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Cite as: [2005] HCJAC 120, [2005] ScotHC HCJAC_120

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McCulloch v. Procurator Fiscal, Ayr [2005] ScotHC HCJAC_120 (25 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith

Lady Smith

C.G.B. Nicholson, CBE, QC,

[2005HCJAC120]

Appeal No: XJ1040/05

OPINION OF THE COURT

delivered by C.G.B. NICHOLSON, CBE, QC

BILL OF SUSPENSION

AARON PETER McCULLOCH

Complainer;

against

PROCURATOR FISCAL, AYR

Respondent:

_______

Appellant: Brown; Bishops, Glasgow

Respondent: Ms. Dorothy Bain, A.D.; Crown Agent

25 October 2005

Background
[1] The complainer in this Bill of Suspension was born on 2 March 1988. On 11 January 2005 (when he was still 16 years of age) he appeared before the sheriff at Ayr in respect of a complaint which libelled four charges under the Road Traffic Act 1988. The offences in question were alleged to have been committed on 29 August 2004 (though one of them, possibly because of a typographical error, is stated to have been committed on 26 August that year). The charges were: (1) a contravention of section 178(1)(a) of the Act (taking and driving away a motor vehicle); (2) a contravention of section 87(1) of the Act (no licence because under-age); (3) a contravention of section 143(1) and (2) of the Act (no insurance); and (4) a contravention of section 3 of the Act (careless driving). The complainer tendered pleas of guilty to all four charges, and at that stage the sheriff adjourned the proceedings in order to obtain a social enquiry report and (having regard to the complainer's age) the advice of the children's hearing.

[2] At the next calling of the case, on 8 February 2005, the sheriff had before him a social enquiry report and a document containing the advice of the children's hearing. The document from the children's hearing advised the court

"to remit the case back to the hearing for disposal because Aaron could benefit from one to one input from Social Work Department and/or involvement from SACRO could also be an important component of support".

A remit to a children's hearing is expressly provided for in section 49 of the Criminal Procedure (Scotland) Act 1995.

The statutory provisions
[3] So far as relevant in the circumstances of the present case, section 49 of the 1995 Act provides:

" ...

(6) Where a person who is -

(a) not subject to a supervision requirement;

(b) over the age of 16; and

not within six months of attaining the age of 18,

is charged summarily with an offence and pleads guilty to, or has been found guilty of, the offence the court may request the Principal Reporter to arrange a children's hearing for the purpose of obtaining their advice as to the treatment of the person.

(7) On consideration of any advice obtained under subsection (6) above, the court may, as it thinks proper -

(a) itself dispose of the case; or

(b) where the hearing have so advised, remit the case to the

Principal Reporter for the disposal of the case by a children's hearing."

The disposal selected by the sheriff
[4] Having received the advice of the children's hearing, as provided for in section 49(6), as set out above, the sheriff tells us in his Report that he

"decided that the best course was to refer the complainer to the Children's Panel to obtain the advice and guidance which he required at the age of 16 and with a history of not applying himself in any way at school and indeed being a disruptive influence".

The sheriff goes on to say that, having taken the foregoing decision, he then proceeded to deal with the complainer's driving licence. He did so by imposing a disqualification from driving for a period of one year. In deciding to take that course the sheriff took account of the seriousness of the offences which were before him. He thought it important to bring home to the complainer the seriousness of his offending, and to recognise the public safety aspect by trying to ensure that he did not take to the road again until he was properly qualified to do so. In the result, therefore, what the sheriff did was, more or less simultaneously, to refer the complainer to the children's hearing for disposal of the case and to impose a disqualification from driving in respect of all of the charges in the complaint. The sheriff himself tells us that it was not suggested to him by the procurator fiscal or the defence solicitor that there was any incompetence in "dealing with the driving licence aspect while remitting to the Children's Hearing". However, the competency of what the sheriff did has been challenged in the present Bill of Suspension.

[5] In his Report the sheriff recognises that a children's hearing has no power in road traffic cases to order endorsement of a licence or disqualification from driving. That being so, he goes on to state:

"It seems logical that a prosecution should come before the Sheriff who could then deal with the driving licence by way of disqualification or penalty points and could then remit the child to the panel for advice and guidance".

The sheriff has not, however, suggested that there is any authority which supports the competency of the course which he took.

Submissions on the matter of competency
[6] For the complainer, Mr Brown's primary submission was that section 49(7) of the 1995 Act does not permit of any other construction than that, where a sheriff has obtained the advice of the children's hearing, there are two alternatives open to him or her. Either the sheriff may dispose of the case or, where the hearing have so advised, the case may be remitted to the Principal Reporter for the disposal of the case by a children's hearing. The words "dispose" and "disposal", it was submitted, include all aspects of how a particular case is dealt with. Consequently, where a sheriff decides to dispose of a case himself or herself, that must involve dealing with the case in its entirety; and likewise, where the sheriff decides to remit a case for disposal by a children's hearing, that must involve the hearing dealing with the case in its entirety, or at least to the full extent permitted by law. Nothing in the subsection, it was submitted, permits a sheriff to dispose of a case in part and to remit to a children's hearing for disposal of the remainder.

[7] Mr Brown went on to suggest that there may be some degree of conflict between the provisions of section 49 and those provisions in the Road Traffic Offenders Act 1988 which have a mandatory requirement for the imposition of penalty points or, in some instances, disqualification in respect of certain road traffic offences. That conflict, he suggested, would become apparent in cases involving road traffic offences if such cases were to be remitted to a children's hearing, given that a hearing has no power to order the imposition of penalty points or a disqualification from driving. In our opinion, however, there is in fact no such conflict since, in cases where penalty points or disqualification are mandatory, or indeed discretionary, section 49 provides the opportunity for such cases to be dealt with by the sheriff who has all the necessary powers.

[8] The Crown's position in relation to this appeal, as set out in the Answers, was that there is nothing inherent in section 49 to preclude the court from remitting a case to the children's hearing for disposal but at the same time imposing a period of disqualification. However, at the hearing of the appeal the advocate depute departed from that assertion; and she accepted that, properly construed, section 49 permits a sheriff to do one of two things, but not to do part of both. She also advised us that there are Lord Advocate's Guidelines to the effect that, where a young person who is 15 years of age or over is charged with an offence or offences which may give rise to disqualification, such a case must be reported by the police to the procurator fiscal for prosecution. That suggests to us that, at least in the view of the Lord Advocate, it is necessary that such cases should be disposed of in the courts since only they can impose a period of disqualification.

Decision
[9] We have no hesitation in concluding that the construction of section 49 which was advanced by Mr Brown, and which was at the end of the day accepted by the Crown, is correct. In our opinion the words used in section 49(7) can only mean that, when a person of the relevant age is prosecuted in court, and where the children's hearing has advised that the person should be remitted to them for disposal, a sheriff has two choices open: either to dispose of the case in its entirety himself, or to remit the case, again in its entirety, to the hearing for disposal by them. There is nothing in the provision to support the view that a sheriff can, as it were, "cherry-pick" so as to deal with part of the disposal himself while remitting the remainder to the hearing. That being so, it is clear that the sheriff in the present case was in error when he imposed a disqualification while at the same time remitting the case to a children's hearing for disposal. The question then, however, is: how should the present appeal be disposed of?

[10] Mr Brown submitted that, if we were to be with him on the matter of statutory construction, we should simply quash the order for disqualification made by the sheriff: and that is in fact the outcome which is sought in the Bill. The advocate depute, on the other hand, submitted that, since it was competent for the sheriff to impose a period of disqualification, we could cure matters simply by suspending that part of his decision which involved remitting the case to a children's hearing. We are not attracted by either of those suggested solutions. In our opinion, the whole of the sheriff's purported disposal of the case is vitiated by the error into which he fell, and we have therefore come to the conclusion that the only proper course is to recall the whole of his decision as set out in the minute of 8 February 2005, and to refer the case back to the sheriff for disposal de novo in the light of what is contained in this Opinion.

[11] Since the complainer is now within six months of attaining the age of 18 the sheriff will no longer have available the disposal provided by section 49(7)(b) of the 1995 Act. However, that may not be significant given that his earlier remit to the children's hearing does not appear to have had any practical consequence since, as appears from papers attached to the Bill, the hearing in fact unanimously discharged the referral on 24 March 2005 notwithstanding the fact that they had earlier recommended to the sheriff that he should remit the case to them. In disposing of the case himself the sheriff will, no doubt, have regard to the fact that the disqualification which he imposed on 8 February 2005 was not suspended ad interim until 13 July 2005 with the consequence that a little over five months of the disqualification has already been served.

[12] In conclusion we consider that we should add a further comment. Although, for the reasons given above, we have allowed this appeal, we are not unsympathetic to the approach taken by the sheriff in this case. It seems to us that, from time to time, there may be cases involving young people where it is in the public interest that there should be a period of disqualification from driving while at the same time it may be in the offender's interests, and in the longer term in the wider public interest, that the young offender should have the benefit of being supervised by a children's hearing. Such a course is, as we have explained, not competent under existing legislation. However, it may be that Scottish Ministers would wish to consider this should an opportunity for amendment of the relevant provisions of the 1995 Act arise at some time in the future.