Appellant:  Edwards AD;  Crown Agent

Respondent:  McIntosh;  Flowerdew, solicitors;  Peterhead

18 June 2014

[1]        This is a Crown appeal in relation to proceedings at the instance of the Procurator Fiscal of Peterhead against SB.  On 25 February 2014 before Sheriff Shead the respondent pled guilty at an intermediate diet to a contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982.  After extensive discussion recorded in a transcript to which we will return, Sheriff Shead adjourned the diet in terms of section 201 of the Criminal Procedure (Scotland) Act 1995 for the purpose of obtaining a criminal justice social work report.

[2]        The matter next came before the court with Sheriff Hendry as the presiding sheriff on 24 March 2014.  Having heard submissions in mitigation Sheriff Hendry made an order for absolute discharge.  The power to make an order for absolute discharge in summary proceedings is conferred by section 246(3) of the 1995 Act. 

[3]        In the Crown Note of Appeal it is acknowledged that when the matter was before Sheriff Shead on 25 February 2014 there had been substantial discussion among the sheriff, defence solicitor and the procurator fiscal depute which had focused on the notification requirements consequent on the conviction under section 52(1)(a) of the 1982 Act.  The Crown Note of Appeal continues with this averment:

“As a plea of guilty was tendered and recorded and sentence was deferred the learned sheriff on 25^th February 2014 clearly proceeded to conviction.”

Reference is then made to the recent decision of this court in Doig v Procurator Fiscal Aberdeen advised on 26 February 2014.  It is then averred that the sheriff who granted the absolute discharge on 24 March 2014 did so incompetently.

[4]        We accept, having regard to the terms of section 246(3) of the 1995 Act that in summary proceedings the option of an order for absolute discharge is not available once there has been a conviction.  That is the proposition on which the Crown relies for its contention that what Sheriff Hendry did was incompetent.

[5]        We do not accept that in the present case there was a conviction.  Mr McIntosh, who appeared on behalf of the respondent, took us to the terms of the court minute of 25 February 2014.  It does not expressly appear on the face of that minute that the respondent was indeed convicted.  That said, Mr McIntosh accepted that in the usual case a minute in the terms of this minute would be read as recording a conviction.  However having considered the transcript of the exchanges among Sheriff Shead, the defence solicitor and the procurator fiscal depute on 25 February 2014 we take the view that it was clearly the intention of the court that no conviction should be recorded in order to leave all options for disposal open.  We accept that the focus of the discussion before Sheriff Shead had been in relation to the automatic notification provisions but we are nevertheless satisfied that the minute of 25 February 2014 is an incomplete record of what took place. 

[6]        This court has the power to correct entries which require correction.  That power is conferred by section 299(1) of the 1995 Act, the correction being by the clerk of court under the authority of the High Court.  As appears from the observations of the court in the case of Burns v Wilson 1993 SCCR 418, where a case is being continued but without a conviction being recorded in circumstances where a plea of guilty has been accepted, the correct practice is for the minute to state in terms that the court has adjourned before proceeding to conviction, reference being made to the particular purpose of the adjournment.  Accordingly, in exercise of the power conferred by section 299, we will amend the minute of 25 February 2014 by inserting between “court” and “adjourned” the words “without proceeding to conviction”.  That, in our opinion, more completely records what the court decided on 25 February 2014.  Accordingly when the matter came before Sheriff Hendry it was open to him to decide, as in the event he did decide, to grant an order for absolute discharge.  The premise upon which the Crown appeal proceeds is therefore not substantiated and the Crown appeal is refused.