Appellant: Shead, Advocate; Barony Law Practice (for John McGovern, Glasgow)

Respondent: Stewart Q.C., Advocate Depute; Crown Agent

8 October 2010

The Background Circumstances

[1] On 23 April 2009, the complainer appeared in Kilmarnock Sheriff Court in response to a summary complaint containing two charges. He pleaded not guilty to charge (1) and guilty to charge (2). Those pleas were accepted by the respondent. The terms of charge (2) were as follows:

"(2)  you Imran Shahid being the employee or agent of the holder of a licence issued pursuant to the aftermentioned Act, namely Mohammed Aseem did on 18 April 2008 in the licensed premises of the said Mohammed Aseem at News Buster at 25 Titchfield Street, Kilmarnock sell alcoholic liquor, namely Buckfast Tonic Wine 15% abv. to DT, aged 15...a person under 18 years; Contrary to the Licensing (Scotland) Act 1976, Section 68(1) and (7)."

Following that procedure, the sheriff noticed that the principal complaint had not been signed. He drew that state of affairs to the attention of the parties. Subsequently the respondent brought an application under section 300A of the Criminal Procedure (Scotland) Act 1995, "the 1995 Act", which was opposed. However, on 16 June 2009, having heard the submissions of the parties in relation to that application, the sheriff purported to excuse the irregularity. Thereafter, on 1 September 2009, the complainer was fined £250.

[2] He has now brought this Bill of Suspension for the purpose of challenging the soundness of the sheriff's decision of 16 June 2009. In the Bill the complainer contends that the unsigned complaint represented a nullity, which was not amenable to excusal by virtue of section 300A of the 1995 Act. The sheriff could only exercise the power conferred under section 300A on the basis that the irregularity was one specified in section 300A(5). It is contended that, on a proper construction of the section as a whole and sub-section (5) in particular, the sheriff misdirected himself in concluding that the power could be exercised in the circumstances described. In any event, it is contended that the sheriff erred in concluding that it was in the interests of justice to excuse the irregularity given its fundamental character.

[3] The respondent has lodged Answers to the Bill of Suspension, in which the factual background is admitted, but it is contended that the circumstances of the present case fell within the scope of section 300A(5)(e) and that it was in the interests of justice for the irregularity to be excused.

Submissions of the Complainer

[4] Counsel for the complainer moved the court to pass the Bill. He said that there was no dispute concerning the facts of the case; rather the dispute concerned the interpretation of the relevant statutory provisions. The Crown relied upon the terms of section 300A(5) of the 1995 Act, which defined the expression "procedural irregularity" which, under that section, the court had the power to excuse, in appropriate circumstances. The only part of section 300A(5) that could operate in the circumstances of this case was sub-paragraph (e). That provision contained the following language:

"(e)  from failure of - (i)  the court; or (ii)  the prosecutor or the accused, to fulfil any other procedural requirement."

The question arising was whether the error involved could be properly described as a "procedural requirement". The complainer's submission was that the defect in question could not be categorised simply as a failure to fulfil a "procedural requirement".

[5] Developing that submission, counsel drew attention to the terms of Sections 138 and 139 of the 1995 Act. Section 138(1) provided:

"(1)  All proceedings under this Part of this Act for the trial of offences or recovery of penalties shall be instituted by complaint signed by the prosecutor or by a solicitor on behalf of a prosecutor other than the procurator fiscal."

That provision made it plain that the signature of the prosecutor or his agent was an essential ingredient of a valid complaint. Without such a complaint, there could be no summary proceedings under Part IX of the 1995 Act. In support of his submission, counsel relied upon Lowe v Bee 1989 S.C.C.R. 476, a decision of Sheriff Macphail, as he then was. The accused in that case had been tried on summary complaint and, at the close of the evidence, the Sheriff pointed out that the complaint was unsigned. The procurator fiscal then sought leave to amend the complaint by signing it. However, the court held that, by failing previously to sign the complaint, the prosecutor had failed to comply with a mandatory statutory requirement, and that the consequent defect in the complaint could not be cured by amendment; leave to amend was refused. At the date of that case, summary criminal procedure was regulated by the Criminal Procedure (Scotland) Act 1975, "the 1975 Act". Section 311(2) of the 1975 Act provided that a complaint "shall be signed by the prosecutor or by any solicitor on behalf of a prosecutor other than the public prosecutor of a court". Section 335(1) of the 1975 Act provided certain powers of amendment. It provided:

"It shall be competent at any time prior to the determination of a summary prosecution, ...to amend the complaint...by deletion, alteration or addition so as to cure any error or defect therein, or to meet any objection thereto..."

While the procedural legislation applicable to the present case differed from that applicable in the case cited, the fundamental requirement for a complaint that it should be signed by the prosecutor was a common feature of both Acts. The submission was that an unsigned complaint was no complaint at all. If there was no complaint, it followed that there could be no proceedings to which section 300A(1) could apply.

[6] Counsel went on to rely on Regina v Clarke [2008] 1 WLR 338, a decision of the House of Lords. In that case convictions before a jury had followed from an unsigned indictment, a signature being purported to be added at a later stage. The House of Lords held, quashing the convictions, that Parliament had intended, in enacting Sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933, the relevant provisions, that a bill of indictment should not become an indictment unless and until it was duly signed by the proper officer and that in the absence of an indictment there could be no valid trial on indictment; and that the absence of a signed indictment at the outset of and during most of the appellant's trial had invalidated the proceedings and that the signing of the indictment at a late stage in the trial could not validate the invalid proceedings already conducted. Reliance was placed particularly on paragraphs 17 to 19 of the speech of Lord Bingham of Cornhill, in which the other judges concurred. The approach that the sheriff had adopted to the problem that he faced, set out at page 13 of the print of the Bill of Suspension, begged the real question and was flawed. There were always problems in deciding whether some irregularity was or was not a fundamental nullity, as appeared from the observations of Lord Rodger of Earlsferry in paragraph 49 and Lord Carswell in paragraph 55 of the decision in Robertson v Frame 2006 SCCR 151. However, in the present case it was quite evident that the statutory requirements of a complaint were not all present here. Crawford v HMA 2005 S.C.C.R. 628 was also supportive of the complainer's position. It was concerned with the provisions of section 64(4) of the 1995 Act, which provided that Sheriff Court indictments should be signed by the procurator fiscal and that the words "by Authority of Her Majesty's Advocate" should be prefixed to that signature. The indictment in question lacked those words. The court held that, in the absence of any statement that the indictment was served by the authority of the Lord Advocate, there was a complete failure to comply with section 64(4) and that that was fatal to the indictment; the appeal was allowed and the plea to the competency of the indictment was sustained.

Submissions of the Respondent

[7] The Advocate depute moved the court to refuse the Bill; the sheriff had not erred in the decision that he took. The question before the court was one of statutory interpretation, in particular, the interpretation of section 300A(5)(e)(ii). A failure to sign the complaint was a failure "to fulfil...[a] procedural requirement." The Advocate depute drew our attention to Rule 16.2(1) of the Act of Adjournal (Criminal Procedure Rules) 1996. It provided that the prosecutor should sign the principal complaint and the citation to the accused. That was plainly a "procedural requirement". Section 300A of the 1995 Act had been inserted in that Act by the Criminal Proceedings etc. (Reform)(Scotland) Act 2007. It was instructive to examine the Policy Memorandum associated with the Criminal Proceedings etc. (Reform)(Scotland) Bill, which led to the passing of the Act of 2007. Reliance was placed on what was said in paragraphs 186 to 192 of that memorandum. It was clear that the enactment of section 300A was a response to the concern that had for some time existed that procedural errors in the handling of criminal cases could have a disproportionate consequence for one or more of the parties to the case. It was considered that there was a need for a provision entitling the court to relieve any party to a criminal case from the consequences of failure to comply with rules of criminal procedure when this was in the interests of justice, in the view of the court. It was submitted that the court could take the contents of the memorandum into account in the interpretation of section 300A of the 1995 Act, as amended. That provision was intended to be a "catch-all". The Advocate depute did not take issue with Lowe v Bee. It was good law. However, section 300A of the 1995 Act had been enacted subsequently to that decision; it was submitted that that enactment could "create a complaint" where, otherwise, it might have been considered that there was none.

The Decision

[8] In our view, the starting point for consideration of the issue which has arisen in this case must be the terms of section 138(1) of the 1995 Act. It sets out the requirements for the institution of summary criminal proceedings under the Act. It provides:

"(1)  All proceedings under this Part of this Act for the trial of offences or recovery of penalties shall be instituted by complaint, signed by the prosecutor or by a solicitor on behalf of a prosecutor other than the procurator fiscal".

Looking at that language, the statutory intention plainly was that all complaints should be signed by the prosecutor or his agent. Lowe v Bee was decided at a time when the applicable legislation was the 1975 Act. Section 311(2) of that Act contained a provision that, to all intents and purposes, is identical with that just quoted. It provides:

"Such complaint shall be signed by the prosecutor or by any solicitor on behalf of a prosecutor other than the public prosecutor of a court."

Of the situation in that case Sheriff Macphail said at page 478 of the report:

"I therefore consider that by failing to sign the complaint, the prosecutor has failed to comply with a mandatory statutory requirement, and that the consequent defect in the complaint cannot competently be cured by amendment."

The issue in that case was, of course, whether that failure was a matter which could be cured by the powers of amendment then available. The question in this case is whether the provisions of section 300A may be used to cure the failure to comply with a mandatory statutory requirement that has occurred. Thus it is necessary next to look in detail at the terms of section 300A of the 1995 Act. Subsection (1) confers the power of excusal. It provides:

"(1)  Any court may excuse a procedural irregularity - (a)  of a kind described in subsection (5) below; and (b)  which has occurred in relation to proceedings before that court, if the conditions mentioned in subsection (4) below are met."

For the present purposes it is not necessary to consider the provisions of sub‑section (4). However, it is necessary to examine those of sub‑section (5), which define what is meant by "a procedural irregularity". The only part of sub‑section (5) invoked here was sub‑paragraph (e); thus the relevant part of subsection (5) is as follows:

"(5)  A procedural irregularity is an irregularity arising at any stage of proceedings - ...(e)  from failure of - ...(ii)  the prosecutor..., to fulfil any other procedural requirement.

The expression "any other procedural requirement" must be a reference to any procedural requirement other than those specifically enumerated in the earlier part of sub-section (5).

[9] It appears to us that what is important in the present context is the scope of operation of Section 300A. Under subsection (1) the court is given power to excuse a procedural irregularity, in the circumstances defined "(b)  which has occurred in relation to proceedings before that court". Thus if there are no valid proceedings before the court, the provisions of section 300A(1) plainly cannot operate. In such a situation as that, where there may be purported proceedings, all the court can do, upon the recognition of that state of affairs, is to dismiss those proceedings as incompetent. In our view that is the situation which exists in this case. The failure of the prosecutor to sign the complaint meant that there was no complaint within the terms of section 138(1) of the 1995 Act. If there was no complaint, plainly, because of the terms of that sub-section, there were no summary proceedings in terms of Part IX of the 1995 Act. The Advocate depute argued that the effect of section 300A was to enable the court to "create a complaint" where there was none. We find it impossible to accept that submission. If there was no complaint, then there were no proceedings and section 300A could not operate. In our view, the need for the signature on the complaint was not just a "procedural requirement", within the meaning of section 300A(5)(e); the signature was an essential statutory requirement of any valid complaint, as Sheriff Macphail recognised in Lowe v Bee. Nothing in Rule 16.2(1) of the Act of Adjournal (Criminal Procedure Rules) 1996 seems to us to alter that situation.

[10] While the conclusion which we have reached is, in a sense, unpalatable, since it may involve an accused person escaping their just deserts, nevertheless, as Lord Bingham of Cornhill observed in Regina v Clarke in paragraph 17 of his speech:

"Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place."

[11] No doubt, it would be possible for Parliament to enact legislation which could result in the excusal of a failure such as has occurred in this case, but we do not consider the provisions of Section 300A of the 1995 Act have achieved that end. If it were to be achieved, language expressly indicating that that was the intention of Parliament would require to be employed. No such language is to be found in section 300A.

[12] In all these circumstances, we shall pass the Bill and suspend the complainer's conviction and the sentence passed following upon it.