Scottish High Court of Justiciary Decisons

ROBERT SAMUEL NAPIER v. PROCURATOR FISCAL, LINLITHGOW [2001] ScotHC 42 (13th June, 2001)

The complainers were charged, along with Gareth Thomas Wilson, on a summary complaint alleging theft of ten mobile phones at the premises where they were employed in West Lothian between 22 March and 26 March 1999. The prosecution has had a long and tortuous history. The complaint first called on 10 August 1999 on which date the complainer Cunningham pled guilty. Various adjournments took place and the complaint ultimately called again on 5 October 1999, on which date the complainer Napier pled guilty. The minutes show that the diet was then adjourned in relation to both complainers until 2 November 1999, for the purpose of obtaining social inquiry and community service reports. The complaint did call again on 2 November 1999 and the minute of that date in relation to the complainer Napier originally read:

In relation to Cunningham the minute read:

Minutes of notice of intention to raise a devolution issue were lodged later, but it appears that they were not actually lodged until after the case had called again on 17 November 1999. The minute in relation to that calling reads, so far as material, as follows:

The minute goes on to record the grant of leave to lodge the devolution minutes. As we have observed, minutes were lodged, but the case again called on 13 December 1999 when it was intimated that the minutes were not to proceed. After that date, there was further procedure including attempts to arrange a further diet of debate which also, in the end, did not take place. For the purposes of the present proceedings, the details of the later procedure are not relevant.

The present Bills of Advocation were served in about June 2000. For practical purposes, their terms are almost identical and the point raised in both cases is the same. The contention is that on 2 November 1999 a diet of debate was fixed but no other order was pronounced by the sheriff. It is further contended that according to the records and recollection of those present, the original minute of 2 November 1999 correctly recorded all that had taken place and that the additions made to the minute by the purported correction on 17 November 1999 were incompetent. On the basis of these contentions, it was maintained that, in the absence of an order deferring sentence on the two complainers, the proceedings had lapsed, at least to the extent that no sentence could thereafter be pronounced.

The sheriff's report refers briefly to the procedure followed and includes the following statement.

The submission on behalf of the complainers was brief. It was that there had been no adjournment or continuation of the question of sentence and that as a result the sentencing process had been interrupted and it was not now competent to impose any sentence. Strictly speaking, the averments in the Bill were directed to the competency and propriety of the amendment of the minute of 2 November rather than to the question of competency of sentence, but the Crown did not object to the issue of sentence being raised and argued as the complainers put it forward. The advocate depute submitted that what had been done on 2 November was a continuation of the case and that was sufficient, without any amendment of the minute, to preserve the sentencing process.

All parties accepted, as is clear, that the procedure in this case had, in certain respects, gone astray. In particular, a minute or minutes objecting to the competency of the complaint should not properly have been considered at all without leave having been granted for the previous pleas of guilty to be withdrawn. It may well be that it was because of some uncertainty about the proper procedure in relation to the raising of the complaint of incompetency that the proceedings on 2 November took the form that they did. Whatever the explanation, this case is, in our view, one to be determined solely on its own peculiar facts. The statutory provision in relation to adjournment before sentence is section 201 which provides that, subject to certain limitations, "the court may adjourn the case for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with his case." There is, of course, also a power to adjourn the case at common law. There does not appear to be anything in the statute, and we were not referred to any authority at common law, which requires that particular words must necessarily be used in such circumstances. In our view, in the particular circumstances of this case, the words which were used in recording the proceedings of the court on 2 November were sufficient to make it clear that there was a decision to adjourn the case and that being so there is no sufficient basis, in our opinion, for suggesting that the sentencing process has been interrupted or brought to an end. In these circumstances, these Bills of Advocation fall to be refused.