Scottish High Court of Justiciary Decisons

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Cite as: 2005 SCCR 407, [2005] HCJAC 55, 2005 GWD 25-475, 2005 SLT 742, [2005] ScotHC HCJAC_55

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Her Majestys Advocate v. Reedie [2005] ScotHC HCJAC_55 (10 May 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Penrose

Lord Macfadyen

[2005HCJAC55]

Appeal No: XC842/03

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

NOTE OF APPEAL AGAINST CONVICTION

GRAHAM JOHN REEDIE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Miss Mitchell; Balfour & Manson

Respondent: Turnbull, QC, AD; Crown Agent

10 May 2005

The conviction
[1] The appellant and Jamie Steven Kerr were indicted for trial at Glasgow Sheriff Court on the following charge:

"On 25 May 2002, you JAMIE STEVEN KERR and GRAHAM JOHN REEDIE did force entry to the house occupied by David and Elizabeth Thomson then aged 74 years and 76 years respectively, at 22 Thurston Road, Glasgow and there assault said Elizabeth Thomson and David Thomson, brandish a knife at them, utter threats, place them in a state of fear for their safety, demand car keys, knock said Elizabeth Thomson and David Thomson to the ground and strike said David Thomson on the hand with said knife, all to his severe injury, permanent disfigurement and permanent impairment, all with intent to rob them."

On 15 May 2003 the case came for trial. The appellant was represented by a solicitor. He pled guilty as libelled. It seems to be agreed that his plea was tendered on the understanding, accepted by the Crown, that he was guilty only on an art and part basis, at any rate so far as the use of the knife was concerned. Kerr adhered to his plea of not guilty.

[2] The Crown called both the appellant and the complainer David Thomson. They were the only eyewitnesses who spoke to the events in the house. The appellant said that Kerr played the leading part and brandished the knife throughout the incident. At the end of the Crown case, the procurator fiscal depute amended the indictment by deleting the words "severe" and "permanent disfigurement and permanent impairment."

[3] Kerr then gave evidence. He said that, unknown to him, the appellant had the knife; that he brought the incident to an end by seizing hold of the appellant and pushing him to the door of the house, and that it had been the appellant's idea that they should go to the house. At the end of the defence evidence, the procurator fiscal depute made a further amendment to the indictment by deleting the words "and strike said David Thomson on the hand with said knife."

[4] The jury convicted Kerr unanimously on the charge in its finally amended form.

[5] Thereafter in a letter to the procurator fiscal the appellant's solicitor raised the possibility of an amendment to the appellant's plea. By letter dated 10 June 2003 the acting principal procurator fiscal depute said the following:

"I have no objection to you amending the plea of guilty as suggested in your letter and as discussed with Mrs Millar I shall place a note in the papers to this effect and I believe the case calls again on 18 June 2003."

Mrs Millar had prosecuted the trial.

[6] At a hearing on 26 June 2003 the appellant's solicitor moved for leave to withdraw his plea of guilty in view of the outcome of Kerr's trial. The Crown submitted that the motion was incompetent. The sheriff refused it on that ground.

The ground of appeal
[7] The appellant appeals against conviction and seeks to withdraw his plea. He proposes to substitute an amended plea under deletion of the words "strike said David Thomson on the hand with the said knife, all to his severe" and the words "permanent impairment."

Submissions for the appellant
[8] Counsel for the appellant submitted that the letter of 10 June 2003 bound the Crown. In terms of that letter the Crown had accepted the substance of the ground of appeal and could not now oppose it. The appellant should be given leave to withdraw the plea of guilty, and to tender an amended plea under deletion of the words to which we have referred, in order properly to reflect the verdict returned against Kerr. The Crown, by amending the indictment during the trial, had accepted that the deleted averments could not be proved. Since it was accepted that the appellant was guilty only art and part, he ought not to have been convicted in respect of those averments.

Submissions for the Crown
[9] The advocate depute submitted that the letter of 10 June 2003 was written after the conclusion of the proceedings against the appellant. At that stage the court was not obliged to accept any concession made by the Crown. The concession that the letter bore to make was one that only Crown Office could make (Murphy v HM Adv, 2002 SCCR 969). In any event, the Crown could not accede to an alteration of a plea of guilty that had been tendered and recorded. If Healy v HM Adv (1990 SCCR 110) left any doubt on that point, the doubt was removed in Rimmer, Petr (2002 SCCR 1). The withdrawal of a plea of guilty could be allowed only in exceptional circumstances (Dirom v Howdle, 1995 SCCR 368). On the appellant's approach, all pleas tendered could be re-assessed in the light of evidence at the trial of another person on the same charge (Howitt v HM Adv, 2000 SCCR 195). The appellant's plea was well-founded. He knew what the facts of the case were. He took part in the assault.

Decision
[10] Unlike a letter sent by or on behalf of the Lord Advocate before trial (eg Thom v HM Adv, 1976 JC 48), the letter of 10 June 2003 was sent at a stage when the proceedings were no longer in the control of the Crown. Even if the writer of the letter had authority to commit the Crown not to object to the proposed amendment, which we doubt (Murphy v HM Adv, supra), the Crown's attitude was not binding on the court (Rimmer, Petr, supra). The letter is therefore irrelevant to this appeal.

[11] A plea of guilty constitutes a full admission of the libel in all of its particulars (Healy v HM Adv, supra). It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court (Dirom v Howdle, supra); nor, in our view, in the light of a subsequent verdict in the trial of another party on the same charge. In view of the conclusive nature of such a plea, it can be withdrawn only in exceptional circumstances (Dirom v Howdle, supra): for example, where it is tendered by mistake (MacGregor v MacNeill, 1975 JC 57) or without the authority of the accused (Crossan v HM Adv, supra). There is little scope, if any, for the withdrawal of a plea that has been tendered on legal advice and with the admitted authority of the accused (Rimmer, Petr, supra).

[12] The submission for the appellant is in essence that if an accused person is convicted of a charge in particular terms, any person who was art and part with that accused cannot be convicted of the same charge in any more extensive terms. That, in our view, is an illogical proposition. If sound, it would mean that if Kerr had been acquitted, the appellant would have been entitled to withdraw his plea in its entirety.

[13] The restriction of the libel in a case such as this could result from many factors: for example, perjury or prevarication by a key witness. The decision of the procurator fiscal depute to restrict the libel did not necessarily signify Kerr's, or the appellant's, innocence of the deleted averments. It merely reflected her assessment of the best verdict that she could achieve on the evidence led.

[14] The appellant did not plead that he was guilty art and part of whatever Kerr should be proved to have done. He pled guilty to the charge outright. The court must proceed, in our view, on the principle that an accused who pleads guilty as libelled to a crime does so because he committed it.

[15] We conclude, therefore, that the proceedings at the trial of the co-accused have no bearing on the appellant's plea. We therefore refuse the appeal.