Scottish High Court of Justiciary Decisons

Arthur v. Her Majesty's Advocate [2002] ScotHC 324 (22 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Hamilton Lord Kingarth	Appeal No: MISC 168/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in PETITION to the nobile officium by ALEXANDER ARTHUR Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Petitioner: M. Scott, Q.C., C. Shead; Gilfedder McInnes

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

22 November 2002

1. This petition arises out of highly unusual circumstances. On 7 August 2000 the petitioner was convicted of the murder of his wife, Anne Arthur. At his trial it was accepted on his behalf that he was criminally responsible for her death. The only issue was whether the crime which he had committed was murder or culpable homicide.
2. When the jury's verdict had been returned and recorded the trial judge immediately told the petitioner to stand up and sentenced him to life imprisonment. Thereafter he left the bench. Thus, before passing sentence the trial judge did not call on the Advocate depute to address him or wait for him to make a motion for sentence. The petitioner had been in custody prior to the trial and a schedule of previous convictions had been served on him. The trial judge was not provided with a history of the proceedings and the schedule of previous convictions was not laid before him. The minute prepared by the clerk bears to record that the period of life imprisonment was backdated to 13 April 2000. It appears that this arose out of subsequent private communications between the clerk of court and the trial judge. Likewise the trial judge was not addressed by the solicitor advocate who was representing the petitioner. At no stage before or after the recording of the sentence did the Advocate depute seek to address the court, either to draw attention to the fact that the trial judge had proceeded to sentence the petitioner without having been moved to do so, or to make such a motion. An extract from the record of proceedings granting warrant for the imprisonment of the petitioner was issued. Since then the petitioner has been in custody serving the sentence of life imprisonment.
3. The petitioner thereafter sought and obtained leave to appeal against both conviction and sentence. On 11 June 2002 the appeal court refused his appeal against conviction. As regards his appeal against sentence - which was founded on the proposition that in the circumstances the sentence of life imprisonment was incompetent on procedural grounds - the court reached the conclusion, for the reasons set out in its opinion of that date, that the statutory provisions for appeal could not provide the petitioner with a remedy. However, the court continued the appeal in regard to sentence so as to allow the petitioner, if so advised, to lodge a petition to the nobile officium.
4. According to the prayer of the petition which is now before us, the court is invited to quash the purported sentence of life imprisonment and extract warrant, and to declare the same to be null and void; "or to do further or otherwise in the premises as to your Lordships shall seem proper".
5. For the petitioner Ms. Scott submitted that it was a fundamental rule of criminal procedure that the prosecutor was the master of the instance during the trial of an accused, up to the point at which he moved for sentence. Unless he moved the court to pass sentence, the court had no power to do so. She referred for this purpose to Hume on Crimes II, page 134, where the author states:

"The Lord Advocate is master of his instance in this other sense, that even after he has brought his libel into Court, it is a matter at his discretion, to what extent or effect he will insist against the pannel; and he may freely, at any period of the process, before return of the verdict, nay after it has been returned, restrict his libel to an arbitrary punishment in the clearest case even of a capital crime".

Later the author goes on to state, in dealing with the matter of sentence and execution:

"In this matter, the Court may either proceed forthwith, on receiving the verdict, or they may adjourn at their pleasure, to some later day. If however they choose to proceed, and the prosecutor move them to that effect, it will lie with the pannel immediately to propose his reasons, if he any have, in arrest of judgment (page 463)...On this, as on every other occasion when any step is to be taken in advancement of the trial, it is indispensable that both parties be personally present in Court; the prosecutor to move for sentence, and the pannel to hear and undergo it. To inflict punishment on any one, the Court must be constrained by a demand made on their justice; and it will be held, even in this last stage of the trial, that the prosecutor relents, and has desisted from his instance, unless he appear personally to urge it on to a conclusion". (pages 470-471).

Bell's Notes relating to page 470 provide examples of two cases in which, following pleas of guilty, the prosecutor declined to move for sentence. Similar statements may be found in Alison on the Practice of the Criminal Law of Scotland at pages 88 and 97; and in Macdonald on the Criminal Law of Scotland, Fifth Edition page 348.

6. Ms. Scott also drew attention to passages in the decision of the whole court in Frasers (1852) 1 Irv. 1, and in particular a passage in the opinion of the Lord Justice-Clerk Hope page 14 where he said:

"But then, it was contended - and perhaps this is really the foundation of the plea for the Crown - that, after verdict, the instance was exhausted - the diet brought to a close - the prosecutor out of the field - and the prisoner, it was said, left alone with the Court.

Most clearly and emphatically, not so. The Court never acts proprio motu in punishment, any more than in trial. The motion for sentence is, and must be made, and it is only on motion that punishment is awarded, and because such punishment is insisted in. The diet at the instance of Her Majesty's Advocate (if sentence has been delayed) is called as much as at any other stage - nay, even when the sentence, as in murder, is the sentence of the law, it is pronounced only at the instance of the public prosecutor; and until the actual doom is signed, if that instance is withdrawn, the duty of the Court ceases; and without that instance being insisted in to the close and to sentence, the case would fall as much as if the instance were given up at any other stage".

7. Ms. Scott pointed out that the need for the prosecutor to move for sentence at least by implication if not expressly was illustrated by the decision in Noon v. H.M. Advocate 1960 J.C. 52. In that case Lord Justice-General Clyde observed:

"It has always been an essential feature of our criminal procedure in Scotland that the prosecutor should remain in charge of the prosecution right up to the time when sentence is actually pronounced. Hence it has always been part of our procedure that, even after the guilt of an accused has been established, the prosecutor should have the opportunity, if he thinks fit, to withdraw the case and allow the accused to go free...This, no doubt, dates from the time when, owing to the depth of partisan feelings, juries and even sometimes Judges, might be perverse or unfair, and the right to withdraw a case was thus preserved, to enable an impartial prosecutor to secure that justice was done. But today these partisan feelings, in criminal matters at least, have faded, and perversity on the part of Judges and juries is much more rare. Yet the procedural rule that the prosecutor must still have the opportunity of withdrawing the case, even after a verdict of guilty has been pronounced, is still preserved in the form of his moving for sentence".

8. Ms. Scott also submitted that the fact that, in terms of section 205 of the Criminal Procedure (Scotland) Act 1995, the mandatory sentence for murder was life imprisonment could not affect the issue of competency. That provision could not restrict the power of the Lord Advocate to decline to move for sentence. It presupposed that it was competent for the court to proceed to pass sentence.
9. In reply the Advocate depute accepted that there had been an irregularity in what happened, in the sense that there had been a departure from the normal practice, in accordance with which the court would not proceed to deal with the matter of sentence unless and until the prosecutor expressly moved the court to do so. He accepted that the court would have no power to pass sentence if the prosecutor was not present or, if present, declined to move for sentence. However, none of the authorities stated that, in order to make it competent to sentence, the prosecutor had to move expressly for sentence. In the present case the prosecutor was present when the verdict of the jury was delivered. In the absence of an express declinature to move for sentence, it would be implied that he moved the court to pass sentence, particularly as the sentence for murder was mandatory. At the trial the Advocate depute had intended to move for sentence but had been precluded from doing so by the actions of the trial judge. Despite the irregularity the sentence should be affirmed.
10. Ms. Scott went on to submit that the situation which had been created by the incompetent passing of sentence was irretrievable. It was arguable that the situation might have been retrieved if the trial judge had returned immediately to the bench and had acknowledged, at the prosecutor's invitation, that it had been incompetent for him to pass sentence and that proceedings should be restarted as from the point at which the verdict of the jury had been delivered and recorded. However, this would have had to be done before the sentence was recorded, or at any rate before the end of the same day. In the event neither happened, and it followed that, at the end of the day, the instance fell. It might have been open to the Crown to take a Bill of Advocation, but this would have depended on the diet being continued or at least before the expiry of the diet at midnight. In not questioning the actions of the trial judge the Crown had acquiesced in the incompetency of his passing sentence.
11. Our attention was drawn to the case of Russell v. Wilson 1994 S.C.C.R. 13 in which, after the accused's pleas of guilty had been accepted by the Crown, the sheriff had adjourned the diet for the purpose of enquiries being made as to whether he had committed an offence in connection with his application for legal aid, and in due course passed sentence on him. Holding that the adjournment was not for the purpose of serving the interests of justice in the particular proceedings on which the court was engaged, the appeal court held that he had not acted within the proper limits of his common law power to adjourn, so that the proceedings came to an end at midnight on the day of the purported adjournment when the instance fell. The court suspended both the sentence and the conviction.
12. Ms. Scott again referred to Frasers in support of this part of her submissions. In that case the accused had been convicted but not yet sentenced. The case was certified from the Circuit Court to the High Court, but no precise day was fixed for the diet. It was held that that, in consequence of the generality of the certification, the diet had fallen, and the warrant under which the accused had been detained was discharged accordingly. In the sequel to this decision, reported in (1852) 1 Irv. 66, a plea in bar of trial was sustained in respect that the accused had tholed an assize.
13. The Advocate depute submitted that both parties were affected by the actions taken by the trial judge. Matters had been taken out of the hands of the Crown, which had been taken by surprise. It was difficult to see what the trial Advocate depute could have done. The situation in Frasers should be distinguished from those in the present case. There was an inconsistency in the petitioner's position. If the argument for the petitioner was correct, it was not merely a case of the instance falling; there would be no process. The proceedings were a single entity from citation until sentence. However, the petitioner had appealed against conviction. It was artificial to say, on the one hand, that an accused had tholed his assize and, on the other, that the instance had fallen.
14. The Advocate depute also submitted that if the court was to quash the sentence, it should itself deal with the matter of sentence, since the Crown had never intended not to move for sentence. Alternatively the court should remit the case to the trial judge to deal with sentence.
15. We are in no doubt that the trial judge should not have proceeded to pass sentence as he did. We can understand how a number of factors may have contributed to him doing so. He states in his report that the case was a highly charged one. Relatives and friends of the deceased sat in the court for the verdict and there were others in the court who may have been associated with the deceased or the petitioner. He was apprehensive that there might be some form of public outcry at the verdict, and was concerned that the proceedings be concluded as swiftly as possible. It is also the case that the sentence was mandatory, and there was nothing whatever to indicate that the verdict would not lead to the normal outcome of a sentence of life imprisonment. However, we are in no doubt that the rule of criminal procedure that the court should not proceed to the matter of sentence unless and until the prosecutor has expressly, or by clear implication, moved the court to pass sentence is well settled. In the present case, unlike that of Noon v. H.M. Advocate, there was insufficient to enable it to be inferred that the prosecutor was moving for sentence.
16. At this point it is convenient for us to make some observations on the nature of what went wrong. Unlike the case of Russell v. Wilson, there is no question in the present case of the trial judge acting in a way which was not properly directed to serving the interests of justice in the case before him. It would have been the public duty of the trial judge to pass sentence when, as in the normal course of events, he was moved to do so. The error of the trial judge consisted in his failing to give the prosecutor an opportunity to make the motion for sentence, and to give the defence an opportunity to make any response. Furthermore, there is no question of the trial judge proceeding to pass sentence against the will of the prosecutor. In these circumstances, rather than regarding the sentence as fundamentally incompetent, as Lord Justice-General Clyde would apparently have treated the sentence in Noon if the decision had gone the other way, we take the view that it proceed on an irregularity.
17. We do not accept the submission by Ms. Scott in regard to the falling of the instance. No doubt the instance would have fallen if the court had sought to continue a case for an incompetent purpose (as in Russell v. Wilson), or in an incompetent manner (as in Frasers). In the present case the trial judge did not continue the diet. The diet came to an end with the passing of the sentence. Whether the passing of sentence was irregular or incompetent, it does not fall to be treated as if it had not happened. As Lord Justice-Clerk Hope observed in Frasers at pages 18 and 26 the verdict in a criminal case does not exhaust the process but the passing of sentence does so. At the latter page he pointed out that the court acted on the principle

"that there is in truth, after sentence, no diet, and no appearance before them necessary or competent, as soon as the process is brought to a final sentence - but not until then - when, and not before, there is no longer a diet to be called or fixed against the party."

18. This being an application to the nobile officium we should remind ourselves of the purposes for which that extraordinary jurisdiction exists. Alison, page 25, observes:

"In short, the principle is, that wherever the interposition of some authority is necessary to the administration of justice, and there exists no other judicature by whom it can competently be exercised, or which has been in use to exercise it, the Court of Justiciary is empowered and bound to exert its powers, on the application of a proper party, for the furtherance of justice".

19. In the present case it is plain that the sentence of life imprisonment which was imposed by the trial judge irregularly, if not incompetently, cannot stand. The importance of the rule that the court should not proceed to sentence unless moved to do so by the prosecutor is more important than the fact that in this case the prosecutor would have moved for sentence had he not been denied the opportunity of doing so. As was observed by this court in Express Newspapers plc 1999 S.C.C.R. 262 at page 267 the nobile officium can be used to remedy defects in the proceedings of the High Court itself.
20. It is not in accordance with the ends of justice that the prosecutor should be denied the opportunity to move for sentence. In our view it is appropriate for us to exercise the nobile officium to restore that opportunity to the Crown. We note that the decision in H.M. Advocate v. Khan 1997 S.C.C.R. 100 shows that, even without the use of the nobile officium, it is possible by means of a bill of advocation to resurrect a trial diet after it has been deserted by the court pro loco et tempore.
21. In the circumstances we shall quash the sentence of life imprisonment imposed by the trial judge. We do not consider it appropriate that this court itself should deal with the matter of sentence, if moved to do so. We shall instead accede to the alternative proposed by the Advocate depute in this court , adjourn the diet until 25 November 2002 and remit to the trial judge to hear parties in regard to the matter of sentence, and to proceed as accords, the appellant in the meantime to be conveyed to and detained in the Prison of Barlinnie, Glasgow.