Scottish High Court of Justiciary Decisons

Madden v. Procurator Fiscal [2002] ScotHC 107 (27 August 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Cameron of Lochbroom Lord MacLean	Appeal No: 706/02   OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in BILL OF SUSPENSION by PAUL MADDEN Complainer against PROCURATOR FISCAL, GLASGOW Respondent _______

For the complainer: L K Kennedy; Carr & Co.

For the respondent: Di Rollo QC, AD; Crown Agent

 

27 August 2002

1. The complainer craves the court to suspend a conviction and sentence imposed at Glasgow Sheriff Court upon a complaint to which he pled guilty on the standard form submitted to the court in such cases. The charge was that on 1 November 2001, at Broomfield Road, Glasgow he had, without lawful authority or reasonable excuse, had with him in a public place an offensive weapon, namely a screwdriver, contrary to the Criminal Law (Consolidation)(Scotland) Act 1995, section 47(1).
2. The complainer submitted the form, dated 28 January 2002, in advance of a diet that was to be held on 14 March 2002. He signed section 2 pleading guilty to the charge. In section 3 he provided the following explanation:

"I had it because of the area where I live. I have been attacked at least twice, one (sic) with a hatchet. I was also assaulted with a knife. I thought of it as a deterant (sic) but I realise now how stupid I was to put it in my pocket."

3. On 14 March 2002 the case was continued for background reports and for the personal appearance of the complainer.
4. On 4 April 2002 the complainer appeared for sentence before Sheriff Ritchie, Q.C. He was represented by a solicitor. He admitted a schedule of previous convictions, two of which were convictions for possession of an offensive weapon. The complainer's solicitor sought leave to withdraw the plea of guilty. He told the sheriff that the instructions given to him by the complainer were inconsistent with a plea of guilty. The sheriff then read out to the solicitor the written explanation that we have quoted. Counsel for the complainer said that the solicitor was so taken aback by this turn of events that he could tell the sheriff only that the instructions that he had been given were inconsistent with that explanation.
5. The sheriff refused to allow the plea to be withdrawn. That was a matter for the sheriff to decide at her discretion in accordance with the test laid down by this court in Healey v HM Adv. (1990 SCCR 110, at p. 118F-G). It would appear that nothing was put before the sheriff to show that there were exceptional circumstances justifying withdrawal of the plea and, in particular, any question of real error or misconception or other circumstances clearly prejudicial to the appellant. On the face of it, therefore, there is no reason why we should interfere with the sheriff's exercise of her discretion.
6. There is however a special circumstance in this case, namely that a question has arisen whether, before the sheriff refused the motion to withdraw the plea, she refused the defence solicitor the opportunity to consult with his client. In her report to the court the sheriff says that neither she nor the clerk of court recalls that she refused any such motion. She says that any such motion, if made and refused, should have been minuted. She continues:

"I regret however that I cannot be categorical on that matter. If I did refuse the solicitor time to consult with the complainer, then I accept that I was wrong to do so."

7. Counsel for the complainer has tendered an affidavit of the solicitor concerned in which he says that he has a clear recollection of the circumstances. He says that when the sheriff read to him the complainer's explanation, he was surprised by its terms. The solicitor recollects having said:

"That is not what he has told me. I can assure your Ladyship that his instructions this morning are consistent with a plea of not guilty. Will you allow me a further opportunity to consult with the client and take his further instructions primarily to satisfy myself about the situation and allow the case to be recalled?"

He says that the sheriff then refused both of his requests. Since the sheriff cannot be categorical on the matter, but we have before us a sworn affidavit by the solicitor concerned in the terms to which we have referred, we feel that it is proper in the circumstances to proceed on the basis that a motion for time to consult was made and refused. In that situation, of course, the case must be seen in a different light. The sheriff did not get to the stage where she could consider whether or not a proper explanation had been tendered, qualifying under the test that we have quoted, for the complainer's desire to change his plea. The defence solicitor did not get the opportunity to consult with the complainer and, if so advised, tender such an explanation to the court.

8. Moreover, we must not assume that no conceivable justification could have been advanced to the court for the withdrawal of the plea if the defence solicitor had had that opportunity.
9. In these circumstances we consider that the interests of justice require us to pass the Bill and remit the matter to a different sheriff to proceed as accords. This decision will leave open the question whether the plea of guilty, which remains before the court, should be withdrawn. The complainer's solicitor will have to consider whether there are proper grounds for a motion to withdraw it. If the motion is renewed, a different sheriff can decide the matter in the light of any explanation that may be tendered on the complainer's behalf.