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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Andrew McGee & Co [2006] ScotHC HCJ_1 (16 January 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJ_01.html Cite as: [2006] HCJ 1, [2006] ScotHC HCJ_1 |
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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 ________________ |
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
"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
"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
[3] The
trial of the first accused commenced at
Submissions on behalf of the Crown
[4] When
the case called on
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
[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
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
"It has always
been an essential feature of our criminal procedure in
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
[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.