Her Majesty's Advocate V. Andrew Mcgee & Co
| Jurisdiction | Scotland |
| Judge | Lord Hardie |
| Neutral Citation | [2006] HCJ01 |
| Court | High Court of Justiciary |
| Date | 16 January 2006 |
| Published date | 17 January 2006 |
| HIGH COURT OF JUSTICIARY [2006] HCJ01 | |
| OPINION OF LORD HARDIE in causa HER MAJESTY'S ADVOCATE against ANDREW McGEE, PAMELA BEST or McGEE and MICHAEL BEST ________________ |
Crown: Beckett, QC AD; Crown Agent
First Accused: No appearance;
Second Accused: Gilchrist Advocate; George Mathers & Co., Solicitors, Aberdeen;
Third Accused: Latif Advocate; Gray & Gray, Solicitors, Peterhead.
16 January 2006
[1] The accused were each indicted in respect of the following charges:
"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
[2] The indictment was served against all three accused and a preliminary hearing was fixed for 2 August 2005 within the High Court of Justiciary at Aberdeen. On 29 July 2005 in respect of a Joint Minute under section 75A of the Criminal Procedure (Scotland) Act 1995 Lord Mackay of Drumadoon discharged the diet fixed for 2 August 2005 and in lieu thereof fixed 6 September 2005 within the High Court of Justiciary at Aberdeen as a new diet. On 6 September 2005 the second and third accused each tendered a plea of guilty to charge 1 on the indictment but maintained their plea of not guilty to charge 2. These pleas were accepted by the Advocate Depute. The first accused maintained his pleas of not guilty to both charges and a diet of trial was fixed in his case for 11 October 2005 at Aberdeen. The minute of proceedings dated 6 September 2005 at Aberdeen before Lord Mackay of Drumadoon records the pleas of guilty tendered by the second and third accused and the acceptance of these pleas on behalf of the Crown. Thereafter the minute is in the following terms:
"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.
[3] The trial of the first accused commenced at Dundee on 15 November 2005. The second and third accused were adduced as Crown witnesses. On 24 November 2005 the jury by majority found charge 1 not proven and by majority found the first accused not guilty of charge 2. There had been regular adjournments of the case against the second and third accused to enable the question of sentence to be considered at the end of the trial so that, in the event of a conviction of the first accused, the question of sentence against each accused could be considered at the same time. The last such adjournment was until 25 November 2005. On that date I indicated to the Advocate Depute and to counsel for each of the second and third accused that I wished to be addressed on the procedural history of the case and in particular on any effect of the apparent failure by the Advocate Depute on 6 September 2005 to move for sentence against each of those accused on that date. I adjourned the case until 28 November 2005 to enable parties to prepare detailed submissions.
Submissions on behalf of the Crown
[4] When the case called on 28 November 2005 I had had the opportunity of listening to the tape recording of the proceedings on 6 September 2005 at Aberdeen, as had the Advocate Depute and counsel for the second and third accused. The Advocate Depute prefaced his submissions by advising me that it was a matter of agreement that the exchange between Lord Mackay of Drumadoon and the Advocate Depute on 6 September was in the following terms:
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...
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