Scottish High Court of Justiciary Decisons

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Cite as: [2005] HCJAC 26, [2005] ScotHC HCJAC_26

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Carter v. Procurator Fiscal [2005] ScotHC HCJAC_26 (08 February 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Emslie

Lord Cameron of Lochbroom

XJ2141/03

OPINION OF THE COURT

delivered by

THE RIGHT HONOURABLE LORD MARNOCH

in

NOTE OF APPEAL TO THE COMPETENCY AND RELEVANCY

by

CAROLINE CARTER

Appellant

against

PROCURATOR FISCAL, KIRKCALDY

Respondent

_____________

Appellant: Mr C. Shead

Respondent: Mr Bell, A.D.

8 February 2005

[1] This is an appeal under Section 174 of the Criminal Procedure (Scotland) Act 1995 in which the grounds of appeal are in the following terms:

"1. The appellant objected to the competency of the complaint with a plea in bar of trial. The Procurator Fiscal had offered the appellant an alternative to the prosecution by referral to the social work department. The appellant had attended at some of the required appointments, but not all. The Procurator Fiscal then initiated summary proceedings against the appellant including charges in common law form which had clearly originated as statutory offences.

2. Having heard the appellant's agent and the respondent's depute, the Sheriff deferred his decision until 17 November when he issued a written decision. Finding there to be no oppression and allowing the case to proceed, leave to appeal was granted and then the appellant tendered a not guilty plea.

3. The appellant appeals against that decision on the basis that he reached the wrong decision in rejecting the preliminary plea and that on the following grounds -

(i) The Sheriff misdirected himself as to the test to be applied in these matters. In particular he failed to take into account the lack of clarity and precision in the respondent's offer of an alternative prosecution. He failed to adequately consider the respondent's use of words such as 'instead of' and 'alternative' when considering the import of the offer made. As a result, the impression given of the letters referred to in his judgement was of an option which replaced prosecution.

(ii) The sheriff failed to adequately address the respondent's failure to abide by his own time limits and, in particular, their (sic) failure to review the case at the date stated and the impression left for the appellant thereafter.

(iii) The Sheriff failed to place adequate weight in coming to his decision on the failure by the respondent to prosecute within time limits set by statute resulting in the loss of statutory offences."

[2] In answer to these grounds of appeal the Sheriff has reported that there is nothing which he wishes to add to the terms of his earlier written judgment issued on 17 November 2003. This is not surprising since that judgment was apparently written in the knowledge that, however he decided the matter, the intention was to appeal the proceedings to this Court by way of a "test case". In the result, we wish to pay tribute to the exemplary manner in which the Sheriff has set out the arguments advanced to him and his reasoning in relation to these arguments.

[3] Before us, despite the best endeavours of counsel, very little new has emerged. Mr Shead did, however, at one point submit that the first letter written by the Procurator Fiscal to the appellant dated 4 September 2002 could properly be read without reference to the enclosed "explanatory note" and that, so read, it amounted to an unequivocal renunciation of the right to prosecute. He also submitted that the test of "oppression" should in some unspecified way be enlarged beyond that presently recognised in the authorities. These submissions we reject. For the rest, we content ourselves with respectfully adopting the Sheriff's reasoning in its entirety.

[4] In the result, the present appeal is refused and we shall remit back to the Sheriff to proceed as accords.

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