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King v. Procurator Fiscal [2004] ScotHC 44 (29 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord MacLean

Lord Hamilton

Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.

Appeal No: XJ1968/03

OPINION OF THE COURT

delivered by

TEMPORARY JUDGE C.G. B. NICHOLSON, C.B.E., Q.C.

APPEAL

in terms of section 174 of the Criminal Procedure (Scotland) Act 1995

on Competency and Relevancy

HUGH COLIN GODFREY STANLEY KING

Appellant;

against

PROCURATOR FISCAL, Paisley

Respondent:

_______

Appellant: Woolman, Q.C., Miss McColl, Advocate; Balfour & Manson

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

29 June 2004

Background
[1] In a summary prosecution at the instance of the respondent the appellant was charged with a contravention of section 1(2) of the Public Bodies Corrupt Practices Act 1889. On 30 July 2003 those acting for the appellant intimated a plea to the relevancy of the complaint on the basis that it was lacking in specification. A debate on that preliminary plea took place on 15 October 2003 when the plea was repelled. The appellant has now appealed to this Court against that decision by the sheriff.

[2] At the commencement of the debate before the sheriff the procurator fiscal depute moved him to allow the complaint to be amended in several major respects. That motion was not opposed by Mr Woolman, who appeared on behalf of the appellant before the sheriff as he also did before this Court, and the amendment was duly allowed. In the circumstances it is unnecessary to set out the terms of the complaint as originally served on the appellant. The complaint, as amended, is in the following terms:

" ... between 4 December 2001 and 14 January 2002, both dates inclusive, at 12 Summerlea Road, Thornliebank, Glasgow, the Walnut Café, Shawlands and at Main Street, Thornliebank, all Glasgow you ... having applied or intending to apply for the grant of a betting office licence for the premises situated at 67 Main Street, Thornliebank, Glasgow, did on 14 January 2002 at 12 Summerlea Road, Thornliebank, Glasgow, corruptly give a gift to Roberta Mullen, a member of Thornliebank Community Council, a public body as defined within the aftermentioned Act and the Prevention of Corruption Act 1916 Section 4(2), namely £100 as an inducement to her to show favour in respect of a matter or transaction in which said public body aforesaid was concerned, namely an actual or proposed application for a betting office licence for said premises situated at 67 Main Street, Thornliebank, Glasgow, within the District of East Renfrewshire Council in which said public body was concerned and you did on two earlier occasions on 5 December 2001 at the Walnut Café, Shawlands and at Main Street, Thornliebank, both Glasgow, corruptly offer a gift to said Roberta Mullen and did attempt to hand over to her an envelope understood to contain a sum of money as an inducement to her to show favour in respect of said actual or proposed application for a betting office licence for the said premises at 67 Main Street, Thornliebank, Glasgow, in which said public body was concerned, whereby you are guilty of an offence;

CONTRARY to the Public Bodies Corrupt Practices Act 1889, Section 1(2)."

It was Mr Woolman's contention, both before the sheriff and before this Court, that the foregoing charge, in its amended form, does not give the appellant fair notice of the case which he is required to meet.

The Licensing (Scotland) Act 1976
[3] Before coming to consider in detail the submissions which were advanced in respect of the foregoing contention it is necessary to deal with a matter which appears to have been taken for granted by all parties, including the sheriff, at the original debate, and which is also referred to in the grounds which have been lodged in relation to the present appeal. It concerns section 16 of the Licensing (Scotland) Act 1976.

[4] That section, which is headed "Objections in relation to applications", provides, so far as (apparently) relevant:

"(1) It shall be competent for any of the following persons to object in relation to any application to a licensing board for the grant (including the provisional grant) renewal or permanent transfer of a licence, namely -

...

(b) a community council, which has been established in accordance with

the provisions of the Local Government (Scotland) Act 1973, for the area in which the premises are situated".

In the debate before the sheriff it appears to have been accepted on all sides, and by the sheriff himself, that the foregoing section in the 1976 Act provides a statutory context within which it might be possible for Mrs Mullen (the lady named in the charge) to use her position as a member of the community council to show favour to the appellant in relation to his application for the grant of a betting office licence. Indeed, as already mentioned, the role of the community council as a competent objector is repeated in the appellant's grounds of appeal to this Court.

[5] The true position, however, is that Part II of the 1976 Act (within which section 16 appears) has nothing whatever to do with applications for the grant of betting office licences, and is solely concerned with the grant of licences for the sale or supply of alcoholic liquor. This is manifestly clear when one looks, for example, at section 9(3) and Schedule 1 to the Act which demonstrate that Part II of the Act is solely concerned with public house licences, off-sale licences, hotel licences, and the like.

[6] The only connection which the 1976 Act has with betting and gaming licences is to be found in section 133 which provides that the

"authority responsible for the grant or renewal of bookmaker's permits, betting agency permits and betting office licences ... under the Betting, Gaming and Lotteries Act 1963"

is to be the relevant licensing board as established under Part I of the 1976 Act. That, of course, simply means that licensing boards, as constituted under the 1976 Act, are to have the dual function of dealing with applications for liquor licences and with applications for betting and other licences under the 1963 Act. It does not mean that the provisions of Part II of the 1976 Act are to regulate procedures in respect of applications for licences of the latter kind; and indeed the terminology of the provisions in Part II is entirely inconsistent with such applications and is consistent only with applications for liquor licences.

[7] At the commencement of the appeal hearing in this Court the foregoing matters were put to Mr Woolman and to the advocate depute and, after a short adjournment, they both accepted that section 16 of the 1976 Act has no relevance to the present proceedings. Furthermore, Mr Woolman was able to advise us that, on the basis of some research which he had been able to carry out during the adjournment, the Betting, Gaming and Lotteries Act 1963 - unlike the 1976 Act - does not set out any qualification for an objector. Consequently, a community council does not enjoy in that context a statutorily specified position as a competent objector. On the other hand, it appears that, under the 1963 Act, "any person" may notify an objection in respect of, inter alia, an application for a betting office licence. In the result the appeal hearing proceeded without any further reference to the 1976 Act.

Submissions
[8] The general submission advanced on behalf of the appellant was that the charge in the complaint, even in its amended state, does not sufficiently specify how the community council is said to be "concerned" in the "matter or transaction" there referred to, nor does it sufficiently specify what Mrs Mullen was to do, or to forebear to do, by reason of the inducement allegedly given to her by the appellant. In developing that general submission Mr Woolman began by referring to the relevant statutory background.

[9] Section 1(2) of the Public Bodies Corrupt Practices Act 1889 (the subsection under which the appellant has been charged) is in the following terms:

"Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public body as in this Act defined, doing or forebearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of a misdemeanour."

"Public body" is defined in section 7 of the 1889 Act as meaning, among other things,

"any board ... or other body which has power to act under and for the purposes of any Act relating to local government";

and that definition is further enlarged by section 4(2) of the Prevention of Corruption Act 1916 which provides that "public body" includes "local and public authorities of all descriptions". So far as community councils are concerned, they were established under section 51 of the Local Government (Scotland) Act 1973; and subsection (2) of that section provides that

"the general purpose of a community council shall be to ascertain, co-ordinate and express to the local authorities for its area, and to public authorities, the views of the community which it represents, in relation to matters for which those authorities are responsible, and to take such action in the interests of that community as appears to it to be expedient and practicable".

Taking all of the foregoing provisions together it is clear that a community council is a public body for the purposes of the 1889 Act, and that it has power to take steps, by way of objection or otherwise, in relation to, among other things, an application for a betting office licence in respect of premises within its area. All of that was accepted by Mr Woolman, and he did not seek to find fault with the charge against the appellant on the basis that it was not supported by the relevant statutory provisions.

[10] Mr Woolman also accepted that, in terms of paragraph 11 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995,

"in an indictment or complaint charging a contravention of an enactment the description of the offence in the words of the enactment contravened, or in similar words, shall be sufficient".

However, he went on to submit that, notwithstanding the foregoing statutory provision, it has always been accepted that more than the bare words of a statute may be required in order to ensure that an accused person has fair notice of the charge which he has to face. The need for such added specification was readily accepted by the procurator fiscal depute and by the sheriff at first instance, and we for our part have no difficulty in adopting the same position. The question, however, is: How much additional specification is required in the present case?

[11] In seeking to answer that question Mr Woolman submitted, first, that the charge against the appellant should specify the way, or ways, in which it was alleged that Mrs Mullen would be expected to act, or to forebear from acting, as a result of the gift or inducement allegedly offered to her by the appellant. The use of the words "show favour in respect of" in the charge was simply, it was submitted, an attempt by the Crown to elide the need for specification of the foregoing kind.

[12] In support of these submissions Mr Woolman referred us to Copeland v. Johnston 1967 SLT (Sh. Ct.) 28, and in particular to part of the charge which was under consideration in that case. The case involved an alleged contravention of section 1 of the Prevention of Corruption Act 1906 by an applicant for a liquor licence who was seeking confirmation of an earlier provisional grant. The charge sets out that the accused offered a gift or consideration to a member of the Licensing Court, and it goes on, in the passage founded on by Mr Woolman, to state

"as an inducement or reward for doing an act ... namely voting as a member of the last mentioned Court in favour of the grant of said application by you for confirmation of the grant of said certificate and for showing favour to you".

It was submitted to us that the reference to voting in the passage just quoted provides the kind of specification that is desiderated in the present case. That, it was said, is all the more so since, in the present case, Mrs Mullen is not a member of the licensing board but is at one remove from it as a member of the community council. We are simply not told what she was expected to do from her position as a community council member: and that, it was submitted, amounts to a lack of fair notice in the charge as presently libelled.

[13] Reference was also made to Logue v. H.M. Advocate 1932 JC 1. That was also a case involving an attempt to bribe a member of a Licensing Court and, although the case itself was primarily concerned with whether or not that was an offence at common law as well as under the Public Bodies Corrupt Practices Act 1889, it was brought to our notice principally on account of the fact that the charge, much as in the case of Copeland, spells out in terms that the Licensing Court member would be expected to vote in favour of granting an application at the instance of the accused at the half yearly meeting of the Court. Once again, it was submitted that a similar approach should have been taken by the Crown in the present case. In this connection Mr Woolman also sought support in what is said in the opinion of the Court in Carmichael v. Marks & Spencer PLC 1995 SCCR 781, at 789F to 790C. That, however, was a case dealing with very different statutory provisions, and we do not find it of much assistance in the present case.

[14] Mr Woolman next turned to that part of section 1(2) of the 1889 Act which in effect states that the matter or transaction in respect of which an inducement is offered must be one in which the public body in question "is concerned". Those words are, of course, to be found in the terms of the charge in the present case; but it was Mr Woolman's contention that, in the interests of fair notice, the nature of that concern must be sufficiently specified, and that it is not enough simply to use the words of the statute.

[15] He accepted that the statutory functions of a community council (which we have set out earlier) are such as to create what he called a "tenuous link" with the application made by the appellant, and he also accepted that, even ignoring section 16 of the Licensing (Scotland) Act 1976, the community council might be, or might become, involved in the application to the licensing board. He submitted, however, that the charge should specify in more detail the nature of the community council's actual or likely concern.

[16] In response the advocate depute submitted that, while it is necessary to give an accused person fair notice of the charge, it is enough if the charge makes him sufficiently aware of the allegation against him. Ultimately, it was submitted, it is a question of prejudice, and "lack of fair notice can only be a justifiable complaint if it results in material prejudice" (Lockhart v. National Coal Board 1981 SCCR 9, at 13). The advocate depute advised us that in the present case, and consistently with the manner in which the charge is framed, the Crown position is that, at the material time, the community council was actively involved in a consideration of the application lodged by the appellant. Evidence, he said, would be led to that effect. In relation to the position of Mrs Mullen the advocate depute submitted that the present case was different from those where there had been evidence about specified future meetings, with the consequence that they could be averred in the charge. In the present case the Crown was not in a position to specify what course of action, if any, Mrs Mullen might embark on, nor indeed if any course of action had been embarked on by her at the relevant time. In those circumstances, it was submitted, it was sufficient, both in terms of fair notice and for the commission of the statutory offence, that she had been offered an inducement to act in a manner favourable to the appellant by virtue of her capacity as a member of the community council. Returning to the matter of possible prejudice the advocate depute submitted that it was difficult to see how the appellant could claim that he is likely to be prejudiced. The alleged inducements are clearly set out in the charge; the dates when they are alleged to have been offered are equally clearly set out; and their general purpose is also set out. In that situation, it was submitted, the sheriff was entitled to hold that the complaint was relevant, and accordingly the present appeal should be refused.

Decision
[17] Without much difficulty we have come to the conclusion that the advocate depute's submissions are to be preferred to those submitted by Mr Woolman. Where, as in a case like Copeland, the allegation is that a member of a licensing board was offered a bribe so that he would cast his vote in favour of the accused at a forthcoming meeting of the board, it is of course to be expected that the charge will contain specific averments about that. In the present case, however, Mrs Mullen was not a member of the licensing board, and consequently the manner in which she might have shown favour to the appellant could not, in our opinion, be specified with any precision. That being so, it is sufficient that the charge should simply narrate that the alleged inducements were offered so that Mrs Mullen would "show favour" in relation to the appellant's application. That, in any event, would be sufficient to constitute the statutory offence in question provided, of course, that the Crown is able to prove facts and circumstances from which the inference can properly be drawn that the inducements were made or offered corruptly. So far as the "concern" of the community council is concerned we are of the view that the wording of the charge indicates that the council was actively considering the application at the relevant time; and that reading of the charge has, as indicated above, been confirmed by the advocate depute. In our opinion it is unnecessary to go beyond that and to require the charge to specify in detail the circumstances in which, or the dates on which, the community council actually held meetings for the purpose of discussing that matter, and indeed whether Mrs Mullen attended any such meetings.

[18] In the whole circumstances, therefore, we are of opinion that the charge in the present case gives the appellant fair notice of the allegations which he has to meet. We shall therefore refuse this appeal, and we shall remit the case to the sheriff to proceed as accords.