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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> CRAIG FITZGERALD v. PROCURATOR FISCAL, GLASGOW [2000] ScotHC 28 (1st March, 2000) URL: http://www.bailii.org/scot/cases/ScotHC/2000/28.html Cite as: [2000] ScotHC 28

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CRAIG FITZGERALD v. PROCURATOR FISCAL, GLASGOW [2000] ScotHC 28 (1st March, 2000)

By this Bill, the complainer seeks suspension simpliciter of his convictions on the first two charges contained in a complaint with the reference number 9800152142. The history of proceedings in relation to that complaint are closely bound up with proceedings in another complaint, bearing the reference number 9800152153. For convenience we will refer to these two complaints as complaint 42 and complaint 53 respectively. Complaint 42 contained three charges, one under section 4(1) of the Road Traffic Act 1988, one under section 5(2) of the Misuse of Drugs Act 1971 and one of a common law offence. Complaint 53 contained two charges, under sections 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988, relating to the same occasion as the first charge on complaint 42.

On 9 October 1998, at the first calling of both complaints, the complainer pled not guilty to all charges, and both complaints were adjourned for trial on 14 January 1999, with an intermediate diet on 24 December 1998. It is upon the basis of what is recorded as having happened at the intermediate diet, and what appears to have happened at the trial diet, that the complainer contends that his eventual conviction on charges 1 and 2 under complaint 42 should be suspended simpliciter, that case not having called on 14 January 1999 and the instance thus having fallen.

If one refers to the minute sheets in each of the two complaints, in relation to the interim diet on 24 December 1998, one finds it recorded in the minute for complaint 42 that the diet on that complaint was continued to the trial diet previously assigned - i.e., 14 January 1999. And on the minute sheet for complaint 53, for 24 December 1998, one finds it recorded that on the motion of the defence, the court adjourned the diet for trial until 2 March 1999, assigning 9 February 1999 as an intermediate diet. On 14 January, the agents for the complainer attended at court on his behalf. According to the statement of facts contained in the Bill, "It was their understanding that the second complaint" (i.e. complaint 53) "was due to call for trial but having regard to the minutes that understanding was erroneous". The statement of facts does not explain why that was their understanding. However, counsel for the complainer informed us that the reason for the complainer's agents expecting complaint 53, and not complaint 42, to call for trial on 14 January was that at the intermediate diet on 24 December, notwithstanding what was recorded in the two minute sheets, what had in fact happened was that complaint 53 had been adjourned to the original trial diet of 14 January, whereas it was complaint 42 which, on the motion of the defence, the sheriff had adjourned to a trial diet on 2 March, with an intermediate diet on 9 February. It is not necessary here to go into the reasons for the two complaints being treated differently. But on the basis of what we are now told by counsel, it is evident that when the minute sheets were completed for the two cases, the Clerk mistakenly recorded on the minute sheet for complaint 42 what the court had in fact done in relation to complaint 53, and vice versa. Each minute sheet was thus quite simply an incorrect record of what had been done in relation to the complaint in question. Having regard to what had actually happened on 24 December, therefore, the complainer's agent's understanding that complaint 53 was due to call for trial on 14 January was entirely correct. In terms of what had been done in court on 24 December, complaint 53 had been assigned to 14 January for trial, and complaint 42 had not.

Putting matters shortly, when the complainer's agents discovered, on 14 January, that the court was proceeding upon the basis that complaint 42 would be proceeding to trial that day, and that complaint 53 would not (which was what was indicated in the minute sheets in respect of both complaints) they asked the sheriff clerk to clarify the position. In these circumstances, the sheriff clerk attempted to rectify matters by making certain alterations to the relevant minute sheet in each complaint. We shall return to the detail of what he actually did. But what happened was that complaint 53 was called, and complaint 42 was not - consistently with what the sheriff had done on 24 December, and with the alterations which the clerk had made to the minute sheets, but inconsistently with what the minute sheets had originally recorded.

If a minute sheet is a correct record of what actually happened, there is of course no power in a clerk to alter it, so that it is no longer a correct record of what happened. The present Bill proceeds upon the basis that the clerk had no power to alter the minutes as he did, and since the statement of facts contains no averments as to what actually happened, it is perhaps implicit that the original minute recorded correctly what had in fact occurred. But as we have indicated, that is not now the complainer's position. It is accepted that the minute in complaint 42 (and indeed that in complaint 53) was incorrect; and it was of course also acknowledged that in terms of section 299 of the Criminal Procedure (Scotland) Act 1995, it may be competent to correct an entry in the record of proceedings in a prosecution in so far as that entry constitutes an error of recording. It was initially submitted that at the stage of these proceedings which had been reached on 14 December 1998 and 14 January 1999, no correction could be made at the hand of the clerk alone, correction being a matter for the sheriff. That submission was not, however, insisted in. Acknowledging that the minute which recorded the events of 24 December 1998 contained an "error of recording" for the purposes of section 299, and that in terms of subsection (2)(a) of that section such an error could indeed be corrected subsequently by a clerk of court at his own hand, counsel for the complainer also accepted that the clerk who made the correction need not be the same individual clerk as had made the original erroneous entry, and that while often it would be necessary for him to have consulted with the original clerk in order to discover that the original entry was erroneous, that was not the position in the present case, where the clerk had been proceeding upon the understanding of the complainer's agents, and the error was undisputed.

Nonetheless, counsel for the complainer submitted that until a minute was validly altered, according to the terms of section 299, it stood in its original form. Reference was made to Walker v. Normand 1996 S.C.C.R. 296, and in particular the observations of Lord Sutherland at page 298E-F. One must therefore look carefully at what the clerk had done on 14 January, in order to discover whether the original erroneous minute in complaint 42 (and also that in complaint 53) had been validly altered, so that the courts would treat the amended minute as the true record of proceedings.

In attempting to rectify the minute in each of these two complaints, what the clerk did was to leave the terms or content of each minute unchanged, while changing the last two digits in the reference number from 42 to 53, and 53 to 42, and physically transferring the altered sheet to the other process. In the complaint with which we are concerned, complaint 42, there was thus a substitute minute sheet, taken from the process of complaint 53 but now bearing the reference number ending 42, recording the diet for trial as 2 March 1999 and 9 February as an intermediate diet.

While one can understand that this substitution must have seemed a simple short-hand way of producing a correct minute in each complaint, there are a number of problems. The first is of no continuing significance: as we have indicated, complaint 42 contained three charges, whereas complaint 53 contained only two charges, and the minute which originally related to complaint 53 recorded that not guilty pleas had been entered in relation to charge 1 and charge 2, with, naturally, no mention of a third charge. This gave rise to subsequent attempts at correction, and is a matter raised by the Bill; but as the appellant was eventually acquitted on that charge, the matter requires no further comment. More importantly, in deleting the figures 53 and substituting the figures 42 in the case reference on the minute sheet for 24 December 1998, the clerk who made the alteration did not sign or even initial the change which he made. Counsel for the complainer accordingly submitted that the clerk's alteration had not been authenticated in the manner required by section 299(5), "by his signature". That being so, there was no valid alteration of the minute, and it stood in its original terms. As such, it was a minute in complaint 53. Moreover, if one looked at the original minute belonging to complaint 42, one found that the manuscript alteration of the case reference number from 42 to 53 had been initialled, but not signed. That alteration thus failed to meet the authentication requirements of section 299(5), and that minute sheet thus remained the minute sheet in complaint 42. Its provision that the diet was continued to the trial diet previously assigned, 14 January 1999, was thus still, despite its physical transfer to the other complaint, the relevant minute of the proceedings of 24 December in complaint 42. Following that minute in its actual (if erroneous) form, as one must do in the absence of any valid alteration, it could be seen that the trial diet was 14 January; and that since, in the event, the case had not called on that day, the instance had fallen and conviction on charges 1 and 2 could not stand.

In reply, the advocate depute agreed with counsel for the complainer that the purported alterations made by the clerk on 14 January were unauthenticated, and thus ineffectual, and that the minutes accordingly stood in their original form, and related, despite their physical swap to another process, to the complaints whose numbers they had originally borne before the purported alteration. Nonetheless, in each case the record of proceedings contained in each of these original minutes was erroneous not only when made, but also when considered and purportedly altered on 14 January and indeed throughout the period since then up to and including the present time. The errors contained in these original minute sheets were fundamental, and would require a virtual re-writing of the minute. But so long as there was some kind of minute, which there was with a sheet bearing the relevant case number (and initial details identifying the court, the date, the sheriff, the accused and his representative) there was a minute capable of correction. Reference was made to Gormley v. Annan 1990 S.C.C.R. 281. That being so, this court should proceed upon the basis of what was known actually to have happened on 24 December 1998. In terms of section 299(4), we could and should consider and determine the appeal as if the minute had been corrected, so as to include a correct record of what actually happened. On that basis, the trial diet assigned for case 42 had been 2 March 1999, with an interim diet on 9 February 1999. And that being so, there had been no failure in relation to complaint 42 on 14 January 1999.

Complaint 42 in fact called on 9 February 1999 (proceeding on the basis of the altered and substituted minute taken from complaint 53). And while the complainer's agent had then stated a plea to competency, in respect of the matters now raised in the Bill, the diet of 2 March was discharged, the matter was continued for debate on 3 March, the plea to competency was repelled on 3 March, the case being adjourned for trial to 9 April 1999 with an intermediate diet on 1 April 1999. On 9 April 1999 the complainer pled guilty to charges 1 and 2, and not guilty to charge 3, this being accepted. After deferral, sentence was imposed on 21 May 1999. While there was no complaint in relation to complaint 53, that complaint also eventually came to a trial diet on 9 April 1999, when the accused pled guilty to both charges. In that case also, after deferrals, sentence was imposed on 21 May 1999. In these circumstances, the advocate depute submitted the Bill should be refused, and there should be a remit to the sheriff, in terms of section 299(4)(b), for the original minute sheet to be corrected, with the error of recording deleted and replaced with a correct record of what had in fact been done by the sheriff on 24 December 1998 in relation to case 42.

We are satisfied that that is the appropriate course. The alterations made by the clerk are not authenticated, and that being so, the changes made by him are ineffectual. While we appreciate that what he did must have seemed a simple way of achieving the right result in both cases, we should say that in our opinion, quite apart from the absence of authentication, the change which was made to the case reference number on the minute sheet in each of these two complaints was not a correction of any error of recording. In each case, the number which appeared on the relevant minute sheet was perfectly correct, and could not and should not have been altered. It is the original sheet bearing the case reference number of complaint 42 which requires correction. We have proceeded in terms of section 299(4)(a) as if the erroneous entry in that original minute were corrected, so as to reflect what the sheriff did on 24 December 1998 in case 42. And in remitting the matter for correction, it is that original minute which requires to be corrected, so that it reflects what was done in case 42.

We would add that while we appreciate that on occasion mistakes will of course be made, it is a matter of fundamental importance that when they are corrected in terms of section 299, the requirements of that section are closely adhered to, with careful correction of the actual erroneous minute sheet, and authentication by signature as required by subsection (5).

Finally, we are aware that there is much in the sheriff's report which we have not dealt with. Some of the matters there touched upon suggest that there was a degree of confusion and error in other respects. However, having regard to what was conceded by counsel for the complainer in presenting his submissions on the Bill, there is no need for us to deal with these matters.

In the whole circumstances the Bill is refused.