F.b. Against Procurator Fiscal, Aberdeen
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Dorrian,Lord Bracadale |
| Neutral Citation | [2015] HCJAC 14 |
| Published date | 20 February 2015 |
| Docket Number | XJ1068/13 |
| Date | 21 February 2014 |
| Court | High Court of Justiciary |
| Year | 2015 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lady Dorrian Lord Bracadale
| [2015] HCJAC 14 XJ1068/13 OPINION issued by LORD CARLOWAY, the LORD JUSTICE CLERK
in the application under section 180(9) of the Criminal Procedure (Scotland) Act 1995
by
FB
Appellant; against
Procurator Fiscal, Aberdeen
Respondent: _____________ |
Appellant: CM Mitchell; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Respondent: Wade QC, AD; the Crown Agent
21 February 2014
Introduction
[1] This application raises a sharp point about the function of a sifting judge in summary criminal appeals. This Opinion is designed to emphasise that the sifting decision must relate to the stated case, notably the questions posed in it, and not to the content of any earlier, and essentially superseded, application for a stated case. The latter ought not to form any material part of the judge’s sift decision.
Statutory Interpretation
The Stated Case
[2] The Criminal Procedure (Scotland) Act 1995 makes detailed provision for appeals against conviction in summary cases. These are by stated case; the principal object being to incorporate all material relevant to the appeal within the four walls of that case. The system was adopted from English procedure and has been the primary mode of appeal since the Summary Prosecutions Appeals (Scotland) Act 1875. It has its critics but it has stood the test of some time.
[3] The procedure commences with an application to the court within one week of the final determination of the prosecution (1995 Act, s 176(1)). The application must contain a “full statement of all the matters which the appellant desires to bring under review” (s 176(2); see Act of Adjournal (Criminal Procedure Rules) 1996 Form 19.2-A). The applicant may amend the statement within a further three weeks (s 176(4); but meantime the sheriff or justice of the peace ought to have prepared a draft (s 178(1)).
[4] The form of the case is prescribed (Act of Adjournal (supra) Form 19.2-B) and it is to “set forth the particular of any matters competent for review…, of the facts, if any, proved… any point of law decided, and the grounds of the decision” (s 178(2)). The manner in which this is done is to set out the charge, procedural history, decision and disposal followed by the facts admitted or proved. Where, as here, the appeal is directed towards matters of sufficiency, the Crown evidence and the inferences capable of being drawn from it may require narration. A section, usually headed “Note”, will contain any analysis by the court which led to a particular decision.
[5] There then follow, the “question[s] submitted for the opinion of the court” in numbered paragraphs (Form 19.2-B supra). It is these questions that define the issues for determination on appeal. In short, they set out in interrogative form the matters on which the applicant has sought review. If the sheriff fails to pose an appropriate question to cover issues raised in the application, the applicant has an opportunity to pose such a question by way of adjustment (s 179(1)). If the sheriff fails to pose a competent question proposed by way of adjustment, the court can take that into account in determining the appeal (s 182(5(f)). The questions eventually posed, following upon adjustment, may (or may not) be significantly different from the matters specified in the original application for a stated case. The applicant may have decided to depart from some, having read the sheriff’s findings or determination, or he may have amended or added to them during adjustment. In that respect, the content of the application is superseded by the expression of the issues in the stated case.
Leave to Appeal
[6] Before the appeal can proceed, the applicant requires leave to appeal (1995 Act, s 180). This process involves placing before a single judge specified documents (s 180(1)), namely the stated case and certain formal documents such as the complaint and minute of proceedings (ss 180(2), 179(8)(b)). Significantly, these documents do not include the application for the stated case. This is in contrast to the position in a solemn case, where what is under consideration is the note of appeal and the judge’s report (s 107(1)(a) and (2)). In this respect, the content of an application for a stated case is not the same in effect as that of a note of appeal.
[7] It is upon a consideration of the relevant documents that the judge must determine whether or not to grant leave. In a summary appeal, apart from the formal documents regarding the process (supra), the decision must be based solely upon the content of the stated case. The questions in the case (and not the matters in the application) determine the scope of the issues for review by the High Court. It is in respect of each question that the first sift judge must decide whether leave should be granted. This is again in contrast to a solemn case, where the grounds of appeal in the note will determine that scope and the sifting judge will grant leave on all or only some grounds.
[8] In a solemn case, the sifting judge may decide to grant leave upon a ground which is not stated in the note of appeal (s 107(7)). This ought not to pose a significant problem, as the court can call for a further report on the new matter from the sheriff or judge. There is an equivalent provision for summary appeals, whereby the sifting judge can specify “grounds of appeal (whether or not they are contained in the stated case)”. This is a curious provision because it may result in a ground being stated, which is not the subject of a question; thus ultimately requiring a possible remit for re-statement of the case at the hearing (s 182(6)) in order to provide an opportunity to the first instance court to deal with the new ground. Be that as...
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