Appellant: S Collins, solicitor advocate; Paterson Bell, Edinburgh

Respondent: Brodie QC AD; Crown Agent

16 April 2013

[1] The complainer in this Bill of Suspension is Luke Sinclaire. He is profoundly deaf. He appeared at Stranraer Sheriff Court on 3 December 2012 on a complaint containing two charges. The first was a charge of breach of the peace and the second was a charge of contravention of section 41(1)(a) of the Police (Scotland) Act 1967, both charges relating to events alleged to have occurred in Newton Stewart on 1 December 2012. In this Bill of Suspension the complainer argues that the tendering of a plea of guilty to charge 2 on the summary complaint being tendered in error should be suspended simpliciter.

[2] Before his appearance in court the complainer met with the duty solicitor at Stranraer Sheriff Court and having discussed matters with him the complainer appeared in court and a plea of guilty was tendered on his behalf to charge 2 and not guilty to charge 1 and the Crown accepted these pleas. The matter was gone over with the complainer in court by the presiding sheriff and it appears that the complainer adhered to his pleas of guilty to charge 2 and not guilty to charge 1.

[3] We have before us today a response to this Bill of Suspension from the solicitor who acted on behalf of the complainer on 3 December 2012 and we quote from paragraph 2 of that response as follows:

"I met with the complainer in a cell at Stranraer Sheriff Court where he immediately advised me of his disability and informed me that I would require to speak directly to him and slowly to enable him to hear. I therefore had a full meeting with him in which the charges against him were discussed. During the discussion the acceptable plea letter received from the Crown was discussed with him and he was advised that the acceptable plea was a plea of guilty to charge 2. I explained to the complainer the options available to him which were for him to plead guilty, not guilty or move that the case be continued without plea for further investigation. The complainer elected to plead guilty in terms of the acceptable plea letter and was thereafter advised as to how the court would proceed. The complainer was advised that if he could not follow proceedings he was to make the position known to me as soon as possible. At no time did Mr Sinclaire instruct me to plead guilty to charge 1 and not guilty to charge 2."

The response from the solicitor went on to repeat:

"At no time did the complainer intimate that he was not following proceedings. In pleading guilty to charge 2 I had followed the complainer's instructions. I did not make any error in this regard. The plea was tendered upon the instructions of Mr Sinclaire and in keeping with his instructions."

[4] We also have before us the report from the presiding sheriff which responds to the allegations in the Bill of Suspension. There are two passages of note in that report. First the sheriff observes:

"It is also important to observe that as far as was apparent to those in court the complainer was able to follow proceedings by dint of the efforts made to assist him. When the sheriff clerk asked the complainer to confirm his identity she recalls that he did so without any hesitation. The pleas having been tendered and accepted I went over them in detail with the complainer and he confirms in paragraph 3 of the Bill that he heard me explain that his plea was one of not guilty to the breach of the peace and guilty to the police assault. He confirmed that plea. Every indication therefore was that the complainer was duly following proceedings as (his solicitor) had indicated that he could."

The sheriff went on to state:

"The complainer gave no indication of not following matters and on the contrary positively appeared to do so. He never sought any further assistance. The whole point of confirming his plea with him was to try to avoid any confusion and no explanation is given as to why the complainer did confirm that he was pleading guilty to the second charge if that were not the case."

[5] We remind ourselves of the test which this court applies in an application to set aside a plea of guilty which has been considered in three cases, the most recently of which was the case of Blockley v Procurator Fiscal Cupar [2013] HCJAC 2, in which reference was made to Reedie v Her Majesty's Advocate [2005] HCJAC 55, 2005 SCCR 407 and also to Gallagher v Her Majesty's Advocate [2010] HCJAC 46, 2010 SCCR 636. It is worth repeating the remarks of Lord Justice Clerk Gill in Reedie at paragraph 11 where he observed that:

"a plea of guilty constitutes a full admission of the libel in all its particulars. It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court, nor, in our view, in the light of a subsequent verdict in the trial of another party on the same charge. In view of the conclusive nature of such a plea it can be withdrawn only in exceptional circumstances, for example, where it is tendered by mistake or without the authority of the accused. There is little scope, if any, for the withdrawal of a plea that has been tendered on legal advice and with the admitted authority of the accused."

[6] In light of the information that we have before us today, to which reference has been made, we are unable to conclude that there are exceptional circumstances in this case sufficient to justify the setting aside of this plea of guilty.

[7] We have the report from the solicitor acting on behalf of the complainer who states to this court that the plea which was tendered on behalf of the complainer was in accordance with his instructions and we have the sheriff's report which states that the complainer confirmed that plea when it was put to him in open court and, as the sheriff observes in paragraph 3 of this Bill of Suspension, it is stated that the complainer understood some of the things said to him during the court proceedings and recollected the sheriff stating that he had pled not guilty to the breach of the peace and guilty to police assault. No explanation has been given to us, either in the Bill of Suspension or in submissions before us today, as to why, if that was the case, the complainer did not raise the matter in open court and indeed why he confirmed that he was pleading guilty to charge 2.

[8] In all these circumstances we are not persuaded that there are exceptional circumstances which would justify the setting aside of this plea of guilty and we refuse the Bill of Suspension.

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