McGONNIGLE v VANNET
| Jurisdiction | Scotland |
| Judgment Date | 18 December 1998 |
| Date | 18 December 1998 |
| Docket Number | No 19 |
| Court | High Court of Justiciary |
JC
Lord Kirkwood, Lord Cameron of Lochbroom and Lord Hamilton
Procedure—Summary procedure—Sentence—Offences inferring dishonest appropriate, of property—No notice of previous convictions served upon appellant—Appellant appearing from custody after discussing previous convictions with agent—No objection being made to previous convictions being laid before court—Previous convictions admitted by appellant—Whether substantial compliance with statutory provision—Criminal Procedure (Scotland) Act 1995, secs 5(3) and 1661
Section 5(2) of the Criminal Procedure (Scotland) Act 1995 enacts that the sheriff shall have power, on convicting any person of a common law offence, to impose imprisonment for any period not exceeding three months. Section 5(3) enacts, inter alia, that where a person is convicted of a second or subsequent offence inferring dishonest appropriation of property, the sheriff may sentence him to imprisonment for a period not exceeding six months. Section 166(2) enacts that: “A notice … specifying the previous convictions shall be served on the accused with the complaint where he is cited to a diet, and where he is in custody, the complaint and such notice shall be served on him before he is asked to plead.”
The appellant appeared from custody charged with attempting to force open a lockfast motor vehicle with intent to steal. The procurator fiscal depute laid before the court a notice of the appellant's previous convictions. That notice had not been served upon the appellant but the appellant's agent had had sight of the notice prior to the appellant pleading. The appellant had had a discussion with his agent about those convictions and when the depute laid the notice before the magistrate no objection was taken on the ground that the notice had not been served upon him. The convictions were admitted by the appellant and an entry to that effect was entered in the court record. The magistrate sentenced the appellant to six months imprisonment. The appellant thereafter appealed to the High Court of Justiciary and argued that the sentence was incompetent.
Held (1) that the provision requiring service in the sense of physical delivery of the notice of previous convictions into the hands of the appellant or his legal representative was directory and not mandatory; (2) that the purpose of sec 166(2) of the Criminal Procedure (Scotland) Act 1995 was to give notice to the accused, before he was asked to plead, of the complaint charging him with an offence or offences and of the decision of the prosecutor to lay previous convictions before the court in the event of the accused pleading guilty or being convicted of the offence or offences with which he had been charged and thus to give him an opportunity to challenge any of the convictions listed in the notice; (3) that in the circumstances what took place amounted to substantial compliance with the statutory provision requiring service on the appellant in that the appellant had to be held to have been aware, before he was asked to plead, of the prosecutor's decision to lay a notice of his previous convictions before the court if he pled guilty; and appeal refused.
Adam James McGonnigle was charged on an indictment in the sheriffdom of Glasgow and Strathkelvin at Glasgow at the instance of Alfred Vannet, procurator fiscal there, the libel of which set forth that: “On 4 April 1998 at Prince Edward Street, Glasgow, [he did] by means of a screw driver and bodily pressure attempt to force open a lockfast motor vehicle, registered number G181 UUC with intent to steal.”
The accused appeared from custody and pled guilty to the libel. The stipendiary magistrate (J B C Nisbet) thereafter sentenced the accused to a period of imprisonment of six months.
The accused thereafter appealed to the High Court of Justiciary.
Cases referred to:
Adair v HillENR 943 SC 9
Advocate (HM) v GrahamUNK 1985 SCCR 169
Carruthers v HM AdvocateUNK 1993 SCCR 825
Henderson v HeywoodUNK 1992 SCCR 610
Heywood v BUNK1994 SCCR 554
Hutchison v NormandUNK 1993 SCCR 1000
Robertson v HM AdvocateUNK 1995 SCCR 152
Scott v AnnanUNK 1981 SCCR 172
Sillars v CopelandSC 1966 JC 8
The cause called before the High Court of Justiciary, comprising Lord Kirkwood, Lord Cameron of Lochbroom and Lord Hamilton, for a hearing.
At advising, on 18 December 1998, the opinion of the court was delivered by Lord Kirkwood.
Opinion of the Court—The appellant is Adam James McGonnigle. He appeared at Glasgow District Court on 19 August 1998 and pled guilty to a charge that on 4 April 1998 at Prince Edward Street, Glasgow he did, by means of a screwdriver and bodily pressure, attempt to force open a lockfast motor vehicle with intent to steal. The procurator fiscal depute laid before the court a notice of the appellant's previous convictions, which were admitted, and the stipendiary magistrate sentenced the appellant to six months imprisonment. The sentence was to be consecutive to a sentence which he was already serving.
Section 7(5) of the Criminal...
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