APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice ClerkLord Mackay of Drumadoon Lady Dorrian
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[2013] HCJAC 12 XJ1086/12
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
BILL OF SUSPENSION
by
WALTER WATSON Appellant;
against
PROCURATOR FISCAL, PETERHEAD
Respondent: _____________ |
Appellant: Crowe; Michael Allan, Aberdeen
Respondent: A Di Rollo, AD; Crown Agent
21 December 2012
[1] On 2 February 2012, a complaint against the appellant called at Peterhead Sheriff Court libelling two contraventions of section 33(1) of the Environmental Protection Act 1990, said to have taken place at the appellant's premises at North Park, Lonmay, Fraserburgh between January and July 2011. The first, under sub-section (c), was keeping or disposing of controlled waste, namely unscreened sewage tank sludge in the form of sanitary products, plastics and rags, on his land in a manner likely to cause pollution of the environment or harm to human health. The second, under sub-section (b), was disposing of that sludge without the authority of a waste management licence.
[2] The matter was continued without plea until 1, and then 29, March 2012 with the appellant being ordained to appear. He did not appear at either diet but his agent, who had represented him at each diet, pled not guilty on his behalf. The case was set for a trial on 27 July with an intermediate diet set for 27 June. The appellant was cautioned to appear and did so on 27 June, when the trial diet was altered to 18 September 2012. By that date, as appears from the court papers, the appellant's agent had instructed an expert environmental consultant and included his name on a list of witnesses. He had lodged an inventory of productions, which included a number of environmental materials.
[3] On 18 September 2012, the appellant, who was again represented by the same agent, pled guilty to charge 2 restricted to one day only and not guilty to charge 1. These pleas were accepted by the Crown. The appellant was present and personally confirmed his pleas to the sheriff. He was then fined £2,500.
[4] On or about 6 November 2012, some seven weeks after the conviction and sentence, the appellant presented a bill of suspension seeking to challenge the conviction. The bill does not contain any narrative of why the time lapse had occurred, but, in a letter to the court dated 14 November, applying for the bill to be received late, it is said that, although the appellant had contacted a new agent on 23 September, it was only the following week that he gave the new agent "formal instructions" to represent him. On 28 September, Edinburgh agents advised proceeding by bill of suspension, but by then, apparently, the new agent was on leave. An opinion of counsel was sought and the bill was eventually presented, well outwith the 3 week time limit set out in section 191A of the Criminal Procedure (Scotland) Act 1995.
[5] As the court has said in the past, in order to allow a late bill of suspension, two matters require to be considered. The first is whether there is an adequate explanation as to why the bill is late and the second is whether the bill contains an arguable case on the merits. In relation to the former, the court does not consider that there is an adequate explanation for the bill being late or, indeed, for no application being made for a stated case within the 7 day time limit fixed by section 176 of the 1995 Act or an extension thereof under section 181. The appellant was apparently disgruntled with what had happened and had contacted the new agent's offices on (Sunday) 23 September. Agents' letter of 14 November (supra) does not state exactly when the "formal" instructions were given. In these circumstances, there is no adequate explanation tendered for not making an application for a stated case before the time for that (in the absence of an extension) expired on 25 September. There is no requirement for leave to appeal relative to bills of suspension. It is therefore incumbent upon a party seeking to proceed by bill to explain, if it is not obvious, why procedure by stated case is not appropriate. There is no such explanation here.
[6] The court does not consider that the bill sets out an arguable case on the merits. The bill did contain a point about the relevancy of the charge, but this is not now being pursued. In relation to the allegation of defective representation, the court observes that there is no objective material supporting that allegation, which is effectively that the appellant was in some way obliged by his agent to plead guilty. This appellant is a businessman, who is no stranger to the courts, having personal convictions for breaches of animal welfare legislation in 2002, 2004 and 2011 and a contravention of the Police (Scotland) Act, section 41(1)(a) in 2009. In addition, his company has a relatively recent conviction, dated June 2009, under section 59 of the 1990 Act, for which it was fined £6,000. The court is therefore not in the least persuaded that it is likely that the appellant would have been "forced" to plead guilty. Even if pressure, in the form of legal advice, had been put upon the appellant to plead guilty, that does not provide a proper legal basis for quashing a conviction in circumstances where the accused has tendered a plea of guilty on the basis of such advice. It is clear that the agent had taken substantial steps to present some form of defence if necessary. He appears to have successfully negotiated a much reduced plea. If it is being suggested that an agent has represented an accused in such a manner as amounts to a miscarriage of justice, it is incumbent on the person making that allegation to produce some form of material (such as an affidavit) to justify such an allegation. There is no such material here. Indeed, it would appear that, notwithstanding the lapse of time since the new agent was instructed, no attempt has been made to put the allegation to the original agent for his comment.
[7] In these circumstances, the court will refuse the application to allow the bill to be received late.
Aud