Stuart Hunt V. Procurator Fiscal, Inverness
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Clarke,Lord Reed |
| Neutral Citation | [2008] HCJAC 57 |
| Docket Number | XJ1776/05 |
| Year | 2008 |
| Date | 09 October 2008 |
| Court | High Court of Justiciary |
| Published date | 08 October 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY [2008] HCJAC 57 | |
| Lord Reed Lord Carloway Lord Clarke | Appeal No:XJ1776/05 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD REED in the reference by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION In the case STUART MARK HUNT Complainer; against PROCURATOR FISCAL INVERNESS Respondent: _______ |
Act: Shead; Drummond Miller
Alt: P Ferguson QC, AD; Crown Agent
9 October 2008
Introduction
[1] On 26 August 2005 the complainer was convicted at Inverness District Court of a charge of assault. The background was a dispute between him and his neighbours which had already been the subject of civil proceedings. The complainer was found to have punched one of his neighbours, Mr Latham, on an occasion in November 2004. He was fined £200. Following his conviction, the complainer lodged an application for a stated case. A draft stated case was prepared by the justice in accordance with section 178(1) of the Criminal Procedure (Scotland) Act 1995. Adjustments to the draft case were proposed by the Crown, and a hearing was fixed for 17 October 2005. Between the lodging of the application for the stated case and the date of the hearing, the complainer parted company from his legal representatives following a dispute over the payment of fees. The complainer failed either to lodge any adjustments or to intimate that he had no adjustments to propose, as required by section 179(1) of the 1995 Act. He did not appear (and was not represented) at the hearing. The appeal was therefore deemed to have been abandoned, as required by section 179(3). In consequence, the draft case was not adjusted or altered.
[2] The complainer subsequently applied to this court under section 181 of the 1995 Act for further time to comply with the requirements of section 179(1). The application was refused on 9 December 2005. In refusing the application, the court stated that insufficient reasons had been given for the delay (of more than five weeks) in applying for further time. The court added that the application for the stated case in any event sought to re-open questions of fact which were for the justice at the trial.
[3] The complainer subsequently applied to the Scottish Criminal Cases Review Commission. In November 2006 the Commission decided to refer the case to this court under section 194B of the 1995 Act. After hearing counsel for the appellant at a procedural hearing, the court directed that the appeal should proceed as a bill of suspension. A bill was then presented, which adopted the reasons given by the Commission for the referral in accordance with section 194D(4) of the 1995 Act. The court then issued an order in the usual terms, authorising service of the bill upon the Crown and upon the clerk to the District Court, and directing the clerk to obtain a report from the justice and to transmit it to court. Answers to the bill were then lodged on behalf of the Crown, and a report was provided by the justice. The appeal then proceeded to a hearing.
A preliminary point
[4] At the outset of the hearing the court raised with parties a question concerning the relationship between the statutory provisions concerned with appeals in summary proceedings and those concerned with references by the Commission. The statutory requirements, such as those imposed by section 179(1), apply regardless of whether the appellant may have a meritorious ground of appeal: they are intended to ensure that summary justice is dealt with expeditiously. Where an appellant has failed to comply with the requirements of section 179(1) within the statutory time limit, Parliament has directed that the appeal must be deemed to have been abandoned, subject only to the court's exercise of its discretionary power to allow further time under section 181. The court's exercise of its discretion, in the interests of justice, is not dictated by an assessment of the merits of any ground of appeal. The interests of justice include ensuring that summary cases are dealt with expeditiously and without undue demands on the resources of the court. Those interests are not well served by an approach which too readily excuses failures to comply with the statutory requirements.
[5] Against that background, the question of interest to the court was whether, in a case where the statutory requirements had not been complied with and the court had refused to allow further time, those statutory provisions could be circumvented, and effectively set at naught, by means of an application to the Commission and a subsequent referral to the court, or whether (and if so, how) the appellant's failure to comply with those statutory provisions should be taken into account: for example, by the Commission (in the exercise of its discretion to refer under section 194B, or in its consideration under section 194C of whether a miscarriage of justice might have occurred, or of whether it was in the interests of justice that a reference should be made), or by the court (in its consideration of whether there had been a miscarriage of justice).
[6] It was apparent at the hearing that neither of the parties had considered this question and that, if the court were to be addressed on it, the hearing would have to be adjourned. Neither party sought an adjournment: although the Crown acknowledged that there was an issue which required to be considered, they did not seek to argue it in the present case. Bearing in mind the minor nature of the present case and the length of time which had already elapsed, the court did not consider it appropriate to adjourn the case so as to be addressed on the question. In the circumstances, we shall express no view upon it.
The first ground of appeal
[7] The bill, like the Commission's statement of its reasons for referral, is concerned with two matters. The first concerns the terms of the draft case. In that regard, the Commission cite in their statement of reasons the criticisms which the court made of a stated case in Jordan v Allan 1989 S.C.C.R. 202, and continue:
"44. A similar assessment can be made in the present case (see above at paragraph 9 for the content of the stated case). These (sic) do not include findings or comments in relation to: the credibility or reliability of witnesses; whether and why witnesses were believed or not; any reason(s) for the final decision on the applicant's special defence of self defence. While it is noted that the stated case is in draft form, it is unclear on what basis the justice made his decision to convict the applicant.
45. In these circumstances, the Commission has concluded that the stated case, in its draft form, does not meet the requirements of section 178(2) of the 1995 Act, and that the findings in fact cannot be treated as having been made on the whole evidence."
That reasoning is adopted in the bill, which adds that, since the draft case does not disclose a properly reasoned basis for conviction, the complainer has been denied the fair hearing to which he is entitled at common law and under article 6(1) of the European Convention on Human Rights.
[8] So far as these matters are concerned, the bill appears to us to be misconceived. The requirements of section 178(2) apply to "a stated case"; and a case is not "stated" until the process of adjustment and alteration of the draft case has been completed: section 179(7). Here, there was only a draft case: the justice never stated a case, because the appeal was deemed to have been abandoned. Authorities such as Jordan v Allan are similarly concerned with stated cases, not draft cases. Draft cases are commonly deficient: that is one of the reasons why section 179 provides an opportunity for the parties to propose adjustments and for the judge himself to make any alterations to the draft which he desires. In the present case, the Crown had prepared adjustments, and had requested the...
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