Scottish Sheriff Court Decisions

2014SCPET19

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT PETERHEAD

Judgment

Of

Sheriff Philip Mann

In causa

Procurator Fiscal, Peterhead

V

Joseph Cameron

Peterhead 04 June 2014

1.         Introduction

1.1       This is a summary prosecution on a complaint libelling one charge of contravening section 38(1) of the Criminal Justice and Licencing (Scotland) Act 2010.  The charge is that the accused on 4 September 2013 in the course of a journey by road behaved in an abusive or threatening manner by uttering offensive and threatening sexual remarks about a member of staff of Aberdeenshire Council Social Work.

1.2       I was advised that the conduct giving rise to the complaint occurred whilst the accused was being transported as part of a work party in connection with an unpaid work or other activity requirement of a community payback order to which he was subject.  The matter was dealt with by the accused’s supervising officer by reporting the conduct to the police and also initiating breach proceedings in respect of his community payback order.

1.3       At an earlier court the accused had admitted breaching his community payback order.  I was told that no action was taken in respect of the breach and that the community payback order was allowed to continue.  Subsequently, the accused was served with the instant complaint.

1.4       The accused made a plea to competency of the complaint on the basis of res judicata.  A debate on the plea took place before me on 20 May 2014.  The accused was represented by Mr Jane.  The crown was represented by Mr Thorburn, senior procurator fiscal.  Following the debate I made avizandum and continued the diet without plea until 17 June 2014.  However, having made my judgement I have brought the diet forward to today’s date in terms of section 137ZB of the Criminal Procedure (Scotland) Act 1995 after giving the parties an opportunity to be heard.

2.         The Debate

2.1       Mr Jane’s point was short.  He maintained that the accused had tholed his assize by having been dealt with for breach of his community payback order in respect of the same conduct which now formed the basis of the prosecution against him.  That the conduct was the same could be seen from the terms of the breach report which Mr Jane handed up.

2.2       Mr Jane pointed out that the crown was represented by a procurator fiscal depute at the hearing at which the accused had admitted the breach of the community payback order.  The crown had taken no steps to distance itself from the breach proceedings.  The procurator fiscal depute had not addressed the court and neither had the court asked to be addressed by him.  But, said Mr Jane, if the breach had been denied the crown would have conducted the hearing which would have been fixed to determine whether or not the breach was established.

2.3       Mr Jane maintained that the breach proceedings could be seen as the equivalent of a prosecution because the accused was potentially subject to sanctions for the breach, although in the event no sanction was applied by the court.

2.4       In support of his argument Mr Jane referred to Renton and Brown Criminal Procedure sixth edition at paragraph 9.08.  He had been unable to find any case that was in point.  At paragraph 9.08 of Renton and Brown it is said that the plea of res judicata may arise in two ways.  It was the second of those ways that applied in this case.  This was that:

“the accused person has already tholed an assize—that is to say, that the charge libelled has already been made against him and has been brought to a conclusion.”

2.5       In reply, Mr Thorburn referred to the terms of section 227ZC of the Criminal Procedure (Scotland) Act 1995 which sets out the procedure to be followed where it is alleged that an offender has failed to comply with a requirement imposed by a community payback order.  This was summarised in Renton and Brown paragraph 23-22.16 et seq. 

2.6       Mr Thorburn referred to section 227C of the Act which contains provisions relating to responsible officers.  One of those provisions was subsection 3(c) which requires the responsible officer, inter alia, to take;

“such steps as may be necessary to enforce compliance with the requirements of the order”

He said that the inference in breach proceedings is that the court acts on the basis of a breach report submitted by the responsible officer.  The practice is that the breach is reported directly to the court and the proceedings normally reach the stage where the offender admits or denies the breach without the crown being aware of the nature of the allegation made by the responsible officer.  If the breach were admitted the crown’s only involvement would be to narrate the circumstances of the original offence if called upon by the court to do so.  If the breach were denied and a hearing were fixed then the crown would assume the role of presenting the evidence of the responsible officer and any other witnesses to support the breach allegation and of cross examining the offender’s evidence.  However, there seemed to be no statutory requirement for the crown to adopt that role.  Mr Thorburn concurred when I commented that a senior procurator fiscal depute in another jurisdiction had suggested to me in another case on a different point that in assuming that role the crown would be acting as facilitator, not prosecutor.

2.7       Mr Thorburn pointed out that there was no formulation of any specific charge in the breach report.  The crown in this case had done nothing that would or could personally bar them from prosecuting the accused.

2.8       Mr Thorburn maintained, as a fall back position, that it could be argued that the instigation of breach proceedings in this case was incompetent.  If that were so, then on the authority of McGlynn v HMA 1996 S.L.T 895, referred to in Renton and Brown the accused’s admission of the alleged breach could not form the basis of a plea of res judicata.

3.         Discussion and Decision

3.1       In paragraph 9.08 in Renton and Brown it is stated in relation to the second ground for the plea of res judicata:

“the essence of the plea is that the person tendering it has already been brought to trial and has stood his trial for, or pleaded guilty to, a specific offence competently set out in the indictment or complaint, before a court of competent jurisdiction”

All that the breach report does in this case is to bring to the attention of the court that the accused has behaved in a certain manner and that certain action has been taken in relation thereto by the responsible officer.  It does not allege that the accused has been guilty of any specific offence.  Rather, it alleges that the accused is in breach of his community payback order.  In terms of section 227ZC breach of a community payback order results from the offender failing to comply with a requirement imposed by the order.  That is quite a different thing from saying that the offender has committed an offence.  Unlike in the case of the old probation order there is no statutory provision, so far as I am aware, that the commission of an offence amounts to a breach of a community payback order.  Thus, even if the report had alleged the commission of a specific offence, that would not have amounted to a breach of the community payback order.  In any event, the breach report could hardly be described as an indictment or complaint, although I do not base my decision on that consideration.

3.2       The breach provisions of section 227ZC apply where it appears to the court that the offender has failed to comply.  Section 227ZD(4) provides that the court may, for the purpose of considering whether an offender has failed to comply with a requirement imposed by a community payback order, require the responsible officer to provide a report on the offender's compliance with the requirement. There is no stated requirement for a formal proof hearing to determine whether or not the offender has failed to comply.  It simply has to appear to the court on the basis of the report of the responsible officer, if that is called for or provided, that that is the case, although  the rules of natural justice would require that there be a proof in the event of the offender denying that he has failed to comply.  If the court is satisfied that there has been a failure to comply it then has to go on to consider whether or not the failure is without reasonable excuse and must be satisfied that that is the case before it can apply the penalty provisions of subsections (7) and (8) of section 227ZC.  There is likewise no stated requirement for a proof if the question of reasonable excuse is put in issue.  But the requirement for a proof must be inferred from the terms of section 227ZD(1) which provides that the evidence of one witness is sufficient for the purpose of establishing that an offender has failed to comply without reasonable excuse.

3.3       The breach provisions of the Act are all about the court being satisfied.  Nowhere is there any mention of the role of the crown or any hint that the crown has a right to be heard in the matter.  I think that there is force in the suggestion that in relation to a proof arising from an alleged breach of a community payback order the crown acts as facilitator not as prosecutor.  All of this leads to the conclusion that the crown is not master of the instance in relation to an alleged breach of a community payback order.  It is for the court, not the crown, to decide whether or not an enquiry - for that is what it is - should be held and proceeded with to conclusion.  The enquiry does not amount to a prosecution, albeit that penalties over and above those originally imposed can follow.  The court is not constrained by the attitude of the crown.  In these circumstances I cannot see how proceedings for breach of a community payback order, whatever their outcome, could form the basis for a plea of res judicata in respect of a later prosecution.

3.4       I believe that the matter can be tested by recognising that res judicata is a two way street.  For the accused’s plea to be successful it would have to be the case that a prior prosecution in respect of the conduct complained of in this case would prevent the court from entertaining competent proceedings for breach of the accused’s community payback order.  I do not think that that proposition could be seriously maintained, given that breach proceedings relate to compliance with and enforcement of a court order not to establishing whether or not the offender is guilty of committing an offence.  Failure to comply with a requirement of a community payback order is not a criminal offence.  Likewise, the commission of a criminal offence does not amount to a failure to comply with a requirement of a community payback order.

3.5       For all of the foregoing reasons I repel the accused’s plea of res judicata.  Even if I am wrong to repel the plea for those reasons I think that Mr Thorburn’s fall back position is sound.  It is not a requirement of a community payback order that the offender refrain from committing a criminal offence.  I can see nothing in the Act which suggests that the behaviour of the accused complained of is a breach of the community payback order.  I phrase it in that way because the provisions relating to community payback orders are, in my view, badly organised and it is rather too easy to miss or overlook a provision that may be relevant.  For example, one finds tucked away in section 227C, which according to its heading is about responsible officers, provisions relating to requirements that have to be imposed by the court on an offender.  One has to be aware of the terms of section 227C(2)(f) to know that an offender has to do the hours of unpaid work instructed by the responsible officer at the times instructed by him rather than simply doing the hours of work within the time limit imposed by section 227L.  Obscuring an important provision in that way is not helpful.  It is but one example of how taxing it is to gain a full and confident understanding of these orders.

3.6       If I am correct in the above observations it follows that the breach report is in error when it says that:

“Mr Cameron has breached the elements of his community payback order which require him to show appropriate behaviour and attitude and not to commit an offence during completion of said order”

3.7       If the accused’s conduct did not amount to a failure to comply with a requirement of the community payback order breach proceedings could not competently be taken.  Accordingly, as in the case of McGlynn, the accused’s admission of the alleged breach could not amount to his having tholed an assize.

3.8       The accused will require to plead.

Sheriff Philip Mann