|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lady Cosgrove
Lord Abernethy
Lord Wheatley
Lord Hardie
|
[2006] HCJAC 14
Appeal Nos: XC1005/04
XC998/04
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in
APPEALS AGAINST SENTENCE
by
KENNETH HENDRY
First Appellant;
and
JOHN ROBERT BEATON
Second Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For first appellant: Shead, Miss
Mitchell; Drummond
Miller
For second appellant: Miss Scott QC,
Borthwick; Balfour
& Manson
For the Crown: Murphy QC, AD; Crown Agent
14 February 2006
Introduction
[1] On
8 November 2004 at Greenock
Sheriff Court the appellants pled guilty to the
following charges, as amended:
"On 6 October 2002 at Prospecthill Place, Roxburgh
Street, and elsewhere in Greenock you JOHN ROBERT BEATON, JOHN GAMBLE and
KENNETH HENDRY did with [sic] acting
along with others meantime to the Prosecutor unknown, assault Scott Harper ...
pursue him and did strike him on the head and body with knives and a golf club
or similar instruments to his severe injury and permanent disfigurement
you JOHN ROBERT BEATON did
commit this offence while on bail, having been granted bail on 20 September 2002 and 30 September 2002 both at Greenock Sheriff Court
you KENNETH HENDRY did commit
this offence while on bail, having been granted bail on 4 March 2002 at Greenock Sheriff Court."
On 1 December 2004 the first appellant was
sentenced to two years detention to run consecutively after a sentence of eight
years detention that he was then serving.
The second appellant was sentenced to three years and three months
detention.
[2] Both
appellants were granted leave to appeal against sentence on the question
whether the sheriff had made an appropriate discount in respect of their pleas.
[3] On
30 March 2005 the
appeals came out before a court of two judges.
When the appeals were called, counsel for the appellants attempted to
abandon them. It appears that they had
been instructed to do so by the appellants at a consultation shortly before the
hearing. The court remitted the appeals
to a court of three judges "for consideration of the question of leave to
abandon."
[4] On
18 October 2005 the court
of three judges, having reviewed the law on the question, remitted the appeals
to a bench of five judges for a decision on the question whether an appellant
has the right to abandon his appeal when the case is called, but before any argument
is heard. The answer to the question
matters to the appellants because they are apprehensive that these sentences
might be increased.
Statutory provisions
[5] This
court has the power in an appeal against sentence to quash the sentence and substitute
a greater sentence (Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s
118(4)(b)).
That provision goes back to the foundation of the appeal court (Criminal
Appeal (Scotland) Act 1926).
[6] There
was a time in the professional experience of each of us when that power was
regularly exercised, often in the case of party appellants. But two reforms have had a significant effect
on modern practice. The first is the introduction
in the 1995 Act of the rule that an appeal may be allowed to proceed only if
the court grants leave on the basis that it is arguable (1995 Act, ss 106(1),
107(1)). The second is the conferment on
the Crown of the right to appeal against a sentence on the ground that it is
unduly lenient (1995 Act, s 108). In
consequence of these reforms, the power of the court to increase a sentence ex proprio motu is now rarely
exercised.
[7] Section
116 of the 1995 Act provides inter alia
as follows:
"(1) An
appellant may abandon his appeal by lodging with the Clerk of Justiciary a notice
of abandonment in as nearly as may be the form prescribed by Act of
Adjournal; and on such notice being
lodged the appeal shall be deemed to have been dismissed by the court."
The Act of Adjournal (Criminal
Procedure Rules) 1996 (SI No 513) provides inter
alia as follows:
"15.6 A
notice of abandonment under section 116(1) of the Act of 1995 (abandonment of
appeal) shall be in Form 15.6."
The earlier versions of section 116
provided that the appellant might abandon his appeal "at any time." The omission of these words from section 116(1)
is not material. There is no time limit
on an abandonment.
But despite the breadth of section 116(1) and its predecessors, the
court has recognised that there is a point at which an appellant is no longer
free to abandon at his own option. The
case law suggests two views as to when that point is reached.
The case law
[8] In
West v HM Adv (1955 SLT 425) counsel for the appellant presented his
submissions against a sentence of imprisonment and moved the court to substitute
a probation order. The court declined to
pronounce that order and continued the appeal for a report on the appellant's
suitability for a sentence of preventive detention. The report favoured that sentence. The appellant thereupon craved leave to
abandon. The court refused leave on the
view that the appellant had the right to abandon only up to the point when the
hearing began and counsel addressed the court.
After that point, the dismissal of the appeal was in the discretion of
the court. The court expressed the
principle in the following way:
"It would be a denial of justice to permit an
accused to lodge an application for leave to appeal against sentence, to argue
his appeal in full and when he realises that he will or may very probably fail,
then to permit him to withdraw his appeal and take refuge in what the court may
well consider an inappropriate sentence.
Accused persons who choose to exercise their rights to appeal under the
provisions of the 1926 Act must realise that though they may succeed in
securing a reduction of sentence they also run the risk of a long sentence
being imposed" (ibid, Lord Justice
General Clyde, at p 426).
Although in that case the court had
heard the submission for the appellant, it referred with approval to the
decision of the Court of Criminal Appeal in R
v Gibbon ((1946) 31 Cr App R
143). In that case, under similar
English legislation, the appellant was entitled at any time to abandon by
lodging a notice of abandonment. When
the case was called, counsel at once abandoned the appeal. The court held that he was entitled to do so
at that stage and that it would be unduly severe and technical to insist that he
gave notice in writing. Having described
the circumstances, Goddard LCJ said:
"In those circumstances, as [counsel for the
appellant] told us the moment when the case was called on that he had abandoned
his appeal against sentence, we think that he had a right to do so, and,
therefore, the sentence cannot be increased by this Court. If it had not been for that, and if he
persisted in his appeal, the sentence certainly would have been increased by
this Court" (at p 145).
[9] The
principle that an appellant was entitled to abandon at any time up to the point
when his argument was tendered to the court applied in Scotland until Ferguson v HM Adv (1980 JC 27). In
that case the appellant instructed the abandonment on the morning of the
hearing. When the case was called, and
before he had advanced any argument on the merits, counsel moved for leave to
abandon. The court refused leave and
increased the sentence. The appellant petitioned the nobile officium on the ground that the substituted sentence was
incompetent. The court held that the
exercise of the nobile officium was not appropriate; but it
also expressed the view that the right to abandon was lost once the case had
been called. Thereafter, it was in the
discretion of the court whether or not to grant leave. Lord Justice Clerk Wheatley expressed the ratio decidendi as follows:
"Once the case has called, the Court becomes master
of the procedure. If any motion is made
to the Court thereafter it is a matter for the discretion of the Court whether
it should be granted or refused, unless there is statutory authority governing
the matter. There is no statutory
authority governing the situation here.
In our view our Scottish procedure does not give an absolute right to an
applicant or an appellant to withdraw an Application or an Appeal after the
case has been called and is before the Court provided the motion is made before
the argument in support of the Application or Appeal has started (at p 30) ...
As previously indicated we consider that an
abandonment which carries an automatic dismissal of an Application or an Appeal
can only be achieved if the statutory procedure of section 244 is
followed. If it is not, and the
Application or Appeal is before the Court, as it is when the case is called,
the applicant or appellant has no right under statute or at common law to
abandon the Application or Appeal except with the leave of the Court" (at p
31).
The court declined to follow R v Gibbon
(supra), in which the
circumstances were identical, and distinguished West v HM Adv (supra) on the basis that a full argument
had been submitted in that case before the abandonment was attempted.
Submissions for the parties
[10] Counsel for the appellants submitted that Ferguson v HM Adv (supra) had no basis in authority. If it was correctly decided, counsel could be
required to proceed with an appeal that in his judgment could not responsibly be
insisted in, and to do so contrary to his instructions. There would be no such difficulty if, in
accordance with the view taken in West v
HM Adv (supra), a party could
abandon at any time before his submissions began.
[11] The advocate depute submitted that the rule stated in West v HM Adv (supra) was to be
preferred. There could be many reasons
why advice was tendered to an appellant at a late stage. If an appellant was granted leave to appeal
but was advised at a late stage that the appeal had no realistic prospects of
success, it would be unfortunate if the appeal could not be abandoned without
leave merely because the case had been called.
The practical effects of Ferguson v HM Adv (supra) in relation to
counsel's presentation of such an appeal should be avoided. If an appeal was abandoned before the
appellant was heard on the merits, it could not be said in any meaningful sense
that the appeal had begun.
Decision
[12] In our opinion Ferguson v HM Adv (supra) was wrongly decided and should be
overruled. In that case, the Lord
Justice Clerk stated it to be the law that an appeal could not be abandoned
without leave after it had been called.
There was no trace of such a rule in any of the institutional writers or
in the practice manuals and no authority was cited by the court in support of
it. But there were dicta to the contrary effect in West
v HM Adv (supra). The fact that those dicta were obiter does not, in our view, deprive them of their cogency.
[13] In this case we are not constrained by prior authority and we
have the opportunity to consider the merits of these competing views. The obvious starting point is to consider
what mischief the court is seeking to avoid.
While the power to refuse leave to abandon may be useful in an exceptional
case where an appellant abuses the procedure of the court (eg R v De
Courcy (1964) 49 Cr App R 329), the undoubted purpose of it is to prevent
an appellant from presenting a speculative appeal against a sentence and then abandoning
it when the risk emerges that the sentence may be increased. To serve that purpose, it would be sufficient
if the right to abandon without leave were lost at the point at which
submissions in support of it began.
[14] On the other hand, if an appeal could not be abandoned without
leave after the case had been called, the refusal of leave before a word had
been said on the merits could be construed, however mistakenly, as an
indication that the court had reached a view as to the appropriate sentence. In R v
Gibbon (supra, Goddard LCJ at p 145) the court did exactly that. In our view, a consequence of that kind is to
be avoided.
[15] We are therefore satisfied that the principle set out in West v HM Adv achieves a proper and useful purpose and is sound law.
[16] We should mention two other practical points. The first relates to legal aid. In the course of the discussion counsel for
the appellants suggested that the legal aid fee structure discouraged
consultations with a view to the early abandonment of appeals, with the result
that the first opportunity to abandon often came on the day. That is a side issue that is not for us to
pursue.
[17] The second point relates to the remarks of the Lord Justice
Clerk in Ferguson v HM Adv (supra, at pp 30-31) in which he stressed that for an effective
abandonment written notice was essential.
It is certainly the case that in current practice, many appeals against
sentence are abandoned at the bar. In
such cases, the general practice of the court is to allow counsel to abandon
orally. Notwithstanding section 116 of
the 1995 Act (supra), we consider,
largely for the reasons given in R v
Gibbon (supra), that that
practice is not objectionable.
Disposal
[18] Since the appellants sought to abandon the appeals as soon as
they were called, we consider that their abandonments were valid and
effective. Therefore, in terms of
section 116(1) (supra), the appeals
shall be deemed to have been dismissed by the court.
