Imran Shahid V. Procurator Fiscal Kilmarnock
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Osborne,Lord Reed |
| Judgment Date | 08 October 2010 |
| Neutral Citation | [2010] HCJAC 100 |
| Court | High Court of Justiciary |
| Docket Number | XJ245/10 |
| Published date | 08 October 2010 |
| Date | 08 October 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lord Reed Lord Menzies | [2010] HCJAC 100 Appeal No: XJ245/10 OPINION OF THE COURT delivered by LORD OSBORNE in Bill of Suspension by IMRAN SHAHID Complainer; against P.F. KILMARNOCK Respondent: _______ |
Appellant: Shead, Advocate; Barony Law Practice (for John McGovern, Glasgow)
Respondent: Stewart Q.C., Advocate Depute; Crown Agent
8 October 2010
The Background Circumstances
[1] On 23 April 2009, the complainer appeared in Kilmarnock Sheriff Court in response to a summary complaint containing two charges. He pleaded not guilty to charge (1) and guilty to charge (2). Those pleas were accepted by the respondent. The terms of charge (2) were as follows:
"(2) you Imran Shahid being the employee or agent of the holder of a licence issued pursuant to the aftermentioned Act, namely Mohammed Aseem did on 18 April 2008 in the licensed premises of the said Mohammed Aseem at News Buster at 25 Titchfield Street, Kilmarnock sell alcoholic liquor, namely Buckfast Tonic Wine 15% abv. to DT, aged 15...a person under 18 years; Contrary to the Licensing (Scotland) Act 1976, Section 68(1) and (7)."
Following that procedure, the sheriff noticed that the principal complaint had not been signed. He drew that state of affairs to the attention of the parties. Subsequently the respondent brought an application under section 300A of the Criminal Procedure (Scotland) Act 1995, "the 1995 Act", which was opposed. However, on 16 June 2009, having heard the submissions of the parties in relation to that application, the sheriff purported to excuse the irregularity. Thereafter, on 1 September 2009, the complainer was fined £250.
[2] He has now brought this Bill of Suspension for the purpose of challenging the soundness of the sheriff's decision of 16 June 2009. In the Bill the complainer contends that the unsigned complaint represented a nullity, which was not amenable to excusal by virtue of section 300A of the 1995 Act. The sheriff could only exercise the power conferred under section 300A on the basis that the irregularity was one specified in section 300A(5). It is contended that, on a proper construction of the section as a whole and sub-section (5) in particular, the sheriff misdirected himself in concluding that the power could be exercised in the circumstances described. In any event, it is contended that the sheriff erred in concluding that it was in the interests of justice to excuse the irregularity given its fundamental character.
[3] The respondent has lodged Answers to the Bill of Suspension, in which the factual background is admitted, but it is contended that the circumstances of the present case fell within the scope of section 300A(5)(e) and that it was in the interests of justice for the irregularity to be excused.
Submissions of the Complainer
[4] Counsel for the complainer moved the court to pass the Bill. He said that there was no dispute concerning the facts of the case; rather the dispute concerned the interpretation of the relevant statutory provisions. The Crown relied upon the terms of section 300A(5) of the 1995 Act, which defined the expression "procedural irregularity" which, under that section, the court had the power to excuse, in appropriate circumstances. The only part of section 300A(5) that could operate in the circumstances of this case was sub-paragraph (e). That provision contained the following language:
"(e) from failure of - (i) the court; or (ii) the prosecutor or the accused, to fulfil any other procedural requirement."
The question arising was whether the error involved could be properly described as a "procedural requirement". The complainer's submission was that the defect in question could not be categorised simply as a failure to fulfil a "procedural requirement".
[5] Developing that submission, counsel drew attention to the terms of Sections 138 and 139 of the 1995 Act. Section 138(1) provided:
"(1) All proceedings under this Part of this Act for the trial of offences or recovery of penalties shall be instituted by complaint signed by the prosecutor or by a solicitor on behalf of a prosecutor other than the procurator fiscal."
That provision made it plain that the signature of the prosecutor or his agent was an essential ingredient of a valid complaint. Without such a complaint, there could be no summary proceedings under Part IX of the 1995 Act. In support of his submission, counsel relied upon Lowe v Bee 1989 S.C.C.R. 476, a decision of Sheriff Macphail, as he then was. The accused in that case had been tried on summary complaint and, at the close of the evidence, the Sheriff pointed out that the complaint was unsigned. The procurator fiscal then sought leave to amend the complaint by signing it. However, the court held that, by failing previously to sign the complaint, the prosecutor had failed to comply with a mandatory statutory requirement, and that the consequent defect in the complaint could not be cured by amendment; leave to amend was refused. At the date of that case, summary criminal procedure was regulated by the Criminal Procedure (Scotland) Act 1975, "the 1975 Act". Section 311(2) of the 1975 Act provided that a complaint "shall be signed by the prosecutor or by any solicitor on behalf of a prosecutor other than the public prosecutor of a court". Section 335(1) of the 1975 Act provided certain powers of amendment. It provided:
"It shall be competent at any time prior to the determination of a summary prosecution, ...to amend the complaint...by deletion, alteration or addition so as to cure any error or defect therein, or to meet any objection thereto..."
While the procedural legislation applicable to the present case differed from that applicable in the case cited, the fundamental requirement for a complaint that it should be signed by the prosecutor was a common feature of both Acts. The submission was that an unsigned complaint was no complaint at all. If there was no complaint, it followed that there could be no proceedings to which section 300A(1) could apply.
[6] Counsel went on to rely on Regina v Clarke [2008] 1 WLR 338, a decision of the House of Lords. In that case convictions before a jury had followed from an unsigned indictment, a signature being purported to be added at a later stage....
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