Minuter; Scott, Solicitor Advocate; Capital Defence Lawyers

Respondent; Jack, A.D.; Crown Agent

10 August 2009

BACKGROUND
[1] Having been indicted for a contravention of the Road Traffic Act 1988, section 1, ("the 1988 Act") by way of minute of notice, the minuter has raised a preliminary plea under section 72(3) of the Criminal Procedure (Scotland) Act 1995. In essence the minuter's position is that the Crown is "personally barred" from proceeding with the indictment proceedings.

[2] The charge that the minuter now faces is in the following terms:

"On 13 March 2008 on a road or other public place, namely the B7006, Gowley to Bilston Road at its junction with Penicuik Road and Main Street, Roslin, Midlothian, you David John Griffiths did cause the death of David Frederick Hutchins, then aged 85 years, c/o Lothian and Borders Police, Edinburgh by driving a mechanically propelled vehicle, namely motor car registered number X469 AAK dangerously and did drive said vehicle at excessive speed, fail to steer and control said motor vehicle correctly, fail to negotiate a bend in the roadway there, said bend being well and clearly marked with signs and markers, and did cross onto the opposing side of the carriageway, fail to brake in order to avoid a collision, drive over the pavement, collide with a stone bollard and enter the beer garden area of the Original Roslin Inn causing damage to said building and garden furniture and did strike said David Frederick Hutchins, who was then within the said beer garden area, whereby he was so severely injured that he subsequently died on 22 March 2008 at the Royal Infirmary of Edinburgh: Contrary to the Road Traffic Act 1988, section 1."

[3] As the charge discloses the accident which resulted in the death of the deceased occurred on 13 March 2008. That same day the minuter was interviewed by the police. He was not charged with any offence at that time.

[4] On 27 March 2008 the minuter contacted a solicitor in connection with the accident. At that time he was advised that criminal proceedings could ensue and that he should be prepared to expect that such proceedings would be by way of petition. At that time the minuter's solicitor contacted the procurator fiscal's office to inquire as to the position of the case and was told that it was under consideration.

[5] By 7 August 2008, the police had concluded their investigations into the accident and on that date the case was reported by the procurator fiscal's office to the Crown office. The accident had been captured on CCTV and the relevant footage had been recovered by the police and submitted to the procurator fiscal's office. That footage was not submitted to the Crown office as part of the report of 7 August 2008. The recommendation made on behalf of the procurator fiscal was that the minuter should be indicated on a charge under section 1 of the 1988 Act.

[6] On 14 August 2008 the procurator fiscal's office received an instruction from Crown Counsel that the case should be prosecuted by way of summary proceedings for a contravention of section 3 of the 1988 Act.

[7] Having been invited to do so, the minuter attended Dalkeith police office on 18 August 2008. At that time he was charged with the section 3 offence.

[8] On 20 August 2008 the Principal Procurator Fiscal Depute in Edinburgh, Mr Reith, viewed the CCTV footage of the accident and discussed the case with the Area Procurator Fiscal.

[9] On either 21 or 22 August 2008, the minuter was served with a summary complaint containing a charge in the following terms:

(001) On 13 March 2008 on a road or other public place, namely the B7006, Gowley to Bilston Road at it's junction with Penicuik Road and Main Street, Roslin, Midlothian, you David John Griffiths did drive a mechanically propelled vehicle, namely motor car registered number X469AAK without due care and attention or without reasonable consideration for other persons using the road or public place did fail to negotiate a bend in the roadway there, drive at speed excessive for the road conditions, marked with Road Traffic signs and chevron marker board and did cross onto the opposite carriageway, drive over the pavement, colliding with a stone bollard and entre the beer garden area of the Roslin Inn where by you struck, knocked down and injured David Frederick Hutchins, 12 Manse Road, Roslin, now deceased.; Contrary to the Road Traffic Act 1988, Section 3 as amended".

The reply form attached to the complaint indicated that 12 September 2008 had been assigned as a date on which the case would call in Edinburgh Sheriff Court.

[10] By this time in August 2008 the minuter had himself carried out some research into the possible range of disposals open to a court if found guilty depending upon whether he was prosecuted on indictment for a section 1 offence or on summary complaint for a section 3 offence. He was fully aware that imprisonment was not a competent disposal if convicted for a section 3 offence in summary proceedings.

[11] On 26 August 2008 the minuter consulted his solicitor in connection with the complaint that had been served on him. He instructed his solicitor to attend court on his behalf on 12 September 2008, and to tender a plea of guilty to the charge in the complaint.

[12] Following the discussions between Mr Reith and the Area Procurator Fiscal, on 2 September 2008 a further report was submitted to the Crown office together with a DVD copy of the CCTV footage. On 4 September 2008 Crown Counsel issued an instruction that the prosecution should be by way of petition and that a contravention of section 1 of the 1988 Act should be libelled.

[13] By letter dated 9 September 2008 Mr Reith wrote to the minuter in the following terms:

"I refer to the complaint sent to you in respect of a summary complaint due to call in Edinburgh Sheriff Court on Friday 12 September 2008. That complaint will not now call and you are not required to attend at Court. Further proceedings will be taken by petition, which will call in court on a date to be subsequently intimated to you...".

[14] Thereafter the minuter's solicitors entered into correspondence with Mr Reith. By letter dated 24 September 2008, after setting out some of the history of their involvement with the minuter, they made the following request:

"We are writing to seek clarification of the reasons why the section 3 complaint was served and then withdrawn and the basis of these decisions. We also understand from Mr Reith that the police had provided the Crown with further evidence and we would also be grateful if you could clarify what this evidence was and the reasons for it not being available and considered sooner...".

The letter went on to say that there was no warning when the summary complaint was served that the decision to proceed in that manner was not "final".

[15] By letter dated 27 October 2008 Mr Reith replied and his letter included the following remarks:

"Crown counsel instructed that a summary complaint be served on your client but on receipt of a supplementary report a further instruction was received by this office to proceed by section 1 of the Road Traffic Act 1988 on petition...

It was on receipt of all potential evidence available that Crown Counsel was able to reconsider and assess the circumstances of the accident and issue the instructions to initiate proceedings for a contravention of section 1 of the Road Traffic Act 1988...".

Submissions

The Minuter's submissions
[16] Although in the minute at paragraphs 2ix as a separate argument the issue of oppression is raised, Mr Scott indicated that he did not insist on that point. The essential thrust of his submissions was that in the particular circumstances of this case the Crown was barred from proceeding with the prosecution on indictment.

[17] In developing his position Mr Scott submitted that by commencing summary proceedings by the service of a complaint the Crown was barred from proceeding by way of indictment unless the Crown could establish that there had been a change of circumstances justifying such a change. There was no change of circumstances, for example, of the kind that could occur when, after service of a complaint, evidence emerges to justify additional charges. In that situation, and in order to deal with all charges together, a change from summary to solemn proceedings may be justified.

[18] Mr Scott placed particular reliance on Thom v HM Advocate 1976 JC 48. By analogy he submitted that the actions of the Crown in this case by serving a summary complaint could be characterised as evidence of the fact that the Crown had made a decision to relinquish solemn proceedings. He argued that it was important that imprisonment was not a competent disposal if found guilty at summary level for a contravention of section 3 of the 1988 Act. Therefore, service of the complaint was intimation that, if found guilty, the minuter could not be sentenced to imprisonment.

[19] Mr Scott also referred to HM Advocate v Stewart 1980 JC 84, McGhee v Maguire 1996 SLT 1012, HM Advocate v Young 1997 JC 9, HM Advocate v Nairn 2000 SLT (Sh Ct) 176, Murphy v HM Advocate 2002 SLT 1416, and HM Advocate v Weir 2005 SCCR 821. He submitted none of these cases was in point and, to the extent that anything said could be construed as adverse to his position, the circumstances could be distinguished. The suggestion in HM Advocate v Young that it was competent to change from summary to solemn proceedings was a concession made on behalf of the accused. He submitted that the decision in HM Advocate v Nairn where the sheriff by analogy with Thom v HM Advocate, decided that the Crown could not change its position provided some support to the minuter's position. Mr Scott also made reference to material published by the Crown Office and procurator Fiscal Service on the Crown's policy when dealing with cases involving causing death by driving. His purpose in doing so was to highlight the care taken by the Crown when deciding the means of prosecution in such cases. For the same reason he referred to sections in a submission of the Crown Office and Procurator Fiscal Service to Justice 2 Committee in November 2001 (pages 61-62 and 64).

The Crown's submissions
[20] In submitting that the plea in bar of trial should be repelled the Advocate Depute argued that the service of the complaint did not constitute an unqualified unequivocal announcement on the part of the Crown that it had renunciated the right to proceed on indictment. Responding to the submission that the minuter's expectations had been influenced by the service of the complaint, the Advocate Depute pointed out that the period involved was a short one, some two weeks or so. The public interest and the interests of justice had to be weighed up when assessing the change in the Crown approach, and in the circumstances, the Crown could choose to change its approach.

[21] Furthermore, the Advocate Depute challenged the suggestion that there had been no change of circumstances. The CCTV footage had not been viewed by Crown counsel because it had not been submitted with the original report. Crown counsel was the ultimate decision maker and the additional information of the CCTV footage had played no part in the initial decision.

[22] In dealing with the cases referred by Mr Scott, the Advocate Depute submitted this was not a Thom v HM Advocate situation. The reference in Murphy v HM Advocate at paragraph [17] that there was an established practice by which the Crown may change from summary to solemn proceedings was supportive of the Crown's position. The decision in HM Advocate v Nairn could be distinguished because there the Crown had intimated that the proposed plea was acceptable.

Decision

[23] This case raises an important issue in relation to the powers of the Lord Advocate, and, in particular, the limitations that the law imposes on those powers. In argument the starting point was the decision in Thom v HM Advocate, but there is merit in placing that decision in a historical context. In Allison, Practice of the Criminal Law of Scotland Vol.11, pages 83 to 98 and 353-357 there is a detailed analysis on the role of the Lord Advocate. The thrust of the discussion is directed at exploring how the Lord Advocate can limit or elide the court's power by restricting the libel or deciding not to move for sentence. There is no suggestion that the Lord Advocate's power in relation to the prosecution of crime is limited by any pronouncement on whether or not a prosecution will take place. There is nothing in that analysis to suggest that the Lord Advocate cannot review a decision and decide to pursue a course of action in the public interest that increases an accused's exposure to sentence. It is only when the prosecutor in open court deserts a diet simpliciter that such a step "is held to be a final renunciation of the right of prosecution for that offence, and a complete bar to any renewed proceedings regarding it at his instance" (p.357).

[24] The discussion in Allison was aptly summarised by Lord Cameron in Boyle v HM Advocate 1976 JC 32 in the following manner at page 37:

"In Scotland the master of the instance in all prosecutions for the public interest is the Lord Advocate. It is for him to decide when and against whom to launch prosecution and upon what charges. It is for him to decide in which Court they shall be prosecuted and upon what charges. It is for him to decide what pleas of guilt he will accept and it is for him to decide when to withdraw or abandon proceedings. Not only so, even when a verdict of guilt has been returned and recorded it still lies with the Lord Advocate whether to move the Court to pronounce sentence, and without that motion no sentence can be pronounced or imposed".

There is no suggestion in that passage that the Lord Advocate's decision as to choice of charge or forum is in any way fettered or that the Lord Advocate/Crown cannot reconsider even after a choice of charge and forum has been intimated to an accused.

[25] In Thom v HM Advocate the accused's solicitor received a letter from the Procurator Fiscal intimating that "no further steps" were to be taken and that the accused could "uplift his bail". The court held that the letter from the Procurator Fiscal constituted a unequivocal and unqualified announcement on behalf of the Crown that no further proceedings were to be taken on the charge. There had also been a Press announcement that there were to be no further proceedings. The Crown accepted that if the terms of the letter and the Press announcement fell to be construed as an "unequivocal public declaration" (page 51) that the right to prosecute had been "relinquished or discharged (page 51)".

[26] In delivering the Opinion of the Court, the Lord Justice General (Emslie) said at page 51, when construing the Procurator Fiscal's letter:

"Properly construed it constitutes an unequivocal and unqualified announcement on behalf of the Lord Advocate that no further steps are to be taken in respect of the charge on which the applicant appeared on petition, or, putting the matter another way, that the Lord Advocate has decided not to exercise his right of prosecution in the applicant's case. Such an announcement in our opinion can, like a motion to desert simpliciter, only be regarded as a declaration of relinquishment or discharge of the right to prosecute upon the relevant charge".

[27] The comparison made with the effect of the prosecutor's right to desert simpliciter lay at the heart of the court's reasoning in Thom v HM Advocate. The ratio of the case is that to create a situation that could be equiparated with desertion simpliciter there had to be "an unequivocal and unqualified announcement" on behalf of the Lord Advocate that there was to be no prosecution. In this case the minuter is seeking to extend that rule to the effect that by choosing to proceed by summary proceedings the Crown cannot change its mind as to the matter of prosecution in the absence of a change of circumstances. In my opinion no such extension is justified in principle or warranted by authority.

[28] In this case, contrary to the position in Thom v HM Advocate, the Crown has clearly intimated that the minuter is to be prosecuted. I see no reason in principle, if the interests of justice so demands, why the Crown on a review and reconsideration of a case, should be precluded from changing its mind even if no new material is obtained. I do think that it was unfortunate that the minuter was served with a summary complaint before Crown counsel had completed the reconsideration of the case. Such an act may have provided the minuter with different expectations than would have been generated by the service of a petition. Nevertheless, contrary to the submissions made on his behalf that the circumstances brought the case into "Thom territory", I consider that a clear intention to prosecute is far removed from the ratio in Thom v HM Advocate, and that to commence the prosecution by way of summary complaint does not constitute an "unequivocal and unqualified announcement" that petition proceedings will not be instituted if the case is reviewed.

[29] Nor do I consider that the other cases referred to assist the minuter. Indeed if anything some of observations made are contradictory of his position.

[30] Mr Scott sought to obtain some support in the case of HM Advocate v Nairn. In that case, the accused was served with an indictment libelling that he assaulted a woman and that he did repeatedly push her to the ground and repeatedly pick her, all to her severe injury and permanent disfigurement. On his original appearance on petition, the petition had also contained a charge of assault with intent to rape the same complainer with no reference to punching and kicking or permanent disfigurement. Therefore, the charge libelled in the indictment had been changed in the interim. Following discussions in course of which the solicitor for the accused contended that there was insufficient evidence in support of repeated kicking or severe injury, agreement was reached that the accused would plead guilty to a charge of assault under deletion of the words "repeatedly kick her" and "severe", and that such a plea would be accepted by the Crown. By the time the case first called in court the solicitor for the accused had been told by the depute fiscal that the Crown was reconsidering the case with a view to serving a fresh indictment to include the charge in the petition. The Crown Office had instructed the procurator fiscal to have the diet deserted pro loco et tempore so that a fresh indictment could be raised. When the case called the accused tendered a plea under deletion of the deletions agreed but this plea was not accepted by the Crown. The prosecutor moved the court to desert the diet pro loco et tempore, a motion that was opposed on behalf of the accused. The Sheriff refused the Crown's motion on the basis that the Crown had barred itself from proceeding in the manner it proposed to do.

[31] The Sheriff (A L Stewart, Q.C.) said at page 178 D-F:

"In my opinion to grant the Crown motion to desert pro loco et tempore would be oppressive and unfair to the accused. Prior to the first diet, through his solicitor, he indicated to the prosecutor an intention to plead guilty to a charge which fell within the scope of the present indictment. Indeed, he has now tendered a plea in these terms. In discussion with his solicitor the procurator fiscal depute dealing with the case stated that the Crown was prepared to accept that plea. It seems to me that the situation is analogous to that where the Crown has given an indication that no further proceedings will be taken in a case. Reference was not made before me to such cases as Thom v HM Advocate, 1976 JC 48; 1976 SLT 232 and HM Advocate v Stewart, 1980 JC 84, but the reasoning of the court in these cases is, in my opinion, of some assistance in determining the appropriate way in which to dispose of the Crown's motion in the present case. It comes to this in essence: the Crown has by its actings barred itself from proceeding as it now seeks to do".

[32] Mr Scott relied on these observations to support his proposition that the decision in Thom v HM Advocate was simply an example of a principle whereby the Crown could restrict its powers of prosecution. The circumstances in HM Advocate v Nairn can be clearly distinguished from this case. Nevertheless I have some reservations about the correctness of the decision in that case. The decision in Thom v HM Advocate was not in any way rooted in the notion of oppression. The decision rested on an analogy with desertion simpliciter. The bar that was created in Thom v HM Advocate arose because of an "unequivocal and unqualified announcement" that there was to be no prosecution. The dialogue that in many cases might occur between the Crown and the defence when negotiating the reduction of a charge after a prosecution has been raised is not covered by the rule in Thom v HM Advocate. Until a plea has been tendered and accepted by the Crown in Court, I see no reason why, the Crown in reconsidering the evidence available, should not be able to refuse to accept such a plea. As I have already said, it is of critical importance to bear in mind that the rule in Thom v HM Advocate was deduced by analogy with desertion simpliciter by the Crown. In my opinion the rule should be limited to circumstances where an unequivocal and unqualified announcement of no prosecution has been made. Once the Crown has decided to prosecute then I consider that it would be contrary to the interests of justice to place constraints on the manner in which the Crown proceeds until a plea to a reduced charge has been accepted in court.

[33] A decision that is of some relevance to this case is that in Murphy v HM Advocate. In that case an accused was charged on indictment with fourteen offences of assault of sexual offences against boys at a List "D" school. In the course of correspondence between the accused's solicitor and the procurator fiscal at Stirling prior to the service of the indictment the procurator fiscal wrote on 15^th May 2002 to the effect that the sexual allegations that had been made were not corroborated but that there was evidence of assaults by means of electric shocks, punches and kicks, being struck with leather laces and force fed. The letter concluded in the following way:

"It is accordingly my intention to proceed against Mr Murphy on a summary complaint and that will be issued shortly".

Notwithstanding the contents of that letter on 13 June 2002 the accused was served with an indictment containing the sexual offences.

[34] At a preliminary diet the accused argued that the Crown had renounced the right to prosecute certain charges and the right to proceed otherwise than by summary procedure. The trial judge rejected these arguments. On appeal these arguments were repeated. Having considered the decision in Thom v HM Advocate and rejected the argument that the procurator fiscal's letter amounted to a renunciation of the right to prosecute the offences under challenge or that it constituted a renunciation of the right to prosecute other than by summary proceedings, in delivering the opinion of the court Lord Coulsfield went on to say at p 1419 I-J, para [17]:

"In these circumstances it is not necessary for us to express a view on the question whether, and if so how, the Crown may become bound to proceed only by summary procedure in a case which might be prosecuted either by solemn or by summary procedure. We would, however, observe that in view of the established practice by which the Crown may, at its discretion, change from a summary to a solemn proceeding even after a complaint has been served, there seems to us to be considerable difficulty in advancing the argument that the Crown can become bound to one form of procedure rather than the other, in the absence of circumstances which might be held to amount to oppression".

[35] Mr Scott argued that these obiter remarks did not undermine his position because he did accept a change of circumstances could justify a change from summary to solemn proceedings after service of a complaint, and that may have been what was being referred to in the remarks just quoted. What is said by Lord Coulsfield is not so qualified and I consider that what is said is not helpful to the minuter.

[36] In HMV v Young an accused was initially served with a complaint containing a number of charges. Subsequently the Crown deserted pro loco et tempore in order to add another accused. Thereafter the accused was served with an indictment containing the original charges but now contained in a single charge. The indictment was dismissed against the additional accused, and after sundry procedure including the desertion of a diet pro loco et tempore, a fresh indictment was served on the accused reflecting in substance the charges in the original complaint. The Sheriff upheld the accused's preliminary plea that the conduct of the Crown was oppressive having regard to the procedural history, the delay and the time spent by the accused in custody.

[37] The Crown appealed arguing, under reference to the authorities on oppression, that the test had not been met. In delivering the opinion of the court the Lord Justice-General (Rodger) said at pages 11-12:

"The advocate depute therefore argued that the question for the court was whether or not as a result of events in this case there had been oppression in the sense that something had happened which was prejudicial to the prospects of a fair trial and that the risk of prejudice is so grave that no direction of the trial judge, however careful, could be expected to remove it. On behalf of the respondent, counsel accepted that that was indeed the test and he also accepted that there was little in the report of the sheriff to indicate the elements from which he had identified oppression of this kind. Counsel himself submitted that the only prejudice which he could see was that by altering the proceedings from summary to solemn proceedings the Crown had thereby exposed his client to a risk of a greater sentence. But he accepted that, in the light of the comments of Lord Cameron in the case of Boyle v HM Advocate at page 37, it had been competent for the Crown to change from summary to solemn proceedings and that therefore it was not prejudice of the type envisaged by the Stuurman test".

As I have already observed Mr Scott dealt with that passage by saying that it proceeded on the basis of a concession. Certainly in the passage just quoted the Lord Justice General is addressing the arguments. Nevertheless there is no suggestion that there was an obvious flaw in what was submitted to the court.

[38] In summary I am of the view that the analogy that Mr Scott seeks to draw between the circumstances of this case and the decision in Thom v HM Advocate is misconceived.

[39] The views I have expressed so far are on the assumption that the decision to change from summary to solemn procedure was taken in the absence of a change of circumstances. However, in any event, I am of the view that there was a change of circumstances. In my opinion this issue has to be considered by reference to the decision maker. As is Crown office practice the instruction as to method of procedure in a case of this kind must come from Crown Office, usually Crown Counsel. That is what happened here. When first reported Crown Counsel instructed proceedings by way of summary complaint. When re-reported material in the shape of the CCTV footage was also submitted and no doubt that material and some additional input from the procurator fiscal's office provided Crown Counsel with additional material upon which to base a decision. The time-bar for summary proceedings was not imminent and procurator fiscal's office should not have jumped the gun before the response to that second report was received.

[40] For these reasons I shall repel the plea in bar of trial.