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Cite as: [2003] ScotHC 49
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Mitchell v. Her Majesty's Advocate, [2003] ScotHC 49 (25 March 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Macfadyen Lord Carloway Sir Gerald Gordon, Q.C.
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Appeal No: XJ587/02 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL AGAINST CONVICTION by ROBBIE FRAZER MITCHELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Drummond Miller
Respondent: R. Docherty, Q.C.; Crown Agent
25 March 2003
[1] This is an appeal against a decision of the Sheriff at Jedburgh repelling a plea of oppression in bar of trial. In order to understand the nature of the complaint of oppression it is necessary to take note of the history of the proceedings against the appellant. The respondent originally brought a summary complaint against the appellant alleging that on 2 December 2001 on the B6461 Kelso to Eccles road at Harpertoun he was in charge of a motor vehicle while the proportion of alcohol in his breath was 46μg/100ml, contrary to section 5(1)(b) of the Road Traffic Act 1988. The appellant was due to stand trial on that charge on 5 April 2002. On that date the respondent moved to desert the complaint pro loco et tempore, and to replace it with one libelling that at the same time and place the appellant drove the motor vehicle with the same proportion of alcohol in his breath, contrary to section 5(1)(a) of the Act. Those motions were opposed on the appellant's behalf, and were continued until 3 May 2002 and then until 31 May for debate. On 31 May neither the first nor the second complaint was called. Instead the Procurator Fiscal produced a third complaint, which libelled contravention of section 5(1)(a) or alternatively contravention of section 5(1)(b). The matter was further continued until 27 June 2002, and on that date the Sheriff heard a debate on the appellant's plea that to proceed with the third complaint would amount to oppression on the part of the respondent. On 28 June the Sheriff held that in the circumstances it would not be oppressive for the respondent to proceed with the third complaint, and therefore repelled the plea in bar of trial.
[2] In the Note of Appeal it is averred that on 5 April 2002 the respondent's depute "threatened that unless [the appellant] pled guilty to [the charge under section 5(1)(b)], that complaint would be deserted, and would be replaced by a complaint under section [5(1)(a)]". Before us the Advocate depute gave a somewhat different narrative. He stated that the case was originally marked for prosecution under section 5(1)(b), but that the trial depute considered that there was sufficient evidence to support a charge under section 5(1)(a). That was indicated to the appellant's agent, but there was no discussion about a plea of guilty to the charge in the original complaint.
[3] Before us, Mr Shead, who appeared for the appellant, began his submissions by drawing our attention to the last paragraph of the Sheriff's Report where the Sheriff said:
"I had not presided over the earlier matters referred to in the course of the submissions and it is not for me to say what the Court may have done when confronted with different issues at different stages in the history which was narrated to me."
Mr Shead submitted that that disclosed a misdirection on the Sheriff's part. It was incumbent on him, in dealing with the issue of oppression, to take into account the whole procedural history of the case.
[4] Mr Shead further submitted that if the appellant had submitted to the pressure to which he was subjected on 5 April 2002, and had pled guilty to a contravention of section 5(1)(b), it would have been open to him thereafter to attack the validity of the conviction on the basis that it had been obtained by the exercise of improper pressure. That being so, it would be odd if he could not succeed in the submission that the course followed by the respondent in bringing forward a complaint libelling contraventions of section 5(1)(a) and section 5(1)(b) as alternatives was oppressive.
[5] In examining the criteria by which a case of oppression must be judged, Mr Shead referred first to Donaldson v Vannet 1997 SCCR 689. That case bore some similarity to the present one. There the appellant was charged with having a knife in contravention of section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995. His agents intimated an offer to plead guilty on the basis that the Crown, since the charge was under section 49, was presumably accepting that the appellant was not threatening anyone with the knife. The Procurator Fiscal responded that unless the Crown was permitted to give a full narration of the facts, they would desert the complaint and serve a fresh one libelling a contravention of section 47 (carrying an offensive weapon). The Crown then did so, and the appellant took a plea of oppression. The Sheriff repelled the plea, and the High Court refused the appellant's appeal, applying the test laid down in McFadyen v Annan 1992 SCCR 186. Mr Shead submitted, however, that that test should not be regarded as the only measure of oppression. It had been the subject of criticism on the ground that it set a threshold which was almost impossible to cross.
[6] Mr Shead then referred to Mowbray v Crowe 1993 SCCR 730 as supporting the proposition that oppression might be established if it were evident that justice could not be seen to have been done. In that case a girl aged seventeen was charged by the police with assault. She was then interviewed by the Procurator Fiscal with a view to her being made the subject of a fiscal warning. At interview she maintained her innocence and explained the nature of her defence. The respondent subsequently brought a summary complaint against her. The appellant took a plea of oppression, which was repelled by the justice. The appellant appealed to the High Court. The opinion of the court, delivered by the Lord Justice-Clerk, Lord Ross, contained the following passages (at 735E and 736A-C):
"We are satisfied that the court is entitled to interfere with a prosecution if there has been oppression towards the person accused. In the present case we have come to the conclusion that the action of the respondent ... did amount to oppression towards the appellant. ...
We readily accept that the respondent has no intention of seeking to lead evidence of what the appellant may have said at the interview, but knowing what her defence is must give the Crown an advantage which it would not have had if the interview had not taken place. Not only that, but it is well established that justice must not only be done but must be seen to be done and in our judgment justice is not seen to be done if the prosecutor has behaved in the way that the respondent behaved in the present case, by interviewing the appellant without warning her that she did not require to attend for interview nor advising her that she might wish to take legal advice and could be accompanied by a solicitor at the interview. By so doing, he secured for the Crown an unfair advantage in any subsequent trial of the appellant on this complaint.
In all the circumstances, we are satisfied that there was oppression in the present case and that the justice ought to have upheld the plea in bar of trial."
Mr Shead submitted that an impartial observer of the proceedings in the present case might well gain the impression that the proceedings were unfair.
[7] Mr Shead referred next to HM Advocate v Nairn 2000 SCCR 943. In that case the accused appeared on petition on a charge of assault with intent to rape. Thereafter he was served with an indictment charging him with assault to severe injury and permanent disfigurement, but not with intent to rape, in respect of the same incident. It was agreed between the accused's solicitor and the procurator fiscal depute that a modified plea of guilty to the charge in the indictment would be accepted. At a continued diet the agreed plea was tendered, but the procurator fiscal depute refused to accept it and moved the court to desert the indictment pro loco et tempore with a view to serving a new indictment in terms of the original petition. That motion was opposed. The Sheriff held that by agreeing to accept the modified plea, the Crown had barred itself from proceeding as it sought to do. The Sheriff added the following observation (at 946B):
"In any event, looked at more broadly the Crown would be acting oppressively by having the present indictment deserted and then indicting the accused on a more serious charge. There is no suggestion that the Crown has discovered new evidence. It has been in possession for many months of the evidence to justify whatever charge may be appropriate against the accused. The only explanation I have been given of why that charge was considered more appropriate than that in the original petition is that an error must have been made. If that is indeed the case, it is, in my opinion, unreasonable that the accused should be prejudiced by the error. I accept that other interests are involved, not least those of the complainer. However, I consider that in this situation it is the interests of the accused which should prevail."
That dictum, it was submitted, constituted strong support for the appellant's submission in the present case.
[8] Finally, Mr Shead referred to Brown v HM Advocate 2002 SCCR 684. That case was concerned with the basis of the plea of entrapment. Reference was made to observations by Lord Marnoch at 689-690 (paragraphs [11] and [12]), in which entrapment was treated as a species of oppression; by Lord Philip at 694 (paragraphs [12] to [14]), in which it was recognised that the test of oppression is whether there has been prejudice so grave as to be incapable of being removed by directions to the jury so as to secure a fair trial; and by Lord Clarke at 695C (paragraph [2]), in which the view was expressed that the defence of entrapment should not be confined to cases falling within the traditional definition of oppression.
[9] The Advocate depute submitted that the test of oppression was well settled. The test was formulated by Lord Justice-Clerk Ross in McFadyen v Annan at 193B-C in the following terms:
"However, the real question which the court has to consider in all cases where delay is alleged is whether the delay has prejudiced the prospects of a fair trial. This involves the court asking itself whether the risk of prejudice from the delay is so grave that no direction by the trial judge could be expected to remove it. In the case of summary procedure the question must be whether the risk of prejudice from the delay is so grave that the sheriff or justice could not be expected to put that prejudice out of his mind and reach a fair verdict. ... The test to be applied where oppression is alleged to have been the result of delay is the same as that which falls to be applied in cases where oppression is said to be the result of pre-trial publicity or any other cause."
That test was applied in Donaldson v Vannet, in Hamilton v Byrne 1997 SCCR 547 at 549F, in HM Advocate v Young 1998 JC 9 at 11E, 1997 SCCR 647 at 650E-G, quoting from Stuurman v HM Advocate 1980 JC 111 at 122, and in Latto v Vannet 1997 SCCR 721. Mowbray v Crowe could not be regarded as setting up an alternative test based solely on whether justice could be seen to have been done. The observations by the Sheriff in HM Advocate v Nairn on which Mr Shead sought to rely should be construed as taking into account not merely the fact that the prosecutor proposed to alter the charge at a late stage in the absence of any additional information, but also the fact that the prosecutor had earlier agreed to accept the restricted plea. If the observation did not depend on that consideration, it was obiter and went too far. Brown v HM Advocate dealt with the discrete subject of entrapment. It contained nothing to suggest that in a proper case of oppression the McFadyen v Annan test was no longer the relevant one. Applying the McFadyen v Annan test in the circumstances of the present case, there was no prejudice to the appellant. The plea in bar should therefore be repelled.
[10] In our opinion, the plea of oppression fails. An examination of the authorities cited in the course of argument demonstrates, in our view, that a plea of oppression can only be upheld if the alternative is that the accused person will be subjected to such prejudice that he will not obtain a fair trial. In summary proceedings the question must be whether the risk of prejudice from the conduct complained of is so grave that the sheriff could not be expected to put its prejudicial effect out of his mind and reach a fair verdict (McFadyen v Annan at 193B). In the present case we accept that it is necessary to have regard to the whole procedural history. With all of that in view, however, we are of opinion that it cannot be said that the vacillation on the part of the respondent as to the charge to be brought against the appellant had any prejudicial effect on the appellant's ability to obtain a fair trial on the third complaint. Although we do not accept that the need for justice to be seen to be done constitutes an alternative independent test of oppression, we are satisfied that there is in fact no appearance of injustice in allowing the respondent to proceed with the third complaint. The appeal is therefore refused.