APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Wheatley	[2011] HCJAC 56 Appeal No: XC56/11 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST SENTENCE by CRAIG COLIN McSPORRAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Ms Ogg, Solicitor Advocate; Gilfedder McInnes, Edinburgh

Respondent: L Rodger, AD; Crown Agent

9 June 2011

[1] On 26 October 2010, in Glasgow Sheriff Court, the appellant pled guilty as libelled to the charge in the indictment against him. That charge was in the following terms:

"On 10 December 2009 at the car park of the Asda Supermarket, Govan, Glasgow and on the M8 eastbound near Junction 12, Glasgow, and elsewhere in the United Kingdom you .... CRAIG McSPORRAN were concerned in the supplying of a controlled drug namely Cocaine, a Class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971 to another or others in contravention of section 4(1) of the aftermentioned Act; Contrary to the Misuse of Drugs Act 1971, section 4(3)(b)."

[2] On that date, the prosecutor moved for sentence and laid before the court a schedule of previous convictions relating to the appellant. The court adjourned the diet for the purpose of obtaining a Social Enquiry Report and a community service assessment to 19 November 2010 at 9.30 am. The appellant was remanded in custody until that date. On 19 November 2010, the procedure followed in relation to the appellant was minuted in this way:

"The Court having seen and considered the reports prepared for the purpose of today's diet and having heard parties thereon, and Mr Gallagah, (sic) solicitor for the accused, Craig McSporran in respect of a discrepancy which was not narrated at the time of Plea, Assigned 13 January 2011 at 10 am as a proof in mitigation before Sheriff Rae, QC and ordered that the accused be detained in custody meantime."

[3] On 13 January 2011 the procedure followed is narrated in the Minute relating to that diet, which is in the following terms:

"The diet being called as a proof in mitigation, Mr Gallanagh submitted to the court that the Minute dated 19 November 2010 was incompetent and no further action should be taken in respect of the charge on the indictment. The court having heard Ms Connaghan in reply, ruled that the Minute dated 19 November 2010 was competent. Thereafter, the court, being satisfied that no other method of disposal was suitable due to the nature of the offence, sentenced the accused to three years and five months imprisonment back-dated to 26 October 2010. The sentence imposed was discounted in terms of section 196 of the Criminal Procedure (Scotland) Act 1995 ['the 1995 Act'] and would otherwise have been four years imprisonment."

[4] The appellant has now appealed against the sentence imposed on him on the following ground:

"(1a) That on 19 November 2010 the learned sheriff deferred sentence on the appellant to 12 (sic) January 2011 for a proof in mitigation. The period of deferral was outwith the four week (sic) prescribed in section 201(3) of the Criminal Procedure (Scotland) Act 1995 ... .It was not stated in court or minuted that the deferment to a date outwith the four week period was on cause shown. It is submitted that this deferment of sentence was in excess of the four week period permitted and in breach of section 201(3) of the 1995 Act and accordingly incompetent. The sentence subsequently imposed by the sheriff on 12 January 2011 (sic) was accordingly incompetent.

(b) The history of the case was as follows - [at this point in the ground of appeal the history of the proceedings is narrated in detail].

...

(vi) Prior to 26 October 2010 discussions took place between the appellant's agents and the procurator fiscal when a plea of guilty and narration in respect thereof were agreed between parties.

(vii) On 26 October 2010 a plea of guilty was tendered by the appellant and a narration of the circumstances was given by the procurator fiscal depute in court namely that the appellant had passed drugs to his co-accused in the sight of the police. The narration did not accord with the evidence available or with the plea and narration previously agreed with the Crown. Sentence was deferred by the sheriff in terms of section 201 of the [1995 Act] to 19 November 2010 for the preparation of a Social Enquiry Report. Neither the depute fiscal or the solicitor present in court on 26 October 2010 were the parties who engaged in the earlier discussions concerning the plea of guilty.

(viii) On 19 November 2010 the depute procurator fiscal in court advised the sheriff that the appellant's fingerprints had been found on a bag and packages of drugs. The solicitor appearing for the appellant advised the sheriff that contrary to what the sheriff had previously been told by the Crown the appellant had not passed the items to his co-accused. The appellant's solicitor requested a short adjournment to clarify the facts with the depute fiscal. The sheriff declined to allow the adjournment and stated that a proof in mitigation was necessary and that this would require to be in January. The case was adjourned to 12 (sic) January 2011. The sheriff did not state that the adjournment was on cause shown nor was it minuted that the adjournment was on cause shown.

(ix) On 12 (sic) January 2011 no proof in mitigation was held. The Crown accepted that the appellant did not pass the drugs to his co-accused and the information previously given to the sheriff was erroneous. The appellant's solicitor thereafter submitted in terms of section 201 of the 1995 Act the court could not adjourn 'for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with the case' for any single period exceeding four weeks or eight weeks on cause shown. He submitted that the adjournment on 19 November was for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with the appellant and that the period from 19 November 2010 to 12 (sic) January 2011 was a period in excess of four weeks. He further submitted that it had not been stated that cause had been shown for an adjournment for a period in excess of four weeks nor had it been minuted. He submitted the adjournment on 19 November 2010 was accordingly incompetent as were the further proceedings in respect of the indictment and that the sheriff could not sentence the appellant.

(x) The learned sheriff repelled the appellant's solicitor's submission on the basis that the adjournment on 19 November 2010 was at common law and that section 201 of the 1995 Act did not apply.

(c) that the learned sheriff erred in holding that the adjournment was at common law. It is submitted that the adjournment on 19 November 2010 was made in accordance with section 201 of the 1995 Act and accordingly the statutory time limits applied together with a requirement for cause shown to be stated and minuted where there was an adjournment in excess of four weeks. The adjournment here was outwith the four week period and not on cause shown and was therefore incompetent. All proceedings thereafter were incompetent including the sentence imposed. It is submitted that a miscarriage of justice has occurred and the sentence imposed should be quashed."

[5] In her report to this court, the sheriff gives a detailed account of the circumstances which gave rise to her decision on 19 November 2010 to fix a diet for a proof in mitigation. She explains that the adjournment was to a diet on 13 January 2011, on account of her non-availability in the sheriff court until that date, since she was acting as a judge of the High Court and was not to be sitting in Glasgow Sheriff Court until January 2011. She goes on to explain that on the day before 13 January 2011 it was explained to her that the proof in mitigation would not take place since the Crown and the defence advisers had agreed on the circumstances of the events giving rise to the charge against the appellant. The agreement was to the effect that the appellant had not handed the drugs over although he had helped to package them and had driven the person who handed over the drugs.

[6] Dealing with the contention advanced on behalf of the appellant on 13 January 2011 that the imposition of a sentence had become incompetent on account of an incompetent adjournment, the sheriff observes:

"On checking the minutes, it is certainly correct that no cause shown is minuted. However, I have two observations to make. In my view, it was unnecessary for a cause to be minuted because this case was not continued under section 201 for the court to make inquiries to determine the most suitable method of dealing with the accused. My only purpose in fixing a proof in mitigation was to enable the defence to lead evidence, if they so wished, to challenge the previously unchallenged narrative that had been provided by the Crown. I expressed the view that the continuation was under common law. In these circumstances I am of the view that where it was clearly understood why the case was being adjourned until January, and the purpose was minuted, it is wholly unnecessary to minute specifically that I would not be available until January 2011. This case was not deferred under section 201. However, if I am wrong, then no doubt the minute could have been corrected, as the Crown sought to have done. I took the view that was unnecessary. Intimation was sent to the court only on the day before the proof in mitigation to explain that the Crown were now conceding the appellant did not himself hand over the package. This was the first intimation that a competency point was to be taken before me. I saw no merit in the point raised by Mr Gallanagh and proceeded to sentence on the basis that the appellant was simply a courier despite his fingerprints.

...

There seemed to me to be no prejudice whatsoever to the appellant in this continuation since it was done for the sole purpose of allowing the appellant to lead evidence in mitigation if he so wished. As it transpired, this was unnecessary but had the defence agreed a proper narrative prior to the diet before me on 26 October, this situation would never have arisen."

Submissions for the appellant

[7] The solicitor advocate for the appellant informed us that the only issue in the appeal was the competence of the sentence pronounced by the sheriff. The contention was that the sentence was incompetent because the adjournment between 19 November 2010 and 13 January 2011 contravened the provisions of section 201 of the 1995 Act. She accepted that if, as the sheriff observed, the adjournment had been at common law, the appellant's argument disappeared. The solicitor advocate indicated that written submissions had been lodged which set out in detail the contentions of the appellant. We consider that it is unnecessary to narrate the terms of those written submissions in full here.

[8] The solicitor advocate drew our attention to several decisions which she contended were relevant in the context. The first of these was Douglas v Jamieson; Douglas v Peddie 1993 S.C.C.R. 717. That case showed that, alongside the provisions of section 201 of the 1995 Act, the court retained a power to adjourn at common law.

[9] The solicitor advocate went on to found particularly on McCulloch v Scott 1993 S.C.C.R. 41. In that case it had been held that an adjournment of a case for in excess of three weeks to hear evidence in mitigation on the complainer's circumstances relating to possible disqualification under the "totting-up" procedure fell within the provisions of section 380(1) of the Criminal Procedure (Scotland) Act 1975, "the 1975 Act". She submitted that that case could not be distinguished from the circumstances of the present case. The holding of a proof in mitigation, as had been contemplated in the present case, fell within the terms of section 201 of the 1995 Act. The words used in section 201(1) were "the court may adjourn the case for the purpose of enabling enquiries to be made or of determining the most suitable manner of dealing with his case."

[10] The solicitor advocate for the appellant went on to draw our attention to Burns v Lees 1994 S.C.C.R. 780. In that case the appellant had taken objection to the list of previous convictions laid before the court by the Crown. The adjournment took place to enable a proof of the previous convictions to be held. The court decided that that adjournment was one at common law since the sentencing court had not been in a position to consider what the sentence should be until the dispute about the previous convictions had been resolved. The solicitor advocate submitted that that case had been wrongly decided and that it might be necessary for that decision to be referred to a larger court.

[11] She went on to draw attention to Airlie v Heywood 1995 S.C.C.R. 562. The adjournment in that case had been made in order that the court could ascertain the position relating to the complainer's taxi licence. It was held that that adjournment had been at common law and that therefore no breach of section 380(1) of the 1975 Act had occurred. It was submitted that the authority of that case might be in question since neither Burns v Lees nor McCulloch v Scott had been cited to the court. She contended that the interpretation of McCulloch v Scott in Douglas v Jamieson could not consist with the decision in that case. It was submitted that the holding of a proof in mitigation was the taking of a step "enabling enquiries to be made". For all these reasons, the sentence imposed by the sheriff in the present case was incompetent.

[12] Recognising that an issue might arise under section 201(3) of the 1995 Act regarding "cause shown", the solicitor advocate addressed that matter. An adjournment of up to eight weeks was competent under the enactment "on cause shown". As regards that aspect of the case, our attention was drawn to Hunter v Carmichael 1995 S.C.C.R. 453. In that case the complainer had been convicted after trial in the district court of, inter alia, vandalism and the court deferred sentence for a period of almost eight weeks. The reason for the adjournment was minuted as "for the damage to be assessed". No reason was given in court for the length of the continuation. The court held that it had been appropriate that the justice should adjourn to a date within the eight week period when he himself would be available to deal with the case, and that he had good and sufficient cause for doing so. It was also held that there was no requirement that the cause shown should be minuted. Accordingly the Bill of Suspension involved was refused. That case had to be contrasted with Dingwall v Vannet 1997 S.C.C.R. 515 where an adjournment for a personal appearance and for the obtaining of a D.V.L.A. printout had been of such a duration that there was potentially a breach of section 201 of the 1995 Act. The court held that, where an adjournment in excess of the usual period takes place, the court should minute the fact that it is on cause shown, even though it does not require to specify the reason which was given and that since in that case the matter was entirely unclear, the High Court required to give the benefit of the doubt to the complainer and the Bill of Suspension was passed. The solicitor advocate for the appellant submitted that in the present case no reference had been made in the minute of the adjournment to cause being shown. She submitted that the case of Hunter v Carmichael had been "replaced" by the decision in Dingwall v Vannet. In all the circumstances she renewed her submission that the sentence imposed was incompetent.

Submissions for the Crown

[13] The Advocate depute submitted that the sheriff in the present case had been entitled to adjourn the case at common law for the purpose of holding a proof in mitigation into the controversy regarding the facts of the offence involved. It was of interest to note that in Douglas v Jamieson it was made clear that the distinction between different kinds of adjournment was based on a consideration of whether the court could sentence the accused. Even where there was a plea of guilty, as here, the court could not necessarily proceed to sentence. In the present case that was on account of a disagreement between the Crown and the defence advisers relating to the factual background to the offence. The issue had been in what manner the appellant had been concerned in the supply of the controlled drugs. It was quite plain that the court could not have proceeded to sentence until it had in fact been determined how the appellant had contravened the legislation. The present case could readily be distinguished from McCulloch v Scott, since in that case the court was considering the issue of disqualification under the totting-up procedure. That plainly fell under the words used in section 201(1) of the 1995 Act. The words "for the purpose of enabling enquiries to be made" used in that sub-section did not embrace the holding by the court itself of a proof in mitigation. What those words were intended to signify was the making of enquiries by some third person, other than the court, for example, a social worker, who might compile a Social Enquiry Report.

[14] Turning to the issue of whether cause had been shown under section 201(3) in the present case, the Advocate depute submitted that this case could be distinguished from Dingwall v Vannet, where the reason for the adjournment was wholly unclear. While in the present case the minute of adjournment did not refer to cause being shown, it did refer to the holding of a proof in mitigation. In addition to that, according to the description of the diet given by the sheriff in her report to this court, it had been made quite clear that she could not sit in the case until January 2011, on account of her responsibilities as a judge in the High Court of Justiciary. That amounted to cause being shown. In all the circumstances, the appeal should be refused.

The decision

[15] In the present context it is important to recognise the terms of section 201 of the 1995 Act. Section 201(1) provides:

"Where an accused has been convicted or the court has found that he committed the offence and before he has been sentenced or otherwise dealt with, subject to sub-section (3) below, the court may adjourn the case for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with his case."

Section 201(3) provides:

"Subject to section 21(9) of the Criminal Procedure (Scotland) Act 2003 ... a court shall not adjourn the hearing of a case as mentioned in sub-section (1) above for any single period exceeding four weeks or, on cause shown, eight weeks."

These provisions, or their statutory predecessor have been the subject of consideration in several decisions. In McCulloch v Scott, the complainer had pled guilty on a summary complaint to a road traffic offence. In the light of the circumstances, he was exposed to possible disqualification under the "totting-up" procedure. On 2 July 1992, after the complainer had pled guilty, the court adjourned the diet for sentence and for a hearing on "special reasons" until 4 August 1992. On that latter date an objection was taken to the competency of the proceedings on the ground that section 380(1) of the 1975 Act had been contravened. The justice repelled that plea, but the complainer's subsequent Bill of Suspension was passed and the sentence imposed suspended. The court took the view that an adjournment of the kind involved in that case could properly be regarded as being for the purpose of enabling inquiries to be made, or at least as being an adjournment for the purpose of enabling the court to determine the appropriate method of dealing with the complainer's case. Accordingly it fell within the provisions of section 380(1). At page 43G-44A, the Lord Justice Clerk characterised the situation in this way:

"In our opinion, an adjournment of that kind can properly be regarded as an adjournment for the purpose of enabling enquiries to be made or at least as an adjournment for the purpose of enabling the court to determine the appropriate method of dealing with the complainer's case. It was only after evidence had been heard at the adjourned diet that the justice could determine whether or not to impose disqualification on the complainer."

[16] In our view, the circumstances of that case can be distinguished from those of the present one. In that case, the object of the adjournment was to enable a "special reasons" proof to be held. What sentence was ultimately imposed upon the complainer was a direct and automatic consequence of the outcome of that proof. We consider that it was readily comprehensible that the court concluded that the holding of such a proof involved the determination of the most suitable method of dealing with the complainer's case. By contrast, in the present case, we consider that the court would have been disabled from passing any sentence until the circumstances of the commission of the offence had been clarified at the contemplated proof in mitigation.

[17] Douglas v Jamieson was also a case involving consideration of section 380(1) of the 1975 Act. In that case, adjournments in relation to convictions following upon a plea of guilty occurred because of the need for trials in relation to other charges. The court expressed the view, in relation to the language of section 380(1), that the purpose described in the provision was wide enough to cover any situation in which the court considered it appropriate to wait for further information before passing sentence, but that it appeared from its context that the provision was intended to apply only at the stage when the court was ready to embark on the sentencing process, having reached the stage when it was appropriate for it to consider the most suitable method of dealing with the accused and found it appropriate to order an adjournment for the purpose only of obtaining more complete information. It held that in those cases that was not the situation at the time when the adjournments took place. In this connection we refer to what was said by the Lord Justice General at page 725F. There he said:

"On the other hand, it appears to us from its context that the provision was intended to apply only at the stage when the court was ready to embark on the sentencing process, having reached the stage in the case when it was appropriate to consider the most suitable method of dealing with the accused."

Looking at the circumstances of the present case, we consider that, on 19 November 2010, plainly the sheriff could not have embarked upon the sentencing process because, at that stage, the facts relating to the offence were unclear, disputed and in need of clarification at a proof in mitigation. For that reason, we consider that the adjournment complained of here must be seen as an adjournment at common law, in relation to which the time limit imposed in section 201(3) had no application.

[18] Johnstone v Lees 1993 S.C.C.R. 1050 was a case similar in certain respects to Douglas v Jamieson. The complainer had been convicted on a summary complaint, but when it called on 14 December 1992, while appropriate reports were available for sentencing, the case was adjourned to 10 February 1993 to await the outcome of other matters as the complainer was awaiting trial in the High Court. The High Court proceedings had not taken place when the case called in February and it was adjourned again until 15 March 1993 to await their outcome. On that latter date the complainer was sentenced on the summary complaint, after which he brought a Bill of Suspension on the ground that the December and February adjournments were incompetent as being in breach of section 380(1) of the 1975 Act. However, the court held that the adjournments were at common law. It considered that it would be unreasonable to construe section 380(1) in such a way as to prevent the court from exercising its common law power to adjourn at any stage when this seemed appropriate. It went on to hold that the sheriff's decision, notwithstanding the fact that reports had been obtained, not to proceed to consider the question of sentence was in accordance with good sentencing practice in a context in which other matters required to be disposed of. The matter was put thus by the Lord Justice General at page 1053:

"It seems to us, however, that it would be unreasonable to construe the provisions of section 380(1) in such a way as to prevent the court from exercising the common law power to adjourn the case at any stage when this seems appropriate. In Jamieson and Peddie at page 726A it was said that the stage which section 380(1) contemplates is that where the court is in a position to proceed to sentence but finds it appropriate to order an adjournment for the purpose only of obtaining more complete information. There is no indication in the proviso to that subsection, however, that it was intended to restrict the exercise of the common law power at any stage where the purpose of the adjournment was other than that which the sub-section describes."

At page 1054, he continued thus:

"In our opinion, therefore, it is sufficient, in any case where the question raised by section 380(1) requires to be answered, to examine the purpose of the particular adjournment. The question will be whether or not on that particular occasion it was the power under the section which was being exercised or whether it was an exercise of the power at common law."

Looking at the matter in that way, we are unable to conclude that the purpose of the adjournment here fell within the language of section 201(1). In particular, we do not consider that a decision to hold a proof in mitigation can be described as for the purpose of "enabling inquiries to be made". As we understand that language, the reference is to the making of inquiries by some third party, other than the court itself, for example a social worker, or a medical practitioner.

[19] We find support for our view in Burns v Lees, where controversy had arisen in relation to the accuracy of the list of previous convictions laid before the court by the Crown. An adjournment beyond the time limit imposed by statute took place for the purposes of the holding of a proof of the previous convictions. The court held that that amounted to an adjournment at common law. The sentencing court had not been in a position to consider at all what the sentence should be until the dispute about the previous convictions had been resolved and that the adjournments were a further stage in the proceedings which required adjudication on matters in dispute. We consider that the facts of that case closely resemble those of the present one. Here it can be said that the sentencing court had not been in a position to consider what the sentence should be until the factual dispute about the facts of the offence had been resolved. In this connection we refer to what was said by the Lord Justice General at page 783A.

[20] Airlie v Heywood appears to us to be a similar case. It was adjourned to enable the court to ascertain the situation regarding the taxi licence held by the accused person. That was considered not to be for the purpose of enabling inquiries to be made, or of determining the most suitable method of dealing with the case. Accordingly, the adjournment had been at common law.

[21] In the light of the several foregoing authorities, we conclude that the appellant's submissions fall to be rejected. We should make clear that we see no reason to doubt the decision in Burns v Lees and therefore no reason to refer that decision for review to a larger court.

[22] Although what we have said so far is sufficient for the determination of the present appeal, it is appropriate to express our view upon the issue of "cause shown", which was the subject of argument before us. In Hunter v Carmichael, the court held that there was no requirement that "cause shown" should be minuted. The question which the court saw as arising in that case was whether the justice did in fact have a good cause for granting the adjournment which he did. The justice had adjourned the case for a considerable period outwith the statutory time limit of four weeks, because he was unavailable any sooner. That was stated in his report to the court. In relation to this matter, Lord Justice Clerk Ross at page 456 said this:

"It therefore appears to us to have been quite sensible and reasonable of the justice to determine in this case that, as there required to be an adjournment in order to allow the damage to be assessed, it was appropriate that he should adjourn to a date within the eight week period when he himself would be sitting and would be available to deal with the case. It thus appears clear that in this case, although he may not have expressed this matter clearly in court, the justice did have good and sufficient cause for adjourning the case to the date which he selected and we are not persuaded in the circumstances that what he did was incompetent."

In our view, the circumstances in the present case are closely comparable with those of Hunter v Carmichael. That appears from what the sheriff says in her report to this court, part of which we have already quoted. Her purpose in adjourning the case until January 2011 was to enable her to deal with the matter personally. We have no difficulty in concluding that that was a good and sufficient cause for the adjournment. However, for the reasons which we have already stated, a conclusion on that aspect of the case is not necessary.

[23] Before parting with this case, we should mention Dingwall v Vannet, also a case in which the issue of "cause shown" was involved. While we accept that, there the court expressed the view that, where an adjournment in excess of the usual period takes place, the court should minute the fact that it is on cause shown, even though it does not require to specify the reason which was given. We would see that observation as amounting to an indication of good practice rather than anything else. There the court was plainly dissatisfied with the situation which had arisen. It seems that what had occurred at the time when the adjournment was made was "wholly unclear". It seems to us that that contrasts sharply with the situation in the present case where the sheriff explains in clear terms the reason why the extended adjournment was granted. In all the circumstances the appeal is refused.