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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Beaton & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_118 (18 October 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_118.html Cite as: [2005] HCJAC 118, [2005] ScotHC HCJAC_118 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Osborne Lord Kingarth
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[2005HCJAC118] Appeal Nos: XC998/04 XC1005/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST SENTENCE of JOHN BEATON and KENNETH HENDRY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Ms. M. Scott, Q.C., S. Borthwick; Balfour & Manson (Beaton): Shead,
Ms. C. Mitchell; Drummond Miller (Hendry)
Respondent:
Ms. A. Graham, A.D.; Crown Agent18 October 2005
[1] On 8 November 2004 the appellants pled guilty in the Sheriff Court to an amended charge of assault to severe injury and permanent disfigurement. On 1 December 2004 the appellant Beaton was sentenced to imprisonment for three years, with an additional three months in respect of a bail aggravation. The appellant Hendry was sentenced to two years imprisonment. Both appellants sought to appeal against sentence, and were granted leave to do so, limited to the question whether the sheriff had failed to make a discount in respect of their pleas of guilty. [2] When the appeals were called for hearing before a sentencing appeal court of two judges on 30 March 2005 counsel for the appellants informed the court that, on their instructions, they sought leave to abandon their appeals. We understand that these instructions were given by the appellants after consulting counsel shortly before the appeals were called. According to the interlocutor, the court refused leave to abandon the appeals. However, it appears that this should not be interpreted as a final determination on the matter of leave, since it was coupled with a remit of the appeals to a court of three judges "for consideration of the question of leave to abandon". That question has now been discussed before this Court. [3] For the appellant Beaton Ms Scott submitted that an appellant had the right to abandon his appeal up to the point where it was called for hearing. Prior to the calling of the case it was open to the appellant to give formal notice of abandonment in terms of section 116 of the Criminal Procedure (Scotland) Act 1995, which had the same effect as the refusal of the appeal. However, where an appellant orally intimated the abandonment of his appeal when it was called for hearing, the court should treat this as equating to a formal notice. To hold otherwise would be artificial and illogical. However, if the appellant chose instead to present his appeal, it was a matter for the court whether he should thereafter be given leave to abandon. For the appellant Hendry Mr Shead submitted that it followed from the fact that the appellant had the right of appeal, subject to the condition of obtaining leave to appeal, that he also had a right to abandon the appeal. The Advocate depute, who was invited by the court to indicate whether there was anything she wished to say for the court's assistance, submitted that as soon as the case was called it was a matter for the discretion of the court as to whether or not an appellant should be granted leave to abandon his appeal. [4] In West v H M advocate 1955 S.L.T. 425 the court refused to grant leave to appellant to abandon his appeal against sentence. That was a case in which he had presented argument that his sentence of imprisonment should be quashed and a probation order substituted. The court had continued the case for a report on the appellant's condition and suitability for a sentence of preventive detention. The court considered that in these circumstances it would be a denial of justice to permit him to abandon, after he had argued his appeal in full and had realised that he might fail. However, at page 426 the Lord Justice General (Clyde) observed, with reference to the rule then in force under which an appellant or applicant might formally abandon his appeal:"What the Rule is contemplating is an abandonment by an accused before the court has begun to consider the appeal or application in question. In those circumstances there is no court to dismiss the appeal or application, and the appeal or application is consequently deemed to have been dismissed. The situation is quite different where the court has begun to hear the appeal or the application. At that stage it is too late to invoke Rule 13(a). If the appeal or application is to be dismissed then it is the court which must do it, and the situation where the appeal or application can be deemed to be dismissed does not arise. The Rule applies only up to the stage at which the actual hearing of the appeal or application begins and the accused or his counsel begins to address the court. I am confirmed in this view by the decision in England in R. v Gibbon (1946) 31 Cr. App. R 143, on the interpretation of the Rule in England corresponding to Rule 13(a)."
"Section 244 lays down a procedure which, if followed, results in a 'deemed' dismissal of the Application or Appeal by the court when the notice is lodged. A 'deemed' dismissal cannot be obtained otherwise. No time limit is laid down in the section as to when the notice of abandonment has to be lodged. No such notice was lodged here. Once the case has called, the court becomes master of the procedure. If any motion is made to the court thereafter it is a matter for the discretion of the court whether it should be granted or refused, unless there is statutory authority governing the matter. There is no statutory authority governing the situation here. In our view our Scottish procedure dose not give an absolute right to an applicant for an appellant to withdraw an Application or an Appeal after the case has been called and is before the court provided the motion is made before the argument in support of the application for appeal has started".
"But if it be the fact that the appellant has the right to abandon his appeal at any time, the court would not prevent him from exercising that right merely because, not having had the advantage of seeing counsel until the last moment, he has not had time to put that notice in writing. That would be taking too severe and too technical a view in a case of this sort. It seems to me to be clear under the statutory rule that the appellant can at any time abandon the appeal".
