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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
C.G.B.
Nicholson, CBE, QC,
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[2007] HCJAC61
Appeal Nos: XJ 292/07 and XJ294/07
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEALS BY BILLS OF
SUSPENSION
in causis
DAVID MICHAEL McDONAGH
Complainer;
against
SCOTT PATTISON,
Procurator Fiscal, Paisley,
Respondent:
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Appellant: Ogg, Solicitor Advocate; Balfour + Manson
LLP
Respondent: Bolland, QC,
A.D.; Crown
Agent
18 September 2007
Background
[1] On
22 November 2006 a sheriff
at Paisley Sheriff Court was
invited by the Procurator Fiscal there to grant what are commonly known as "initiating
warrants" in two complaints against the present complainer. In terms of section
139(1)(b) of the Criminal Procedure (Scotland) Act 1995
a judge of a court in which a complaint is brought has power, on the motion of
the prosecutor, "to grant warrant to apprehend the accused where this appears
to the judge expedient". This is an alternative to citation by other means such
as citation by post or delivery by an officer of law at an accused person's
dwelling house. The consequence of proceeding by way of an "initiating warrant"
is that an accused person may be arrested and brought to court to answer a
charge rather than merely being required to respond to a citation which has
been brought to his or her attention by more informal means. Quite often, as we
understand it, the commencement of summary proceedings by means of an
initiating warrant takes place when an accused person's whereabouts are
unknown, or where the prosecutor is anxious to commence proceedings in order to
avoid the automatic operation of a statutory time bar, though, in that latter
case, the sheriff concerned will normally be advised that the warrant, if
granted, will not be put into effect unless absolutely necessary.
[2] In
the present cases the Procurator Fiscal at Paisley, in the
latter part of 2006, prepared two complaints against the complainer. One of those, (no.
XJ292/07), contains two charges, namely that, on 14 July 2006 the complainer
committed a breach of the peace and, on the same day, and at the same locus,
committed an offence constituting a contravention of section 41(1)(a) of the
Police (Scotland) Act 1967. The other complaint, (no. XJ294/07), contains a single
charge to the effect that "between 1 August 2005 and 13 July 2006 [the
complainer] being a person subject to the notification requirements of Part II
of the Sexual Offences Act 2003 did fail within the period of one year [to
supply certain information to the police] contrary to the Sexual Offences Act
2003, section 85(1) and (2) and section 91(1)(a)". On 20 November 2006 the
Procurator Fiscal sent both of these complaints, each with an accompanying
letter, to "The Sheriff, Paisley
Sheriff Court". Given that there are a number of
sheriffs resident at Paisley Sheriff Court, we assume
that these communications were probably directed via the sheriff clerk's office
on the assumption that they would then be passed to whichever sheriff happened
to be available at the time in question. Be that as it may, the letters are in
identical terms. They state that "A warrant is requested for the above named
for the reasons undernoted. I would be
grateful if you would grant the warrant." Below the signature of the Procurator Fiscal
Depute who signed the letters there is in each case an "Undernote" in the
following terms:
"1. Accused
is considered by police to be a high risk sex offender - nature of allegation
is such to [sic] suggest that he will not voluntarily answer a
citation."
[3] These
letters, and the accompanying complaints, were put before Sheriff Douglas in
chambers on 22
November 2006 and, in reliance on what was said in the letters from
the Procurator Fiscal Depute, he signed the warrants authorising the
apprehension of the complainer and the search of his person, dwellinghouse and repositories.
In due course the warrants were executed, and the complainer appeared in
custody to answer the charges in the two complaints. The complainer now
challenges these warrants in the present Bills of Suspension, and he asserts,
in each case, that "the sheriff's decision to grant the said pretended warrant
as craved being unjust, erroneous and contrary to law" the warrant in question
should be suspended simpliciter. Having
heard Ms Ogg, the solicitor advocate for the complainer, and the Advocate depute
in reply, we passed both Bills, and suspended the warrants as craved. We also
indicated that our reasons for doing so would be given in writing later. This
Opinion sets out those reasons.
The submissions for the parties
[4] Essentially,
the basis for the Bills of Suspension (which are in identical terms) is that
the complainer has previously been proceeded against by the Procurator Fiscal
at Paisley in respect of the same, or similar, charges, and has on all
occasions appeared in court voluntarily whether in response to a citation or in
response to having been ordained to do so by the court. Against that
background, it is said, there was no basis in fact for the respondent's depute
to claim in the letters which have been mentioned above that the "nature of the
allegation is such as to suggest that [the complainer] will not voluntarily
answer a citation"; and in those circumstances the warrants granted by the
sheriff are fundamentally flawed since they were granted on the basis of
inadequate and misleading information.
[5] The
precise history of events leading up to the applications for the warrants in
question is not easily understood from what is narrated in the Bills of
Suspension. However, on the basis of the explanations which were given by Ms
Ogg, the solicitor advocate for the complainer, the factual background appears
to be as follows. In 2005 the complainer was charged with an offence under
sections 85 and 91 of the Sexual Offences Act 2003. That charge was in
identical terms to the charge presently before this Court (no. XJ294/07) save
that the specified period of failure was from 13 April 2005 to 1 July 2005. The complaint containing that charge was
brought to the complainer's notice by conventional citation and, in response,
he attended a pleading diet on 16
November 2005. On that date, a diet of debate was assigned for 7 December 2005, and the
complainer was ordained to attend on that date. He duly did so. On 7 December 2005 the case
was continued for trial on 27 March
2006 with an intermediate diet fixed for 19 January 2006. Without
any need for compulsion the complainer attended court on both of these
occasions. On the date of the trial,
however, the procurator fiscal depute moved that the complaint should be
deserted pro loco et tempore, and that was duly
done.
[6] The
next chapter in this narrative of events began on Friday 14 July 2006 when the complainer was
arrested by the police on the charges which form the basis of one of the
complaints now before us (no. XJ292/07). These are the
charges of breach of the peace and a contravention of the Police (Scotland) Act 1967
allegedly committed on 14 July
2006. The complainer was detained in police custody over the
weekend, and appeared from custody at Paisley
Sheriff Court on Monday, 17 July 2006. At that
stage there was served on him a complaint containing the charges of breach of
the peace and contravention of section 41(1)(a) of the Police (Scotland) Act
1967 and a further complaint alleging a contravention of sections 85 and 91 of
the Sexual Offences Act 2003. Once again, that charge was in identical terms to
the charge in one of the Bills of Suspension before us save that, in the
complaint served on 17 July
2006, the specified period of failure was from 1 to 13 July 2006. On 17 July 2006, both of
the complaints before the court were continued without plea until 7 August 2006, and the
complainer was released on bail. He duly attended court on 7 August and
tendered pleas of not guilty. Both complaints were continued for trial on 6 and
7 November 2006 with
intermediate diets being assigned for 24 October 2006. The complainer attended court for
the intermediate diets, and he attended again for trial on 6 November. On that
day, however, the complaint containing the charge under the Sexual Offences Act
2003 was not called by the procurator fiscal depute,
and accordingly it fell. On the following day, when again the complainer
attended court, the trial on the complaint containing the charges of breach of
the peace and a contravention of the Police (Scotland) Act commenced. However,
midway through the trial the procurator fiscal depute moved for, and was
granted, desertion of the proceedings pro loco et
tempore. The next chapter in the
narrative of events was the commencement, by means of initiating warrants, of
the proceedings which have given rise to the current Bills of Suspension.
[7] As
can be seen from the foregoing narrative, the complainer has now been the
subject of virtually identical proceedings in respect of an alleged
contravention of the reporting provisions in the Sexual Offences Act 2003 on
three separate occasions, and of wholly identical proceedings in respect of
charges of breach of the peace and a contravention of the Police (Scotland) Act
1967 on two separate occasions. Apart from the current proceedings which were
commenced by the initiating warrants which are the subject of the present Bills
of Suspension, all previous proceedings have been terminated by the Crown
either on the basis of desertion pro loco et
tempore or, in one instance, by not calling the case at all. What is of particular significance is that on
all previous occasions the complainer has attended court voluntarily in
response to conventional citation, or in response to being ordained to do so by
the court, and has absolutely no history of previous failures to attend court
on a voluntary basis. Of course, he
appeared in court in custody on 17 July
2007, but that had nothing to do with a failure to appear
voluntarily: and, having been immediately granted bail on that occasion, he
continued to attend court voluntarily thereafter.
[8] In
light of the foregoing facts, Ms Ogg submitted that the initiating warrants in
the present cases, while ex facie valid, are fundamentally flawed since
they were granted by the sheriff on the basis of, and in reliance on, a
statement in the procurator fiscal depute's letter which was grossly inaccurate
and misleading. In those circumstances
she invited us to pass the Bills and to suspend the warrants complained of.
[9] In
response, the Advocate depute made no attempt to challenge the factual
narrative which had been explained, and founded on, by Ms Ogg. He submitted, however, that since effect had
already been given to the warrants granted by the sheriff with the consequence
that proceedings on the complaints in question are now progressing at Paisley
Sheriff Court, there is no longer anything to
suspend. He went on to submit that, in
those circumstances, the correct way to proceed is by a plea in bar of trial on
the grounds of oppression; and, in that connection, he advised us that such a
plea has already been tabled, and is to be heard by the sheriff at Paisley on
25 January 2008. For the foregoing reasons, the Advocate depute invited us
to refuse to pass the Bills.
Discussion and decision
[10] We must begin this part of our Opinion by making it clear that
we do not agree with the Advocate depute's submission to the effect that there
is nothing that can be suspended once an initiating warrant, however defective
it may be, has actually been put into effect. Were that to be the case, it is
probable that an initiating arrest warrant could never be suspended since the
first that an accused person will know about it is when he is arrested by the
police and taken to court in custody - in other words, after the warrant has
been put into effect. We consider that a
warrant can properly be challenged at a later stage; and, if it is found to be
fundamentally defective, it can then be suspended with, of course, the
consequence that any proceedings which have followed from it will be
fundamentally null and void. Nor do we
agree with the Advocate depute that the proper way of dealing with the matter
is by a plea in bar of trial on the grounds of oppression. Obviously, we have no means of knowing what arguments
might be advanced were such a plea to be argued in the present cases. We suspect, however, that much of the argument
might be addressed to the fact that the complainer has already been proceeded
against to no avail on several previous occasions on charges which are either
wholly identical or very similar. That,
of course, would be a line of argument which had nothing to do with the
validity of the warrants which commenced the present proceedings; and, indeed,
we doubt whether a challenge to the validity of the warrants could competently
be taken in the court of first instance. In our opinion, the appropriate way of
presenting such a challenge is by means of suspension procedure in this Court;
and for that reason we consider that we can competently deal with that matter
by virtue of the Bills which are presently before us.
[11] In his Report to this Court in respect of the Bills the sheriff
who signed the warrants in question has told us that it is normal practice at
Paisley Sheriff Court for warrants to be applied for in the manner which we
have described above, and without the need for any personal appearance by the
Procurator Fiscal or one of his deputes. We suspect that similar procedures are
in place in all sheriff courts around the country. In that connection, the
sheriff in the present cases has said:
"If the
narrative in the Bill of Suspension is correct, it was incumbent on the
Procurator Fiscal to make full disclosure of the whole circumstances of the
case. The issue of a warrant to arrest a citizen is one of the most serious of
matters. Such warrants are not granted lightly..... It is essential therefore for
the maintenance of good order and to meet its obligation to the Court that the
Crown make full disclosure in written applications to
the Court of all material considerations known to it. Not to do so is likely to
lead to injustice and to bring the whole chambers procedure for initiating
warrants into disrepute."
[12] We entirely agree with these observations. Given the nature of
the unchallenged narrative of earlier proceedings which is set out in the
Bills, and which was further explained to us by Ms Ogg, and given in particular
that throughout those proceedings there is not a single instance when the
complainer failed to attend court after being cited or ordained to do so, it is
abundantly clear that the Undernote which was attached to the letters from the
Procurator Fiscal to the sheriff was wholly inaccurate and misleading. We are
unable to say whether this was done deliberately or as a result of carelessness
and incompetence; but, however it came about, there can be no doubt, in our
opinion, that the consequence was that the sheriff was seriously misled, and
was persuaded to grant warrants which he would not, and should not, have granted
if he had been in possession, as he should have been, of the relevant
background facts. In the whole circumstances we are of opinion that the
submissions which were advanced in support of the Bills are well founded, and
we have accordingly passed the Bills and suspended the initiating warrants
which were granted by the sheriff on 22 November 2006.
