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.