Scottish High Court of Justiciary Decisons

McDonald v. Her Majesty's Advocate [2003] ScotHC 10 (25 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Osborne Lord Hamilton	Appeal Nos: C517/02 XC117/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION and PETITION to the NOBILE OFFICIUM by THOMAS McDONALD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Burnett & Robertson

Respondent: M. Stewart, A.D.; Crown Agent

25 February 2003

1. This appeal is concerned with the effect, if any, on the conviction of the appellant, or the sentence passed on him, of the fact that following his conviction a non-appearance warrant was granted for his apprehension but without the diet being continued to a future date.
2. The salient facts are as follows. On 15 April 1999 the appellant pled guilty in the Sheriff Court at Paisley to charges of contravening section 103(1)(b) and section 143(1) and (2) of the Road Traffic Act 1988, on which he had been indicted. The prosecutor moved for sentence and produced a schedule of his previous convictions. The sheriff continued the diet until 6 May 1999 for a proof in mitigation, and continued bail. However, on that date the appellant was absent when the diet was called. On the motion of the prosecutor the sheriff granted warrant to apprehend the appellant, in respect of his failure to appear. He next appeared in court on these charges on 2 July 1999, when the sheriff continued the diet until 30 July 1999 for a proof in mitigation, and again continued bail. On 30 July 1999 the appellant was again absent. On the motion of the prosecutor the sheriff, according to minute:

"granted warrant to apprehend and commit the accused Thomas McDonald to Greenock Prison until arrangements can be made for him to be brought before Paisley Sheriff Court for sentence".

The process for the apprehension of the appellant and bringing him before the court for sentence evidently was protracted, since he did not appear again in court until 22 February 2001. The solicitor for the appellant then challenged the competency of proceedings continuing against the appellant. In due course, on 27 February 2001, after a number of continuations of the diet, the sheriff repelled the plea to competency and assigned 13 March 2001 for a proof in mitigation. However, on that date the solicitor for the appellant intimated that he no longer intended to lead evidence in mitigation. Thereafter he addressed the sheriff in mitigation. The sheriff sentenced the appellant to 6 months imprisonment on the first charge, and admonished him in respect of the second. With regard to the first charge the sheriff also disqualified the appellant for holding or obtaining a driver's licence for a period of 10 years, and ordered him to re-sit the prescribed test of competence to drive. He also ordered the endorsement of the appellant's driving licence in regard to both charges.

3. On behalf of the appellant Mr. Shead submitted that, since a sheriff did not adjourn the diet on 6 May or 30 July 1999 - it mattered not which - the continuation of proceedings against the appellant on these charges had ceased to be competent.
4. In support of that submission Mr. Shead pointed out that a criminal diet was generally peremptory, as it was in the present case. In proceedings on indictment, unless the diet was continued after conviction until the accused was sentenced, the proceedings would fall. He founded on the decision of the whole court in Frasers (1852) 1 Irv. 1, in which it was held by a majority that, in consequence of the generality of the certification of the case by the Circuit Court to the High Court after conviction and before sentence, the diet had fallen and the warrant under which the panels had been detained was discharged accordingly. The decision in that case showed, he said, the critical nature of a peremptory diet. At page 14 the Lord Justice Clerk (Hope) said:

"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".

At page 26 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".

5. Mr. Shead pointed out that these passages had been treated as authoritative in the recent decision in Arthur v. H.M. Advocate, 2003 S.L.T. 90, which was the sequel to the earlier stage in that case which is reported in 2002 S.C.C.R. 796. There were, he said, very few instances where there was not a fixed diet. One exception was where a case was remitted from the Sheriff Court for sentence in the High Court. However, this involved a specialty of the transfer of a case from one court to another.
6. Mr. Shead submitted that, if an accused failed to appear at a peremptory diet prior to his conviction, the indictment would fall if the court merely granted warrant for his apprehension in respect of his non-appearance. The prosecutor would require to re-indict the accused if he intended to proceed further against him. The indictment fell, not because warrant was granted for his apprehension, but because the court did not continue the diet to a future date. However, it had been supposed that if, after his conviction and prior to his being sentenced, the accused failed to appear at the continued diet, the granting of a warrant for his apprehension in respect of his non-appearance, would, without more, prevent the proceedings from falling. This supposition was inconsistent with the treatment of the situation prior to the conviction of the accused, and was erroneous. The proceedings came to an end because the court did not also, as it could have done, continue the diet to a future date. In the result, an accused such as the appellant could not be brought before the court or sentenced in respect of the charges of which he had been convicted.
7. Mr. Shead maintained that it followed from his submission that the appellant's conviction fell to be quashed, although he accepted that he could not point to any authority to this effect. He observed that a conviction might be quashed where the basis for the claim that there had been a miscarriage of justice was a nullity which had been incurred in the course of the trial, such as a breach of section 92 of the Criminal Procedure (Scotland) Act 1995. He maintained that the proper view was that criminal proceedings on indictment constituted a single process. In Gardiner v. H.M. Advocate (1976) S.C.C.R. Supp. 159 the court had expressed the view at page 160 that there was force in the argument that in solemn procedure no diet could proceed in the absence of the accused. He also pointed out that, if the conviction of the appellant was quashed, it would be open to the Crown to seek authority from the court to bring a fresh prosecution under section 118 of the 1995 Act. There could be cases in which the fact that the situation had come about through the fault of the Crown would make the court disinclined to grant that authority. He did not suggest this applied in the present case. However, there might be no manifest public interest in further prosecution as the appellant had already served his sentence. Mr. Shead also drew attention to Russell v. Wilson 1994 S.C.C.R. 13 in which the court quashed both conviction and sentence in a summary case which the sheriff had continued after conviction for an improper purpose.
8. Mr. Shead's final submission was that, if the court took the view that the appellant's conviction had to stand, the sentence which was passed on him should be quashed. He accepted that, in the light of the opinion of the Court in Arthur v. H.M. Advocate 2002 S.C.C.R. 796, a statutory appeal against sentence was not an appropriate vehicle for this submission. He invited the court to entertain a petition to the nobile officium in which he sought the quashing of the sentence. Although the appellant had served that sentence, the point which was raised in the present case was not academic but was of general interest.
9. There is no doubt that the opinions delivered by the majority of the members of the court in Frasers provide authority for a rule that if, following the conviction of the accused, the passing of a sentence on him is to be postponed, the indictment will fall unless the diet is continued to a future date, if necessary repeatedly, until the case is brought to a conclusion, either by the passing of sentence or by the prosecutor no longer insisting on his motion for sentence. It may be noted that in Frasers the Lord Justice Clerk emphasised the value of the rule for which the decision in that case is authority. At page 16 he remarked:

"The accused is thus protected from one of the very greatest evils in criminal justice - uncertainty and irregularity as to the time of procedure, from whatever motives on the part of the prosecutor".

10. However, as Mr. Shead accepted, the opinions in Fraser do not deal directly with the situation which the accused fails to appear at the diet. At the time when that case was decided, the court normally declared the accused a fugitive in respect of his non-appearance. If he was declared a fugitive it was no longer necessary for the diet to be continued (Alison, Criminal Law of Scotland II pages 349 et. seq.). It is of interest to note that in the course of his opinion the Lord Justice Clerk in Frasers referred at pages 24-25 to the case of James McGregor in 1752. He escaped after being convicted, the diet having been continued until the next day. No motion was made to have him declared a fugitive, but the court continued the diet on a number of occasions for a period of over 2 years. Eventually, the court continued the diet against him until such time as he should be apprehended and brought before the court. The Lord Justice Clerk remarked at page 24:

"But as a warrant was granted, and as the party had fled, the court might hold - if their attention was really called to that point at all, which we did not know - that against such a party the dignity of the court did not admit of being bound by the course of endless continuations, and they might justly hold that such a party could not plead the omission to continue a diet which he had evaded and rendered useless".

11. Fugitation has, of course, been long since abolished. However, it is our understanding that for many years it has been the settled practice, where an accused has failed to appear at a diet after his conviction for the court, as an alternative to continuing the diet, to grant a non-appearance warrant without continuing the diet, and thereafter proceed to sentence the accused when he has been apprehended and brought before it. Thus the form of minute which is used in the High Court of Justiciary to record such an event states:

"The adjourned diet having been called of the indictment at the instance of Her Majesty's Advocate against the said accused for the offence(s) of

mentioned in the indictment; the said accused having been called in court, and having failed to appear; the court granted warrant to officers of law to apprehend the said accused and for his/her commitment to the Prison of therein to be detained until brought to the High Court of Justiciary at Edinburgh for sentence on the indictment".

In many cases it may be preferable for the diet to be continued to a future date, especially where it is likely that the attendance of the accused can be secured within a relatively short and predictable period. As Mr. Shead pointed out, there are a number of ways in which the attendance of an accused can be secured. These include arrest for commission of the offence of breaching bail.

12. The granting of a non-appearance warrant where the accused has failed to appear at the sentencing diet has significance in a number of respects. First, since the court does not grant such a warrant of its own motion but on the motion of the prosecutor, the granting of that warrant shows unmistakably that the prosecutor is continuing to insist on his motion that the court should pass sentence on the accused in respect of the libel on which he has been convicted. Secondly, the granting of the warrant is a means by which the court before whom he has been so convicted enforces the attendance of the accused before it in accordance with its directions. In Gardiner v. H.M. Advocate the fact that, as narrated by the Lord Justice Clerk (Wheatley), when the diet was called after the conviction of the accused and he failed to appear, a non-appearance warrant was granted for his apprehension, after which he was brought before the court and sentenced, did not cause any surprise or any adverse comment from the appeal court. The court proceeded on the basis that, although the diet was continued, the particular proceedings remained live. As the Advocate depute submitted, it does not appear that the continuation of such proceedings has ever been challenged before.
13. The practice to which we have referred appears to us to accord with sound commonsense. While we have no reason to question the rule which was clearly stated by the majority in Frasers, it should, in our view, be understood as relating to the context, as in that case, where the accused has appeared at the diet. Where he does not appear, he can hardly be heard to complain that the diet was not continued to a future date, since by his absence he has not only frustrated the purpose for which the case was called but may also have rendered it uncertain when the case will be able to proceed. For the case to be continued from one date to another, in the hope - in many cases a vain hope - that he will appear would involve what the Lord Justice Clerk in Frasers described as "the idle farce of endless continuations" (page 25). Where the accused is apprehended with unexpected speed, there would, if the diet had been continued to a fixed date, be a risk of pointless delay in the disposal of the case, not to mention potential disadvantage to the accused. In Frasers the court evidently attached importance to the consistent practice of the court. At page 27 the Lord Justice Clerk remarked:

"Some of the most important parts of the criminal law, and those, in particular, relate to, and secure the means of defence, rest on that established practice which forms the law of the Court, and therefore the law of the land".

The same considerations appear to us to apply in the case of the practice of not continuing the diet when a non-appearance warrant is granted by the court at a diet after the conviction of the accused.

14. As we have already narrated, the Mr. Shead contrasted what was treated as the effect of a non-appearance warrant granted prior to conviction with the belief which was entertained about the effect of such a warrant post-conviction. We agree with the view expressed by the court in Kelly v. H.M. Advocate 2001 S.C.C.R. 534 at para. 13 that what would cause an indictment to fall in these circumstances is not the granting of the warrant but the fact, if it be the case, that the diet is not continued to a future date. It would, however, be open to the prosecutor to re-indict in reliance on the petition by which the proceedings were commenced. However, post-conviction the position is different. There is no question of the prosecutor being able to re-indict. The accused is able to plead that he has tholed his assize, as can be seen from the sequel in Frasers (1852) 1 Irv. 66. All that is left over is for the court to proceed to sentence, if the prosecutor insists on his motion for sentence, and in that connection to obtain and consider such matters of information as the parties provide and it requires. For these reasons, it is, in our view, not difficult to see why the granting of a non-appearance warrant in these circumstances without the continuation of the diet should not be regarded as leading to the premature termination of the proceedings. The view which was advanced in argument by the Advocate depute was that the diet should be regarded as suspended, pending the re-appearance of the accused. We see force in that analysis.
15. For these reasons we consider that the argument advanced by Mr. Shead in support of his attack on the appellant's conviction is not well-founded. Even if we had taken the view, which we do not, that the proceedings had fallen by reason of the failure of the sheriff to continue the diet, it would not in our view have followed that the appellant's conviction fell to be quashed. The decision in Frasers (1852) 1 Irv. 66 that the accused in that case had tholed the assize, clearly implies that the conviction would remain unaffected by the subsequent lapsing of the proceedings.
16. We will accordingly refuse the appellant's appeal against conviction and his petition for the exercise of this court's nobile officium.