Scottish High Court of Justiciary Decisons

"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

"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.

Submissions on behalf of the Crown

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.

Submission on behalf of the second accused

Discussion

"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.

Decision