Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY,

SITTING AT GLASGOW

[2015] HCJAC 21

HCA/2015-000019-XJ

Lord Justice General

Lady Dorrian

Lord Bracadale

OPINION OF THE LORD JUSTICE GENERAL

in

BILL OF ADVOCATION

by

PROCURATOR FISCAL, ABERDEEN

Complainer;

against

RL

Respondent:

For the complainer:  McSporran, sol adv, AD;  Crown Agent

For the respondent:  Paterson, sol adv;  Paterson Bell

 

18 February 2015

[1]        This Bill of Advocation arises from an interlocutor pronounced at Aberdeen Sheriff Court on 10 December 2014 by which the sheriff refused to hear a motion on behalf of the complainer in terms of section 300A of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) for rectification of a court minute bearing the date 9 September 2014 that had not been signed by the sheriff clerk on that date. 

[2]        The respondent was charged on a summary complaint with two contraventions of the Social Security Administration Act 1992.  On 7 August 2014 she tendered pleas of guilty to the charges.  She thereafter sought leave to withdraw the pleas.  On 9 September 2014 the sheriff allowed the pleas to be withdrawn.  She fixed the 10 December 2014 as an intermediate diet and 7 January 2015 for the diet of trial. 

[3]        On 10 December 2014, before the hearing began, the sheriff clerk told the procurator fiscal depute and the agent for the respondent that the court minute bearing the date 9 September 2014 had not been signed by the sheriff clerk on that date.  The sheriff therefore concluded that the instance had fallen at midnight on 9 September 2014.  The respondent’s agent told the court that if the procurator fiscal depute were to move for rectification of the minute under section 300A of the 1995 Act, the motion would not be opposed.  The procurator fiscal depute then made that motion.  The sheriff refused to entertain it on the view that, the instance having fallen, the Crown could no longer call the case.

[4]        The prayer of the Bill craves this court to recall the decision complained of and thereafter to remit to the sheriff at Aberdeen Sheriff Court to proceed as accords.

 

The legislation

[5]        Section 300A of the 1995 Act provides inter alia as follows:

“Power of court to excuse procedural irregularities

(1) Any court may excuse a procedural irregularity—

(a) of a kind described in subsection (5) below; and

(b) which has occurred in relation to proceedings before that court,

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

(4) The conditions are that—

(a) it appears to the court that the irregularity arose because of—

(i) mistake or oversight; or

(ii) other excusable reason; and

(b) the court is satisfied in the circumstances of the case that it would be in the interests of justice to excuse the irregularity.

(5) A procedural irregularity is an irregularity arising at any stage of proceedings—

(a) from—

(i) failure to call or discharge a diet properly;

(ii) improper adjournment or continuation of a case;

(iii) a diet being fixed for a non-sitting day;

(b) from failure of—

(i) the court; or

(ii) the prosecutor or the accused,

to do something within a particular period or otherwise comply with a time limit;

(c) from failure of the prosecutor to serve properly a notice or other
thing;

(d) from failure of the accused to—

(i) intimate properly a preliminary objection;

(ii) intimate properly a plea or defence;

(iii) serve properly a notice or other thing;

(e) from failure of—

(i) the court; or

(ii) the prosecutor or the accused,

to fulfil any other procedural requirement …

(8) Where a court excuses an irregularity under subsection (1) above, it may make such order as is necessary or expedient for the purpose of –

(a) restoring the proceedings as if the irregularity had never occurred;

(b) facilitating the continuation of the proceedings as if it had never occurred, for example –

                        (i) altering a diet;

                        (ii) extending any time limit;

            (iii) appointing a diet for further procedure or granting an adjournment or continuation of a diet;

(c) protecting the rights of the parties.”

 

The issue

[6]        It is agreed that the failure of the sheriff clerk to sign the minute on 9 September 2014 constituted a procedural irregularity in terms of section 300A(1) and (5).  It is agreed that that had the consequence that the instance fell at midnight on that date.  It is agreed that the issue is whether the falling of the instance on 9 September 2014 had the effect that the motion under section 300A was incompetent. 

 

Scope of section 300A
[7]        Section 300A was added by section 40 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007.  It supersedes much of the previous case law relating to procedural irregularities for which there was no saving provision (eg Pettigrew v Ingram 1982 SCCR 259;  Heywood v Stewart 1992 SCCR 42). 

[8]        The solicitor advocate for the respondent submits that because proceedings fell at midnight on 9 September 2014, there were no longer any proceedings before the court.  Therefore section 300A could not be invoked by the Crown.

[9]        The advocate depute submitted that since section 300A(8)(a) entitles the court to “restore” the proceedings, the section applies, inter alia to cases where the instance has fallen.  The sheriff was therefore in error in refusing even to entertain the Crown’s motion.

 

Conclusions

[10]      The key provisions in this case are in section 300A(1) and (8).  In my view section 300A entitled the Crown to make the motion that the sheriff refused to hear.  When section 300A(1)(b) speaks of a court’s excusing a procedural irregularity that has occurred in relation to “proceedings before that court”, it means proceedings that were before the court on the date when the alleged irregularity occurred.  The decision in Shahid v Brown (2010 SCCR 945) is distinguishable in that respect.  In that case the court decided that purported proceedings founded upon an unsigned complaint were not “proceedings before that court” at all.  Therefore section 300A could not apply. 

[11]      In this case, however, there were valid proceedings before the court when the agreed irregularity occurred.  Section 300A(8)(a) entitles the court in such circumstances to restore proceedings as if the irregularity had never occurred; that is to say, to resuscitate proceedings that, ex hypothesi, have fallen.  The interpretation on which the sheriff refused to entertain the Crown’s motion would leave section 300A(8) devoid of meaning.  In my opinion, the sheriff erred.

[12]      Section 300A is of great practical significance.  Where formerly the rigid application of procedural rules could cause a prosecution to founder, the way is now open for the court to relieve a party of the consequences of an error by restoring the proceedings.  The sweeping powers given to the court enable it to restore proceedings despite what may be major errors.  The test laid down in section 300A(4) entitles the court to grant relief on the ground inter alia that it would be in the interests of justice to excuse the irregularity.  The interests of justice test may be relevant where, for example, a minor error for which there is a reasonable explanation would otherwise result in the failure of a prosecution on a serious charge.  But the interests of justice also necessitate a consideration of the interests of the accused.  Many of our strict procedural rules are there for the protection of the accused against high-handed or oppressive conduct.  That may be a relevant consideration if, in a case such as this, it should be suggested that the erroneous course of action resulted from administrative inefficiency or from considerations of administrative convenience.

[13]      I conclude therefore that in considering whether the Crown has discharged the onus the courts must apply section 300A strictly, requiring the Crown to give the fullest possible account of the circumstances in which the error occurred.

 

Disposal

[14]      I propose to your Ladyship and to your Lordship that we should pass the Bill.

 

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY,

SITTING AT GLASGOW

[2015] HCJAC 21

HCA/2015-000019-XJ

Lord Justice General

Lady Dorrian

Lord Bracadale

OPINION OF LADY DORRIAN

in

BILL OF ADVOCATION

by

PROCURATOR FISCAL, ABERDEEN

Complainer;

against

RL

Respondent:

For the complainer:  McSporran, sol adv, AD;  Crown Agent

For the respondent:  Paterson, sol adv;  Paterson Bell

 

18 February 2015

[15]      For the reasons given by his Lordship in the chair, I agree the Bill should be passed.

 

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY,

SITTING AT GLASGOW

[2015] HCJAC 21

HCA/2015-000019-XJ

Lord Justice General

Lady Dorrian

Lord Bracadale

OPINION OF LORD BRACADALE

in

BILL OF ADVOCATION

by

PROCURATOR FISCAL, ABERDEEN

Complainer;

against

RL

Respondent:

For the complainer:  McSporran, sol adv, AD;  Crown Agent

For the respondent:  Paterson, sol adv;  Paterson Bell

 

18 February 2015

[16]      For the reasons given by your Lordship in the chair, I agree that the bill should be passed.  In addition, I agree with the observations of your Lordship at paragraphs [12] and [13].