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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Brooks v. Procurator Fiscal Dumbarton [2007] ScotHC HCJAC_9 (19 January 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_9.html
Cite as: 2007 JC 79, 2007 SLT 572, [2007] ScotHC HCJAC_09, [2007] ScotHC HCJAC_9, 2007 GWD 8-140, 2007 SCCR 75, [2007] HCJAC 09, [2007] HCJAC 9

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Osborne

Lord Johnston

 

 

 

 

 

 

 

 

 

 

[2007] HCJAC 9

Appeal No: XC757/06

 

OPINION OF THE COURT

 

delivered by THE LORD JUSTICE CLERK

 

in the Appeal of

 

MATHEW JAMES BROOKS

Appellant;

 

against

 

THE PROCURATOR FISCAL, Dumbarton

Respondent:

_______

 

For the appellant: MacDonald; Cairns Brown, Dumbarton

For the Crown: Prentice, sol adv, AD; Crown Agent

 

19 January 2007

 

The charge and the proposed amendment

[1] The appellant was indicted for trial at Dumbarton Sheriff Court on seven charges. We are concerned in this appeal with charge (7). It was in the following terms:

"on 28 November 2005 at 15 Hall Street, Bonhill, Alexandria you MATHEW JAMES BROOKS did have in your possession without the authority of the Secretary of State a prohibited weapon, namely a revolver and air cartridges; CONTRARY to the Firearms Act 1968, section 5(1)(b) as amended by the Transfer of Functions (Prohibited Weapons) Order 1968"

 

[2] On 25 October 2006 when the case called at a first diet, the procurator fiscal depute sought leave to amend the charge as follows:

"(1) By deleting the words 'and air cartridges' ... and by substituting the words 'which was used or was designed or adapted for use with a self-contained gas cartridge system';

(2) By deleting the letter 'b' ... and by substituting the letters 'af';

(3) By deleting the words 'amended by the Transfer of Functions (Prohibited Weapons) Order 1968' ... and by substituting the words 'substituted by the Firearms (Amendment) Act 1988 and amended by the Firearms (Amendment) Act 1997.'"

 

[3] The procurator fiscal depute said that a ballistics report on the firearm in question had been disclosed to the defence when the indictment was served. The report referred to section 5(1)(af) of the Firearms Act 1968 (the 1968 Act), as amended, but the indictment had erroneously referred to section 5(1)(b). The weapon was recovered from the appellant. The report identified what type of weapon it was.

[4] The solicitor for the appellant opposed the amendment on the basis that it would alter the character of the offence libelled and that a contravention of section 5(1)(af), unlike a contravention of section 5(1)(b), attracted a minimum penalty of five years imprisonment unless there were exceptional circumstances (1968 Act, as amended, s 51A).

[5] The sheriff allowed the amendment. He considered that the essence of the charge was that the appellant had in his possession a prohibited weapon and that that weapon was a revolver. The appellant had been given fair notice of the fundamentals of the charge in its original form and in the ballistics report. The fundamentals remained unchanged. The amendment accurately reflected the type of prohibited weapon that the appellant was alleged to have had in his possession.

 

The relevant legislation

[6] Section 5 of the 1968 Act, as amended, provides inter alia as follows:

"5 (1) A person commits an offence if, without the authority of the Secretary or the Scottish Ministers ... he has in his possession, or purchases or acquires, or manufactures, sells or transfers - ...

 

(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system;

 

(b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing; ...

 

(2) The weapons and ammunition specified in subsection (1) and (1A) of this section (including, in the case of ammunition, any missiles falling within subsection (1A)(g) of this section) are referred to in this Act as 'prohibited weapons' and 'prohibited ammunition' respectively ... "

 

[7] Section 96 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides inter alia as follows:

"96 (2) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to-

(a) cure any error or defect in it;

(b) meet any objection to it; or

(c) cure any discrepancy or variance between the indictment and

the evidence.

 

(3) Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if it appears to the court that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just."

 

 

Submissions for the parties

[8] Counsel for the appellant submitted that the effect of the amendment was to change the character of the offence libelled. It was therefore excluded by section 96(3) of the 1995 Act. MacArthur v MacNeill (1986 SCCR 552) was analogous. In that case the Crown sought leave to amend a charge of failure to provide a specimen of breath under section 8(7) of the Road Traffic Act 1972 to a charge of failure to provide a specimen of blood under the same subsection. It was held inter alia that the proposed amendment changed the character of the offence. In this case section 5(1) enumerated the prohibited weapons to which that provision applied. The proposed amendment would substitute a different form of prohibited weapon. The case could be contrasted with Fenwick v Valentine (1993 SCCR 892) where the complainer was charged with a contravention of section 5(1)(a) of the Road Traffic Act 1988 by driving when he had a specified proportion of alcohol in his breath. The prosecutor was allowed to amend the complaint by deleting the reference to breath and substituting a reference to the corresponding proportion of alcohol in his blood. The essence of the charge was driving with an excess of alcohol in the body. The amendment merely substituted one method of proof for another.

[9] Moreover, since the amended charge would normally carry a minimum sentence of five years, the allowance of the amendment would be prejudicial to the appellant. In Cook v Jessop (1990 JC 286) the effect of the amendment was to found the complaint on the then current statutory provision in place of its repealed predecessor. The decision to allow the amendment was upheld although the substituted provision carried a greater penalty. That decision was distinguishable because the amendment did not introduce the possibility of a minimum sentence.

[10] The advocate depute submitted that the appellant had known since he appeared on petition that he was charged with possession of a handgun. The appellant did not suggest that the revolver referred to in the ballistics report was not the revolver that was seized by the police. On any view, section 5(1)(af) applied. The essential character of the offence remained the same. The question of prejudice arose only if the amendment would prejudice the appellant in his defence on the merits of the case. Consideration of the different penalties applicable to section 5(1)(af) did not alter the character of the charge. The decision was within the sheriff's discretion.


Conclusions

 

(1) The character of the offence

[11] We are satisfied that the amendment in this case does not change the character of the offence charged. The essence of an offence under section 5(1) of the 1968 Act, as amended, is the possession of a prohibited weapon (cf s 5(2)). The charge in its original form gave the appellant notice that the prohibited weapon in question was a revolver. In its amended form, that remains the case. The fact that a contravention of section 5(1)(af) attracts a minimum penalty, unlike a contravention of section 5(1)(b), cannot be said to change the character of the offence charged.

 

(2) The significance of the minimum sentence under section 5(1)(af)

[12] Counsel has moved us to sustain the appeal under section 96(3) of the 1995 Act on the ground that the amendment would be prejudicial to the appellant. We do not consider that this provision is apposite. We doubt whether, in the event of there being relevant prejudice, the court's power to "grant such remedy to the accused by adjournment or otherwise" includes the power to refuse the amendment outright. In our view, that provision applies where the court is minded to allow an amendment but is concerned to protect the accused against his being unfairly disadvantaged by it. In any event, that provision applies where there would be prejudice to the accused "in the conduct of his defence on the merits of the case," and not where the prejudice apprehended consists in his being exposed to a possibly severer penalty.

[13] In our opinion, the relevant provision is section 96(2) which empowers the court to refuse a proposed amendment where it sees "just cause" for doing so. We do not consider that the appellant's being at risk of a minimum sentence of imprisonment could constitute just cause. There is no material distinction in this respect between this case and Cook v Jessop (supra), which was decided on the virtually identical wording of the predecessor of section 96(3).

 

Disposal

[14] We shall refuse the appeal.


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