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Cite as: [2004] ScotHC 65

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Watson v. Procurator Fiscal [2004] ScotHC 65 (26 October 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Philip

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

Appeal No: XJ555/04

OPINION OF THE COURT

delivered by LORD MARNOCH

BILL OF SUSPENSION

ROSALIND WATSON

Complainer;

against

PROCURATOR FISCAL, Perth

Respondent:

_______

Appellant: R. Renucci; Drummond Miller

Respondent: J. Gilchrist, ad hoc A.D.; Crown Agent

26 October 2004

[1] The complainer seeks suspension of her convictions on charges of assault and a breach of section 2 of the Road Traffic Act 1988 on the ground of an alleged breach at her trial of section 161 of the Criminal Procedure (Scotland) Act 1995 which is in the following terms:

"In any trial the accused, or where he is legally represented, his counsel or solicitor shall have the right to speak last."

In that connection, it is said that at the conclusion of the defence submissions the sheriff invited the procurator fiscal depute to address him for a second time and then, immediately, and without calling on the complainer's solicitor to address him further, stated that he was satisfied with the Crown evidence and convicted the complainer of both charges on the complaint. It is further maintained that the conduct of the sheriff was in the circumstances "oppressive" and resulted in justice either not having been done or, at least, not having been seen to be done.

[2] In Answers lodged to the Bill the Crown avers that, before convicting the complainer, the sheriff paused and spent some time considering his view before announcing his verdict. In these circumstances it is contended that the complainer's solicitor had every opportunity to indicate to the court that he wished to address the court further had he wished to do so. Although the sheriff did not expressly invite the complainer's solicitor to address him further this, according to the Crown, did not amount to a "denial" of the complainer's solicitor's "right" to speak last. In any event, even if there was a breach of section 161 of the Criminal Procedure (Scotland) Act 1995, this did not, in the circumstances, amount to conduct which was "oppressive" or result in justice either not being done or not being seen to be done.

[3] In his helpful Report to this court the sheriff explains fully just what occurred. His Report, so far as relevant is in the following terms:

"Grounds for suspension of conviction

The complainer seeks suspension on the grounds that I denied the Complainer's solicitor the right to speak last and that in doing so I failed to comply with the terms of Section 161 of the Criminal Procedure (Scotland) Act 1995.

Statement of Fact 4 records:-

'At the conclusion of the evidence the Procurator Fiscal Depute then addressed the Sheriff in relation to the evidence led.'

In fact at that stage the Procurator Fiscal Dispute (sic) did not address me on the evidence in any meaningful sense. Her approach was simply to observe that there was a sharp conflict between the evidence of the two Crown witnesses and that of the Complainer, that I had heard the evidence and it was a matter for me as to whose evidence I should believe. She invited me to prefer the evidence of the Crown witnesses. I found this surprising. In a very able cross-examination the Complainer's solicitor had made it clear, to me at least, the points which he would be making in his submissions in regard to the reliability and credibility of the Crown witnesses. For example it had only emerged in cross-examination of Mrs Mooney (sic) that both before and after the events of 24^th December 2002 she and her husband had made statements to a Sunday newspaper. It also emerged in cross-examination that Mr Rooney had with him a camera and had taken a photograph of the Complainer. It was also disclosed that when the Rooneys attended at the local Police Station to report the incident Mr Rooney was present while Mrs Rooney gave her initial statement to the police. The inference was that Mr Rooney's evidence was thereby tainted.

Before hearing from the Complainer's solicitor I asked the Procurator Fiscal Depute whether or not there was anything that she could say that might assist me in assessing the reliability and credibility of the three witnesses. Apparently there was nothing.

I then proceeded to hear very able submissions from the present Complainer's solicitor. As I expected these principally comprised submissions in regard to the credibility of the witnesses. Among these was an observation that neither of the Crown witnesses had volunteered their involvement with the Sunday newspaper until this was put to them; in Mrs Rooney's case in cross-examination and in Mr Rooney's case when this was put to him by Procurator Fiscal Depute.

I thought it appropriate in the circumstances to afford the Procurator Fiscal Depute an opportunity comment on the defence submissions.

It is correct that the Procurator Fiscal Depute did address me further albeit briefly. She said nothing of any moment. The only point which I was able to note was in relation to the Crown witnesses' dealing with the Sunday newspaper. The Procurator Fiscal Depute observed that when the matter was raised with them the Crown witnesses did not deny the involvement of the Sunday newspaper. Beyond that the Procurator Fiscal Depute did nothing more than urge me to believe the Crown witnesses. It did not appear to me that anything had been said that required comment. The present Complainer's solicitor gave no signal that he wished to do so.

With reference to Statement of Fact 5 while it is correct that I did not call the Complainer's solicitor to address me in response to the Procurator Fiscal Depute's further submissions I did not immediately convict the Complainer. There was a lengthy pause during which I reflected on the Complainer's solicitor's submissions. I recollect leafing through the pages of my notebook. It would have been obvious to anyone that I was in the course of finalising my decision. Before convicting the Complainer I asked her to stand up. That was a clear signal that I was about to issue a decision. At no stage did her solicitor give any indication that he wished to say anything further. I would observe that throughout the trial he displayed an admirable willingness to express his views on the proper conduct of proceedings and at no stage did I say or do anything that would have discouraged him from doing so again."

[4] In the course of the hearing before us nothing, as such, was made of the fact that the sheriff invited the procurator fiscal depute to address him on a second occasion. However, it is obvious that this is not normal practice and, while there may well be circumstances making it appropriate to seek clarification from the Crown on matters arising out of the closing speech on behalf of the accused, this is clearly something which should be done with some delicacy.

[5] As to the submissions which were made before us on behalf of the complainer, logically the first question is whether there was or was not a breach of section 161 of the 1995 Act. While, however, that is logically the first question in the case, it is, we think, dangerous to attempt an answer in generalised terms. We say that because there may be a variety of circumstances, not readily foreseeable, in which the proper inference is that, for one reason or another, the section has been breached. That said, in so far as the section confers a "right" on the accused or his representative, it seems to us that in the normal case the proper approach is to pose the question whether that right has, in substance, been denied to the accused; and, if the accused's representative does not seek any further reply to the Crown submissions, the answer to that question may well be in the negative. This was the approach of the court as long ago as 1878 when the matter was governed by earlier legislation, if not by the common law - Watson and Another v. Stuart 1878 4 Coup. 67 - but even in recent times a similar approach seems to be implicit in the reasoning of the court in the cases of Duffin v. Normand 1993 S.C.C.R. 864 and Hendrie v. Henderson 1994 S.C.C.R. p. 505. In the present case, for the reasons given by the sheriff, we have serious doubts whether there was, indeed, any actual breach of the provisions of section 161 of the 1995 Act.

[6] It is, however, unnecessary to decide the case on that basis because, even if there were a breach, we are clearly of opinion, first, that any such breach does not automatically lead to the proceedings being regarded as null and, second, that in the circumstances of the present case there was no oppression on the part of the sheriff and justice was both done and seen to be done. As to the first branch of that proposition we reject the submission of counsel for the complainer that the use of the word "shall", in section 161 is determinative. Far more important is the nature of the provision itself. In that connection, there are certainly some statutory provisions which, of their nature, are peremptory and mandatory (e.g. section 92(1) of the 1995 Act), breach of which will result in a miscarriage of justice regardless of the presence or absence of prejudice - Drummond v. H.M. Advocate 2003 S.C.C.R. 108. In our opinion, however, section 161 of the 1995 Act does not fall into that category and instead is more of a directory nature in the sense, at least, that breach does not ipso facto result in nullity; cf. H.M. Advocate v. Graham 1985 S.C.C.R. 169; Robertson v. H.M. Advocate 1995 S.C.C.R. 152 (particularly in the Opinion of Lord Kirkwood). That being so, whether breach of the section results in a miscarriage of justice must depend on the particular facts of the case in hand. In the present case, no actual prejudice is claimed and, in our opinion, it cannot be said that the informed observer would have thought other than that justice was seen to be done. In particular, we have in mind that part of the sheriff's Report which tells us that in her second address the procurator fiscal depute said nothing of any moment and nothing which the sheriff thought required further comment. His notes taken at the time confirm that that was indeed the case.

[7] For all the foregoing reasons this Bill is refused.