APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Hardie Lord Marnoch	[2010] HCJAC 36 Appeal No: XJ1213/09 OPINION OF THE COURT delivered by LORD HARDIE in NOTE OF APPEAL UNDER SECTION 174(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by CHAE PETER MacDONALD Appellant; against STEPHEN McGOWAN, PROCURATOR FISCAL, ABERDEEN Respondent: _______

Appellant: Shead, Advocate; Barony Law Solicitors

Respondent: Grahame, Q.C. A.D.; Crown Agent

23 April 2010

[1] This is an appeal against a decision of the sheriff at Aberdeen repelling a plea of personal bar in the circumstances outlined below.

[2] On 1 September 2009 the appellant appeared on an undertaking at Aberdeen Sheriff Court. On that date the respondent served upon the appellant a complaint containing the following charges:

"(1) on 18^th July 2009 on a road or other public place, namely Wellington Road, Aberdeen you Chae Peter MacDonald did drive a mechanically propelled vehicle, namely motor cycle registered number unregistered without due care and attention or without reasonable consideration for other persons using the road or public place, lose control of said motor cycle and collide with the rear of motor car registered number W969 YBK driven by Jacqueline White, c/o of (sic) Grampian Polcie (sic) causing damage to the said motor car;

CONTRARY to the Road Traffic Act 1988, Section 3 as amended

(2) on 18^th July 2009 at Wellington Road, Aberdeen you Chae Peter MacDonald did drive a motor vehicle, namely motor cycle registered number unregistered on said road otherwise than in accordance with a licence authorising you to drive a motor vehicle of that class in that you were not the holder of such a licence;

CONTRARY to the Road Traffic Act 1988, Section 87(1) as amended;

(3) on 18^th July 2009 on a road, or other public place, namely Wellington Road, Aberdeen you Chae Peter MacDonald did use a motor vehicle, namely motor cycle registered number unregistered without there being in force in relation to the use of said motor vehicle by you such a policy of insurance or such a security in respect of third party risks as complied with the requirements of Part VI of the Road Traffic Act 1988;

CONTRARY to the Road Traffic Act 1988, Section 143(1) and (2) as amended;

(4) on 18^th July 2009 on a road or other public place, namely Wellington Road, Aberdeen you Chae Peter MacDonald being the driver of a motor vehicle, namely motor cycle registered number unregistered and an accident having then and there occurred owing to the presence of said motor vehicle on said road or public place whereby you did fail to stop and give your name and address and also the name and address of the owner and the identification marks of the vehicle to any person having reasonable grounds for so requiring;

CONTRARY to the Road Traffic Act 1988, Section 170(2) and (4);

(5) on 18^th July 2009 in Wellington Road, Aberdeen you Chae Peter MacDonald did drive or ride on a motor cycle of a class specified in the aftermentioned Regulation namely motor cycle registered number unregistered without wearing protective headgear as specified in said Regulation;

CONTRARY to the Motor Cycles (Protective Helmets) Regulations 1998, Regulation 4(1) and the Road Traffic Act 1988, Section 16(4);

(6) on 18^th July 2009 at Balnagask Road near to the Junction with Old Church Road, Aberdeen you Daniel Grant and Chae Peter MacDonald did assault William James Forrester, care of Grampian Police Headquarters, Queen Street, Aberdeen and did repeatedly punch him on the head and body, push him on the body causing him to fall to the ground and repeatedly stamp on his head all to his injury;

you DANIEL GRANT did commit this offence while on bail, having been granted bail on 20 January 2009 at Aberdeen Sheriff Court."

The appellant was represented by a solicitor on that date.

[3] Prior to the case calling the procurator fiscal depute conducting the case in court (the "court depute") handed the appellant's solicitor a letter ("an acceptable plea letter") dated 1 September 2009 which was typed on the headed notepaper of the Procurator Fiscal's Office at Aberdeen and was in the following terms:

"Dear Sir/Madam

CASE AGAINST: CHAE PETER MacDONALD

NEXT COURT DATE: 1 September 2009

I refer to the above case in which your client is charged with:

(1) Road Traffic Act 1988, Section S3 (sic) on 18^th July 2009 at Wellington Road, Aberdeen

(2) Road Traffic Act 1988, Section S87(1) (sic) on 18^th July 2009 at Wellington Road, Aberdeen

(3) Road Traffic Act 1988, Section S143(1) & (2) (sic) on 18^th July 2009 at Wellington Road, Aberdeen

(4) Road Traffic Act 1988, Section S170(2) & (4) (sic) on 18^th July 2009

(5) Road Traffic Act 1988, Section S16(4) (sic) on 18^th July 2009 at Wellington Road, Aberdeen

(6) Assault to Injury on 18^th July 2009 at Balnagask Road near to the Junction with Old Church Road, Aberdeen

On the basis of the evidence currently available, the Crown can proceed to trial in respect of all charges libelled in this case. However at this stage of the proceedings the Crown would be prepared to resolve the case, until the intermediate diet, as follows:-

·       By accepting a plea of guilty to charges 1, 2, 3 and 4 with possible adjustments to the elements of charge 4, QU PNG.

If the case cannot be resolved at or prior to the intermediate diet and the case is continued to trial, it will no longer be considered appropriate to resolve the matter in this way.

If you would like to discuss this case further, please contact a member of staff from this office in accordance with the arrangements below."

The letter had been signed by the procurator fiscal depute who had marked the case for prosecution ("the case marking depute"). The case marking depute had decided the number and nature of the charges to be included in the summary complaint and had also prepared the acceptable plea letter which was to be handed to the appellant's solicitor if the appellant was legally represented on 1 September.

[4] Upon receipt of the acceptable plea letter the appellant's solicitor consulted with the appellant and obtained instructions to tender a plea of guilty to charges 1, 2, 3 and 4 as libelled but to maintain his plea of not guilty to charges 5 and 6. Prior to the case calling the appellant's solicitor notified the court depute of the appellant's instructions but the court depute advised the appellant's solicitor that the proposed plea of not guilty to charge 6 was not acceptable to the Crown. The Crown would, however, accept a plea of guilty to charges 1, 2, 3 and 6. When the case called the appellant pled not guilty to charges 5 and 6 and pled guilty to charges 1, 2, 3 and 4. The court depute advised the court that these pleas were not acceptable to the Crown, whereupon the solicitor for the appellant intimated that he wished to raise the issue of the Crown being personally barred from refusing the pleas tendered. Accordingly the sheriff continued the case as a diet of debate for a hearing on the plea of personal bar.

[5] At the diet of debate on 14 October 2009 there was no dispute as to what had occurred prior to the case calling before the sheriff on 1 September 2009. The sheriff was provided with a narrative of events as outlined above. In addition the court depute advised the sheriff that acceptable plea letters had been introduced by the Crown in the eighteen months prior to the date of the diet of debate. They were intended as an aid to resolving matters at the earliest opportunity. The court depute advised the sheriff that such letters are now provided in all custody cases and with all new summary complaints. We were advised, however, that this arrangement is subject to the qualification that such letters are only provided to solicitors acting for accused persons with the result that an unrepresented accused does not receive such a letter. The court depute also advised the sheriff that the practice in every case is that an acceptable plea letter is prepared by the case marking depute who is responsible for determining whether a complaint is to be issued against an accused and, if so, what charges it should contain. The letter reflects the case marking depute's views as to a suitable way to resolve the case. That practice had been followed in the present case. The sheriff was also advised that, on the instructions of Crown Office, in cases where acceptable plea letters are prepared for issue to the accused's solicitor the case marking depute has a responsibility to note on the case instruction sent to the court depute the terms of the plea which the Crown would be prepared to accept. In this case, contrary to what was said in the acceptable plea letter, the case instruction note indicated that the Crown would accept pleas of guilty by the appellant to charges 1, 2, 3 and 6.

[6] Before the sheriff, the solicitor for the appellant submitted that the case raised a novel point relating to acceptable plea letters. He contended that an acceptable plea letter was an offer by the Crown to resolve the case in a particular way. Having made that offer the Crown was bound by the terms of the acceptable plea letter once the offer had been accepted by the appellant and his acceptance had been intimated to the court depute. The letter had been signed by the case marking depute on behalf of the Crown and was binding upon the Crown. The letter constituted an "unequivocal and unqualified announcement on behalf of the Crown" that pleas of not guilty would be accepted to charges 5 and 6 on condition that prior to the intermediate diet the appellant tendered pleas of guilty to charges 1, 2, 3 and 4. In that regard the appellant's solicitor relied upon Thom v HMA 1976 J.C. 48. The appellant's solicitor also submitted that the present case was analogous to HMA v Nairn 2000 S.L.T. (Sheriff Court) 176 and that it would be oppressive to permit the Crown to proceed in respect of charges 5 and 6. It was immaterial whether the Crown's position had been conveyed in an acceptable plea letter or in a conversation between legal representatives of an accused and a procurator fiscal depute.

[7] In response the court depute submitted that the Crown was not bound to accept a plea of guilty and could insist on any matter proceeding to trial (Strathern v Sloan 1937 J.C. 76). Further the circumstances of the present case could be distinguished from the circumstances in Thom. An acceptable plea letter was an invitation to treat and was "an early starting point for negotiations". The terms of the letter suggested that the Crown's position could be altered. The present case could be distinguished from Nairn. In Nairn a verbal discussion had taken place between the Crown and defence which impacted on professional conduct. There had been no such discussion in the present case and as soon as the appellant's solicitor raised the matter of an acceptable plea he was advised that the Crown would accept pleas of guilty to charges 1, 2, 3 and 6. There had been a typing error in the letter which had gone unnoticed by the case marking depute who signed the letter.

[8] In repelling the plea of personal bar the sheriff accepted that the acceptable plea letter did not reflect the intention of the case marking depute and that the letter contained a typographical error. He also rejected the submission of the appellant's solicitor that the letter constituted an "unequivocal and unqualified announcement on behalf of the Crown" that pleas of not guilty would be accepted to charges 5 and 6 on the condition of guilty pleas being tendered to the other charges. The sheriff also relied upon the fact that as soon as the appellant's solicitor discussed possible pleas with the court depute the solicitor was advised that the acceptable plea in this case was guilty to charges 1, 2, 3 and 6. The sheriff considered that he was not confined to an analysis of the letter itself but could have regard to the background circumstances (HMA v Weir 2005 S.C.C.R. 821). In undertaking that exercise he concluded that charge 6 was a serious charge which could involve negotiations and could result in a plea of guilty to an amended charge being tendered and accepted, whereas it seemed unlikely to him that charge 4 would be subject to possible adjustment between the parties. Accordingly the sheriff repelled the plea of personal bar but granted leave to appeal as there was no case directly in point.

[9] In his submissions before us counsel for the appellant essentially adopted the submissions made before the sheriff by the appellant's solicitor. However, he elaborated upon them by submitting that the efficacy of the system of prosecution of summary crime depends upon the existence of trust between procurators fiscal and solicitors for accused persons. In particular it was essential that solicitors were able to rely upon the terms of acceptable plea letters to enable them to give appropriate advice to their clients following the receipt of such a letter. It was unnecessary for there to have been proceedings in court to constitute a bar to proceedings. A letter about possible criminal proceedings might even be sufficient (HMA v Stewart 1980 J.C. 84; X v Sweeney 1982 JC 70 at page 78). The discussion in the court room between the appellant's solicitor and the court depute when the error was identified occurred after the appellant had given instructions to his solicitor in reliance upon the letter.

[10] In response the advocate depute submitted that the letter did not constitute an unequivocal public declaration that the Crown's right to prosecute the appellant in respect of charge 6 had been relinquished or discharged. The situation in the present case was different from that which prevailed in Thom. An acceptable plea letter was an indication of a preparedness to negotiate a plea as opposed to a declaration that the Crown would not prosecute in respect of any of the charges. Acceptable plea letters had been introduced following the report of the Summary Justice Review Committee in 2004 ("the McInnes Report") and were intended to encourage early resolution of cases. There was a perception that negotiations between the Crown and representatives of accused persons were often delayed unnecessarily and in 2007 the Crown Office issued draft guidelines and held open forum discussions with solicitors' organisations. The draft guidelines contained a template of the acceptable plea letter. Following these discussions the practice of issuing such letters was introduced at the end of 2007 or the beginning of 2008. The letter is prepared at the same time as the complaint by the case marking depute. The letter is handed to the accused's solicitor in advance of the pleading diet with a view to encouraging negotiation of acceptable pleas at an early stage. Where an accused is unrepresented, no acceptable plea letter is given to him. The advocate depute acknowledged that the practice might result in an accused person altering his instructions to his solicitor as a result of the terms of such a letter.

[11] The current practice of the Crown issuing an acceptable plea letter to an accused's solicitor simultaneously with the service of a complaint upon the accused is thus an innovation in summary procedure introduced by the Crown following consultation with representatives of the legal profession. It might appear anomalous that a procurator fiscal depute should determine that it is in the public interest to take proceedings against an accused in respect of several charges while simultaneously advising the accused through his solicitor that he will not insist upon these proceedings, in so far as they relate to certain specified charges, provided the accused pleads guilty to other charges on or before a specified date. However the public interest in any particular situation doubtless involves the Lord Advocate or procurator fiscal balancing different considerations. In the context of an acceptable plea letter the background was apparently the McInnes Report. In Chapter 14 of that Report the Committee recorded that data held by the Scottish Court Service disclosed that 25% of cases in the sheriff court in which a trial had been fixed were disposed of by guilty pleas on the day of the trial. In that regard the Committee observed:

"We share the view widely held by those who work within the system that this represents an unacceptable waste of court resources and inconvenience to witnesses and victims. To put this in perspective, 25% of trials means that in something like 16,000 sheriff court cases every year trials are scheduled in busy court diaries where the accused pleads guilty on the day. Assuming an average of about four witnesses per case, around 64,000 people are needlessly called to court. Of these a significant proportion will be police officers." (Paragraph 14.1.)

The Committee did not have equivalent data for the district courts but had no reason to believe that the percentage of cases in which guilty pleas were tendered on the morning of the trial was significantly less than in the sheriff court. In order to address this mischief the committee recommended that the summary criminal justice system should be reformed to encourage an accused person who intends to plead guilty to do so at an early stage in the proceedings. The Committee considered that four elements required to be in place to achieve this objective, namely:

"(a) that the defence solicitor should have sufficient information made available to allow him or her to advise the accused of the strength of the case against him or her at an early stage;

(b) that defence solicitors should be properly remunerated for work done at an early stage of a case;

(c) that there should be an incentive in terms of likely sentence to encourage an early plea; and

(d) that the accused should have good reason to expect that a trial will go ahead on the appointed day." (Paragraph 14.2.)

Only the first of these elements is relevant in the present context and it culminated in the following recommendations by the Committee:

"We recommend that the prosecution should make available to the defence solicitor sufficient information to allow the latter to advise the accused of the strength of the case against him or her at an early stage of the process. Where the accused is unrepresented the material should be passed directly to him or her.

We recommend that a summary of the evidence is provided to the accused along with the copy of the complaint." (Paragraph 14.5.)

[12] Following the publication of the McInnes Report the Crown implemented those recommendations by introducing a practice of providing to the accused, along with the service copy complaint, a summary of the evidence available to the Crown in respect of each of the charges on the complaint. That summary is extracted from the police report to the procurator fiscal which forms the basis of the decision to prosecute the accused. We observe that the McInnes Report did not recommend that the Crown should take the initiative in seeking to negotiate early guilty pleas. Rather the approach recommended by the Committee was to ensure that an accused and his solicitor had sufficient information at the earliest opportunity to enable the solicitor to advise the accused about the strength of the prosecution case and the advantage to be gained in sentencing terms by tendering an early plea of guilty. Thus the initiative of negotiating a modified guilty plea remained with the accused and his solicitor.

[13] In 2007, as a result of a perception that plea negotiations were still unduly delayed in some cases, the Lord Advocate issued for consultation draft guidelines relating to acceptable plea letters. Clearly members of the legal profession who might be involved in advising accused persons had an interest in such guidelines. They participated in the consultation process and the guidelines were ultimately issued late in 2007 or early in 2008. Unlike the summary of evidence served on an accused person along with the complaint, the acceptable plea letter is only handed to a solicitor acting for an accused and in cases where the accused is unrepresented no such letter is issued. The letter is drafted and signed by the procurator fiscal depute who has responsibility for determining whether a complaint is to be issued and, if so, which charges it should contain. The advocate depute acknowledged that the preparation and delivery of such a letter to the accused's solicitor was designed to encourage plea negotiations and ultimate resolution of the case at the earliest stage of proceedings.

[14] There is no doubt that a letter written by a procurator fiscal to the solicitor for an accused can deprive the Lord Advocate of her right to prosecute the accused at any time thereafter on the charges specified or referred to in the letter. (Thom v HMA; X v Sweeney per Lord Justice General Emslie at 78). In HMA v Stewart a question arose as to whether the Lord Advocate had renounced his right to prosecute an accused on certain charges by sending a letter to a member of Parliament. Lord Kincraig concluded that on a proper construction of that letter it amounted to an unequivocal announcement of a decision by the Lord Advocate not to prosecute the persons referred to in the letter in respect of charges which formed the subject matter of investigations carried out on behalf of the Lord Advocate. Although the letter did not name the persons, it was sufficient if the accused could prove that he was one of the persons referred to and that the charge on the indictment arose out of and directly related to matters investigated on behalf of the Lord Advocate prior to the writing of the letter. Moreover, as far as the publication of the letter was concerned Lord Kincraig observed:

"So long as the Lord Advocate's decision is communicated to the accused, to his agent or to one who could be reasonably expected to communicate it to the accused, it does not seem to me to be material that it is not published."

We respectfully agree with these observations and conclude that the issue for the court in each case is the proper construction of the letter. Moreover these cases illustrate that in certain circumstances the actions of the Lord Advocate or of a procurator fiscal may preclude the continuation of proceedings for reasons of fairness in the public interest.

[15] It is necessary to construe the letter in this case against the background of the introduction of such letters into the practice of summary criminal business. We consider that such letters impact upon professional conduct to the same extent as discussions between solicitors for accused persons and the procurator fiscal. It is clear that acceptable plea letters are intended to communicate to the solicitor for the accused the pleas that will be acceptable to the Crown for the early disposal of the case. If such letters are to achieve their objective of encouraging resolution of a case at the earliest opportunity, it is essential that solicitors receiving such letters can have the confidence to rely upon their terms. The efficacy of the system introduced by the Lord Advocate to encourage early disposal of cases depends upon the existence and retention of mutual trust between procurators fiscal and solicitors representing accused persons and also upon the ability of such solicitors to rely upon the terms of acceptable plea letters in giving advice to their clients prior to obtaining instructions about pleas to be tendered to the Crown.

[16] While we agree with the sheriff that charge 6 is a serious charge of assault involving a number of different specifications and, as such, could involve negotiations between the parties resulting in a plea of guilty to an amended charge being tendered and accepted, we disagree that charge 4 is incapable of adjustment. If the appellant failed to stop after the accident the contravention of section 170(2) of the Road Traffic Act 1988 was complete at that stage. The obligation in terms of that statutory provision to provide his personal details and the personal details of the owner and the identification marks of the vehicle driven by him only arise after he has stopped and has been required to provide such information to any person having reasonable grounds for so requiring. Thus, in the present case, it would have been possible to tender a plea of guilty to charge 4 under deletion of all of the words occurring between the word "stop" and the word "CONTRARY". Nor do we consider that the relative seriousness of charges 4 and 6 is relevant to the question of the construction of the letter. In the first place, charge 6 alleges a concerted assault by the appellant and a co-accused whereas the first five charges relate to the appellant alone. Moreover, the Crown may well have been prepared to accept a plea of not guilty to charge 6 from the appellant at an early stage for a variety of reasons. It may be that the role played by the appellant was relatively minor. It may also be that the quality of the evidence against the appellant available to the procurator fiscal depute was not particularly good. It is not for the court or the appellant's solicitor to speculate as to the reasons behind the case marking depute's decision. It is sufficient if the letter is intelligible and appears to convey the willingness of the Crown to accept certain pleas to secure the early disposal of the case. We consider that the letter in the present case fulfils these requirements. As such it appears to us that it is an unequivocal and unqualified announcement on behalf of the Crown that the pleas specified in the letter would be accepted by the Crown on condition that they were tendered at any stage of the proceedings prior to the intermediate diet. Prior to obtaining the appellant's instructions the appellant's solicitor was entitled to rely upon that interpretation and to advise the appellant of the implications of tendering pleas in accordance with the letter at an early stage. If such letters cannot be relied upon, solicitors cannot be expected to give appropriate advice to their clients with the result that the intention behind the introduction of such letters will be frustrated. The benefit to the public interest identified by the Lord Advocate by the introduction of acceptable plea letters will thus be lost. On the other hand, if the Crown is bound by the terms of such letters, the only disadvantage is that an accused might occasionally benefit from an error by a procurator fiscal depute. It seems to us significant that this is the only reported case of an error during the 2 years during which this system has been in operation. That is testimony to the rarity of such an error or, perhaps, to the fact that procurators fiscal, for the most part, recognise that they are bound by the terms of such letters. Ultimately it will be for the Lord Advocate to determine whether the public benefit of this procedure outweighs the consequences of an occasional error and, if so, what additional procedures should be introduced to further minimise the risk of error.

[17] The circumstances of this case are not dissimilar to those which arose in HMA v Nairn 2000 S.L.T. (Sheriff Court) 176. In that case the Crown sought to desert a case pro loco et tempore and to bring a fresh indictment containing a more serious charge in relation to the same incident as to which an accused had tendered a modified plea of guilty to a charge of aggravated assault. In refusing the Crown motion Sheriff Stewart observed at page 178D-F:

"In my opinion to grant the Crown motion to desert pro loco et tempore would be oppressive and unfair to the accused. Prior to the first diet, through his solicitor, he indicated to the prosecutor an intention to plead guilty to a charge which fell within the scope of the present indictment. Indeed, he has now tendered a plea in these terms. In discussion with his solicitor the procurator fiscal depute dealing with the case stated that the Crown was prepared to accept that plea. It seems to me that the situation is analogous to that where the Crown has given an indication that no further proceedings will be taken in a case. Reference was not made before me to such cases as Thom v HMA and HMA v Stewart but the reasoning of the court in these cases is, in my opinion, of some assistance in determining the appropriate way in which to dispose of the Crown's motion in the present case. It comes to this in essence: the Crown has by its actings barred itself from proceeding as it now seeks to do."

We respectfully agree with these observations and consider them to be equally pertinent in the present case. However, the present case is in a sense worse for the Crown in that as a result of an acceptable plea letter an accused may well be induced to give his solicitor instructions different from what he would otherwise have given but which will nevertheless determine once and for all the solicitor's professional obligations in relation to the accused. If, therefore, the Crown were subsequently allowed to depart from the terms of such letters the result might be very far reaching and could even extend to an enforced change of agency. We consider that this is to enter the realm of not only personal bar but oppression in a very real sense. In this respect, not least, the case of HMA v Weir 2005 S.C.C.R. 821, relied on by the sheriff, is clearly distinguishable. In Weir the letter was written by a clerk in the procurator fiscal's office who had confused two cases and therefore had no authority to send it. Moreover, the letter purporting to advise Weir's solicitors that no further proceedings were being taken was not even seen by the procurator fiscal prior to its being sent. Over and above all of that the issue of oppression did not even arise.

[18] For the sake of completeness we would add that the decision in Strathern v Sloan upon which the court depute sought to rely before the sheriff does not alter our view. As Lord Justice Clerk Aitchision acknowledged "the right of the public prosecutor to refuse a plea of guilty is a right which should be sparingly exercised and ... should not be exercised where it may result in prejudice to another panel charged under the same indictment or complaint. The governing consideration in every case should be the public interest." If acceptable plea letters are to be used, it is clearly in the public interest that they are not used oppressively.

[19] For the foregoing reasons we shall sustain the appeal and remit the case to the sheriff to proceed as accords.