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Robertson & Ors v. Procurator Fiscal Aberdeen & Anor [2005] ScotHC HCJAC_2 (18 January 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lord Macfadyen

Lady Cosgrove

Lord Philip

[2005HCJAC2]

Appeal No: XJ724/03

XJ725/03

XJ1285/03

OPINION OF LORD HAMILTON

BILLS OF SUSPENSION

MARTIN ROBERTSON and

SEAMUS O'DALAIGH

Complainers;

against

PROCURATOR FISCAL, Aberdeen

Respondent:

and

KEVIN RUDDY

Complainer:

against

PROCURATOR FISCAL, Perth

Respondent:

_______

Appellant: Jackson, Q.C., Mitchell; Blacklock Thorley (Robertson): Davidson, Q.C., Shead;

Drummond Miller (O'Dalaigh and Ruddy)

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

18 January 2005

[35] I agree with your Lordships that these bills should be refused.

[36] It is, in my view, worth noting at the outset the procedural history, according to the relative court minutes, of each of these prosecutions prior to the disposals by temporary sheriffs which are now the subject of challenge.

[37] In the proceedings against Robertson the case first called on 15 January 1999 when the accused pled not guilty to the single charge on the complaint against him. It was thereafter continued on a number of occasions. On 2 June 1999 a sheriff adjourned the diet for trial until 10 August, 28 July being assigned as an intermediate diet. On 28 July the accused confirmed his plea of not guilty and the diet was continued until the trial diet previously fixed. No challenge is presented to any of these procedural orders, some of which may well have been made by temporary sheriffs. When, in accordance with these procedural directions, the case called for trial on 10 August, a temporary sheriff was on the bench. Evidence was led and closed. The Court found the accused guilty as libelled and continued the diet for reports. Ultimately the same temporary sheriff on 30 September 1999 admonished and dismissed the accused.

[38] In the proceedings against O'Dalaigh the case first called on 31 December 1998 when on the motion of the defence it was adjourned without plea until 20 January 1999 for the personal appearance of the accused. Thereafter he pled not guilty by letter and various procedural hearings took place. At an intermediate diet on 5 October 1999 the Court assigned 12 October as a continued intermediate diet. On the latter date a temporary sheriff was on the bench. The accused pled guilty as libelled and was on the same day fined and disqualified from driving by that sheriff. Again no challenge is presented to any of the procedural orders made prior to 12 October, some again of which may well have been made by temporary sheriffs.

[39] In the proceedings against Ruddy the case first called (before a permanent sheriff) on 8 September 1999 when the accused pled guilty to both charges on the complaint against him. The diet was then adjourned to 29 September for the purpose of obtaining certain reports. It was on two later occasions further adjourned, on the second of them (on 6 October) being adjourned until 20 October to enable the accused to attend in person. On that later date a temporary sheriff was on the bench. He made a probation order in respect of one of the charges, admonished and dismissed the accused in respect of the other and disqualified him from driving. No challenge is presented to any of the steps, procedural or otherwise, taken prior to 20 October. At least one of these orders of adjournment (that of 29 September) appears to have been made by a temporary sheriff.

[40] The complainers were right, in my view, not to seek to challenge any incidental orders of a procedural character made by temporary sheriffs. None of these orders involved, in any substantive sense, a determination of any criminal charge. Accordingly, no act of a prosecutor in so advancing the prosecution procedurally before temporary sheriffs was ultra vires by virtue of section 57(2) of the Scotland Act 1998. Nor, in my view, was there any infringement of any of the accuseds' Convention rights by the cases being called on the dates which had been assigned for them as trial or other diets. Had they been called on those days and then adjourned, no complaint could properly have been made (see the disposal ordered by this Court in Starrs v Ruxton 2000 JC 208, per the Lord Justice Clerk at page 231). It is therefore plain, in my view, that not every prosecutorial act before a temporary sheriff is ultra vires. Accordingly, it is of importance in the circumstances of the present cases to identify what were the acts of the prosecutor which were in the event ultra vires. The nature of these acts may assist in characterising the substantive judicial acts which are the subjects of challenge in these bills.

[41] I agree with Lord Macfadyen that there are two sub-categories of the category of decisions susceptible to suspension on account of procedural defect and that these sub-categories are as he describes them. I also agree that there has been an inconsistent use of terminology. For my part, I prefer to reserve the term "nullity" (which imports an incapacity to have any legal effect) for the sub-category where the procedural defect is incapable of being overcome by the express or implied consent of the accused. Decisions within the other sub-category may properly, in my view, be described as "invalid". Adopting that terminology, I now consider the circumstances in which each of the judicial decisions in issue was made - with particular reference to what acts of the prosecutor were ultra vires by virtue of section 57(2).

[42] In the case of Robertson, the first act of the prosecutor challengeable on that basis appears to me to have been the leading by the prosecutor, before a court constituted by a temporary sheriff, of evidence in support of the charge - no doubt followed by an invitation to that sheriff to convict the accused on the basis of that evidence. Some time after conviction Robertson was admonished and dismissed by the same temporary sheriff. It is, however, unnecessary to consider whether what happened on that occasion involved any act by the prosecutor incompatible with the accused's Convention rights since if, for any reason, the conviction was null or invalid, the disposal following conviction would fall to be treated in the same way.

[43] On 12 October 1999 O'Dalaigh pled guilty as libelled before a temporary sheriff. In summary proceedings, in contrast to those on indictment, it is not customary for the prosecutor to make a formal motion for sentence. But, as appears from the report made by the temporary sheriff in relation to O'Dalaigh's appeal against sentence, the procurator fiscal or his depute was physically present at that diet and narrated to that sheriff the circumstances of the offence. From that it may be implied that the prosecutor was inviting the temporary sheriff to sentence the accused. It was that implied act of the prosecutor which was incompatible with the accused's Convention rights.

[44] In the case of Ruddy, similar procedure to that in O'Dalaigh's case no doubt took place before the temporary sheriff on 20 October 1999.

[45] These bills of suspension were remitted to a bench of five judges primarily because of uncertainty as to the possible effect of the decision of the Privy Council in R. v HM Advocate 2003 SC (PC) 21 on the availability in principle of acquiescence as a response to a challenge mounted against determinations made, in respect of conviction or of sentence, by temporary sheriffs. That decision was heavily relied on in the proceedings before us. It founded the contention that the approach adopted by this Court in Lochridge v Miller 2002 SCCR 628 could not stand.

[46] It is important, in my view, to bear in mind what was the issue for decision in R. v HM Advocate. It was whether a plea in bar of trial on certain charges should be sustained. That plea was directed to two charges on the indictment, in respect of which charges the accused had been charged by the police many years earlier. The plea was founded on the contention that the acts of the Lord Advocate in bringing proceedings on indictment against the accused on charges which included these two charges, and in continuing with that prosecution, were to that extent incompatible with the accused's Convention right to a hearing on them within a reasonable time. The case was concerned, accordingly, with an issue raised before trial, not with the legal situation where prosecutions have proceeded to conviction and sentence without any question having been raised in the course of these proceedings of an infringement or prospective infringement of an accused's Convention rights.

[47] In the case of Robertson, the leading of evidence by the prosecutor before a temporary sheriff, and the prosecutor's (assumed) invitation to convict on that evidence, being an act or acts beyond the prosecutor's powers, must, so it seems in light of the majority views in R. v HM Advocate, be regarded as ineffectual in law i.e. the temporary sheriff must be treated as having convicted the accused, who had maintained a plea of not guilty, in the absence of any evidence entitling him to convict (and of any invitation by the prosecutor to convict). Likewise, in each of the cases of O'Dalaigh and Ruddy, the prosecutor's implied motion for sentence made before the temporary sheriff, being beyond the prosecutor's powers, must be regarded as ineffectual in law i.e. the temporary sheriff must be treated as having sentenced these persons in the absence of a motion for sentence (express or implied) having been made by the prosecutor. However, it does not necessarily follow, in my view, that the same qualitative character falls to be attributed to the acts of the court as is to be attributed to the acts of the prosecutor. The prosecutor was disabled by statute from doing the acts which he purported to do. His purported acts may accordingly be described as legally ineffectual (or "null"). The Court was not so disabled. Its judicial acts were vitiated by the disability of the prosecutor. But it is the true character of that vice which requires to be determined for the purpose of deciding whether or not acquiescence is in principle available as a response to a challenge to these acts.

[48] In seeking to determine whether the judicial acts were invalid (and thus open in principle to a plea of acquiescence) or null (and thus not so open), one finds little assistance from decided cases. However, the relationship between the prosecutor and the Court in matters of sentence was considered in Arthur, Petitioner 2003 SCCR 6. There in solemn proceedings the judge had proceeded to impose the mandatory sentence of life imprisonment on a person convicted of murder without first calling on the Advocate depute to address him or waiting for him to make a motion for sentence. An argument that the sentence pronounced in these circumstances was fundamentally incompetent and the situation so created irretrievable was rejected by the Court. It was held that the sentence "proceeded on an irregularity" (para. 16). The sentence was quashed and the case remitted to the trial judge to hear parties on that matter. While that case was concerned with the prosecutor being denied his right to move (or to decline to move) for sentence, rather than his impliedly moving for sentence when he had no power to do so, both situations involved the Court proceeding to sentence without the legally required preliminary of a motion for sentence (express or implied) having effectually been made by the prosecutor to it. The Appeal Court's characterisation of the trial judge's act was that it proceeded on an irregularity, i.e. it was invalid, not that it was a (fundamental) nullity.

[49] In the case of Robertson, the prosecutor acted ultra vires in leading before a temporary sheriff evidence in proof of the charge and inviting that sheriff to convict on that evidence. That act, or those acts, must be regarded in law as ineffectual. But it is not unknown for a prosecutor to lead, and to rely crucially on, evidence which is, on appeal, held, on grounds of unfairness, to have been inadmissible at common law (and accordingly incompetent in law); these same acts of the prosecutor might, at least in some cases, also be ultra vires under section 57(2) - if their result was to deny to the accused his Convention right to a fair hearing. The result on a timeous appeal would be the same; the conviction would fall to be quashed on the ground of a miscarriage of justice. Such a conviction, if not timeously challenged, would be defensible in principle upon a plea of acquiescence, at least in so far as it proceeded on evidence which was incompetent at common law. It would be remarkable (and give rise potentially to uncertainty and confusion) if, in relation to the same evidence, a challenge to conviction were not open to that plea because that evidence had been adduced ultra vires by the prosecutor. While the legal origins of the incompetence are different, the effect (viz. the use of incompetent evidence) is the same. In each case, in my view, the resultant conviction is invalid, but is not a nullity.

[50] Looking at the matter more broadly, it appears to me that the judicial acts challenged in the present bills are not, due regard being had to the circumstances in which they occurred, of the fundamentally flawed character which would justify them being placed within the sub-category of decisions which are null and so not amenable in any circumstances to a plea of acquiescence. The decided cases within that sub-category (involving, as they do, the absence of any offence, lack of jurisdiction and the like) appear to me to be of a much more radical character. On the contrary the decisions complained of were, in my view, invalid and so in appropriate circumstances capable of being acquiesced in.

[51] I agree with Lord Macfadyen that acquiescence is not in all respects directly analogous to waiver, although there are some common features. These include a measure of knowledge and, in light of that knowledge, preparedness to accede to what might otherwise be challengeable. But that measure need not, in my view, be identical. Although the older cases do not involve any thorough analysis of the requirements of acquiescence, it is reasonably plain from them that a significant factor is the public interest consideration of finality of decisions, in particular those made in criminal proceedings. That factor, which has no part to play in relation to waiver, may result in the plea of acquiescence being available where the complainer may have had less information than would have been necessary to found a plea of waiver. Subject to these observations the decision and the reasoning in Lochridge v. Miller are, in my view, sound.

[52] Mr. Davidson submitted in the alternative that, even if the whole proceedings were not a nullity, acquiescence was still not available when the disposal (conviction or sentence) had been made by a tribunal which did not satisfy the Article 6 guarantee. The right to an independent and impartial tribunal was so fundamental that a plea of acquiescence could not, it was submitted, be admitted to an infringement of it. However, for the reasons more fully given by your Lordships, I am satisfied - particularly against the recognition by the Privy Council that in appropriate circumstances the right to an independent and impartial tribunal may be waived - that acquiescence is in principle available in respect of determinations by temporary sheriffs.

[53] For the reasons given by your Lordship in the chair I agree that, in each of the cases before us, the plea of acquiescence has been made out by the relative respondent.

Robertson & Ors v. Procurator Fiscal Aberdeen & Anor [2005] ScotHC HCJAC_2 (18 January 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lord Macfadyen

Lady Cosgrove

Lord Philip

[2005HCJAC2]

Appeal Nos: XJ724/03

XJ725/03

XJ1285/03

OPINION OF LORD MACFADYEN

BILLS OF SUSPENSION

MARTIN ROBERTSON and SEAMUS O'DALAIGH

Complainers;

against

PROCURATOR FISCAL, Aberdeen

Respondent;

and

KEVIN RUDDY

Complainer;

against

PROCURATOR FISCAL, Perth

Respondent;

_______

Complainers: Jackson, Q.C., Mitchell; Blacklock Thorley (Robertson): Davidson, Q.C., Shead; Drummond Miller (O'Dalaigh and Ruddy)

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

18 January 2005

[54] I agree with your Lordships that the plea of acquiescence is available to the respondents in answer to the contention advanced by the complainers that the convictions and sentences complained of, which were pronounced by temporary sheriffs, should be suspended on that account. I also agree that in the circumstances of these particular cases that plea has been made out. I therefore agree that the bills should be refused.

[55] The starting point for consideration of these cases is that it has been held that (in the absence of any form of plea of personal bar) a conviction or sentence pronounced by a temporary sheriff is invalid (Starrs v Ruxton 2000 JC 208). It is, however, in my view worth examining why that is so, before turning to the main issue in these cases, namely whether it is possible for an accused person to acquiesce in such a conviction or sentence, to the effect of barring suspension.

[56] In my view the correct analysis of the ground on which a determination of a criminal charge by a temporary sheriff is invalid is as follows.

A temporary sheriff is not an "independent and impartial tribunal" within the meaning of Article 6 of the European Convention on Human Rights (Starrs v Ruxton).

Trial (including sentence) before a temporary sheriff is therefore incompatible with an accused person's Convention rights.

The Lord Advocate, and those who prosecute in his name or under his authority, have no power to do any act which is incompatible with any Convention right (section 57(2) of the Scotland Act 1998).

In bringing and insisting in a prosecution before a temporary sheriff the prosecutor is therefore acting ultra vires, with the consequence that the prosecution is a nullity (R v H. M. Advocate 2003 SC (PC) 21, per Lord Clyde at 50, paragraph [86], and Lord Rodger of Earlsferry at 63-64, paragraph [128]).
An invalid or null prosecution cannot result in a valid conviction or sentence.
A conviction or sentence pronounced by a temporary sheriff is therefore invalid.

[57] On that approach, it can be seen that the invalidity of the temporary sheriff's determination is a corollary of the prosecutor's lack of power to prosecute before a temporary sheriff. The temporary sheriff has not himself acted ultra vires. These cases were determined before the Human Rights Act 1998 came into force. Had section 6 of that Act been in force at the material time the temporary sheriff's determination would have been, by virtue of that section, an unlawful act on his part. It would not, however, have been ultra vires of him. Before the commencement of the Human Rights Act, but after the commencement of the Scotland Act, the determination of a criminal charge by a temporary sheriff was incompatible with the accused's Convention rights, but not on that account either ultra vires of the temporary sheriff or unlawful. Although Lord Hope of Craighead in Millar v Dickson 2002 SC (PC) 30 referred to temporary sheriffs as being "disqualified" from taking part in the determination of a criminal charge, I agree with your Lordship in the chair that his Lordship must be understood as thereby indicating no more than that a temporary sheriff, not being an independent and impartial tribunal, did not comply with the guarantee afforded by Article 6. In short, the fact that a temporary sheriff was not an independent an impartial tribunal as guaranteed by Article 6 did not, at the material time, mean that, in determining a criminal charge, he acted either unlawfully or ultra vires. That does not, however, alter the fact that his determination was invalid as a consequence of the invalidity of the prosecution.

[58] At the material time, an invalid conviction or sentence by a temporary sheriff could have been prevented if the point had been taken before the conviction or sentence was pronounced. Or it could be set aside afterwards. If, however, the accused was aware at the time of trial or sentence (as the case might be) of points (1) to (4) in paragraph [56] above, and raised no objection to the temporary sheriff proceeding to conviction or sentence, he might be held to have waived his right not to be tried or sentenced by a temporary sheriff (Millar v Dickson). If the plea of waiver was made out on the facts of the case, the accused would be barred from obtaining suspension of the conviction or sentence.

[59] The cases now before the court are concerned with the situation which arises when the accused acquires the knowledge that proceedings before a temporary sheriff are open to challenge only after the conviction or sentence in question has been pronounced. In these circumstances the plea of waiver is not available. The issue which arises for determination is whether, in such circumstances, there is available to the prosecutor a plea of acquiescence which will bar suspension of the conviction or sentence.

[61] In order to determine whether an accused person may be held to have acquiesced in the determination of a criminal charge against him by a temporary sheriff, it is in my view necessary to examine the nature and effect of the procedural defect resulting from the fact that the prosecutor had no power to bring and insist in the prosecution before a temporary sheriff. In my opinion, a procedural defect may have more or less extreme results. In particular, not every procedural defect which has the affect of rendering a decision invalid, in the sense of rendering it susceptible to being set aside by suspension, has the additional effect of excluding the plea of acquiescence. The law has, in my opinion, recognised two sub-categories of the category of decisions susceptible to suspension on account of a procedural defect. One sub-category of such cases comprises cases where, although there has been a procedural defect which prima facie justifies the setting aside of the decision, the decision will be allowed to stand if the person with an interest to have it set aside evinces acceptance of the challengeable decision. Such acceptance may be inferred from the absence of prompt action to challenge the decision once the potential challenger knows everything that he needs to know in order to mount the challenge. The second sub-category comprises cases where the law regards the procedural defect as so serious as to be incapable of being overcome by the express or implied consent of the accused.

[62] This subject is, in my view, complicated by inconsistent use of terminology. Procedural defects may be said to result in decisions which are invalid, void, or null. There is, in my opinion, no clear and consistently recognised difference in meaning among these expressions. What is, however, in my view clear is that there are some defects which prima facie justify suspension, yet may be allowed to stand if the person entitled to challenge them acts in such a way as to give rise to an inference of acceptance, consent or acquiescence; and there are other defects which cannot be cured by acceptance, consent or acquiescence, and will be suspended even if such acceptance, consent or acquiescence can properly be inferred from the inaction of the potential challenger.

[63] The distinction which I have sought to draw in the preceding paragraph is, in my view, implicit in the observations of Lord Justice General Emslie in H. M. Advocate v McDonald 1984 JC 94. His Lordship said (at 101-102):

"There are several situations which our law has long regarded as involving fundamental nullity of proceedings even if the accused has concurred or acquiesced."

The particular defect in question in that case was, however, found to be capable of being waived. That seems to me to make it clear that there are some situations in which the law will regard a defect as so serious that it cannot be waived or acquiesced in, and other situations in which the law is prepared to regard concurrence or acquiescence as curing the defect, in the sense of barring the challenge that might otherwise have been made to the validity of the decision. Support for the distinction may also in my view be found in Shields v Donnelly 1999 SCCR 890, per Lord Justice General Rodger at 894. Examples of cases in which an accused person has been held to be barred from seeking suspension by acquiescence may be found in the older cases cited by your Lordship in the chair, and more recently in Love v Wilson 1993 SLT 948, Storie v Friel 1993 SCCR 955, Cassidy v Friel 1995 SLT 391 and Lochridge v Miller 2002 SCCR 628. That there are cases where the defect is regarded as justifying suspension notwithstanding acquiescence on the part of the accused is supported by Hull v H. M. Advocate 1945 JC 83 per Lord Justice Clerk Cooper at 86. Other examples, cited by Lord Justice General Emslie in H. M. Advocate v McDonald, are Aitkenhead v Cuthbert 1962 JC 12 and Law and Nicol v H. M. Advocate1973 SLT (Notes) 14.