Scottish High Court of Justiciary Decisons

Procurator Fiscal v. Clark [2003] ScotHC 2 (23 January 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Hamilton Lady Cosgrove	XJ551/02 OPINION OF THE COURT delivered by LORD MARNOCH in NOTE OF APPEAL under section 174(1) of the Criminal Procedure (Scotland) Act 1995 by THE PROCURATOR FISCAL, Glasgow Appellant; against JOHN JOSEPH CLARK Respondent: _______

 

 

Appellant: S. Di Rollo, Q.C., Crown Agent

Respondent: A. Brown, Murnin McCluskey, Glasgow

23 January 2003

1. In this Note of Appeal the Crown challenges a decision of the sheriff taken on 25 January 2002 to uphold a plea to the competency of the proceedings on the basis that the case had not called at an earlier intermediate diet fixed for 3 January 2002. The position of the Crown is that no such intermediate diet had been effectively fixed because there was no reference to it in the court minutes which recorded only the fixing of an adjourned trial diet on 24 January 2002. The appellant's position is that on 24 October 2001 the sheriff had stated in open court that there would be an intermediate diet on 3 January 2002 (and a trial diet on 24 January 2002) and that the absence of reference to the intermediate diet in the court minutes was not, and is not, conclusive.
2. The leading statutory provision, so far as summary procedure is concerned, is section 157(1) of the Criminal Procedure (Scotland) Act 1995 which is in the following terms:

"Proceedings in a summary prosecution shall be conducted summarily viva voce and, except where otherwise provided..., no record need be kept of the proceedings other than the complaint, or a copy of the complaint certified as a true copy by the procurator fiscal, the plea, a note of any documentary evidence produced, and the conviction and sentence or other finding of the court."

3. On the face of it this provision suggests that there is, at least, no formal requirement that the fixing of a diet be recorded in written form. As against that, it has been suggested that "the minutes must rule until amended" - Walker v. Normand 1996 S.L.T. 898 at p. 899. The sheriff did, indeed, purport to amend the minutes at the trial diet but the position of the Crown was that such purported amendment came too late; cf. Pettigrew v. Ingram 1982 S.L.T. 435. Counsel for the respondent, on the other hand, argued that once the preliminary diet went uncalled, the whole proceedings automatically fell. The other authority canvassed at some length, both before the sheriff and before us, was the more recent case of Fitzgerald v. Vannett 2000 S.C.C.R. 422. Had matters rested there it is sufficient to say that the present Note of Appeal might have raised a question of some difficulty.
4. However, matters did not rest there because, when the case was at avizandum, a member of the court, through his own researches, unearthed the decision of five judges in Barr v. Ingram reported, and reported only, in 1977 S.L.T. at p. 173. That authority appears to have gone unnoticed not only in the present case but also in those referred to above. Nonetheless, it appears that in Barr v. Ingram the court proceeded on the view that "if the adjournment is to another day, it [had] been clearly established by an anthology of decisions that the adjournment must be minuted." That rule, it was said, was founded on the common law and thus fell within the phrase "except where otherwise provided" in what is now section 157(1) of the 1995 Act.
5. In the foregoing circumstances the court had the present appeal put out for a Continued Hearing on 13 January 2003 when both the advocate depute and counsel for the respondent were invited to make submissions anent Barr v. Ingram.
6. In the result, the advocate depute submitted that the underlying premise in Barr v. Ingram was not only correct but was essentially determinative of the present appeal. It was clear that the requirement for a decision to adjourn to be in writing stemmed from the fundamental principle that all criminal diets were peremptory in nature - Hull v. H.M. Advocate 1945 J.C. 83 - and the fixing of a preliminary diet fell within that principle - McDonald v. Knight 1990 S.C.C.R. 641. What is more, Barr v. Ingram had been followed in Pettigrew v. Ingram cit. sup. where some reliance had also been placed on section 430(1) of the Criminal Procedure (Scotland) Act 1975 (now section 167(2) of the 1995 Act). The wording of that sub-section was not dissimilar to that of section 172(2) of the 1995 Act which might have an even broader application.
7. For his part, Mr. Brown, for the respondent, submitted that the premise relied on in Barr v. Ingram was incorrect. It was most unusual, if not unprecedented, for the statutory phrase "except where otherwise provided" to be applied to the common law and, if it were taken to include a reference to adjournment, there would be little content left for section 157(1) of the 1995 Act. In Pettigrew v. Ingram the court had relied on different statutory provisions and the overall uncertainty was such that the present appeal should be referred to a larger court, possibly comprising seven or more judges. If, however, that were not done the present case could be distinguished from Barr v. Ingram and Pettigrew v. Ingram in that, although a preliminary diet was peremptory in nature, the fixing of such a diet was not, in terms, referred to in the 1995 Act nor was any style provided in the appendix to the Act of Adjournal (Criminal Procedure Rules) 1996 as was the case for adjournments.
8. In our opinion the premise accepted by the court of five judges in Barr v. Ingram is indeed determinative of the present appeal and no sufficient reason has been offered to us for having that premise re-considered by a larger court. The fact that the decision appears to have been overlooked in more recent cases is regrettable but in no way impinges on its authority. And, while we are inclined to agree that to construe the statutory phrase, "except where otherwise provided", as being habile to include a reference to the common law is, to say the least, unusual, it must be recognised that in Hull v. H.M. Advocate the then Lord Justice Clerk (Cooper) was also of opinion that, except insofar as expressly modified by statute, the procedure in criminal causes remained based on long-established practice. There is the further consideration that the decision and reasoning of the court in Barr v. Ingram must be taken to have been approved by Parliament when passing the most recent Act of 1995. We would add that we are wholly unpersuaded that the effect of Barr v. Ingram was to deprive what is now section 157(1) of the 1995 Act of any meaningful content.
9. For the rest, on the hypothesis on which both parties before us proceeded, namely that a preliminary diet is peremptory in nature, we see no reason for not applying to it the same stringency as that applied to adjourned diets including the formal requirement that it be constituted in writing. There is no indication in Barr v. Ingram that the availability of a style for adjournment was of any importance and there is no reference anywhere in the judgment to the predecessor sections of what are now sections 167(2) and 172(2) of the 1995 Act. We reserve our opinion as to the ambit and extent of these particular provisions.
10. In the result, and basing our opinion firmly on the premise of the decision in Barr v. Ingram, we consider that in this case there was no effectual fixing of a preliminary diet with the result that, through no fault of hers, the sheriff erred in inter alia upholding the plea later taken to the competency of the trial diet. We shall accordingly sustain the appeal and remit to the sheriff to proceed as accords.