John Newlands V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Philip,Lord Brodie |
| Judgment Date | 02 October 2013 |
| Neutral Citation | [2013] HCJAC 148 |
| Court | High Court of Justiciary |
| Date | 02 October 2013 |
| Published date | 14 November 2013 |
| Docket Number | XM13/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 148 | |
| Lady Smith Lord Brodie Lord Philip | Appeal No: XM13/13 OPINION OF THE COURT delivered by LADY SMITH in the Appeal by JOHN NEWLANDS Petitioner/Appellant; against HER MAJESTY'S ADVOCATE Respondents: _______ |
Respondent: Edwards AD; Crown Agent
2 October 2013
Introduction
[1] This is the court's opinion in relation to (1) a petition to the nobile officium at the instance of Mr Newlands in which he avers that it was not competent for the sheriff to proceed to sentence him; and (2) his appeal against sentence.
Background
[2] Mr Newlands pled guilty, on 14 March 2013, at Perth Sheriff Court, to a charge of assault to injury in the following terms:
"... on 23 January 2012, ... you ... did ... enter [a] house uninvited and assault William Daniel Travers, care of Tayside Police and did attempt to punch him on the head, ... punch him on the head ... attempt to stab him on the head and stab him repeatedly on the head with a screwdriver or similar instrument, all to his injury ..."
[3] The prosecutor had, at an earlier date, complied with the requirements of section 66(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") by lodging in court, on or before the date of service of the indictment, a record copy thereof.
The Assault
[4] The locus in the charge was the complainer's home and the assault - which was wholly unprovoked - began when his wife and their three young children were present. The background to the assault was that Mr Newlands and the complainer are both members of a travelling community and whilst they previously had a good relationship (the complainer is the nephew of Mr Newlands' wife), things began to go wrong when the complainer married a woman from outwith that community. There had, earlier on the day of this assault, been an altercation between Mr Newlands' daughter and the complainer's wife. Mr Newlands' reaction to the fact of the complainer having married outwith the community appears to have been the root of the problem.
[5] The assault was a serious one. It is described in some detail in paragraph 4 of the sheriff's report. The use of a screwdriver to stab the complainer repeatedly causing a number of lacerations, one of which was a significant 3cm laceration above the complainer's ear, after his having entered the complainer's family home uninvited, is of particular concern.
Previous Convictions
[6] Mr Newlands had a long history of offending. He had amassed a total of 28 previous convictions over a period of some 20 years including for road traffic matters, breaches of the peace, resisting arrest, crimes of dishonesty, drugs offences, breaches of statutory orders and in 2000 and 2001, two offences of assault. He had not previously served a custodial sentence.
Guilty Plea
[7] Mr Newlands' guilty plea was duly recorded on 14 March 2013 and the sheriff adjourned the diet for a criminal justice social work report to be prepared.
Sentencing Diet
[8] The case called again, for sentence, on 11 April 2013. By that date, the record copy indictment, which had been present on 14 March 2013, had gone missing. All the remaining case papers were intact, including the record of Mr Newlands' plea of guilty. The procurator fiscal tendered a certified copy of the indictment receipt of which was opposed by Mr Newlands' solicitor on his behalf; he submitted that the loss of the record copy indictment constituted a fundamental nullity which could not be cured and the upshot was that the sheriff could not competently proceed to sentence Mr Newlands. It was, however, accepted that the certified copy tendered by the prosecutor was an accurate copy. It was not suggested to the sheriff or, indeed, to this court, that the loss of the record copy caused any prejudice to Mr Newlands.
[9] Having heard argument, the sheriff determined that it was open to him to excuse the loss of the record copy indictment and allow the certified copy to be received in its place. He found support in the decision in the case of Bryceland and Lynch v HMA 2002 SCCR 995. He proceeded to sentence Mr Newlands.
Sentence
[10] The sheriff imposed a sentence of 3 years 2 months imprisonment and would, had Mr Newlands not pled guilty, have imposed one of 4 years imprisonment. At paragraph 16 of his report, he explains his reasoning:
"I regarded the appellant's offence as serious. The context of the offence was a long running feud which seemed to have about it some flavour of prejudice. The appellant told the author of the social work report that relationships had deteriorated when Mr Travers married someone from outside the travelling community. It would have been easy enough to understand if he had said that Ms Miller was a difficult person. What was disturbing was the reference to marriage outwith the community as being (at least part of) the root of the problem. I emphasise that I regarded this as part of the context and not as aggravation. However, in the context of that feud, it appeared that the appellant had made a special journey in pursuance of the dispute. Notwithstanding his claim to have wanted to discuss the problems with the complainer, in terms of the undisputed narrative given by the Crown, he made no effort to do so. He pushed his way into the victim's home. He had armed himself with a screwdriver, which he did not hesitate to use. The complainer was in a vulnerable position by reason of the presence of Ms Miller and their young children. Ms Miller had already been assaulted that day by the appellant's daughter. The appellant inflicted injuries, though they were less severe than they might have been."
Petition to the Nobile Officium: Submissions for the Petitioner
[11] Mr MacDonald, counsel for the appellant, submitted that the sheriff had erred in applying section 300A of the 1995 Act to rectify the loss of the record copy indictment. That was confirmed by the terms of section 300A(12). Further, section 300A(5)(a) - (d) specified a genus which did not include what had occurred in the present case; the power to excuse only applied to cases within that same genus. He submitted that the genus was failure in the court procedure and that there was a difference between a defect in procedure and the requirement for lodging which had not, he said, been complied with...
To continue reading
Request your trial