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Cite as: [2005] HCJAC 122, [2005] ScotHC HCJAC_122

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Her Majesty's Advocate v. Robert Weir [2005] ScotHC HCJAC_122 (16 November 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Kingarth

Lord Wheatley

[2005HCJAC122]

Appeal No: XC626/05

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

NOTE OF APPEAL

HER MAJESTY'S ADVOCATE

Appellant;

against

ROBERT WEIR

Respondent:

_______

Appellant: Mulholland QC, AD, Sol Adv; Crown Agent

Respondent: Thomson, Sol Adv; McArthur Stanton, Dumbarton

16 November 2005

Introduction
[1] This is an appeal by the Crown against a decision of Sheriff Anderson, QC at Dumbarton Sheriff Court by which she sustained the respondent's plea in bar of trial.

[2] On 8 October 2004 the respondent appeared on petition on charges under the Misuse of Drugs Act 1971 and the Firearms Act 1968. The case was continued for further examination and bail was granted. The reference number of the respondent's case, DB04007153, was shown on the petition.

[3] On 21 October 2004 the principal procurator fiscal depute at Dumbarton wrote to the respondent's solicitors enclosing a note of the witnesses so far as then known to the Crown. This letter contained the reference number of the respondent's case.

[4] Among the other cases being dealt with by the solemn administrative team in the procurator fiscal's office in Dumbarton was that of Robert Fox. Its reference number was DB04006291. In due course the procurator fiscal decided that the case against Robert Fox should be marked "no further proceedings."

[5] On 12 January 2005 a clerk in the procurator fiscal's office sent the following letter to the respondent's solicitors:

"Dear Sir

HMA -v- ROBERT WEIR

I refer to the above case and have to advise that we are taking no further proceedings in this case.

Yours faithfully

(sgd) AD

pp L. REVIE

Principal Procurator Fiscal Depute."

This letter bore the reference number of the Robert Fox case. It was sent in error. The clerk had confused the two cases. The parties agree that this letter was not seen by the principal procurator fiscal depute in whose name it ran; that the letter was of a kind that the clerk was authorised to send; and that at the date of the letter no decision had been made that there would be no further proceedings in the case.

[6] The error came to light when the procurator fiscal, by letter dated 22 March 2005, served on the respondent's solicitor the transcript of a police interview in the respondent's case. The respondent's solicitors then relied upon the letter of 12 January 2005. On 17 May 2005 the procurator fiscal depute sent the following letter to the respondent's solicitors.

"Dear Sir

HMA -v- ROBERT WEIR

I refer to previous correspondence and in particular our letter of 12 January 2005.

I must advise you that said letter of 12 January 2005 was sent as the result of an administrative error. It is the Crown's intention to continue with these proceedings.

Yours faithfully,

(sgd) G M Boyd

G M BOYD

Procurator Fiscal Depute."

[7] Thereafter Crown counsel instructed that the respondent should be prosecuted on indictment in the sheriff court. A trial diet was fixed for 15 August 2005.

[8] The respondent's solicitors lodged a plea in bar of trial on the basis that the Crown had renounced its right to prosecute the respondent. On 11 August 2005 the sheriff had a hearing on the plea. The solicitor for the respondent submitted that the Crown was bound by the letter of 12 January 2005. The procurator fiscal submitted that the letter had been sent in error; that no decision had been made to take no further proceedings in the case, and that the letter did not amount to an unequivocal renunciation of the right to prosecute.

[9] The sheriff sustained the plea. In her Report she expresses the ratio of her decision in the following terms:

"Having carefully considered these authorities, and the facts and circumstances of the case before me, I came to the view that the contents of the body of the letter of 12th January 2005 could have only one meaning and that meaning constituted an unequivocal and unqualified announcement to the agents acting for the respondent that no further proceedings were to be taken in the one live case against Robert Weir within the jurisdiction of the procurator fiscal at Dumbarton and in which case the instructed solicitors were Messrs McArthur Stanton. I therefore sustained the preliminary plea and dismissed the indictment."

Submissions for the parties
[10] The advocate depute submitted, first, that no question could arise of the Crown's having renounced the right to prosecute since no decision on the point had been taken. In this respect the case could be distinguished from Thom v HM Adv (1976 JC 48) and Stewart v HM Adv (1980 JC 84). The sheriff had erred in failing to deal with this argument. Secondly, the court was entitled to look behind the terms of the letter in order to ascertain the full background facts (Murphy v HM Adv, 2002 SCCR 969; McGhee v Maguire, 1996 SLT 1012). Thirdly, and in any event, the letter itself was not an unequivocal renunciation of the right to prosecute. It bore a reference number of an unrelated case, as the respondent's solicitors should have realised.

[11] The solicitor advocate for the respondent submitted that, on the face of it, the letter was an official intimation in unequivocal terms, and with the apparent authority of the Crown, that there would be no further proceedings. It was accepted that the letter was sent in error; but the respondent was entitled to take it at face value and the Crown was bound by it. Four months passed before the Crown next communicated with the respondent. The defence could be significantly prejudiced by the letter if the Crown were allowed to go back on it. The case was distinguishable from Murphy v HM Adv (supra) and McGhee v Maguire (supra) since the wording of the letter was unequivocal.

Decision
[12] In our opinion, the sheriff erred. She decided this case on the question whether the letter intimated an unequivocal renunciation of the right to prosecute; but she failed to deal with the logically prior question whether, at the date of the letter, there was a decision to be intimated. In our consideration of the case we are not confined to an analysis of the letter itself. We have to consider the whole background circumstances (McGhee v Maguire, supra; Murphy v HM Adv, supra). Although the clerk had a general authority to issue letters of this nature, that authority could be exercised only when a decision not to prosecute had been made by or on behalf of the Lord Advocate. Since no such decision had been made, the writer of the letter had no authority to send it. Therefore it could not bind the Crown. We conclude, therefore, that the plea in bar of trial is irrelevant.

[13] In the circumstances we need not consider whether the letter unequivocally intimated a renunciation of the right to prosecute. We are not persuaded that if that question had arisen, the noting of the reference number of the Robert Fox case would have affected the apparently clear meaning of the letter.

[14] The plea in bar in this case was not taken on the ground that the continuance of the prosecution was oppressive. Although the solicitor advocate for the respondent touched on that possibility, he did not point to any consideration that might have justified such a plea. It is unnecessary for us to consider in what circumstances, if any, a plea in bar based on oppression might have succeeded in this case.

[15] We shall therefore recall the decision of the sheriff and repel the plea in bar.

Consequential matters
[16] This case would have become time-barred on 8 October 2005. The Crown was unable to proceed with it pending the appeal. We shall grant the unopposed motion of the advocate depute under section 74(3) of the Criminal Procedure (Scotland) Act 1995 and direct that the period from 11 August 2005 to date shall not count towards that time limit.