Scottish High Court of Justiciary Decisons

Drummond v. Her Majesty's Advocate [2002] ScotHC 338 (24 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lord Macfadyen	Appeal No: C681/00 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION and SENTENCE by ANDREW PAGE DRUMMOND Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Gilfedder McInnes

Respondent: G. Hanretty, Q.C., A.D.; Crown Agent

24 December 2002

1. On 18 December 2002, having heard submissions in regard to certain of the appellant's grounds of appeal against conviction, the court delivered its opinion that one of them was well-founded and that on this ground the appeal should be allowed. The Crown then moved the court to grant authority, in terms of section 118(1)(c) of the Criminal Procedure (Scotland) Act 1995, for the bringing of a new prosecution against the appellant. In these circumstances the court did not at that stage pronounce an interlocutor disposing of the appeal, but continued the case to 20 December for the purpose of then hearing submissions in regard to the motion for the Crown.
2. The appellant was convicted on 11 August 2000 on three charges. The first and second of the charges related to, respectively, embezzlement, and embezzlement and theft, committed while the appellant was practising as a solicitor. The third charge was of an attempt to pervert the course of justice.
3. A number of points about the history of the case may be noted. The first of the charges was concerned with the conduct of the appellant between 1 March and 30 November 1993. The second related to the period from 1 January to 30 June 1995. The appellant was charged by the police in regard to these matters on 12 August 1996 and 15 January 1998. He appeared on petition in the Sheriff Court on 27 April 1998, when he was liberated on bail. The case against the appellant was originally set down for trial on 6 April 1999. However, the trial did not proceed, and he was re-indicted twice thereafter. He came to trial on a third indictment on 24 July 2000. Following his conviction on 11 August 2000 he was sentenced on 31 August 2000 to seven years imprisonment. On 8 November 2000 a note of appeal was lodged on his behalf, containing a total of six grounds of appeal. He was granted interim liberation on 21 December 2000.
4. We consider first the implications of the protracted character of the proceedings, and in particular the time which has elapsed since the periods to which the first and second charges related. The Advocate depute did not dispute that this was a factor for consideration in regard to whether the Crown should be granted authority to bring a fresh prosecution, and Mr. Shead, who appeared on behalf of the appellant, stressed its importance. We were informed that the evidence on which the Crown and the defence founded was partly documentary and partly that of witnesses. It is obvious that the time which has elapsed raises a question as to whether the reliability of the recollection of witnesses may have been adversely affected. The Advocate depute said that he could not provide the court with any information on this subject; no attempt had been made to check on the availability or recollection of significant witnesses. He sought to rely on the fact that a complete transcript of the evidence at the trial would be available at the re-trial of the appellant and that in appropriate circumstances this could be used to prompt the recollection of witnesses. He also stressed that the trial judge could give appropriate directions to the jury regarding the importance of the onus of proof where the recollection of witnesses had been dimmed. However, it is plain that that it is far from satisfactory to have to rely on such methods in an attempt to compensate for loss of recollection.
5. We consider next the circumstances which gave rise to the appeal court concluding that the appeal against conviction was well-founded. The court was satisfied that there had been a breach of section 92(1) of the Criminal Procedure (Scotland) Act 1995, that this breach was of a fundamental nature, and that this had caused a miscarriage of justice.
6. It is right for us to bear in mind that the conclusion reached by the appeal court was not based on the view that actual prejudice to the appellant had been caused by the breach of section 92(1). However, the court could not and did not exclude the possibility that there had been such prejudice. The circumstances in which that breach occurred are of significance for present purposes. It happened at a stage in the course of the examination of the appellant by his counsel when the trial judge interrupted the line of questioning to point out that it was proceeding on a mistaken basis. The trial judge thereupon invited the jury to retire, and, according to his report, asked the appellant also to leave the court room, for the reasons which the court noted in its opinion of 18 December 2002. Thereafter there was an extensive discussion between the trial judge and counsel for the appellant, in the course of which the trial judge adverted to the fact that the appellant was "missing part of the trial", and counsel indicated that he did not take any point in regard to the competence of that.
7. It is clear that at the outset of, and throughout, the period when the appellant was absent from his trial the Advocate depute took no steps to point out that, however well-intentioned the trial judge had been, it was not competent for the trial to proceed in the absence of the appellant, let alone to propose the repeating of the part of the proceedings which had taken place in his absence so as to eliminate any possible prejudice to him.
8. It is important to note that section 92(1) is not expressed as prohibiting the trial judge from directing or permitting the trial to proceed in the absence of the accused. It is expressed in general terms, stating that "no part of a trial shall take place outwith the presence of the accused". Underlying that provision, which is of a fundamental character, is the objective of securing that an accused person receives a fair trial. No doubt this means that the trial judge should not act in such a way as to bring about a breach. However, it is also plain that the Advocate depute, who has the responsibility of conducting the prosecution which has been brought at the instance of the Lord Advocate, has a strong interest in preventing the proceedings from being rendered invalid by reason of a breach of section 92(1), and hence in seeking to forestall or terminate a situation in which part of the trial takes place in the absence of the accused. The fact that counsel for the appellant waived objection was of no moment in the light of the fundamental nature of the irregularity which occurred. In these circumstances we consider that what happened was to a significant extent due to the fault of the Crown. It is well recognised that the fact that the ground on which an appeal is successful involves fault on the part of the Crown is an important factor in weighing against the granting of authority for the taking of fresh proceedings against an appellant.
9. In the light of the two considerations which we have discussed, we conclude that it is not in the interests of justice that authority should be given for a fresh prosecution of the appellant. In these circumstances we do not find it necessary to hear submissions in regard to a minute by the appellant which seeks to raise a devolution issue based on the ground that for the Lord Advocate to continue to seek authority for a new prosecution would be in breach of the appellant's entitlement to a fair and public hearing within a reasonable time.
10. The motion by the Crown will accordingly be refused.