Scottish Sheriff Court Decisions

HER MAJESTY'S ADVOCATE v. MICHAEL ALEXANDER NAIRN [2000] ScotSC 26 (21st September, 2000)

Ref 2000 51658

JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

H.M. ADVOCATE

against

MICHAEL ALEXANDER NAIRN

On 20 July 2000 the accused was served with an indictment libelling that on 18 December 1999 at a locus in Dundee he assaulted a woman and did "repeatedly push her to the ground and repeatedly kick her, all to her severe injury and permanent disfigurement". The first diet was on 11 September with a trial diet on 25 September. At the first diet no plea was tendered and, on the motion of the prosecutor, the diet was adjourned to 20 September. On the latter date the case called before me. The accused tendered a plea of guilty under deletion of the words ""and repeatedly kick her" and "severe" where they appear in line 4 of the charge. This plea was not accepted by the prosecutor. The prosecutor moved me to desert the diet pro loco et tempore. This motion was opposed by Mr Williamson for the accused.

Mr Williamson took me through the history of the case. The accused had appeared on petition on 20 December 1999. That petition had contained one charge of assault with intent to rape, the offence allegedly having been committed against the same complainer, on the same date and at the same locus as in the present indictment. However, the libel was in different terms, not only in its inclusion of an allegation of intent to rape. The petition had contained no reference to punching or kicking. Nor did it make any mention of permanent disfigurement, although it did libel severe injury and repeatedly pushing to the ground. The accused had made no plea or declaration and had been liberated on bail.

Following service of the present indictment and prior to the first diet Mr Williamson had had discussions with the procurator fiscal depute dealing with the case (Mrs Williams who appeared for the Crown before me). These discussions had taken place on 28 August 2000. In the course of them Mr Williamson had submitted to Mrs Williams that there was insufficient evidence to justify a finding of repeated kicking or of severe injury. Reference had been made to the charge contained in the original petition, and Mr Williamson had conceded that there would have been sufficient evidence to go to a jury on that charge. However, the outcome of the discussion was that it was agreed that the accused would be prepared to plead guilty in the terms tendered before me and that that plea would be accepted by the Crown. Mrs Williams requested Mr Williamson to put in writing the accused's proposed plea, and this Mr Williamson did in a letter to the procurator fiscal dated 29 August 2000. At the first calling of the first diet on 11 September Mr Williamson had been informed by Mrs Williams that the Crown was reconsidering the case with a view to serving a fresh indictment on the accused. This indictment would include a charge in conformity with that in the original petition. Because of this information the accused had tendered no plea at the calling of the first diet on 11 September, and that diet had been adjourned. The Crown Office had now apparently instructed the procurator fiscal to seek to have the diet deserted pro loco et tempore with a view to serving a fresh indictment as had previously been indicated.

Desertion pro loco et tempore was within the discretion of the court. Mr Williamson referred me to Renton & Brown's Criminal Procedure, 6th edition at paragraph 18-21 and to my own decision in Jessop v D 1986 S.C.C.R. 716 (Sh. Ct); 1987 S.L.T. (Sh. Ct) 115. To grant the Crown motion in the present case would be grossly prejudicial to the accused. The Crown had had almost a year to consider its position. It had chosen to indict the accused in the terms of the present indictment. It could be assumed that Crown Counsel had instructed proceeding by way of sheriff and jury trial on the present charge. The Crown had agreed to accept the plea that was now being tendered by the accused, albeit that that acceptance had been informal and prior to the first diet. The accused was prejudiced because the charge which it was intended to bring in the fresh indictment was more serious than the present charge. The Crown's change of front could not be justified. The motion should be refused.

In response Mrs Williams accepted the account of events given by Mr Williamson. She conceded right away that the situation in which the Crown found itself was an unhappy one. The case had been re-reported to Crown Office after it had been agreed between her and Mr Williamson that the plea now tendered by the accused was to be accepted. That report had not been in order to obtain authority to accept the plea as this was within the discretion of the procurator fiscal. However, when she had come to read the case fully with a view to deciding on a narration to put before the sheriff on the agreed plea, she had concluded that there was sufficient evidence to proceed against the accused on the more serious charge contained in the original petition and that the instruction to proceed on the present charge had been incorrect. She had decided that, in that situation, she had a duty to report the case again Crown Office so that it could be reconsidered by Crown Counsel. She had reached this decision having regard to the public interest and the interests of the complainer.

The accused would suffer no real prejudice. The forum in which he would be tried would be the same. The charge would be within the scope of the original petition even though it would be more serious than the present charge. It was true that an error had been made when the original instruction had been given to indict, but this error should not be compounded. If the motion to desert pro loco et tempore were granted it would still be open to the accused to put forward a plea in bar of trial on the ground of oppression in respect of the fresh indictment. The motion should therefore be granted.

In a brief reply Mr Williamson pointed out that the Crown's state of knowledge now was the same as when the present indictment had been framed. He stated (and Mrs Williams accepted this) that their discussion had included a discussion of the state of the evidence.

In my opinion to grant to Crown motion to desert pro loco et tempore would be oppressive and unfair to the accused. Prior to the first diet, through his solicitor, he indicated to the prosecutor an intention to plead guilty to a charge which fell within the scope of the present indictment. Indeed, he has now tendered a plea in these terms. In discussion with his solicitor the procurator fiscal depute dealing with the case stated that the Crown was prepared to accept that plea. It seems to me that the situation is analogous to that where the Crown has given an indication that no further proceedings will be taken in a case. Reference was not made before me to such cases as Thom v H.M.A 1976 J.C. 48 and H.M.A. v Stewart 1980 J.C. 84 but the reasoning of the court in these cases is, in my opinion, of some assistance in determining the appropriate way in which to dispose of the Crown's motion in the present case. It comes to this in essence: the Crown has by its actings barred itself from proceeding as it now seeks to do.

In any event, looked at more broadly the Crown would be acting oppressively by having the present indictment deserted and then indicting the accused on a more serious charge. There is no suggestion that the Crown has discovered new evidence. It has been in possession for many months of the evidence to justify whatever charge may be appropriate against the accused. It chose to indict him on the charge contained in the present indictment. The only explanation which I have been given of why that charge was considered more appropriate than that in the original petition is that an error must have been made. If that is indeed the case, it is, in my opinion, unreasonable that the accused should be prejudiced by the error. I accept that other interests are involved, not least those of the complainer. However, I consider that in this situation it is the interests of the accused which should prevail. In reaching this conclusion I am influenced by the fact that a relatively long period has elapsed since the accused first appeared on petition and that the Crown has had ample opportunity to reflect on the terms of any charge brought against him.

I accept that if I were to desert pro loco et tempore and the Crown were to serve a fresh indictment, it would be open to the accused to take a plea in bar of trial on the ground of oppression, putting forward much the same argument as was advanced to me. However, if such a plea were to be sustained, that would be an end to the matter, and the accused would not be punished in any way despite his preparedness to plead guilty to an assault against the complainer. I do not consider that such an outcome would be in the public interest or in the interests of the complainer. While there is of course the possibility that a plea in bar of trial might be repelled and the case proceed to trial and conviction, there is no guarantee of that, and such a course would mean that the complainer would require to give evidence. On balance, I am of opinion that that too would be undesirable and contrary to the public interest.

I have therefore decided to refuse the Crown motion.

There are, in my opinion, only two options now open to me. Either I can desert the case simpliciter, or I can continue to the trial diet. If the case were a summary prosecution only the first option would be available to me (Criminal Procedure (Scotland) Act 1995, section 152(2)). There is, however, no similar provision in the case of solemn procedure. Mr Williamson indicated an unwillingness to move me to desert simpliciter in view of the fact that the accused has tendered a plea of guilty, and I consider that that is an entirely proper attitude on his part. Mrs Williamson moved me to continue the case to the trial diet. That motion was not opposed by Mr Williamson, and I have therefore granted it.