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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> W.M. v. HER MAJESTY'S ADVOCATE [1998] ScotHC 2 (4th June, 1998) URL: http://www.bailii.org/scot/cases/ScotHC/1998/2.html Cite as: [1998] ScotHC 2

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W.M. v. HER MAJESTY'S ADVOCATE [1998] ScotHC 2 (4th June, 1998)

This accused appeared before me in the High Court at Glasgow on 4 June. The case had been adjourned to that date for consideration of sentence. However, the circumstances have become rather unusual.

The panel is aged 71, married and, I understand, in poor health. He has no previous convictions. The indictment he faces has nine charges of lewd, indecent and libidinous practices said to have been committed against his children and grandchildren. The latitude goes back to 1963. The charges were the subject of a Petition dated 5 June 1997. That is now time-barred. At his appearance before the sheriff he was fully committed and bail was granted. The indictment appeared in a list of cases for trial at a sitting in the High Court at Edinburgh for 23 March 1998 and came first before me on 30 March. The Advocate Depute in court was Mr Bell, Q.C., and the panel was represented by Mr McInnes, Solicitor Advocate.

On that date, in chambers, I was told by my clerk that the panel intended to plead guilty and she gave me an indication of what the plea would be. The diet was then called. The Depute made a minor amendment to charge 6. The Advocate then tendered a plea of guilty to charges 2, 4, 6,7, 8 and 9. The plea was duly recorded and the book was signed by the panel, by me and accepted by the Depute's signature. Following that, I issued a certificate against the panel under section 5(2)(b) of the Sex Offenders Act 1997.

The Depute moved for sentence and gave an account in some detail of the six charges, including a prejudicial remark allegedly made by the panel. There was only a short pre-trial report before me and on the defence motion I adjourned the case to obtain a more full report. There was a notional diet on 27 April and the case next came before me also in Edinburgh on 5 May. On that date Mr McInnes asked leave to withdraw. He said the panel wished to withdraw his plea of guilty and plead not guilty. This left him as Advocate in an impossible position and he could make no plea-in-mitigation. I allowed him to withdraw and told the panel to seek further legal advice to clarify his position. I adjourned the case to 2 June 1998 in Edinburgh. On that date it was adjourned to 4 June at Glasgow where I was sitting on circuit.

There was new representation. The panel was represented by Mr Jackson, Q.C. and Miss Bain; the Depute in court was Mr Brady with Mr Hunter.

Mr Jackson moved me to allow the plea of guilty to be withdrawn and I now sketch in his main argument and note that the following authorities were referred to Crossan v HMA 1996 S.C.C.R. 279; Evans v HMA 1990 S.C.C.R 160; Healy v HMA 1991 S.C.C.R. 110; Hutchison v Normand 1994 S.L.T. 272; Churchill v HMA 1953 J.C. 6; Wightman v HMA (unreported, 4 December 1996); Boyle v HMA 1976 J.C. 32; Hay v HMA (unreported, 15 December 1994). I was also referred to the Criminal Procedure (Scotland) Act 1995 variously and in particular to sections 76, 77, 95, 104, 106 and 118. The historical derivation of some of these sections was also referred to.

What Mr Jackson said was this. The court had first to decide whether at first instance it was competent to allow a plea of guilty to be withdrawn. Secondly, if it was competent, the judge had to exercise a discretion of the merits to do so.

Competency had not been very clearly decided. Where a jury had been empanelled and evidence led a subsequent guilty plea could not be withdrawn at the trial (Crossan 281E, 284E, 285C and 291E). Evans was to the same effect. The case of Healy was more in point. That was a section 102 diet (Criminal Procedure (Scotland) Act 1975) which is now section 76. There was no jury. On appeal the court said that in such a case it was competent to withdraw a plea. The present case where there was a plea before the trial was in the same position. There was no public policy argument against allowing a plea to be withdrawn at this stage. In summary procedure it was quite common to allow a plea to be withdrawn. Although this was in common parlance "a conviction" I was bound by Healy. Nor did it matter that competency was not argued in Healy or Crossan. Two appeal courts had accepted the competency point as beyond argument. The new statutory framework in 1995 had not altered Healy.

As far as the merits were concerned, Mr Jackson said that the panel did not hear or understand well unless matters were put very clearly to him. He was elderly and frail. He had worked as a labourer in mines and farms. He was at first represented by solicitors who had instructed the Solicitor Advocate. The panel thought his advocate was the solicitor's assistant. There had been discussions in the solicitor's office and in the High court on 30 March. He did not really understand what was happening but was told he could now plead to a reduced charge and 'that will get things over and done with'. By that he believed something very different would happen to what probably would be a lengthy custodial sentence.

When he went into court he did not properly hear what was said. He signed "the book" without reading it and trusted everybody. He did know he was pleading guilty to something but believed it to be vastly different in quantity and quality from what was actually recorded. He was eventually told it was to far different offences, by which time he was completely confused and not in control of his judgement. The social background report by Mr Russell of 30 April identified the difficulty (see paras.3.2, 3.3 and 3.4).

There was nothing in the agent's file to show what it was to which he was pleading. He accepted that if his pleas could be withdrawn he would have to face trial. These were "exceptional circumstances" which the court did not find in Healy but did in Hutchison.

In his reply the Advocate Depute said that competency was not a clear area. The matter had to be determined by looking at the statutes and their derivatives. What was now in the Minute Book was "a conviction". If it was not, then it was incapable of definition. Convictions could be appealed to the Court of Criminal Appeal. They could not be reviewed by the judge of first instance. Counsel pointed to the powers given in section 104, the appeal provisions of section 106 and the disposals under section 118. There was nothing in the Act about the powers of the court of first instance in this regard. It had no power to investigate the merits as was done in Crossan. Healy pre-dated the new provisions in 1995. It was in some ways an unsatisfactory case and self-contradictory. It purported to decide something which was never argued (see 118B and 119 C-D). The rubric was incorrect. In Hutchison competency was not argued. On the meaning of "conviction", the Depute referred me to Churchill at p.10. It was always competent for the Appeal Court when reviewing a conviction to allow withdrawal of a plea. Wightman was an example of where withdrawal was refused as was Hay. The case of Boyle showed that even in 1976 the courts took a very serious view of withdrawal. The proper test on the merits was whether the panel was acting under some real error or misconception.

I now turn to examine the cases. Crossan was a case of murder with three accused. When the diet was called one pled not guilty (Clarke) and the Crown accepted that. A jury was chosen and Crossan's special defence, which was self-defence, was read out. Evidence was led. The next day after lunch pleas were tendered. Crossan pleaded guilty to murder and his co-accused (McDowall) to assault. The Crown accepted the pleas and the trial judge convicted the respective accused. The next day counsel for Crossan asked to withdraw the plea of guilty. Questions arose about a press photograph and danger in the prison. There was then a change of counsel and, it appears, argument on competency and the merits. The trial judge appears to have been of the opinion (285 C-D) that it was not competent for him to review the conviction. He also refused it on the merits on the view that any total misconception by the panel could not be reviewed by him. This, I confess, seems to me to be dealing with the merits also as a point of competency rather than as a discretion exercise. Having been sentenced to life imprisonment Crossan appealed.

When the appeal was first heard affidavits were sought as to what had happened before the plea was tendered. When these were before the court they then remitted to a single judge to enquire further under section 252(d). Lord Clyde produced a full report and concluded (290E) that the plea to murder had not been tendered under any mistake or misunderstanding in the instructions; nor was there any real error or misconception on the part of the appellant (291A).

When the appeal was heard again the whole argument was on the judge's report and the court refused the appeal on the merits. It does not appear to me that the issue of competency was ever argued.

In Evans the petitioner was one of seven accused on charges of attempted murder and assault. In the course of the trial he plead guilty to certain charges and these were accepted, minuted and duly signed. The jury was then directed to convict and that verdict was recorded. All of this was done in open court. The next day he sought to withdraw his plea on the basis that he did not read the minute book nor could he read it. He claimed it was illegible and he only later became aware that the pleas were erroneous (162B).

The Crown in court opposed his motion on the grounds that it was incompetent and on the merits. The trial judge held that it was incompetent and no sufficient reason had been given. There was then a petition to the nobile officium. Before the High Court the Crown also argued competency and it was held that the petition was incompetent and no decision was given on the merits (163 B-C). The proper remedy would be to appeal under section 228(1) to correct any miscarriage of justice. The court then dealt with matters special to the form of petition itself within the timetable of the trial.

Healy was a case from the Sheriff Court. The appellant had appeared at a section 102 diet. Through her solicitor she pled to a number of charges and the case was adjourned for reports. When it then appeared her counsel moved to withdraw the pleas. The Crown objected to the competency of this and on its merits. The merits appeared to relate to a misunderstanding and inappropriate advice from her solicitor (see 112 A-F). The sheriff held that it was not competent to withdraw the plea and that no case was made out on the merits. Sentence was then pronounced.

There were two grounds of appeal. The first was that the sheriff reached the wrong conclusion on competency. The second (which was the only one proceeded with) was on the merits. The Appeal Court sustained the decision on the merits and refused the appeal. It is, however, not clear to me what was the decision on competency. The rubric says that "the sheriff was wrong on competency". That has the support of one sentence at 119 C-D "the sheriff reached the wrong conclusion on the matter of competency". It is, however, clear at 118B that the Crown conceded competency and the response of the court was "accordingly it is unnecessary for us to consider the first ground of appeal".

It does nonetheless appear that the court did decide on competency, and the case was cited to me as an authority for that proposition. It was the cornerstone of Mr Jackson's argument. It is also clear that before the sheriff a number of authorities on the point were referred to. In his careful note he has dealt with them between pps.113B to 117B. None of these cases was referred to by the Lord Justice Clerk in Healy and none was cited to me. I am thus disabled from conducting my own researches into them. Healy is binding on me if it does decide competency and is also in point. I am not sure that either of these is the case. Section 102 contained special provisions. Section 102(1) allows for intimation of an intention to plead guilty: yet section 102(3) contemplates that a plea of guilty may never be given. I have known of such cases in my experience elsewhere.

Hutchison was a summary case. The accused had been charged with theft and Road Traffic offences. When he appeared with an agent he pleaded guilty to certain offences, not guilty to others. The trial was fixed and sentence was deferred on the guilty pleas to that date. Before the trial he appeared with a new solicitor who sought to withdraw the pleas and table pleas that the offences were time-barred. It was said that the accused was illiterate and had had to make do with the services of the duty solicitor who was not aware of the background.

The court made it very clear that the case was exceptional. There had been delay in executing a warrant; there was an issue of competency of the complaint itself which the accused may not have understood. There was still to be a trial. Healy was referred to only in relation to exceptional circumstances on the merits.

As far as I can see there was no argument about the competency of withdrawing the plea. Indeed the court expressly refused to criticise the duty solicitor. It rather seems to me that the court found exceptional circumstances within the summary procedure that had taken place and unrelated to the accused.

Boyle was a very unusual case. The appellant was a soldier. He pleaded guilty under section 102 to a bank robbery and was sentenced to nine years in prison. It soon appeared that he could not have been concerned in any way in the robbery and had pleaded guilty to a crime of which he was wholly innocent. His motive seems to have been to avoid life in an army prison.

He successfully appealed. From the opinion of the court, which was given by Lord Cameron, it is clear that they were not enthusiastic about his behaviour and the problems it had caused. The case is authority for what were the then very wide powers on appeal following a plea of guilty. It does not deal with competency.

In Churchill the panel was charged with theft and pleaded guilty in the sheriff court under section 31 of the Criminal Procedure (Scotland) Act 1887 (which became section 102 and is now section 76). The sheriff-substitute remitted him for sentence to the High Court. The question was whether what had happened was a "conviction in the High Court". The accused clearly did not want to receive the long sentence of "preventive detention" which he perhaps deserved and was between five and fourteen years in those days.

The case is unusual, but the court took the view that a plea of guilty was a "conviction" in the sense intended by the Act (Criminal Justice (Scotland) Act 1949) and it was open to the court to impose a sentence of preventive detention. The conviction was not complete merely upon recording the plea. There are some interesting points made in the argument about the right of the Crown to refuse to accept a plea of guilty balanced against the accused's statutory right to plead guilty if he wished. Lord Cooper referred to "executive actions" following upon conviction. I am not clear whether he meant sentence or the act of remitting from the sheriff court. Clearly either would give the word a wider meaning. In the present case, even at this stage, some action has been taken on the plea. There has been a full narration of circumstances. A report has been ordered to consider sentence; and a certificate has been issued under the 1997 Act.

Wightman is next. It was put before me as an unreported case, but there is a brief report in 1997 G.W.D. 86. The panel was charged with lewd, indecent and libidinous practices. He pleaded guilty to certain charges. The pleas were recorded and the Crown gave a narration of circumstances which was not objected to. At an adjourned diet an attempt was made to have the plea withdrawn on the basis that he had been "bullied" into pleading. There was no question of error or misconception. The sheriff refused to allow the plea to be withdrawn and proceeded to sentence.

The Appeal Court refused to order any further inquiry and held that the sheriff was justified in refusing to allow the plea to be withdrawn. Healy was referred to with approval as indicating that withdrawal was competent in appropriate circumstances. The Lord Justice Clerk delivered the opinion in Wightman as he had in Healy.

In Hay the appellant at his trial pleaded guilty to a charge of possession of controlled drugs with intent to supply. The plea was recorded, signed and the Crown moved for sentence giving a narration of the facts. The case was adjourned for a day, and on calling again counsel withdrew and the appellant was allowed to instruct fresh counsel. At the next diet he moved to be allowed to change the plea to not guilty. It was not said he was unaware of what he was doing and the trial judge refused to allow the plea to be withdrawn. He was then sentenced to a period of detention.

On appeal he contended that when the plea was given he was under the influence of drugs. This had not been said to the trial judge and the Appeal Court refused to entertain the appeal. It is thus an example of a refusal on the merits.

What conclusions can I take from these authorities?

I conclude that, on appeal, there is no doubt that the Appeal Court can competently allow a plea to be withdrawn under its powers of review of alleged miscarriages of justice. The cases cited contain only one example where this has been allowed on the merits (Hutchison) loc cit, and it is clear that the court is reluctant to allow pleas to be changed.

It is my opinion that there is no clear authority for a judge at first instance competently allowing a guilty plea to be changed. I cannot see that there is any great difference in principle whether the plea is at section 76, without a jury or with a jury. In my view, once duly recorded, it is a "conviction".

I am of the opinion that in the cases cited to me which were solemn appeals the competency point had either not been argued or was conceded. The one case said to be in point is Healy. In my view competency was not properly decided in that case as the matter was apparently decided without argument. The case on summary procedure may not be a good guide to solemn cases. There is much less formality in these cases and more room for error and the accused never signs the minutes.

There is nothing in the 1995 Act to allow such powers to a trial judge.

It is quite true to say that all the cases on appeal considered the merits. I do not think that it follows from this that it must be assumed that a judge of first instance has the power to alter a conviction. All the cases on appeal have been argued only under the relevant appeal provisions.

I can also see dangers in allowing a plea on indictment to be changed at first instance. It causes delay and expense. A future trial may have to take place. Evidence may be lost. Witnesses who reasonably thought the matter was over will have to re-appear. The question of time-bar may arise. An accused may change his mind when it becomes obvious he may receive a custodial sentence. The trial judge has no power, means or time to inquire into the reasons for the change. The Appeal Court has this power.

For all these reasons I am of the view that it is not competent for me to allow the plea of guilty to be withdrawn. I accept that the inevitable consequences of this today (19 June 1998) will be somewhat artificial, and that further appeal may be inevitable.

If I am wrong on the competency point the merits remain. As I have said, I am unable to inquire into what was said. I have no power to question Mr McInnes or his instructing agents. To assume against them all that was said may be unfair to them; without at the very least having their account.

The test is whether the circumstances are exceptional and whether the accused was acting under some real error or misconception. I am quite unable to say that this test is satisfied in the present case. I do not know what was said to the accused by his former advisers or what was his level of comprehension.

After the plea was recorded the Depute in court gave a full narration. There was no objection to it, and none to the order under the 1997 Act. My wish to have a full background report was accepted as desirable. In all these circumstances matters have gone too far for me wholly to alter the position and I decline to do so.