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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Nimmo Smith
C.G.B.
Nicholson, CBE, QC,
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[2007] HCJAC 45
Appeal Nos: XJ 1317/06
XJ 1316/06
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEALS UNDER SECTION 174
OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
in causis
(1) JOHN GORDON
Appellant;
against
PROCURATOR FISCAL, DUNDEE
Respondent:
and
(2) DONALD CONWAY
Appellant;
against
PROCURATOR FISCAL, DUNDEE
Respondent:
_______
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Appellant: Shead; Purdie and Co;
Respondent: Bain, A.D.; Crown Agent
27 July 2007
Background
[1] The
present appellants were each charged, on separate complaints, with a breach of
an antisocial behaviour order ("ASBO") contrary to section 9(1) of the
Antisocial Behaviour Etc. (Scotland) Act 2004
("the Act"). In the case of John Gordon, the ASBO had been made at Dundee
Sheriff Court on 16 May 2006, and the breach was alleged to
have taken place on 15
September 2006. In the case of Donald Conway the ASBO had been made
at Dundee Sheriff Court on 13 December 2005, and the
breach was alleged to have taken place on 10 June 2006.
[2] The
precise details of those charges are not of importance for present purposes.
What is of importance is that in each case an identical plea to the competency
of the charge was taken. Those pleas were argued before the sheriff, by the
same solicitor representing both accused, in a single hearing which took place
at Dundee Sheriff Court on 19 September 2006. The
sheriff repelled the plea to competency in each case but granted leave to
appeal to this Court. In the circumstances we heard both appeals together; and
at the hearing both appellants were represented by the same counsel. At the
conclusion of the hearing we refused the appeals and indicated that our reasons
would be given in writing at a later date. Those reasons now follow.
[3] The
point at issue before the sheriff, and again before ourselves, arises from the
fact that each appellant was originally charged by the police with a charge of breach of the peace and with a contravention
of section 9(1) of the Act. In the case of John Gordon that took place on 15 September 2006, and in
the case of Donald Conway it took place on 10 June 2006. Subsequently, as has already been noted above, each
accused was charged on complaint solely with a contravention of section 9(1).
In each case the charge of breach of the peace and the charge of contravention
of section 9(1) of the Act both arose from the same species facti.
Putting it shortly for the moment, the submission advanced on behalf of the
appellants was that the present proceedings are fundamentally null in that the
Crown has acted otherwise than in accordance with the terms of section 9(3) of
the Act. To understand that submission it is necessary to have regard to the
relevant statutory provisions.
The statutory provisions
[4] Section
9(1) of the Act provides:
"Subject to
subsection (3), a person who -
(a) is subject to an antisocial behaviour
order or an interim order; and
(b) without reasonable excuse, does anything
that the order to which the
person is
subject prohibits the person from doing,
shall be
guilty of an offence."
Subsection (3) provides:
"If -
(a) otherwise than under subsection (1), the
thing done by the person
constitutes
an offence (a 'separate offence'); and
(b) the person is charged with the separate
offence,
the person
shall not be liable to be proceeded against for an offence under subsection
(1)."
The remaining provisions of section
9 set out various matters which a court may take into account when sentencing
for a 'separate offence'. These include the fact that the person in question
was subject to an ASBO at the time when the new offence was committed. The
existence of that ASBO must, however, be libelled in the indictment or
complaint.
Submissions
[5] Mr
Shead's submissions on behalf of the appellants began with the proposition
that, in the absence of any provision to the contrary, the word "charged", as
used in subsection (3)(b), must include a charge by the police. Consequently,
where, as in the present cases, a person has been charged by the police with a
breach of the peace and a contravention of section 9(1), with both charges arising
from the same alleged facts, it will not be competent for the Crown to proceed
against that person for the offence under subsection (1). In support of that
submission Mr Shead noted that in practice it is commonplace for the police to
charge a person in advance of reporting the matter in question to the
procurator fiscal. In that situation, he submitted, it must be supposed that
the Parliament had that practice in mind when passing what is now subsection
9(3)(b), and therefore intended that the word "charged" should include a charge
at the instance of the police. Accordingly, he submitted that, on a sound
construction of the subsection, a person who has been charged by the police
with a contravention of section 9(1) and with a breach of the peace arising
from the same facts and circumstances cannot thereafter be competently
proceeded against by the Crown in respect of the offence under subsection (1).
Mr Shead recognised, correctly in our view, that the underlying purpose of
subsection (3) is to avoid the double jeopardy which would arise if a person
were to be liable to be convicted twice in respect of, in effect, the same
actings or course of conduct; but he submitted that the protection against that
will arise both where a person has been charged at the instance of the Crown
with a section 9(1) offence and a "separate offence" and also where such
charges have been at the instance of the police.
[6] In
response, the advocate depute began by noting that the word "charged" is
nowhere defined in the 2004 Act. In particular, she observed, that word is not
defined so as to include charging of a suspect by the police. On the other
hand, she drew our attention to the fact that in various other parts of the Act
the word "charged" is used in a context which makes it plain that it must
relate to a charge contained in proceedings instituted at the instance of the
Crown. Examples of that are to be found in sections 45, 93, 111, 122 and 123.
These are all provisions which set out a defence in respect of an offence created
by the Act, and they are all expressed in terms such as "It shall be a defence
for a person charged with an offence ... to show ... [a reasonable excuse, or
whatever]". The advocate depute submitted that, since the opportunity to
advance a special defence will arise only in the course of proceedings which
have been instituted by the Crown, it is plain from the examples given that the
word "charged", as used there, can only refer to a charge at the instance of
the Lord Advocate or the procurator fiscal. That being so, she submitted, there
can be no reason to conclude that the word was intended to have any different,
or wider, meaning where it appears in section 9(3)(b). In other words, it was
submitted, the word "charged", as used throughout the Act, simply means
"proceeded against".
[7] The
advocate depute went on to submit that, when the legislation was enacted, it
cannot have been the intention of the Parliament to fetter the discretion of a
procurator fiscal or the Lord Advocate. In that connection she referred to Huston
v. Buchanan 1994 SCCR 512. That was a case in which the police had stated
that they were taking no action against the accused. However, it was held on
appeal that whatever the police may have said could not bind the Crown or
constitute any bar to proceedings being taken by the Crown. The advocate depute
recognised that the case of Huston was not concerned with a question of
statutory interpretation. However, she submitted that the general principle
enunciated in that case is of equal relevance and importance in cases like the
present ones where a fettering of the Crown's discretion arises from a possible
construction of a statutory provision. In practice, the advocate depute
submitted, a charge at the instance of the police simply gives a suspect fair
notice of what may follow thereafter, and provides that suspect with an early
opportunity to make an exculpatory statement. It cannot foreclose the Crown's
options. In that connection, the
advocate depute also made reference to a passage in Gordon's Criminal Law
(3rd ed.) p. 529 (para. 36.06) where, in relation to section 5(5) of
the Criminal Law (Consolidation) (Scotland) Act 1995
(intercourse with girl under 16), it is said:
"In
practice, therefore, a man may not be regarded as having been 'previously
charged' with an offence unless he had previously stood trial for it."
She founded on this passage as
support for the view that, in the absence of a clear definition to the
contrary, the word "charged", when used in a statute, will not include a charge
at the instance of the police.
Decision
[8] In
our opinion, the submissions advanced by the advocate depute are to be
preferred to those advanced on behalf of the appellants. Section 9(3) of the
2004 Act has, we think, been somewhat carelessly drafted and, simply as a
matter of grammar, it may be capable of being construed in the manner proposed
by Mr Shead. However, we are of opinion that, in the absence of a clear
indication to the contrary, it cannot properly be construed so as to fetter the
undoubted discretion of the Crown in relation to matters which are ultimately
made the subject of court proceedings. The discretion accorded to the Crown in
such matters is absolute in the absence of a clearly expressed restriction or
limitation. Thus, for example, if, in circumstances different from those in the
present appeals, the police were to charge someone in terms which were
incompetent - possibly because they had founded the charge on a statutory
provision which was no longer in force - it could not, in our view, be
contended that the Crown would thereafter be prohibited from charging that
person under the correct, and current, statutory provision. In our view,
therefore, section 9(3) of the 2004 Act must be construed in a manner which
preserves the Crown's discretion.
[9] It
is important to add, however, that the construction of the subsection which we
consider to be correct does not in fact cause any prejudice to an accused
person. As was accepted by Mr Shead, and by the advocate depute, the purpose of
the provision is plainly to avoid double jeopardy, that is to say a situation
where an accused person would be at risk of being punished twice for what was
in effect precisely the same conduct. Such
a risk cannot arise solely by virtue of any charge or charges which may be
proffered by the police: it will arise only in the course of proceedings at the
instance of the Crown. But, in the present cases, the Crown has quite properly
recognised that risk, and has given effect to the purpose of section 9(3) by libelling
only a charge under section 9(1) in the complaints served on the appellants. In
our opinion, those charges are not incompetent; and, having refused the
appeals, we shall now remit both cases to the sheriff to proceed as accords.
