John Gordon+donald Conway V. Procurator Fiscal Dundee
| Jurisdiction | Scotland |
| Judge | Sheriff Principal C.G.B. Nicholson,Lord Justice Clerk,Lord Nimmo Smith |
| Judgment Date | 27 July 2007 |
| Neutral Citation | [2007] HCJAC 45 |
| Docket Number | No 6 |
| Court | High Court of Justiciary |
| Published date | 20 August 2007 |
| Date | 27 July 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Nimmo Smith C.G.B. Nicholson, CBE, QC, | [2007] HCJAC 45 Appeal Nos: XJ 1317/06 XJ 1316/06 OPINION OF THE COURT delivered by C.G.B. NICHOLSON, CBE, QC in APPEALS UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 in causis (1) JOHN GORDON Appellant; against PROCURATOR FISCAL, DUNDEE Respondent: and (2) DONALD CONWAY Appellant; against PROCURATOR FISCAL, DUNDEE Respondent: _______ |
Respondent: Bain, A.D.; Crown Agent
27 July 2007
Background
[1] The present appellants were each charged, on separate complaints, with a breach of an antisocial behaviour order ("ASBO") contrary to section 9(1) of the Antisocial Behaviour Etc. (Scotland) Act 2004 ("the Act"). In the case of John Gordon, the ASBO had been made at Dundee Sheriff Court on 16 May 2006, and the breach was alleged to have taken place on 15 September 2006. In the case of Donald Conway the ASBO had been made at Dundee Sheriff Court on 13 December 2005, and the breach was alleged to have taken place on 10 June 2006.
[2] The precise details of those charges are not of importance for present purposes. What is of importance is that in each case an identical plea to the competency of the charge was taken. Those pleas were argued before the sheriff, by the same solicitor representing both accused, in a single hearing which took place at Dundee Sheriff Court on 19 September 2006. The sheriff repelled the plea to competency in each case but granted leave to appeal to this Court. In the circumstances we heard both appeals together; and at the hearing both appellants were represented by the same counsel. At the conclusion of the hearing we refused the appeals and indicated that our reasons would be given in writing at a later date. Those reasons now follow.
[3] The point at issue before the sheriff, and again before ourselves, arises from the fact that each appellant was originally charged by the police with a charge of breach of the peace and with a contravention of section 9(1) of the Act. In the case of John Gordon that took place on 15 September 2006, and in the case of Donald Conway it took place on 10 June 2006. Subsequently, as has already been noted above, each accused was charged on complaint solely with a contravention of section 9(1). In each case the charge of breach of the peace and the charge of contravention of section 9(1) of the Act both arose from the same species facti. Putting it shortly for the moment, the submission advanced on behalf of the appellants was that the present proceedings are fundamentally null in that the Crown has acted otherwise than in accordance with the terms of section 9(3) of the Act. To understand that submission it is necessary to have regard to the relevant statutory provisions.
The statutory provisions
[4] Section 9(1) of the Act provides:
"Subject to subsection (3), a person who -
(a) is subject to an antisocial behaviour order or an interim order; and
(b) without reasonable excuse, does anything that the order to which the
person is subject prohibits the person from doing,
shall be guilty of an offence."
Subsection (3) provides:
"If -
(a) otherwise than under subsection (1), the thing done by the person
constitutes an offence (a 'separate offence'); and
(b) the person is charged with the separate offence,
the person shall not be liable to be proceeded against for an offence under subsection (1)."
The remaining provisions of section 9 set out various matters which a court may take into account when sentencing for a 'separate offence'. These include the fact that the person in question was subject to an ASBO at the time when the new offence was committed. The existence of that ASBO must, however, be libelled in the indictment or complaint.
Submissions
[5] Mr Shead's submissions on behalf of the appellants began with the proposition that, in the absence of any provision to the contrary, the word "charged", as used in subsection (3)(b), must include a charge by the police. Consequently, where, as in the present cases, a person has been charged by the police with a breach of the peace and a contravention of section 9(1), with both charges arising from the same alleged facts, it will not be competent for the Crown to proceed against that person for the offence under subsection (1). In support of that submission Mr Shead noted that in practice it is commonplace for the police to...
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