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HIGH COURT OF JUSTICIARY
[2006] HCJ 01
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OPINION OF LORD
HARDIE
in causa
HER MAJESTY'S
ADVOCATE
against
ANDREW McGEE, PAMELA BEST or McGEE and
MICHAEL BEST
ญญญญญญญญญญญญญญญญญ________________
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Crown:
Beckett, QC AD;
Crown Agent
First Accused: No appearance;
Second Accused: Gilchrist Advocate; George Mathers
& Co., Solicitors, Aberdeen;
Third Accused: Latif Advocate; Gray & Gray, Solicitors, Peterhead.
16 January 2006
[1] The
accused were each indicted in respect of the following charges:
"1. Between 7 September 2004 and
24 April 2005, both dates inclusive, at 79 Berryden Road, at ground near
Dales Park Primary School, Dales Industrial Estate, a lane adjacent to the
premises known as Asda, West Road, all Peterhead, near to Peterhead Power
Station, A90 near Peterhead, Nether Kinmundy Road, Aberdeenshire and elsewhere
you were concerned in the supplying of a controlled drug, namely Diamorphine, a
Class A drug specified in Part 1 of Schedule 2 of the aftermentioned Act to
another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b);
and
2. Between 7 September 2004 and
7 April 2005, both dates inclusive, at 79 Berryden Road, at ground near
Dales Park Primary School, Dales Industrial Estate, a lane adjacent to the premises
known as Asda, West Road, all Peterhead, near to Peterhead Power Station, A90
near Peterhead, Nether Kinmundy Road, Aberdeenshire and elsewhere you were
concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug
specified in Part 1 of Schedule 2 of the aftermentioned Act to another or
others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b)".
Procedural History
[2] The
indictment was served against all three accused and a preliminary hearing was
fixed for 2 August 2005
within the High Court of Justiciary at Aberdeen. On 29 July 2005 in respect of a Joint Minute
under section 75A of the Criminal Procedure (Scotland) Act 1995 Lord Mackay of
Drumadoon discharged the diet fixed for 2 August 2005 and in lieu thereof
fixed 6 September 2005 within the High Court of Justiciary at Aberdeen as
a new diet. On 6 September 2005 the second and third
accused each tendered a plea of guilty to charge 1 on the indictment but
maintained their plea of not guilty to charge 2. These pleas were accepted by the Advocate
Depute. The first accused maintained his
pleas of not guilty to both charges and a diet of trial was fixed in his case
for 11 October 2005
at Aberdeen. The minute of proceedings dated 6 September 2005 at Aberdeen
before Lord Mackay of Drumadoon records the pleas of guilty tendered by the
second and third accused and the acceptance of these pleas on behalf of the
Crown. Thereafter the minute is in the
following terms:
"The Advocate
Depute made no motion for sentence in respect of the accused Pamela Best or
McGee and Michael Best at this stage and moved the Court to continue the case
against each of the said accused to the diet of trial assigned in respect of
the accused Andrew McGee."
There then followed various entries
relating to the stage of preparation for trial of the first accused and the
minute concludes as follows:
"The court
appointed Tuesday 11 October 2005 at 10 a.m. within the High Court of
Justiciary at Aberdeen as a fixed diet of trial in this case in respect of the
accused Andrew McGee and detained the said accused in custody meantime, and
continued the case in respect of the accused Pamela Best or McGee and Michael
Best to the said trial diet, the conditions of bail previously imposed upon and
accepted by the said accused being continued until said diet."
On 11 October 2005 the case called at Aberdeen High
Court before Lord Abernethy when the first accused adhered to his plea of not
guilty to charges 1 and 2. Thereafter
the minute is in the following terms:
"The Advocate
Depute moved for sentence on the accused Pamela Best or McGee and Michael Best
and laid before the Court the schedules of previous convictions which are
annexed to the Record Copy Indictment and which previous convictions were
admitted in evidence against the accused Pamela Best or McGee and Michael Best
for sentence.
The court adjourned
the diet for sentence against the accused Pamela Best or McGee and Michael Best
until the conclusion of today's proceedings."
Thereafter counsel for the first
accused moved the court to desert the diet pro
loco et tempore or to adjourn the diet for approximately
4 weeks and outwith the area of North East Scotland. The court having heard submissions in respect
of that motion adjourned the diet until the following day. On 12
October 2005 the court adjourned the trial until 14 November 2005 at Dundee
and directed that the diet should be a dedicated floating diet in terms of
section 83A of the Criminal Procedure (Scotland)
Act 1995 and that the diet should float for a period of three sitting
days. The court also adjourned the diet
for sentence against the second and third accused until 14 November 2005 at Dundee.
[3] The
trial of the first accused commenced at Dundee on 15 November 2005. The second and third accused
were adduced as Crown witnesses.
On 24 November 2005
the jury by majority found charge 1 not proven and by majority found the first accused
not guilty of charge 2. There had been
regular adjournments of the case against the second and third accused to enable
the question of sentence to be considered at the end of the trial so that, in
the event of a conviction of the first accused, the question of sentence
against each accused could be considered at the same time. The last such adjournment was until 25 November 2005. On that date I indicated to the Advocate
Depute and to counsel for each of the second and third accused that I wished to
be addressed on the procedural history of the case and in particular on any
effect of the apparent failure by the Advocate Depute on 6 September 2005
to move for sentence against each of those accused on that date. I adjourned the case until 28 November 2005 to enable
parties to prepare detailed submissions.
Submissions on behalf of the Crown
[4] When
the case called on 28 November
2005 I had had the opportunity of listening to the tape recording
of the proceedings on 6 September
2005 at Aberdeen, as
had the Advocate Depute and counsel for the second and third accused. The Advocate Depute prefaced his submissions
by advising me that it was a matter of agreement that the exchange between Lord
Mackay of Drumadoon and the Advocate Depute on 6 September was in the
following terms:
Lord Mackay "Now Advocate Depute so far as the second and third
accused
are concerned do you propose to move for sentence today or
do you intend to refrain from doing so until a later stage?"
Advocate Depute: "I think My Lord in the circumstances
it would be necessary to
continue the matter of sentence I think properly speaking to
the first day of the trial diet that will be fixed in relation to this
matter. It may be tidier in these
circumstances if I don't formally move for sentence at this stage but allow
that to be done on the occasion when the matter arises for consideration at
whatever stage that is."
Lord Mackay: "So they require to attend the
next diet?"
Advocate Depute: "I think properly speaking it ought to
be continued on a daily
basis."
The Advocate Depute accepted that
the tape recording of the proceedings was consistent with the minute of
proceedings and he submitted that it could not be asserted that there had been no
motion for sentence on 6 September.
Accordingly, it could not be maintained that it was incompetent for me
to proceed to sentence the second and third accused. Moreover, on 11 October the Advocate
Depute had made an express motion for sentence.
Having regard to what was said by the Advocate
Depute on 6 September it was submitted that it could not be asserted that
anyone had any basis for thinking on that date that the Crown would not make
the appropriate motion for sentence in due course. On 6 September the Advocate Depute did
not communicate to the court that there would be no motion for sentence. With the benefit of hindsight it was accepted
that it would have been "neater" if matters had been dealt with in a different
way. The discussion between the judge
and the Advocate Depute on 6 September left the situation less explicit
than it might desirably be. However, if
one looked at the intention of the Advocate Depute it was plain that he
intended that the court should proceed to sentence in due course. The motion for sentence should be
implied. Moreover, it was competent to
continue a motion for sentence. What was being discussed between the judge and the Advocate
Depute on 6 September were formalities and there was nothing in the
exchange to suggest that the Crown did not intend to move for sentence. It was plainly in the mind of the Advocate
Depute and of the judge that the question of sentence would be continued until
the trial diet. Bail had been continued
against each accused. Such a course
would have been incompetent unless the court appreciated that the Crown was
simply inviting the court to defer the question of sentence until a later
date. By seeking a continuation of bail
and by continuing the question of sentence until the trial diet for the first
accused the Advocate Depute was clearly not indicating that he did not wish
sentence to be pronounced at the appropriate stage. Everyone must have understood that the Crown
was implicitly moving for sentence, despite the possible ambiguity occasioned
by the intervention of the judge and the subsequent exchange between him and
the Advocate Depute. If the court was
not proceeding on the basis that the Crown intended to move for sentence the
court would simply have discharged each accused. The court had no basis for continuing the
question of sentence unless the Crown wished to keep that question alive. There can have been no dubiety about that in
the minds of the judge or of any of the parties. The Advocate Depute conceded that the prudent
course in cases involving multiple accused where some accused tendered a plea
of guilty at a preliminary hearing was for the Advocate Depute to move for
sentence against each of these accused and to invite the court to continue the
question of sentence until the conclusion of the trial of the remaining
accused. An instruction to that effect
had now been issued to Advocate Deputes.
[5] In
the course of his submissions the Advocate Depute referred to the following
authorities, Hume: Commentaries on the Law of Scotland respecting Crimes Volume II
470 and Bell's Notes 300 and the case of Marion
Mailer cited there; Noon v HMA 1960 JC 52; Alexander Arthur, Petitioner 2003 SCCR
6.
Submission on behalf of the second accused
[6] On
behalf of the second accused Mr Gilchrist stated that he had no issue
concerning the ultimate intention of the Crown on 6 September 2005.
It was clear that the Advocate Depute on that date was not expressly
renouncing the Crown's right to move for sentence. It was a reasonable inference that the
Advocate Depute on that date had in contemplation that a motion would be made
at a later stage. If there was truly no
motion for sentence in the sense that the Crown renounced its right in that
regard the court would have been obliged to discharge the accused. However, Mr Gilchrist submitted that
whatever else occurred on 6 September it was difficult to accept the
Crown's position that there had been an implied motion for sentence on that date,
particularly in view of the express statement by the Advocate Depute that he
did not intend to move for sentence at that stage and did not formally move for
sentence. If it was necessary for there
to be an implicit motion for sentence such an implication could not arise where
the Advocate Depute explicitly stated that he did not move for sentence at that
stage. In these circumstances it could
not be asserted by the Crown that the necessary motion for sentence had been
made on 6 September 2005. Mr Gilchrist acknowledged that there was
a secondary question to be determined, namely whether it was competent to
continue the question of sentence in the absence of an explicit or implicit
motion for sentence. He had been unable
to find any authority to suggest that it was incompetent to continue the
prosecutor's right to determine whether or not to make a motion for
sentence. The case of Marion Mailer was of little value
because of the brevity of the report and it was not known what the precise
factual position was. The case of Noon
could be distinguished from the present case.
In that case the conduct of the prosecutor clearly indcated to the court that it was being asked to pronounce
sentence. However in the present
case the Advocate Depute made it clear that he was not making a motion for
sentence at that stage.
Mr Gilchrist submitted that I could only proceed to sentence the
accused if I reached the conclusion that it was competent for the prosecutor to
seek a continuation of a case to determine whether or not a motion for sentence
should be made in the future.
[7] Mr
Latif, counsel for the third accused, adopted the submissions made by
Mr Gilchrist. The institutional
writers and case law clearly indicated that it was incompetent for the court to
impose any penalty in the absence of the Crown making a motion for
sentence. Mr Latif acknowledged that
such a motion could be expressed or implied.
In the present case it was necessary to construe what the Advocate
Depute said to the court on 6 September.
Mr Latif submitted that the issue for me was not whether the Crown had
abandoned the proceedings against the accused but whether a motion for sentence
had been made at the diet on 6 September when the plea of guilty had been
tendered.
[8] In
the course of the submissions on behalf of the second and third accused I was
referred to the following additional authorities: Alison "Practice of the Criminal Law of Scotland"
Volume II 90; Boyle v HMA 1976 JC 32.
Discussion
[9] It
is clear from the authorities to which I was referred
and it was not disputed by the Advocate Depute that in solemn procedure the
prosecutor must move the court to pronounce sentence, otherwise no sentence can
be imposed. This is to be contrasted
with summary procedure where the court may proceed to sentence an accused
without any such motion by the Crown. I
would, however observe that in summary procedure a similar opportunity is
afforded to the prosecutor to withdraw a case from the court after conviction
of an accused but in order to exercise his right to do so the prosecutor must state
to the court that he is not moving for sentence. It has been suggested that the difference
between the two procedures "may be historical and due to the different
relationship between the court and the Lord Advocate on the one hand, and the
court and the procurator fiscal who was once its own appointee on the other
hand" (Renton and Brown: Criminal Procedure paras 22-02). In Noon v HMA Lord Justice General Clyde referred to the opportunity of the
prosecutor to withdraw a case even after the conviction of an accused and
stated at page 53:
"It has always
been an essential feature of our criminal procedure in Scotland
that the prosecutor should remain in charge of the prosecution right up to the
time when the sentence is actually pronounced.
Hence it has always been part of our procedure that, even after the
guilt of an accused has been established, the prosecutor should have an
opportunity, if he thinks fit, to withdraw the case and allow the accused to go
free ... This, no doubt, dates from the time when, owing to the depth of partisan
feelings, juries and even some Judges, might be perverse or unfair, and the
right to withdraw a case was thus preserved, to enable an impartial prosecutor
to secure that justice was done. But
today these partisan feelings, in criminal matters at least, have faded, and perversity on the part of Judges and juries are
much more rare. Yet the procedural rule
that the prosecutor must still have the opportunity of withdrawing a case, even
after a verdict of guilty has been pronounced, is still preserved in the form
of his moving for sentence."
From these observations it is clear
that the court must afford the prosecutor an opportunity following the
conviction of an accused to decide that it is not in the public interest for
the court to pronounce sentence. If the
prosecutor so advises the court, the effect is that the conviction is recorded
against the accused but no penalty is imposed.
In solemn procedure the prosecutor exercises his right to withdraw a
case after conviction but before sentence by making no express or implied
motion for sentence. In contrast in
summary procedure the prosecutor must formally advise the court that he is not
seeking the imposition of any penalty, otherwise the court will proceed to
sentence. It respectfully seems to me
that there is no longer any justification for the distinction in procedure
between solemn and summary cases in this regard. Although each procedure preserves to the
prosecutor the inherent right of the Crown to determine whether in any given
case it is appropriate that any penalty should be sought following the
conviction of an accused, the procedure in summary cases seems to me to be
unambiguous. The prosecutor requires to take a positive step to prevent the court from proceeding
to sentence. Unlike solemn procedure the
court does not require to infer the intentions of the Crown from the actions of
the prosecutor. The Scottish Parliament
may wish to consider whether it is now appropriate to remove the requirement
for an express or implied motion for sentence in solemn cases, while preserving
to the Crown its right in the public interest to withdraw a case after a guilty
verdict but before sentence is pronounced.
The practical effect of any such legislative change would be that a
motion for sentence was implied in every case and the prosecutor would require to take a positive step to prevent the court from proceeding
to sentence.
[10] It was not in dispute that in the first instance I should
construe what was said by the Advocate Depute at the preliminary hearing on
6 September to ascertain whether there was an express or implied motion
for sentence. Obviously his comments
should be considered in the context of the exchange initiated by the
judge. Having considered that exchange
it is clear, as was accepted by the Advocate Depute before me, that there was
no explicit motion for sentence following the plea of guilty. Nor do I consider that such a motion can be
implied in the circumstances of this case.
Unlike Noon v HMA
where the actions of the prosecutor enabled the court to infer that the
prosecutor was making a motion for sentence, the Advocate Depute in the present
case took no action from which the court could infer that he was making such a
motion. On the contrary the Advocate
Depute specifically stated that he was not making a motion for sentence at that
stage. As was accepted by
Mr Gilchrist it is, however, a reasonable inference that the Advocate
Depute had in contemplation that a motion for sentence would be made at a later
stage. Although the statement by the
Advocate Depute cannot be construed as an express or implied motion for
sentence it seems to me to be equally clear that the Advocate Depute did not
expressly renounce the Crown's right to move for sentence but was simply
seeking a continuation of the case against each accused to enable the necessary
motion to be made at the trial diet fixed for the first accused. I sought to clarify from the Advocate Depute
possible reasons for such a course as opposed to a formal motion for sentence
followed by a motion to adjourn the question of sentence to a later date. He was unable to advance any. At one stage the Advocate Depute suggested
that a possible reason might be to await the outcome of the trial and in
particular to enable the Crown to consider the significance of the evidence
given by each accused against the co-accused before deciding whether to move
for sentence against either or both accused.
In the course of argument the Advocate Depute departed from such a suggestion. In any event that situation did not arise in
the present case because the motion for sentence was made prior to the
commencement of the trial against the first accused. However as the matter was canvassed briefly
in submissions I should deal with it. In
my view any decision based upon such considerations would be quite
improper. The dangers in such a course
are obvious. Such a practice might
encourage an accused in such circumstances to embellish his evidence against
his co-accused in an effort to avoid punishment. Clearly that is not in the interests of
justice and cannot be condoned. In
fairness to the Advocate Depute he acknowledged such dangers when he departed
from the suggested possible reason for the Crown adopting such a course. I am unable to perceive any advantage in the
course adopted by the Crown in the present case. The desirable objective of ensuring that
sentence on all persons convicted should be pronounced on the same date could
have been achieved by a motion for sentence and an adjournment in terms of
section 201 of the Criminal Procedure (Scotland) Act 1995.
[11] Although I have concluded that there was no explicit or
implicit motion for sentence made by the Advocate Depute on 6 September it
seems to me that is a different situation from one where the Crown expressly or
by implication withdraws from the court the power to proceed to sentence. As was properly conceded by Mr Gilchrist
a fair construction of the exchange between the judge and the Advocate Depute
is that what was intended was that the case be adjourned to enable a motion for
sentence to be made at a later date. I
agree with Mr Gilchrist that the issue in the present case is whether it
is competent for the court to continue the prosecutor's right to determine
whether or not he is going to move for sentence in due course. The only authority to which I was referred
was Marion Mailer in which the brief
report records that after the accused had pleaded guilty "the Solicitor General
declined to move at present for sentence."
The explanation for the course adopted by the Crown, with the approval
of the court, was "the severity of an injury sustained by the pannel, in
attempting to escape from the place where the theft was committed." It is clear from this report that the
decision not to move for sentence was qualified by the phrase "at present" but
there is no indication that the case was continued and the Advocate Depute
advised me that he had been unable to locate any papers relating to that case. Nevertheless, it seems to me that the
decision in that case by the Solicitor General not to make a motion for
sentence "at present" suggests that it may be competent to defer making a
motion for sentence to a later date.
Moreover, the court has a wide power at common law to adjourn
proceedings when that is necessary for the purpose of serving the interest of
justice in the particular proceedings upon which the court is then engaged (Bruce v Linton (1860) 23D85; Douglas v Jamieson
1993 SCCR 717; Russell v Wilson 1994 SCCR 13). The proceedings with which
the court was concerned in this case involved three accused, one of whom pled
not guilty. In his case a trial
was fixed for a later date. It is
normally preferable to sentence all accused at the same time and it is
understandable that the Advocate Depute wished to achieve that objective by
deferring sentence on the second and third accused until the conclusion of the
trial of the first accused. While it
would have been preferable for him to move for sentence on 6 September and
thereafter to seek an adjournment of the case against the second and third
accused until the trial diet fixed for the first accused I do not consider that
it was incompetent to continue the case in the absence of a motion for
sentence.
Decision
[12] I have reached the conclusion that it is competent for me to
proceed to sentence.
