Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 109

HCA/2015-000495/XC

Lord Brodie

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

in

Bill of Advocation

by

HER MAJESTY’S ADVOCATE

Appellant

against

GINETTE BALL

Respondent

Appellant: I MacSporran QC (sol adv), AD; Crown Agent

Respondent:  C M Mitchell; Brown’s Solicitors, Glasgow

25 November 2016

[1]        In this Bill of Advocation the Crown seek to recall a decision of the sheriff at Glasgow, dated 18 August 2016, in which he made no further order at an adjourned diet for sentence in indictment proceedings in respect that there was no procurator fiscal depute present in court when the case was called.

Background

[2]        On 21 June 2016, the respondent Ginette Ball, aged 44, pled guilty to two of the three charges which she faced on indictment and not guilty to the remaining charge.  These pleas were accepted by the procurator fiscal depute.  The pleas as accepted were to charges in the following terms:

“(2) on 15 July 2015 at Daisy Street, Glasgow you GINETTE BALL did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout and swear; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010;

(3) on 15 July 2015 at the common close at 32 Daisy Street and in Daisy Street, Glasgow, being a public place, you GINETTE BALL did, without reasonable excuse or lawful authority, have with you an article that has a blade or is sharply pointed, namely a meat cleaver; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 49(1) as amended.”

[3]        The procurator fiscal depute moved for sentence and tendered a schedule of previous convictions which displayed that the respondent had been convicted on four occasions in England.  On three of those occasions she was dealt with at the Magistrate’s Court, twice for offences of dishonesty and once for an offence of battery and using threatening, abusive and insulting words or behaviour.  On the fourth occasion, in April 2014, she was dealt with at the Crown Court in Liverpool for an offence of assault occasioning actual bodily harm, which had resulted in a suspended sentence of imprisonment along with a requirement to perform unpaid work in the community.  Having heard the narrative of the events and a plea in mitigation on the respondent’s behalf the sheriff adjourned the diet for sentence until 19 June 2016 at 9.30 am for the purpose of obtaining a Criminal Justice Social Work Report.  Owing to difficulties in preparing the report the case required to be further adjourned until 21 July 2016 at 9.30 am and then further adjourned again until 18 August 2016 at 9.30 am.

The Sheriff’s Decision
[4]        In his report to this court the sheriff explained what occurred on the morning of 18 August 2016.  He informed us that at 9.30 am he was advised that the respondent and her solicitor were both present in court but that the procurator fiscal depute was not.  As a consequence he instructed the sheriff clerk to contact the Procurator Fiscal’s Office by telephone. This having been done, he was informed that the depute fiscal allocated to the court was not yet in the building but was on his way.  The sheriff told us he assumed this meant that he was on his way from the Procurator Fiscal’s Office in Ballater Street.

[5]        The sheriff next informed us that at about 9.40 am he instructed the clerk of court to call the case in the absence of the procurator fiscal.  He informed us that having done so he was unable to impose a sanction in the procurator fiscal’s absence and therefore made no further order, with the consequence that the respondent was allowed to leave.

[6]        The sheriff’s reason for deciding to order that the case be called, despite knowing that the Crown was not represented, is given in his report.  He introduces his report by saying that:

“The writing of this report is the inevitable consequence of what has become not uncommon, namely, the failure of courts to commence promptly.”

At a later stage he tells us that failure of the procurator fiscal to attend timeously is not uncommon.  In the body of his report the sheriff states that failure to call cases promptly causes delays.  He informed us that the adjourned diet in the respondent’s case was due to call in the Remand Court and that deferred sentences before two other sheriffs were also scheduled to call at 9.30 am in the same court.  The ordinary business of the Remand Court was scheduled to commence at 10 am and the sheriff himself was due to preside over the Domestic Abuse Court commencing at 10 am.  Seven trials were allocated to that court, including two custody trials and a part heard trial.  The sheriff explains that in these circumstances unless the adjourned diets commenced promptly at 9.30 am, not only would the three sheriffs dealing with the 9.30 cases be inconvenienced, but the sheriff dealing with the Remand Court would start later than otherwise and, in addition, other courts, including his own, otherwise scheduled to commence at 10 am would also be delayed.

[7]        The sheriff then goes on to provide an account of the business which called before his own court that day and explains that it included a domestic abuse case which had called and been adjourned on three prior occasions through lack of court time.  He was able to start this case at 3.50 pm but two further trials which were scheduled for that day had to be adjourned due to lack of court time.  He explains that had he waited even longer to deal with the adjourned diet in the morning it is unlikely that he would have been able to start the domestic abuse case which had been adjourned on other occasions.

[8]        At paragraphs 32 and 33 of his report the sheriff informed us that he considered it within his powers to direct the sheriff clerk to call the post-conviction diet of deferred sentence where the respondent and her solicitor were present and the procurator fiscal was not.  He informed us that his decision to proceed in the absence of the procurator fiscal was an exceptional one and explained his reason for doing so as follows:

“A case such as this brings home to the complainer the requirement for his deputes to attend court timeously. It is the relaxed attitude to timekeeping at the beginning of the day which results in churn at the end of it. That is to be deprecated.

The remedy lies with the complainer. Since 18 August I have not had difficulty commencing courts on time – sometimes one has to make a point in the wider public interest and be seen to do so. That is in the interests of the efficient judicial court management.”

Despite his comments on the importance of timeous attendance and his suggestion that it is not uncommon for members of the procurator fiscal’s office to attend late, the sheriff did not provide us with any examples of such issues arising in other cases of which he was aware.

The Hearing on the Bill

[9]        At the hearing before us the advocate depute acknowledged that the procurator fiscal depute ought to have been present in court prior to 9.30 am. He explained that the person who had been allocated to that court had mis‑read the court sheet the previous evening.  He noted that he had been allocated the custody court to commence at 10 am but in error failed to look further down the sheet where it was noted that there was also 9.30 am business in that court.  The advocate depute submitted that this was a regrettable mistake but was not indicative of dilatory attendance or wilful non-attendance.  He also explained to us that in light of the sheriff’s observation about late attendance enquiry had been made with senior members of the legal staff who had responsibility for managing court business.  He informed us that four such senior members of staff regularly met with the sheriffs and the sheriff clerks at Glasgow Sheriff Court in order to discuss management of court business.  One had met earlier this year with the very sheriff who dealt with the present case.  No issues of late attendance had been brought to the attention of the procurator fiscal’s representatives during any of these discussions and it therefore came as a surprise to the Crown to see the sheriff express this concern.

[10]      The advocate depute submitted that on 18 August the sheriff’s duty was to pass sentence in the case in light of the earlier motion which had been made.  He ought to have complied with that duty rather than purporting to make no order.  In making this submission the advocate depute relied upon what had been said by this court in the cases of Skeen v Sullivan 1980 SLT (Notes) 11 and MacKinnon v Craig 1983 SCCR 285.  The advocate depute submitted that there were a number of steps which the sheriff in the present case could have taken to allow him to comply with his duty.  Having satisfied himself that the Crown’s representative was on his way to court he could have waited for the individual concerned to travel the short distance from Ballater Street. Alternatively, he could have instructed that the case be recalled later, or he could have waited until the other sheriffs had dealt with their adjourned diets in that court, by which time the individual concerned would have been present.  The advocate depute recognised that any of these steps would have led to a degree of inconvenience, which was unfortunate. However he suggested that  the sheriff could have taken steps to ensure that the procurator fiscal depute’s failure to attend on time was met with censure.  The advocate depute drew our attention to the terms of paragraph 7 of the Bill in which it was explained that the procurator fiscal depute had left the office immediately on being alerted to the case and had arrived in court by 9.45 am.  On arrival he had asked the sheriff clerk to contact the sheriff and request that he return to the court to deal with the case but the sheriff declined to do so.

[11]      The advocate depute accepted that it was competent for the sheriff to instruct that the case be called as an administrative act to ascertain who was present.  He submitted that as a matter of law though there could be no competent proceedings in the absence of the prosecutor and that the interlocutor pronounced by the sheriff was incompetent. He referred us to Hume’s Commentaries on Crimes Vol II at pages 266 and 277, Fraser v HM Advocate 1852 1 Irv. 1, Walker v Emslie (1899) 3 Adam 102, Thomson v Scott (1901) 3F (J) 79 and Skeen v Summerhill (unreported, 1975 39 JCL 59). He therefore invited us to pass the Bill, to recall the sheriff’s decision of 18 August 2016 and to remit to him to impose a sentence.

[12]      On behalf of the respondent, Ms Mitchell could not contradict the proposition that to conduct proceedings in the absence of the procurator fiscal would be incompetent. She submitted though that the sheriff had acted competently since, properly understood, he had in fact done nothing. He had made a deliberate decision to take no step in the proceedings as a legitimate exercise of his discretion in light of the circumstances which had transpired. The consequence of the case calling and no proceedings following thereon was that the diet fell. Ms Mitchell’s submission was that the Bill should be refused.

Discussion

[13]      In Skeen v Sullivan the court required to consider circumstances in which the sheriff had pronounced an interlocutor purporting to make no order at an adjourned diet for sentence in a summary case where the accused was not present. The circumstances were not the same as disclosed in this Bill but it is instructive to note the approach which the court took. The court stressed that the previously made motion for sentence was still before the sheriff at the adjourned diet and his duty was to dispose of the case at that diet, or at a further adjourned diet. In MacKinnon v Craig the court required to deal with circumstances in which the prosecutor was absent when a summary complaint called in the presence of the sheriff. The sheriff having left due to the absence of the prosecutor, he returned to the bench some ten minutes later when the prosecutor was present but refused to deal with the case and made no entry in the minute of proceedings. Again, the court stressed the nature of the duty incumbent upon the sheriff to comply with the relevant statutory procedure and the sheriff’s refusal to hear the complaint was held to be incompetent.

[14]      In each of those two cases the duty to which the court referred was to be found within the relevant sections of the Criminal Procedure (Scotland) Act 1975. There is no precise equivalent between those provisions, or the now applicable provisions of the Criminal Procedure (Scotland) Act 1995, governing summary procedure, and the relevant statutory provisions governing proceedings on indictment.  However, in the present case the prosecutor had moved for sentence and, in light of that motion, the court had adjourned the diet in terms of section 201 of the 1995 Act.  As the head note to that section makes plain, the purpose of the section is to permit an adjournment before sentence.  The motion for sentence remained live before the present sheriff at the diet which he had fixed for that purpose. We consider that the observations made in Skeen v Sullivan as to the presiding sheriff’s duty at a sentencing diet in summary procedure apply with equal force to the diet fixed for 18 August 2016 in the present case. We therefore agree with the advocate depute that it was the sheriff’s duty to pass sentence at the adjourned diet in light of the motion before him.

[15]      We turn then to consider what did take place. The minute for 18 August 2016 is in the same form as the other minutes in the case. It begins by noting that the court directed that the whole proceedings in the case be recorded by mechanical or digital means under the supervision of the clerk of court and the clerk’s signature then authenticates that entry. The minute records the absence of the procurator fiscal depute, records the presence of Mr Brown, solicitor acting for the accused and the following entry then appears:

“The court having considered the Criminal Justice Social Work Report requested for the purposes of today’s diet and having heard from Mr Brown on behalf of the accused, and in respect that there was no Procurator Fiscal Depute present in court when the case was called at 9:40 am, made no further Order in respect of this indictment.”

That entry is authenticated by the clerk of court who then also certifies that digital recording was used during the duration of the proceedings.

[16]      This minute is entirely in keeping with the events as related to us by the presiding sheriff in his report. In light of the content of the minute, and the description of events which we have set out above, we cannot accept Ms Mitchell submission that no proceedings in the case occurred. It is plain from what the sheriff himself tells us that he took a deliberate decision to constitute the court knowing that the procurator fiscal was not represented, that he then chose to take a step which he considered would bring the proceedings to an end and that he did each of these things for a particular purpose. That purpose was to discipline the procurator fiscal as to the importance of timekeeping and efficient court management.

[17]      In Walker v Emslie the court stated that it is a well-established rule of criminal law that no proceedings can take place in the absence of the prosecutor. The conviction of an accused person who pled guilty before a magistrate in the absence of a prosecutor was therefore held to have proceeded on a nullity and was quashed. In Thomson v Scott Lord Trayner observed that in a criminal trial there is no instance where the prosecutor fails to appear.

[18]      These observations do not though mean that the sheriff requires to sit mutely on the Bench should a case be convened in the absence of the Crown’s representative. Nor does it mean that a diet called necessarily falls because of the absence of the Crown’s representative. In the passages of Hume relied upon by the advocate depute it is made plain that the prosecutor must attend at all stages of the trial and that no proceedings can take place unless he is present to maintain the instance which, as Hume explains, “is only in court by his act and extinguishes as soon as he withdraws”. However at page 266, in dealing with the absence of the prosecutor, Hume states the following:

“But although the process cannot advance in the prosecutor’s absence, it does not however follow, that the diet of the libel must absolutely, in every instance, straightway, and without further inquiry, be deserted. If a procurator appear, and offer some reasonable excuse for his absence; or if, in the whole circumstances of the case, it be presumable that he has no purpose of abandoning the process; certainly it is in the discretion of the Court to continue instead of deserting the diet, and put the matter to the trial of a farther day.”

Hume then gives some examples of steps taken by the court in the absence of a prosecutor and having done so says the following at page 267:

            “In short, although the trial cannot advance, nor any step be taken on the libel, unless             the prosecutor be in Court; yet still his absence does not constrain the Court             straightway to dismiss the process, if it appear not to be wilful or without excuse.”

We take it from these statements that whilst a sheriff’s power to act in the absence of the prosecutor is limited, he would be entitled to continue the case, as submitted by the advocate depute. Beyond taking this step is seems to us that the only other competent step which Hume envisaged was desertion on the basis that the failure to attend was wilful, or where it could reasonably be inferred that the prosecutor intended to abandon the process. Importantly though, Hume also makes it plain that even if the court was to desert the diet in such circumstances that step would not ordinarily be a bar to fresh proceedings being raised by the prosecutor (see page 267 and 277).  No support can be detected for the suggestion that it would be competent to desert the diet for the purpose of disciplining the procurator fiscal.

[19]      During the hearing before us the advocate depute also founded upon the short account of the case of Skeen v Summerhill, which appeared in The Journal of Criminal Law (1975 39 JCL 59). Our own enquiries have uncovered the original case papers which contain an opinion of the court given by the Lord Justice Clerk (Wheatley). In that case the Crown brought a stated case seeking to challenge the decision of a sheriff who had granted an absolute discharge, in the absence of the procurator fiscal, to two accused men who had appeared at an adjourned diet for sentence in a summary complaint. It appears from the terms of the stated case itself, and from the opinion of the court, that the circumstances in which the sheriff took his decision were quite similar to those which arose in the present Bill. The sheriff appeared to hear remand cases at 10:30 am, in accordance with the normal practice in the court. By 10.45 am, in spite of numerous endeavours by the sheriff clerk and bar officer to secure the attendance of a procurator fiscal depute, none was present. Having heard the solicitors for the accused, the sheriff concluded that he could not competently proceed to conviction and sentence in light of what was said in Walker v Emslie and decided to impose an absolute discharge, which he described as been consistent with the Crown’s apparent indifference.

[20]      In giving its opinion the court held that the case was properly called and properly before the court but it held that the procedure which the sheriff had adopted was incompetent. In giving the opinion of the court the Lord Justice Clerk said this:

“In the absence of the Procurator Fiscal the Sheriff took the procedure which I have outlined. In my opinion he was wrong in so doing. It would not only have been a simple matter but it would have been appropriate for the Sheriff in the circumstances to have continued the case possibly even to later on that day to enable the Fiscal to be present and if need be to tender his explanation. Be that as it may, in the absence of the Procurator Fiscal (or for that matter in the absence of the accused in a similar situation) the court was not in a position to do anything. It therefore follows that when the Sheriff proceeded to grant an absolute discharge to the respondents he was doing something which was incompetent.”

The court therefore recalled the determination of the sheriff and remitted the case back to the Sheriff Court to proceed as accords.

[21]      In the present case the sheriff did not desert the diet but pronounced an interlocutor which had the effect of bringing the indictment proceedings to an end without passing sentence. If competent, this was an interlocutor which prevented the Crown from bringing fresh proceedings.

[22]      We recognise the demands of daily court business which the sheriff refers to in his report.  We entirely support his general efforts to make good use of the time available and we sympathise with the difficulty which he found himself in on 18 August.  We also recognise though that members of the procurator fiscal service and other practitioners can also find themselves having to cope with very demanding workloads. In such circumstances mistakes can be made from time to time and the court cannot be seen to be unrealistic in the standards which it sets for others. In McKinnon v Craig the court expressly drew attention to the need for the court to take account of the pressures of business on practitioners within a busy court. In that case ,whilst the circumstances of the procurator fiscal depute’s absence were not identical to those in the present case and nor was the action taken by the sheriff, we nevertheless consider that what the Lord Justice Clerk said at page 288 is apt:

“While fiscals, like accused or their legal representatives, have a duty to be available in court when their cases call – and in the instant case the Crown freely admit that the depute fiscal was at fault in not being in court when the sheriff came onto the bench to deal with the cited cases – the pressures when they exist are matters which ought to be taken into account by the judge. Apart from the statutory requirement on the sheriff to deal with the case when it was called before him when he was on the bench, his refusal to deal with the case in the circumstances without any apparent opportunity being afforded to the depute fiscal to explain the reason for his failure to appear timeously and apologise therefore is on any view difficult to understand and cannot be approved.”

[23]      In the present case the sheriff was told that the procurator fiscal depute was on his way to the court from his office. Given his knowledge of the geography, the sheriff would have known that it would only take a short time for him to complete that journey. There were a number of options open to the sheriff which would have enabled him to comply with his duty to pass sentence in the case. One such option would have been to permit one or both of the other sheriffs who had adjourned diets to hear in that same court to sit before him, they were all scheduled to call at 9.30 am. He could also have arranged for the case to call at a later point during that same day. Any such step would still have resulted in inconvenience to the particular sheriff but the level of inconvenience would have been far less than the general picture alluded to in his report. On taking any such step the sheriff would still have been entitled to require an explanation and to censure the procurator fiscal depute, if appropriate.

[24]      In our view it is clear from what is said in Hume, and the other cases to which we have referred, that the sheriff has only a very limited power available to him in the absence of the procurator fiscal. We are satisfied that the sheriff’s duty was to pass sentence at the adjourned diet. Given he knew that the procurator fiscal depute was on his way to his court to appear in those very proceedings, the sheriff could not reasonably have concluded that his absence indicated an intention of abandoning the process. In the absence of an explanation he had no reason to conclude that the late attendance was wilful or without excuse. If the sheriff wished to call the case in the absence of the procurator fiscal the only step which was competently open to him was to continue it to a later point in the day, or to a further day. As is clear from the terms of the minute, proceedings did take place in the absence of the procurator fiscal. A deliberate step was taken to bring the case to an end in order to discipline the Crown and to bring home to them the importance of timeous appearance. For the reasons which we have given we are satisfied that the step taken by the sheriff was one which was not competent and we shall pass the Bill, recall the sheriff’s interlocutor of 18 August 2016 and remit the case back to him to impose a sentence.