APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 148
Lady Smith Lord Brodie Lord Philip	Appeal No: XM13/13   OPINION OF THE COURT   delivered by LADY SMITH   in the Appeal   by   JOHN NEWLANDS Petitioner/Appellant;   against   HER MAJESTY'S ADVOCATE Respondents:   _______

 

Petitioner/Appellant: MacDonald; Drummond Miller LLP

Respondent: Edwards AD; Crown Agent

2 October 2013

Introduction

[1] This is the court's opinion in relation to (1) a petition to the nobile officium at the instance of Mr Newlands in which he avers that it was not competent for the sheriff to proceed to sentence him; and (2) his appeal against sentence.

 

Background

[2] Mr Newlands pled guilty, on 14 March 2013, at Perth Sheriff Court, to a charge of assault to injury in the following terms:

"... on 23 January 2012, ... you ... did ... enter [a] house uninvited and assault William Daniel Travers, care of Tayside Police and did attempt to punch him on the head, ... punch him on the head ... attempt to stab him on the head and stab him repeatedly on the head with a screwdriver or similar instrument, all to his injury ..."

 

[3] The prosecutor had, at an earlier date, complied with the requirements of section 66(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") by lodging in court, on or before the date of service of the indictment, a record copy thereof.

 

The Assault

[4] The locus in the charge was the complainer's home and the assault - which was wholly unprovoked - began when his wife and their three young children were present. The background to the assault was that Mr Newlands and the complainer are both members of a travelling community and whilst they previously had a good relationship (the complainer is the nephew of Mr Newlands' wife), things began to go wrong when the complainer married a woman from outwith that community. There had, earlier on the day of this assault, been an altercation between Mr Newlands' daughter and the complainer's wife. Mr Newlands' reaction to the fact of the complainer having married outwith the community appears to have been the root of the problem.

[5] The assault was a serious one. It is described in some detail in paragraph 4 of the sheriff's report. The use of a screwdriver to stab the complainer repeatedly causing a number of lacerations, one of which was a significant 3cm laceration above the complainer's ear, after his having entered the complainer's family home uninvited, is of particular concern.

 

Previous Convictions

[6] Mr Newlands had a long history of offending. He had amassed a total of 28 previous convictions over a period of some 20 years including for road traffic matters, breaches of the peace, resisting arrest, crimes of dishonesty, drugs offences, breaches of statutory orders and in 2000 and 2001, two offences of assault. He had not previously served a custodial sentence.

 

Guilty Plea

[7] Mr Newlands' guilty plea was duly recorded on 14 March 2013 and the sheriff adjourned the diet for a criminal justice social work report to be prepared.

 

Sentencing Diet

[8] The case called again, for sentence, on 11 April 2013. By that date, the record copy indictment, which had been present on 14 March 2013, had gone missing. All the remaining case papers were intact, including the record of Mr Newlands' plea of guilty. The procurator fiscal tendered a certified copy of the indictment receipt of which was opposed by Mr Newlands' solicitor on his behalf; he submitted that the loss of the record copy indictment constituted a fundamental nullity which could not be cured and the upshot was that the sheriff could not competently proceed to sentence Mr Newlands. It was, however, accepted that the certified copy tendered by the prosecutor was an accurate copy. It was not suggested to the sheriff or, indeed, to this court, that the loss of the record copy caused any prejudice to Mr Newlands.

[9] Having heard argument, the sheriff determined that it was open to him to excuse the loss of the record copy indictment and allow the certified copy to be received in its place. He found support in the decision in the case of Bryceland and Lynch v HMA 2002 SCCR 995. He proceeded to sentence Mr Newlands.

 

Sentence

[10] The sheriff imposed a sentence of 3 years 2 months imprisonment and would, had Mr Newlands not pled guilty, have imposed one of 4 years imprisonment. At paragraph 16 of his report, he explains his reasoning:

"I regarded the appellant's offence as serious. The context of the offence was a long running feud which seemed to have about it some flavour of prejudice. The appellant told the author of the social work report that relationships had deteriorated when Mr Travers married someone from outside the travelling community. It would have been easy enough to understand if he had said that Ms Miller was a difficult person. What was disturbing was the reference to marriage outwith the community as being (at least part of) the root of the problem. I emphasise that I regarded this as part of the context and not as aggravation. However, in the context of that feud, it appeared that the appellant had made a special journey in pursuance of the dispute. Notwithstanding his claim to have wanted to discuss the problems with the complainer, in terms of the undisputed narrative given by the Crown, he made no effort to do so. He pushed his way into the victim's home. He had armed himself with a screwdriver, which he did not hesitate to use. The complainer was in a vulnerable position by reason of the presence of Ms Miller and their young children. Ms Miller had already been assaulted that day by the appellant's daughter. The appellant inflicted injuries, though they were less severe than they might have been."

 

Petition to the Nobile Officium: Submissions for the Petitioner

[11] Mr MacDonald, counsel for the appellant, submitted that the sheriff had erred in applying section 300A of the 1995 Act to rectify the loss of the record copy indictment. That was confirmed by the terms of section 300A(12). Further, section 300A(5)(a) - (d) specified a genus which did not include what had occurred in the present case; the power to excuse only applied to cases within that same genus. He submitted that the genus was failure in the court procedure and that there was a difference between a defect in procedure and the requirement for lodging which had not, he said, been complied with once the indictment was lost.

[12] Counsel asserted that it was not possible to cure a failure in the court's implicit duty to retain the indictment by using section 300A; there could only ever be one record copy indictment. Bryceland could be distinguished; it related to pre-trial procedure.

[13] Counsel also referred to three authorities which related to summary procedure: McSeveney v P-F Annan 1990 SCCR 573; Wilson v Carmichael 1991 SCCR 587; Shahid v Brown 2011 JC 119, 2010 SCCR 945. The court, in the case of Shahid, had, he submitted, plainly drawn a line under section 300A . The present case could, he said, be equiparated with Shahid because it dealt with a defective document; there was, in this case, no valid indictment when Mr Newlands was sentenced.

[14] Counsel departed from an averment in the petition that the instance had fallen once the record copy indictment was lost; it was accepted that the conviction was valid and that there could, accordingly, be no question of the instance having fallen. All that was challenged was the competency of the sheriff proceeding to sentence in the absence of the original record copy indictment.

 

Petition to the Nobile Officium: Submissions for the Respondent

[15] The advocate depute submitted that destruction of the record copy indictment did not cause a fundamental nullity. The circumstances of the present case were comparable to those in Bryceland. They were not comparable to those in Shahid. This prosecution had proceeded in the presence of a record copy indictment which had been properly lodged with the court in accordance with section 66(5); it had not, as in Shahid, proceeded in the absence of a valid initiating document. The problem in Shahid was that there never had been a signed complaint which, according to the express terms of section 138(1) of the 1995 Act, was a fundamental requirement.

[16] The advocate depute submitted that section 300A had met the gap in the legislation which had, in Bryceland, necessitated the presentation by the Crown of a petition to the nobile officium. Section 300A(12) did not demonstrate that the discretion afforded to the court was not available in the circumstances of this case. Nor indeed, did it mean that the Crown could not still, if so advised, proceed by way of a petition to the nobile officium.

[17] Put shortly, this was, submitted the advocate depute, a case of procedural failure namely the failure to preserve the record copy indictment and keep it with the case papers and it was open to the sheriff to cure that failure by the application of section 300A. He had not erred.

 

Petition to the Nobile Officium: Discussion and Decision

[18] The issue raised by this petition is whether the provisions of section 300A(1) of the 1995 Act, as inserted by section 40 of the Criminal Proceedings etc Reform (Scotland) Act 2007, may be used to cure the failure of the sheriff clerk to retain the record copy indictment intact after the diet at which Mr Newlands pled guilty. Subsection (1) confers a power of excusal on the court. 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 the proceedings before that court,

 

if the conditions mentioned in subsection (4) below are met."

 

[19] The conditions mentioned in subsection (4) include "mistake or oversight".

[20] The only part of subsection (5) which was relied on in the present case was subparagraph (e):

"(5) A procedural irregularity is an irregularity arising at any stage of the proceedings -

 

...

(e) from failure of -

 

(i) the court;

 

...

 

to fulfil [a] procedural requirement."

 

The earlier parts of subsection (5) contain a list of specific procedural failures which might occur in the course of proceedings. It follows that the term "any other procedural requirement" refers to one which is not in the earlier list. If the earlier list is to be regarded as specifying a genus, it can only be that there has been a failure to follow a procedural requirement. It is a wide category, as is disclosed by even a cursory reading of the 1995 Act. That makes sense. There is no obvious reason for excluding some procedural matters from the category of potential curable failures; if that had been the statutory intention, we consider that it would have been made clear but there is no inkling, whether in the terms of the statute or otherwise, of that being the intention.

[21] The issue is, accordingly, whether what happened here was a failure by the court to fulfil a procedural requirement. If it was, it was capable of being excused and we do not understand Mr MacDonald to take issue with the sheriff's approach to the discretionary exercise; his attack was, rather, focussed on whether the sheriff had the power to excuse the failing at all.

[22] We do not accept that the terms of section 300A(12) support the petitioner's argument. They simply make it clear that the court's pre-existing powers to hold proceedings to be valid notwithstanding failure to comply with a statutory provision or a rule of law, are preserved. They cannot be read as affecting the interpretation of section 300A(5). Nor do we accept that the failure to retain the record copy indictment intact was other than a failure by the court to follow a procedural requirement. On a straightforward interpretation of section 300A(5)(e) alone, it seems clear that that is a failure which is covered by those provisions.

[23] That conclusion also accords with the statement of principle in Bryceland to the effect that it was competent for the court to allow a lost record copy indictment to be replaced by a fresh certified copy; nothing contained in the 1995 Act ruled out such a replacement (para 13). We do not read anything provided for in section 300A as departing from that general principle or as demonstrating an intention to, for the first time, make it incompetent for a record copy indictment to be replaced. Rather, the scope of its provisions certainly appears to be wide enough to encompass it.

[24] Nor do we accept that any distinction falls to be drawn between the notion of failure to follow a procedural requirement and what occurred in the present case. We agree with the advocate depute that the failure that occurred can properly be characterised as a failure to follow the procedural requirement that the court retain the record copy indictment intact until the proceedings are finally disposed of. It did not, as Mr MacDonald at one point suggested, mean that the Crown had failed in its section 66(5) obligations although we have to say that, even if that had been the case, given that the requirements of section 66(5) are procedural, it would not appear necessarily to follow that the court could not competently invoke section 300A to permit late lodging. The validity of any procedure that had occurred in the meantime would be a separate issue; it may affect the outcome when the discretion is exercised but that is not to say that it would not be competent to excuse the failure.

[25] With regard to the authorities to which we were referred, we are not satisfied that they demonstrate that section 300A(5)(e) is susceptible of any interpretation other than that it was competent for the sheriff to excuse the procedural failing that occurred and to do so by allowing a fresh certified copy indictment to be lodged. Turning first to the decision in the case of Bryceland, the principle articulated was general and not restricted to cases which were at the pre-trial stage of procedure. McSeveney and Wilson are not in point; they related to summary complaints and problems that arose when procedure took place in the absence of a signed principal complaint. Shahid also related to a summary prosecution and is not in point; the issue there was whether the absence of a signed principal complaint - in compliance with the requirements of section 138(1) of the 1995 Act - meant that there were no valid proceedings before the court at all when the sheriff was asked to invoke section 300A. Its provisions could not be used to, in effect, create a signed complaint to enable the sheriff to proceed where none had existed from the outset. By contrast, in the present case, it is accepted that the record copy indictment was present up to and throughout the diet at which Mr Newlands pled guilty and no procedure took place during the time that the indictment was missing. No question arose as to the validity of the prior proceedings in the prosecution.

[26] In all these circumstances, we conclude that the petition to the nobile officium is without merit; its prayer is refused.

 

Appeal against sentence

[27] Mr MacDonald accepted that imprisonment was appropriate and that the discount afforded was an appropriate proportion. However, the sheriff had not, he submitted, taken sufficient account of the restriction to the libel. The words "permanent disfigurement" were deleted and that amounted to a significant restriction to the libel. Only two of the appellant's previous convictions were analogous. He had not previously served a custodial sentence. The sheriff had not adequately discussed his reasons for imposing the sentence that he imposed. The sentence was excessive.

[28] The appellant has a long history of offending. He has amassed 28 previous convictions over the last 20 years, as referred to above. The circumstances of this offence were that he committed a serious assault involving the use of a sharp weapon. It was a sustained assault and it began in circumstances where he entered the complainer's home uninvited and set about attacking him in the presence of his wife and their young children. The assault involved three stab wounds to the head. It was motivated by feud and by some prejudice and the appellant had sought out the complainer quite deliberately. Once his lengthy record of previous convictions is taken into account, which includes some analogous offending, the sheriff's sentencing decision cannot be criticised. Further, we do not accept that his discussion of his reasons was inadequate in any respect. The appeal against sentence is, accordingly, refused.