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Cite as: [2005] ScotHC HCJAC_102, [2005] HCJAC 102

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Drummond v. Procurator Fiscal Stirling [2005] ScotHC HCJAC_102 (01 September 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lady Paton

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

[2005HCJAC102]

Appeal No: XJ1827/04

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL

JAMES DRUMMOND

Appellant;

against

PROCURATOR FISCAL, STIRLING

Respondent:

Appellant: Party

Respondent: G.D. Mitchell, A.D.; Crown Agent

1 September 2005

Introduction
[1] This bears to be an appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") in connection with proceedings against the appellant in the District Court of Stirling on a complaint at the instance of the respondent. The complaint libels a contravention of the A84/A85 Trunk Road (Callander) (30 mph Speed Limit) Order 2001 and the Road Traffic Regulation Act 1984 sections 84 and 89 in respect that on 19 January 2003 at Stirling Road, Callander, the appellant drove a motor car, registered number L25ANS, at a speed exceeding 30 miles per hour, namely 46 miles per hour. The appeal called before us on 5 May 2005. The Advocate depute submitted that the appeal was incompetent. After hearing the appellant, we accepted the Advocate depute's submission, and dismissed the appeal as incompetent. We gave orally brief reasons for our decision, but did not issue a written opinion.

[2] The appellant has now submitted a petition to the nobile officium of the court. In a covering letter dated 15 August 2005 he refers to the hearing on 5 May 2005 and requests a full transcript of the decision. Since the brief statement of reasons given on that date was not recorded, that cannot be done. We have therefore been asked if we are willing to provide a written opinion. In order to be of assistance to any court considering the procedure in, or merits of, the petition to the nobile officium, we regard it as appropriate to do so.

The procedural history
[3] The lengthy procedural history of the complaint against the appellant is set out in some detail in the report submitted by the presiding Justice to this court in connection with the appeal. The complaint first called in court on 24 June 2003. As the minutes record, the appellant pled not guilty, the court set a trial diet on 26 August 2003, with an intermediate diet on 12 August 2003, and the appellant was ordained to appear. There then followed a number of adjournments, which the Justice details in his report. Ultimately, at an intermediate diet on 26 October 2004 the Justices adjourned the diet to a trial diet (which had already been fixed) on 9 November 2004 and ordained the appellant to appear.

[4] The appellant then presented a note of appeal. It was presented in the form appropriate to an appeal under section 174 of the 1995 Act (Form 19.1-A of the Appendix to the Act of Adjournal (Criminal Procedure Rules) 1996). The dates of the decisions appealed against were stated as "from 24^th June 2003 to 26^th October 2004". The grounds of appeal alleged that there had been infringement in various respects of the appellant's rights under articles 3, 6 and 7 of the European Convention on Human Rights. It appears from the Justice's report that the point which, on 26 October 2004, the appellant indicated that he wished to appeal was his having been ordained to appear at the trial diet.

The relevant legislation
[5] The primary right of appeal in summary proceedings under the 1995 Act is conferred by section 175 of the 1995 Act. That right of appeal is available, with leave, to "Any person convicted, or found to have committed an offence." Since the appellant has not been convicted or found to have committed an offence, that right of appeal is not at this stage open to him. Section 191 of the 1995 Act provides that in certain circumstances a party to a summary prosecution may appeal by bill of suspension, but that too is a procedure for appeal "against conviction" and is therefore not available to the appellant at this stage of proceedings.

[6] Section 174 of the 1995 Act provides a right of appeal available in certain limited circumstances to challenge certain types of decision made by the court at a stage before there has been a conviction. Section 174(1) is in the following terms:

"Without prejudice to any right of appeal under section 175(1) to (6) or 191 of this Act, a party may, with the leave of the court (granted either on the motion of the party or ex proprio motu) and in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the High Court against a decision of the court of first instance (other than a decision not to grant leave under this subsection) which relates to such objection or denial as is mentioned in section 144(4) of this Act; but such appeal must be taken not later than two days after such decision."

[7] In order to understand the scope of the right of appeal under section 174(1) it is necessary to have regard to the terms of section 144(4), which provides:

"Any objection to the competency or relevancy of a summary complaint or the proceedings thereon, or any denial that the accused is the person charged by the police with the offence shall be stated before the accused pleads to the charge or any plea is tendered on his behalf."

The Crown submission
[8] When the appeal called before us, the Advocate depute intimated that he proposed to submit that the appeal was incompetent. He made four points. First, he submitted that the appeal was not concerned with a decision of the court of first instance of the sort identified in section 144(4), and therefore appeal under section 174(1) was not competent. Secondly, he submitted that if the appeal was concerned with a decision of the sort mentioned in section 144(4), it came too late, because such a point had to be stated before a plea was tendered to the charge, and the minute showed that he had pled not guilty on 24 June 2003 without stating any objection or making any denial of the sorts mentioned in section 144(4). Thirdly, he submitted that an appeal under section 174(1) was competent only with leave of the court of first instance, and no such leave had been obtained. Finally, he submitted that the appeal had not been taken within the two days mentioned in section 174(1).

Discussion
[9] In our opinion the Advocate depute's challenge to the competency of the appeal is well founded. The general scheme of the provisions of the 1995 Act providing for rights of appeal in summary procedure is to confine such rights to the stage after conviction (sections 175 and 191). Section 174(1) makes an exception in allowing decisions on certain issues to be made the subject of appeal at a stage before conviction. But it is only an appeal against a decision of one of the specified kinds that can be raised at that stage. The kinds of decision to which section 174(1) applies are specified in section 144(4). They concern objections to the competency or relevancy of the complaint or the proceedings thereon, or a denial that the accused was the person who was charged by the police. They are in essence points which arise, and ought to be raised, at the outset of proceedings. Section 174 cannot be used as a vehicle for bringing before the court before the proceedings have resulted in a conviction any issue other than those identified in section 144(4). We are of opinion that the Advocate depute was right in submitting that the issues which the appellant seeks to raise in this appeal are not issues of the sort identified in section 144(4), and that the purported appeal under section 174(1) is therefore incompetent.

[10] Section 144(4) requires the issues with which it is concerned to be raised before a plea is tendered. Here, the appellant tendered a plea on 24 June 2003 without raising any section 144(4) issue. Although section 144(4) is qualified by section 144(5) which allows section 144(4) points to be taken late with the leave of the court on cause shown, there is no hint in the minutes in the present case that any attempt was made at any stage to invoke section 144(5) by showing cause for raising such a point late. In so far as the real focus of the appeal is the entirely routine decision made by the Justices on 26 October 2004 to ordain the appellant to appear at the trial diet, the impossibility of raising that point before pleading in June 2003 simply demonstrates that that issue is not one that falls within the scope of section 144(4), and is therefore not one that can competently be made the subject of an appeal under section 174(1).

[11] These grounds are sufficient to dispose of the appeal on the basis that it is incompetent. In doing so, we do not require to consider the third and fourth points taken by the Advocate depute. We would however say this about them. First, it is correct that the appellant has not obtained leave to appeal from the Justices, as required by section 174(1). We note, however, that in the Justice's report he narrates that the court did not grant leave to appeal because the appellant did not formally request it, and that if he had done so the Justice would have looked favourably on the request. Section 174 provides for leave being granted ex proprio motu. There is nothing to indicate that the Justices considered granting leave ex proprio motu. In these circumstances, if we had regarded the appeal as otherwise competent, we would have been disinclined to hold it to be incompetent for want of leave, without remitting to the Justices to consider whether or not to grant leave ex proprio motu. Secondly, in the light of the docquet at the end of the note of appeal, and the further information in that connection which the appellant provided to us at the hearing of the appeal, we would not have sustained the submission that the appeal was not timeously taken.

Decision
[12] In the result, for the reasons given in paragraphs [9] and [10] above, we held that the appeal was incompetent, and therefore dismissed it.