Scottish High Court of Justiciary Decisons

Lochridge v. Procurator Fiscal [2002] ScotHC 31 (19 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord MacLean Lord Sutherland	Appeal No: 2291/01 OPINION OF THE COURT delivered by LORD COULSFIELD in BILL OF SUSPENSION by THOMAS LOCHRIDGE Complainer; against PROCURATOR FISCAL, Paisley Respondent; _______

 

Complainer: Sudjic, Ogg, solicitors advocate; Balfour & Manson

Alt: Batchelor, Q.C., A.D.; Crown Agent

19 March 2002

1. The complainer is charged with a contravention of section 5(2) of the Misuse of Drugs Act 1971 committed on 25 July 1998. The complaint eventually went to trial. The trial took place on 12 and 30 April and 24 May 1999 and on the last of those dates the complainer was convicted. The sheriff who presided over the trial was a temporary sheriff. Sentence was deferred, in the first instance, from 21 June until 5 July 1999. On 5 July 1999 sentence was again deferred for a year to enable the complainer to be of good behaviour. On 5 July 2000, however, the complainer failed to appear and a warrant was granted for his apprehension. He eventually appeared in the sheriff court on 25 October 2000 and on that date he was admonished and dismissed. In this bill, the complainer seeks to have his conviction suspended as being illegal and contrary to law on the ground that the sheriff at his trial was a temporary sheriff. The first order for service of the bill was pronounced on 19 October 2001.
2. In the answers to the bill, two pleas were stated. The first was that the complainer had acquiesced in the conviction and therefore that the bill should be refused. The second was that as the complainer had failed to lodge and intimate a devolution issue minute, the issues raised in the bill could not be considered. The second point has now been corrected by the lodging and intimation of a minute. In view of the first plea, however, some further details of the chronology require to be set out. The Scotland Act came into effect on 20 May 1999, four days before the conviction of the complainer. The decision in Starrs v Ruxton 2000 JC 208 was issued on 11 November 1999. According to the advocate depute, a considerable number of bills of suspension challenging convictions in trials presided over by temporary sheriffs were lodged thereafter. Three of the bills which were the subject of the proceedings in Millar v Dickson 2001 SCCR 741 were warranted before the end of December 1999 and the bill of advocation in the fourth case was presented on 8 February 2000. The decision of this court in Millar v Dickson was issued on 3 August 2000. The decision of the Judicial Committee of the Privy Council in the appeal was issued on 24 July 2001. We were informed by Mr Sudjic, the solicitor advocate for the complainer, that an application for legal aid on behalf of the complainer was made on 22 August 2001 and a legal aid certificate was issued on 25 September 2001. The first deliverance on the bill was on 19 October 2001.
3. On behalf of the Crown, the advocate depute accepted that in the light of the decision in Starrs v Ruxton, the complainer's trial could not be held to have been heard before an independent and impartial tribunal and that the procurator fiscal had been acting incompatibly with the complainer's Convention rights by pursuing the trial against him before a temporary sheriff. He submitted, however, that the law in regard to the position of temporary sheriffs had been clearly established on 11 November 1999 and that it was general public knowledge, as well as knowledge in the legal profession, that the use of temporary sheriffs ended after that date. It had also been made clear soon after the issue of the decision in Starrs v Ruxton that the Crown would not appeal to the Privy Council but would deal with the problem by legislation. The advocate depute accepted that if it were not possible to waive an objection to a tribunal then, equally, it would not be possible to acquiesce in a decision by a tribunal, if the tribunal was not impartial and independent. However the decision in Millar v Dickson showed that an objection could be waived, although the conditions for waiver had not been met in that case. In Scots law, a bill of suspension could be barred by acquiescence even in regard to a matter of competency, as was shown by a number of decisions including Storie v Friel 1993 S.C.C.R. 955 and Cassidy v Friel 1995 S.L.T. 391. The reasons for that view were reflected in Low v Rankine 1917 J.C. 39 and were concerned with securing good criminal administration by bringing finality to decisions in criminal cases after an appropriate period. If waiver was compatible with the Convention, acquiescence was equally compatible. Further, time limits, even strict time limits, for challenging decisions were not in themselves incompatible with the Convention. In this particular case, it could never have been argued that the complainer must be held to have waived his Convention rights to object to a temporary sheriff presiding over his trial, since the Act had only come into force four days before his trial was completed. There was therefore no reason why he should not have raised any challenge to his conviction within a reasonably short time after the decision in Starrs v Ruxton, as many others had done. There was no reason for him to await the outcome of the decision in Millar v Dickson. In all the cases in which bills of suspension had been raised promptly after the date of the decision in Starrs v Ruxton the Crown had subsequently consented to the setting aside of the conviction. In the present case, however, the lapse of time was 23 months and it was maintained that in the circumstances acquiescence did operate to prevent the complainer challenging his conviction.
4. For the complainer, Mr Sudjic noted that the Crown accepted there was no question of waiver in this case; therefore, the conviction should never have taken place. Those advising the complainer had been of the view that because the issue had not be raised at the trial the complainer was barred by waiver from raising it later. That had been consistent with the decision of this court and it was only when the decision of the Privy Council in Millar v Dickson became available that they were aware that the question of waiver had been decided in a way favourable to the complainer. He suggested that the present Crown attitude was inconsistent with that taken in previous cases, including McLeod v Hamilton 1965 S.L.T. 305 in which the Crown had taken the initiative, after convictions had been held to be invalid, of obtaining pardons for all those who had been wrongly convicted.
5. In our opinion, the decisions in Storie v Friel and Cassidy v Friel clearly establish that in Scots law a complainer may be barred by the lapse of time from challenging a conviction or a sentence, even where the ground of challenge is one of competence. In some of the other cases, including Low v Rankine, supra and Love v Wilson 1993 S.C.C.R. 325, which is referred to in Cassidy v Friel, there were circumstances which rendered it difficult or impossible to ascertain, after a lapse of time, what exactly had occurred at the time of the conviction. In such cases, it may be that some principle additional to mere acquiescence is involved: but in the two cases to which we have referred the court did not rely on any factors other than the unexplained failure to challenge the incompetent decision within a reasonable time. The Scottish cases, including some earlier decisions referred to in Renton & Brown Criminal Procedure at para. 33-09, stress that a person seeking to challenge the validity of a conviction or sentence is under a duty to act promptly. We agree with the submission of the advocate depute that if, as has been held in Millar v Dickson, waiver is not, in appropriate circumstances, incompatible with the Convention equally the application of a principle of acquiescence, in appropriate circumstances, should not be incompatible. Accordingly, the question is, in this case, whether the circumstances do show that the complainer must be taken to have acquiesced in the conviction.
6. It is made clear in the decision of the Privy Council in Millar v Dickson that waiver can only operate where the person against whom it is pled can be seen to have had full knowledge of the relevant circumstances. That is not an issue which is discussed in the Scottish cases on acquiescence, but it is difficult to resist the conclusion that, by parity of reasoning, some similar requirements must find a place in regard to acquiescence. The submission for the complainer was that until the decision of the Privy Council in Millar v Dickson the complainer could not have had full knowledge that he was entitled to challenge his conviction. The first Crown answer to that was that there could never have been any question of waiver in this complainer's case because of the short interval between the coming into force of the Scotland Act and the date of his conviction. If that argument is correct, it appears to provide an easy answer to this complaint. It should, however, be noted that in one of the cases before the Privy Council in Millar v Dickson, that of Paul Stewart, the complainer was convicted on 16 February 1999 and sentenced on 28 June 1999. His sentence, therefore, was imposed about 6 weeks after the Scotland Act came into force; nevertheless this court held that waiver applied. It is difficult, therefore, to be confident that the Crown might not have argued that waiver applied, even in the case of this complainer. It may be added that the decision of this court relied on the general knowledge of the legal profession and the public, which existed before as well as after the Scotland Act came into force. It is therefore not necessarily clear that this complainer and his advisers might not have had reason to think that a plea of waiver could have been taken against him.
7. Nevertheless, the question remains whether the complainer was entitled to wait until the issue of waiver had been finally decided by the Privy Council before making this challenge. The information given to us by the Crown shows quite clearly that there were many persons affected by the invalidity of the appointments of temporary sheriffs who were immediately aware of the situation and alive to its implications and prepared to take action. As we have noted, the Scottish cases emphasise on the need to challenge a conviction or sentence promptly (see, for example, the opinion of Lord Anderson in Low v. Rankine). In the circumstances of this case, it does not seem to us that the fact that the complainer or his solicitor did not know that a challenge would be unopposed, or that it would succeed, or even that they thought that it would not succeed, should excuse the failure to raise the challenge promptly, once the grounds were clearly established by the decision in Starrs v Ruxton. It was obvious from that point that there was an opportunity to challenge the conviction. The grounds on which a challenge could be made were fully known and the fact that there might be a counter-argument does not in our view, provide a sufficient reason for not taking action. The failure to attempt to take advantage of the opportunity with reasonable promptness should, in our view, prevent the challenge being made now. In these circumstances, we have come to the conclusion that this Bill should be dismissed.