Strathern v Sloan
| Jurisdiction | Scotland |
| Judgment Date | 25 March 1937 |
| Docket Number | No. 11. |
| Date | 25 March 1937 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Lord Wark.
Summary Procedure—Plea of guilty—Procurator-fiscal—Refusal of procurator-fiscal to accept plea of guilty—Right of procurator-fiscal to proceed to trial—Necessity of recording fact that plea tendered.
Held that, in proceedings on summary complaint, the procurator-fiscal is entitled to refuse to accept a plea of guilty tendered by the accused, and to require the Sheriff-substitute before whom the cause depends to assign a diet for trial.
Held, further, that it is the duty of the Court in such circumstances to record the fact that the plea was tendered.
Opinions reserved as to the rights of prosecutors in inferior Courts other than the procurator-fiscal to refuse to accept a plea of guilty.
Observations as to the procedure to be followed by the prosecutor in cases which proceed to trial after his refusal to accept a plea of guilty.
Thomas Graham and George Sloan were charged in the Sheriff Court at Glasgow upon a complaint at the instance of John Drummond Strathern, Procurator-fiscal, which set forth that the accused, while acting in concert, did steal a motor car.
When the diet was called Graham, against whom three other charges were libelled in the complaint, pleaded not guilty. Sloan tendered a plea of guilty. Before the latter plea was recorded, the Procurator-fiscal intimated that he declined to accept it, and he moved the Court to record a plea of not guilty, and to assign a diet for trial. After hearing argument upon the point, the Sheriff-substitute (Macdiarmid), on 4th November 1936, refused the motion of the Procurator-fiscal as incompetent, directed the plea of guilty to be recorded, and continued the cause for sentence at a later date.
Thereafter the Procurator-fiscal presented a bill of advocation to the High Court, in which he craved the Court "to recall the interlocutor of judgment complained of; to remit to the Sheriff of the County of Lanark or his substitutes at Glasgow to proceed with the said complaint according to law; and to find the complainer entitled to expenses; or to do further or otherwise in the premises as to your Lordships shall seem proper."
He pleaded:—"The said motion being competent and the said interlocutor being erroneous and illegal, the case should be advocated and remitted to the Sheriff so as to find and proceed as accords of law."
The respondent did not lodge answers.
The case was heard before the High Court on 19th March 1937.
At advising on 25th March 1937,—
LORD JUSTICE-CLERK (Aitchison).—This is a bill of advocation brought by the Procurator-fiscal of Lanarkshire at Glasgow against a respondent, who is not represented. The question raised by the bill is whether the Procurator-fiscal was entitled to refuse to accept a plea of guilty tendered by the respondent in proceedings on summary complaint, and to require the Sheriff-substitute before whom the cause depended to assign a diet for trial. The complaint charged the respondent that he did, while acting in concert with another, steal a motor car. The other person named in the complaint was also charged in the complaint with three offences, all contrary to the Road Traffic Act, 1930. None of these offences concerns the respondent. On the diet being called on 3rd November 1936, the respondent tendered a plea of guilty, whereupon the Procurator-fiscal intimated to the Sheriff-substitute, before the plea of guilty had been recorded, that he declined to accept the plea, and moved the Court to record a plea of not guilty and to assign a diet for trial. On the following day, after argument had been submitted by the Procurator-fiscal and by an agent on behalf of the respondent, the Sheriff-substitute refused the Procurator-fiscal's motion as being incompetent, directed the plea of guilty to be recorded, and continued the cause for sentence to be pronounced on a later date. Against the judgment of the Sheriff-substitute the Procurator-fiscal now appeals by bill of advocation.
It is well settled that, in criminal causes triable under solemn procedure, the Crown is not bound to accept a plea of guilty, but may insist upon the indictment proceeding to trial. This was affirmed in
the case of H. M. Advocate v. Peter and Smith.1 In that case two persons were indicted in the High Court upon charges of robbery and the unlawful discharging of loaded firearms. One of the two tendered a plea of guilty, which was put on record. The Solicitor-General then claimed the right to lead evidence against both panels, and to read to the jury as evidence in causa the declaration of Smith, the panel who had pleaded guilty. The Court decided that this was within the right of the Crown. The leading opinion was given by Lord Medwyn, who said (at p. 493): "The panel has undoubtedly the privilege of making a judicial confession; but it is equally beyond doubt, that the public prosecutor is not bound to accept it unless he pleases, and may notwithstanding go into evidence. Baron Hume (ii, p. 282) states the law both previous and subsequent to the statute 9 Geo. IV, cap. 29"—prior to that statute the prosecutor had to proceed before a jury notwithstanding the confession of the prisoner—"and I do not think that that Act militates in the least degree against the public prosecutor. The provision which it contains is not, that it shall not becompetent, but merely that it shall no longer benecessary to go before a jury, in order to prove the case against a panel who has pleaded guilty. The prosecutor may still give the prisoner the chance of a trial. Alison (ii, p. 368) says: “it need hardly be observed, that it is competent for a panel to plead guilty at any stage of his trial,” but he shows that the Court may decline to accept the plea; and, in illustration, quotes the case ofStewart and Others,2 Glasgow, September 1826, where, a confession by one of the prisoners having been tendered when the jury were about to be enclosed, “the Lord Justice-Clerk declined to receive the confession at so late a stage, and the jury were charged with the case, and returned a verdict as to him of not proven.” In the present case I am clearly of opinion that the public prosecutor has an alternative course, and may either accept the plea, or claim a verdict upon the other evidence which he is prepared to lead." Lord Cockburn, who concurred, pointed out that, by the former law, a plea of guilty did not avoid a jury; there still required to be a verdict, and the plea of guilty was used merely as evidence; and, further, that the right of the public prosecutor to decline a plea still remained, and was applicable where there was one panel only just as much as where there were two or more panels; and he added that there were many cases where the panel had actually been acquitted after tendering his confession. Lord Meadowbank, who also concurred, spoke of "the frequent practice of proceeding with the trial, notwithstanding a plea of guilty." In Pattison v. Stevenson3 Lord Moncreiff similarly expressed the rule in these words: "According to our law and practice, the prosecutor is not bound to accept a plea of guilty to the whole charge, and is entitled, notwithstanding the plea, to proceed to trial." This opinion was concurred in by the Lord Justice-Clerk (Macdonald) and Lord Trayner.
It has never been doubted that the rule of Peter'scase1 applies equally to criminal causes triable upon indictment in the Sheriff Court. The question now to be decided for the first time is whether the rule applies to causes that are triable upon summary complaint. The case in which the question was most nearly raised is Kirkwood v. Coalburn District Co-operative SocietySC,2 which was a summary prosecution at the instance of H. M. Inspector of Factories in which alternative charges were libelled in the complaint. The panel tendered a plea of guilty to the minor of the alternative charges. The prosecutor objected to the plea being recorded, but the Sheriff recorded it. It was held on appeal that the prosecutor was entitled to proceed to trial with a view to proving the major charge, upon the ground that a prosecutor is never bound to accept a plea to the minor of two alternative charges so as to be compelled to give up the major alternative. In the course of his judgment the Lord Justice-General (Clyde) stated the wider proposition in these terms (at p. 41): "I do not think a prosecutor is ever bound to accept a plea, whether the charge be alternative or not, but is always entitled to insist on leading evidence before the jury and obtaining a verdict if he can—Macdonald on Criminal Law, (4th ed.), p. 484, and authorities there collected." I respectfully agree with this wider proposition, and, as the case Lord Clyde was dealing with arose upon a summary complaint, the observation must be taken as applying to summary complaints in the same way as to charges upon indictment.
This right of the public prosecutor may at first sight appear to be arbitrary, but consideration will point to many good grounds why the right should exist. In serious crime evidence may be necessary to bring out the full enormity of the crime, or perhaps to show mitigating circumstances; or again there may be concern as to...
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