guilty as the case may be. Accordingly, they are the words which indicate that the accused has been called upon to plead in terms of section 144(1). Accordingly, it would appear from that interlocutor that the accused was called upon to plead but, in accordance with the terms of subsection (4), before pleading, made a plea to the competency and that the case was continued on that basis. The question then arises as to whether this continuation is to be treated as a continuation under section 145 or if it is a continuation for the special purposes of section 144(4). The answer to this question, in our view, is to be found in the decision in Pearson v. Crowe 1994 S.L.T. 378. The relevant statutory procedure in that case was contained in sections 328 and 334 of the Criminal Procedure (Scotland) Act 1975. Section 334(1) is the precursor of section 144(1) and (4) of the 1995 Act. Apart from the difference in layout the only possible distinction between the two sections is that in section 344 it is provided that the accused "shall be asked to plead in common form" whereas in section 144(1) of the 1995 Act it merely reads that he shall "be asked to plead to the charge". This, however, appears to us to be a distinction without a difference as far as the present matters are concerned. Section 328 of the 1975 Act provides:

It will be noted that this section related only to the situation where an accused person was in custody. Section 328 was repealed by section 38 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and there was substituted a new section 333A which is, for practical purposes, in identical terms to the now section 145 of the 1995 Act. Accordingly, while the wording of the various sections are not identical, it appears to us that for practical purposes they may be treated as making the same provisions. In Pearson the accused was charged on summary complaint with three offences. On the calling of the case the accused stated an objection to the relevancy of charge 1, a plea of not guilty to charge 2 and a plea to the specification of charge 3. The sheriff continued the case without pleas until 22 days after the first hearing for debate on the preliminary pleas. When the case called for debate the accused objected that the instance had fallen in respect of charges 1 and 3 because the continuation had been in breach of section 328. The sheriff repelled the objection and the accused appealed. On appeal it was held that the sheriff was correct in refusing the objection. The Lord Justice General said:

Applying that decision to the present case it is, in our opinion, clear that on 13 November the appellants had been called upon to plead because of the use of the words "the accused in answer to the charge", and that before tendering a plea, a plea to the competency was submitted. This procedure appears to be identical to the procedure in Pearson and the same considerations apply. The only arguable distinction which counsel eventually founded upon was that in the present case the continuation did not bear to be continued for a diet of debate to a particular date but was a simple continuation. His submission was that because there was no mention of continuing for a diet of debate it followed that this was still a case falling under section 145 and that, therefore, the continuation could not be longer than 28 days. In our opinion, however, that argument cannot prevail. There would be no ground for a continuation other than a continuation for the purposes of a debate on the plea to the competency which had been submitted, and, in our opinion, that must be implied into the minute of 13 November. It appears clear from what was said in Pearson that when a plea to the competency has been stated the case comes out of the provisions relating to the first diet and enters into a special category which is designed to deal with the plea to the competency. There is, in fact, no specific procedure laid down in sections 144 or 145 for what happens to a case where a plea to the competency has been stated and it must be implied, in our view, that where that has happened any continuation must be for the purposes of a debate on the plea to the competency. In the whole circumstances we are satisfied that there is no fundamental nullity in the procedure in this case and that, accordingly, the appeal against conviction must be refused.

The appeal was also against sentence. The sentence imposed by the sheriff was a fine of £30,000 plus a figure to represent the value of the fish taken over quota of £40,227, a total of £70,227. Counsel accepted, before this court, that no issue could be taken with the fine of £30,000 as a general penalty. He submitted, however, that there was insufficient evidence before the sheriff to warrant him adding on a further £40,227. The position was that at the time of moving for sentence the procurator fiscal indicated that because of the passage of time and for administrative reasons he was not seeking forfeiture of any part of the vessel's gear. He did, however, move for a penalty in the amount of the value of the over-fishing. The sheriff considered that such an additional penalty was appropriate because the whole circumstances of the case indicated a deliberate commercial decision having been taken to break the law. The sheriff does, however, say that the value of the over-fishing was problematical. The procurator fiscal gave a value for the catch as £5.50 per kilo. The appellants' solicitor, however, disputed this, as his instructions were that the appropriate value should be £1.70 per kilo. The procurator fiscal then called as a witness Mr. Milligan, a legal affairs manager with the Sea Fisheries Protection Agency. He had personally contacted the British Fisheries Councillor at the British Embassy in Spain to request enquiry to be made of the Spanish Ministry of Fishing as to the landing price of monkfish in Spain at the time of the vessel's return thereto. The price he obtained through that channel was £5.50 per kilo. In cross-examination Mr. Milligan accepted that his information was second-hand, although he stressed that it had come to him through Government channels which were established for just this type of enquiry. The appellants' solicitor was given the opportunity to adduce evidence as to the value which he put upon the fish but he declined to do so. Accordingly, the sheriff says that the only figure he had to proceed on was that which he applied, namely £5.50 per kilo.

Counsel for the appellants submitted that the evidence of Mr. Milligan was, on any view, second-hand hearsay. If the Crown wished to have a penalty imposed which related to the value of the fish, then the onus was on the Crown to prove what the value of that fish was. This onus could not be satisfied by the production of second-hand hearsay. Accordingly, in the absence of proper evidence to the contrary, the defence valuation should have been accepted by the sheriff and any additional penalty based on that valuation. The advocate depute submitted that although the evidence was hearsay nevertheless the information had been obtained, through Government channels, from an official body namely the Spanish Fishing Ministry. Accordingly, as this was the only evidence properly available to the sheriff, the appellants having declined to lead evidence, it would be something which the sheriff could accept, being the only figure properly before him. In our view the Crown submission cannot succeed. We accept that the onus lies on the Crown to prove what the value of the fish was if they are asking for a penalty based on that valuation. In the event of the figure mentioned by the Crown being disputed by the defence then the appropriate course would be to have a proof on the matter. Such proof would have to be conducted in accordance with normal procedure and the evidence evaluated in accordance with the normal rules of evidence. Quite clearly in the present case the information tendered by Mr. Milligan, doubtless in good-faith, was nevertheless second-hand hearsay. In our opinion, therefore, it was not evidence upon which the sheriff could found in order to impose the additional penalty. In these circumstances we shall quash that part of the sentence which relates to the additional penalty of £40,227 and substitute an additional penalty of £17,000, making a total penalty of £47,000.