MARTIN ROBERTSON+SEAMUS O'DALAIGH+KEVIN RUDDY v. PROCURATOR FISCAL, ABERDEEN+PROCURATOR FISCAL, PERTH
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lady Cosgrove Lord Kingarth Temporary Judge C.G.B. Nicholson, CBE, QC, | Appeal Nos: XJ724/03 XJ725/03 XJ1285/03 OPINION OF THE COURT delivered by LADY COSGROVE in BILLS OF SUSPENSION by (1) MARTIN ROBERTSON, and (2) SEAMUS O'DALAIGH (otherwise JAMES MICHAEL DALY) Appellants; against PROCURATOR FISCAL, Aberdeen Respondent: and (3) KEVIN GERARD RUDDY Appellant; against PROCURATOR FISCAL, Perth Respondent: _______ |
Appellants: (1) and (2) W.G. Jackson, Q.C., Mrs. Delibegovic-Broome; Blacklock Thorley: N. Davidson, Q.C., C. Shead; Drummond Miller
Respondent: N. Ritchie, A.D.; Crown Agent
12 September 2003
[1]The complainers in these Bills of Suspension were charged on separate summary complaints. Martin Robertson was convicted after trial before a temporary sheriff on 10 August 1999 of an offence of assault. The diet was adjourned for the purpose of obtaining social enquiry and community service reports. On 30 September 1999 he appeared before the same temporary sheriff and was admonished. Seamus O'Dalaigh was charged with a contravention of the Road Traffic Act 1988. He pled guilty at an intermediate diet before a temporary sheriff on 12 October 1999 and on that date he was sentenced. Kevin Ruddy pled guilty on 8 September 1999 before a full-time sheriff to two contraventions of the Road Traffic Act 1988. The diet was adjourned for social enquiry and community service reports and on 20 October 1999 he was sentenced by a temporary sheriff. The Scotland Act 1998 came into force on 20 May 1999. The decision in Starrs v. Ruxton 2000 J.C. 208 was issued on 11 November 1999.
[2]The Bills came before us on 11 September 2003. Counsel for the complainers submitted that it is now made clear in the decision of the Privy Council in R v. H.M. Advocate 2003 S.C. (P.C.) 21 that the act of a procurator fiscal prosecuting a case before a temporary sheriff being an 'act' within the meaning of section 57(2) of the Scotland Act and incompatible with the accused's Convention rights was not only unlawful under section 6(1) of the Human Rights Act but was an act which he has no power to perform. Reference was made to Lord Hope of Craighead's explanation (at pp. 43-44, para. 44) of the effect of section 57(2):
"What section 57(2) of the Scotland Act 1998 does, in what I believe to be a unique provision not found elsewhere in the Commonwealth, is to declare that the Lord Advocate has 'no power' to do any act which is incompatible with
any of the Convention rights. If it would be incompatible with the Convention right for the Lord Advocate to prosecute the appellant ..., the only answer which the court can give to the question if it is to comply with the provisions of the Scotland Act is to say that he has no power to proceed with the prosecution and that it must be stayed."
[3]Lord Clyde (at p. 50, para. 2) described the consequence of an act that was incompatible with any of an accused person's Convention rights as being that the act was ultra vires and "necessarily void and of no effect". Lord Rodger of Earlsferry observed (at pp. 63-64, para. 23):
"so far as his act is incompatible with Convention rights, the member of the Executive is doing something which he has no power to do: his 'act' is, to that extent, merely a purported act and is invalid, a nullity."
[4]Counsel submitted that it followed from the Board's decision that the procurator fiscal had no power to continue the prosecution as soon as he became aware that a temporary sheriff was on the bench and any purported acting by him of calling the case was accordingly a nullity, as was all that flowed from it.
[5]The Privy Council decided in the case of Millar v. Dickson 2002 S.C. (P.C.) 70 that waiver is not, in appropriate circumstances, incompatible with the Convention and this court in Lochridge v. Miller 2002 S.C.C.R. 628 held that, equally, the application of the principle of acquiescence should not be incompatible with it. Although in these cases the act of the procurator fiscal in continuing to prosecute before a court presided over by a temporary sheriff was characterised as being one for which he had no power, counsel submitted that it was now clear following the decision of the Board in R. v. H.M. Advocate that the continued prosecution in these circumstances was not merely incompetent but was in fact a nullity. A distinction fell to be drawn in this context between a nullity and incompetence in matters of procedure. It followed as a matter of logic that no amount of acquiescence or waiver could apply to cure a nullity. No authority was advanced to us for that proposition which was described by counsel as a "self-evident truth".
[6]On behalf of the Crown, the advocate depute expressly conceded that if a prosecutor exceeds his power any purported 'act' is, in effect, a nullity and the proceedings from that point onwards are tainted by that nullity. He submitted, however, that the position was not in fact altered in any substantial or significant way by the decision of the Privy Council in R. v. H.M. Advocate. The matter had been viewed as one of vires since the decision of this court in Starrs v. Ruxton. While everything which flows from an ultra vires act is a nullity, the effect of the purported act was not to vitiate the whole proceedings. The complainer's Article 6 right was breached only when there was a determination, either in relation to conviction or sentence. If the prosecutor was acting ultra vires by continuing a prosecution before a particular tribunal, the consequences of his ultra vires act - conviction or sentence by the court - fell, subject to questions of waiver or acquiescence, to be quashed. As to acquiescence, the court in Lochridge v. Miller had clearly decided that an accused could be barred by acquiescence from challenging an incompetent conviction or sentence in circumstances similar to the present cases. There was no reason to suppose that the decision would have been different if the particular submission now advanced had been made. Reference was made to Storie v. Friel 1993 S.C.C.R. 955.
[7]In further support of his submission that challenge to a fundamental nullity was capable of being barred by acquiescence the advocate depute relied on the obiter observation to that effect by the Lord Justice General (Rodger) in Shields v. Donnelly 2000 J.C. 46 at page 50. He acknowledged nevertheless that an obiter observation apparently to the opposite effect (albeit in the context of waiver) is to be found in the opinion of Lord Prosser in the decision of this court in Millar v. Dickson 2000 J.C. 648 at para. 38.
[8]The issue which arises in these cases in which each of the complainers has been either convicted or sentenced before a temporary sheriff in the period after the commencement of the Scotland Act and before the decision of the Judicial Committee of the Privy Council in Millar v. Dickson is precisely the same as arose in the case of Lochridge v. Miller decided by this court on 19 March 2002. There, the court held that the failure of the complainer to take advantage of the opportunity to challenge the disposal with reasonable promptness once the grounds were clearly established by Starrs v. Ruxton prevented the challenge then being made and dismissed the Bill. In that case the first order for service of the Bill was pronounced on 19 October 2001. In the present cases the relevant dates were 26 October 2001 (Robertson), 20 December 2001 (O'Dalaigh) and 25 February 2002 (Ruddy). It appears, however, that the particular submission made in the present cases that the purported act of the procurator fiscal of calling the cases before the temporary sheriff as well as everything that followed therefrom was a nullity was not one that was before the court in Lochridge v. Miller (and nor, of course, did the court have to consider the apparent concession to that effect made, rightly or wrongly, before us). It is clear that the question addressed by the court in that case was whether the circumstances showed that the complainer must be taken to have acquiesced in the conviction - the consequence of the prosecutor's incompetent act (para. 5). Leave to appeal to the Judicial Committee of the Privy Council was sought but refused.
[9]It appeared to us that the specific issue raised before us in these Bills of whether the whole proceedings were a nullity and, if so, whether acquiescence could have any application is such that this court might well find itself in a position of requiring to consider whether the decision in Lochridge should be reviewed. In these circumstances, we decided that the cases should be referred to a court of five judges.