APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Menzies Lady Dorrian Judge Farrell	[2013] HCJAC 17   XJ531/12   OPINION OF THE COURT   delivered by LORD MENZIES   in   BILL OF SUSPENSION   by   CH   Complainer;   against   PROCURATOR FISCAL, PAISLEY   Respondent:   _____________

 

Appellant: A Ogg, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: Edwards AD; Crown Agent

 

20 December 2012

[1] The complainer in this Bill of Suspension seeks the suspension of a warrant for his arrest, which was granted on 21 May 2012. The complainer was and remains a child. He is presently, aged 15 and he was charged with wilful fire raising along with three other juveniles and was released from police custody on an undertaking signed by his father, to attend Paisley Sheriff Court on 17 May 2012.

[2] There is a narrative given in the bill of suspension that, on 11 May 2012 the complainer's solicitor, during the course of a consultation with the complainer and his father, telephoned the procurator fiscal's office to enquire whether the police report had been received and if so, whether the case had been marked by a depute. The solicitor, Mr Lynch spoke with Anthony McIver, administrative assistant at the procurator fiscal's office. Mr Lynch was informed that the police report had indeed been received and was advised that the case against the complainer was marked as closed, that the procurator fiscal's office was taking no proceedings against the complainer and that the case was to be referred to the children's panel. Mr Lynch asked Mr McIver to check this information, which he did, and confirmed that it was indeed correct. Mr Lynch relayed this information to the complainer and his father and advised them both that there was now no longer any need for the complainer to attend court on 17 May 2012. In their answers to this bill, the Crown admit that an administrative assistant working in the respondent's office told Mr Lynch that the police report had been received and that the case against the complainer was closed and that the case was to be referred to the children's panel. However, it is explained and averred that, as at 11 May 2012, no decision had been taken by the procurator fiscal as to how to proceed against the complainer and since no such decision had been made, the administrative assistant had no authority to intimate any decision. The administrative assistant was in error in advising the complainer's solicitor that the case was closed and was to be referred to the children's panel. Said error arose from information submitted electronically by the police. A statement made by the administrative assistant could not bind the Crown.

[3] The bill of suspension goes on to state that, on the morning of 17 May 2012 the respondent's office telephoned Mr Lynch's office to advise that the Crown were now intending to proceed against the complainer and that the complainer should attend court that afternoon. Mr Lynch spoke with a procurator fiscal depute and advised him that the complainer had been informed that the Crown had previously indicated that they intended to take no proceedings against him and accordingly there was not need for him to attend court. The respondent's depute stated "There has been a breakdown in communications" and that if the complainer did not attend court that day, a warrant would be granted for his arrest. Mr Lynch informed the depute that if the Crown moved for a warrant for the complainer's apprehension then Mr Lynch would require to inform the sheriff of the foregoing circumstances in order that the court was fully appraised of all the relevant information. Shortly thereafter another of the respondent's deputes telephoned Mr Lynch's office to advise that the case against CH would not call that day. These averments in statement 3 are admitted by the Crown.

[4] On 29 May 2012 the complainer received a letter from the respondent advising him that he had held a warrant for his arrest and informing him he must attend Paisley Sheriff Court on 6 June otherwise the warrant would be passed to the police for execution. Mr Lynch telephoned the sheriff clerk's office to enquire what information had been placed before the sheriff on 21 May 2012 when this warrant had been sought and granted. The sheriff clerk indicated that there was no covering letter attached to the respondent's petition therefore it was not known on what basis a warrant had been granted. It is asserted in the bill that the information passed on 11 May to the complainer and his father amounted to an unqualified and unequivocal renunciation of the right to prosecute the complainer in relation to these proceedings and in the particular circumstances of the case, it was oppressive for the respondent to seek a warrant for the complainer's arrest without first notifying the complainer's solicitor and affording him an opportunity of addressing the sheriff. It was incumbent on the respondent to make full disclosure of the whole circumstances of the case to the sheriff since the issue of a warrant to arrest a citizen is one of the most serious of matters. Such warrants are not granted lightly. It is essential for the maintenance of good order and to meet its obligations to the court that the Crown make full disclosure in written applications to the court of all material considerations known to it. Those averments appear to have been taken from the observations in McDonnagh v Patterson 2007 SCCR 482 at paragraph 11.

[5] In her submissions to us, the advocate depute drew our attention to the case of Weir v HM Advocate 2005 SCCR 821. That case, we consider, may be distinguished from the present case because that case concerned solemn procedure which runs in the name of the Lord Advocate. It is immediately understandable that a decision not to prosecute would require to be made by or on behalf of the Lord Advocate. In the present case, the proceedings which were contemplated were summary proceedings, the decision in respect of which to prosecute or not lay with the procurator fiscal depute. Moreover, the case of Weir was not concerned with oppression - it was solely concerned with the question of whether the Crown was barred or had renunciated unequivocally a right to prosecute. In the case of McDonald v McGowan 2010 SCCR 504, at paragraph 17 the court observed that "over and above all of that, the issue of oppression did not even arise in the case of Weir."

[6] In the present case, we consider that the most important aspects of this bill are those aspects in which oppression is asserted. Indeed the factual averments in the bill are either admitted by the Crown in this regard or are not disputed: that on the morning of 17 May, the complainer's solicitor was told that the Crown was intending to proceed against the complainer and the complainer should attend court that afternoon and that the solicitor told the procurator fiscal depute that if the Crown moved for a warrant then the solicitor would require to inform the sheriff of all the circumstances in order that the court was fully appraised of all the relevant information. Ultimately that day, one of the respondent's deputes telephoned Mr Lynch's office to advise that the case would not call that day. Thereafter, it appears that the respondent obtained a warrant from the sheriff without giving any intimation to Mr Lynch that he was intending to do so, without giving Mr Lynch an opportunity of addressing the sheriff, and without telling the sheriff of the whole circumstances of the case.

[7] These features, we consider, amount to oppression and we consider that clear prejudice has been suffered by the complainer as a result. It is because of these features and not solely because of what the administrative assistant said on 11 May that we are persuaded that oppression has been made out and accordingly we shall grant the bill and suspend the warrant simpliciter.

 

 

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