APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Reed Lord Menzies	[2010] HCJAC 106 Appeal No: XJ438/10 OPINION OF THE COURT delivered by LORD REED in Appeal by CHRISTOPHER CHILCOT Appellant; against STEPHEN McGOWAN Respondent: _______

Appellant: Ogg, Solicitor Advocate; Black & Guild, Kirkcaldy

Respondent: A.F Stewart QC, AD; Crown Agent

22 October 2010

Introduction

[1] This appeal raises a question concerning the effect of section 144(8) of the Criminal Procedure (Scotland) Act 1995, which is in the following terms:

"It shall not be competent for any person appearing to answer a complaint, or for counsel or a solicitor appearing for the accused in his absence, to plead want of due citation or informality therein or in the execution thereof."

History of events

[2] It is convenient to begin by setting out the history of the case.

[3] At some point during the summer of 2009 the respondent's depute prepared a complaint in which it was alleged that the appellant had committed an offence of speeding on 9 May 2009. The respondent then attempted to serve the complaint on the appellant with a citation to a sitting of the Justice of the Peace Court at Stonehaven on 11 August 2009. Two attempts at postal citation were however unsuccessful, the complaint being on each occasion returned to the respondent by the Post Office. An attempt at personal citation was then made. It is accepted on behalf of the respondent that that attempt was equally unsuccessful. The difficulty, it appears, is that the appellant works offshore, and was away from home when each attempt was made. It is accordingly accepted on behalf of the respondent that there was no service of the complaint upon the appellant and that he was not cited to a sitting.

[4] On 11 August 2009 the case called before the Justice. The appellant was neither present nor represented, being unaware of the proceedings. On the respondent's motion, the Justice adjourned the diet until 8 September and ordained the appellant to appear at that diet.

[5] On 12 August the respondent wrote to the appellant, informing him that as he had failed to appear the previous day, the case had been adjourned until 8 September. He was warned that if he failed to appear or be represented at that diet a warrant might be granted for his arrest. Given the respondent's awareness that citation had not been effected, the terms of this letter might be thought to be somewhat surprising, but nothing turns on that.

[6] On receipt of that letter the appellant consulted solicitors, who confirmed in correspondence with the respondent that there had been no service or citation. They were in due course provided with a copy of the complaint. They then requested the respondent to continue the case for three weeks, without a plea, so as to enable them to take instructions.

[7] On 8 September the case called again before the Justice. The appellant was not present or represented. It appears from the minute that his solicitor's letter requesting a continuation was placed before the court by the respondent. The Justice adjourned the diet until 6 October.

[8] On 16 September the appellant's solicitor wrote to the respondent requesting information about the alleged offence and, in addition, information about when and how any notice of intended prosecution had been served on the appellant. The respondent did not provide any of the information requested. The letter did however prompt the respondent to commence a second set of proceedings against the appellant, presumably because of a concern that the first set of proceedings might not be valid. The respondent accordingly prepared a second complaint, in identical terms to the first, and confusingly given the same reference number. The second complaint was laid before the court on 17 September, and the court assigned 17 November as a diet in that case.

[9] On 4 October the second complaint was served on the appellant with a citation to the diet to be held on 17 November. On 6 October the appellant's solicitor sent a fax to the respondent, noting that the information requested on 15 September had not been received, and requesting the respondent to continue the (first) case for a further two weeks for the information to be provided. When the case called before the Justice later that day it was adjourned until 20 October 2009. It appears from the minute that the fax had been placed before the court by the respondent.

[10] On 20 October the case called again before the Justice, and was adjourned until 3 November. The minute records that the adjournment was on the motion of the defence, but also that the appellant was neither present nor represented; and it appears that, on this occasion, no written communication from the appellant's solicitor was placed before the court. It appears that the appellant's solicitor may have telephoned the respondent and requested a further continuation.

[11] On 30 October the appellant's solicitor wrote to the respondent, stating:

"We write to inform you that we act on behalf of the above named accused and hereby intimate that our client pleads not guilty to the charges on the complaint [sic: the complaint only contained one charge].

We look forward to receiving a note of the dates fixed as Intermediate and Trial Diets in due course together also with a list of witnesses."

[12] On 3 November the case called again before the Justice. The minute records that "the accused in answer to the complaint pled not guilty to charge 1 by written information produced to the court by the Prosecutor". It appears therefore that the appellant's solicitor's letter of 30 October was produced to the court by the respondent (the appellant being neither present nor represented), and the plea was recorded on that basis. The case was adjourned for trial until 19 January 2010, with an intermediate diet on 15 December 2009.

[13] On 12 November the appellant's solicitor, having learned that the second complaint had been served on the appellant, wrote to the respondent requesting urgent clarification of the position.

[14] On 17 November the second complaint failed to call, and accordingly fell.

[15] On 15 December the appellant appeared at the intermediate diet with a local solicitor. The minute records that he indicated an intention to adhere to the plea of not guilty previously tendered, and that the case was continued to the trial diet. We were however informed, by the solicitor advocate appearing on behalf of the appellant, that the appellant's solicitor submitted that the prosecution had come to an end and that the trial diet should be maintained as a "notional diet" so that the point could be argued. That information was not disputed before us by the Crown.

[16] On 19 January 2010 the appellant appeared with his solicitor. On the motion of the defence, the court adjourned the diet without any plea, for a hearing on competency to be held on 16 February. The minute records that the court allowed the appellant to withdraw his plea of not guilty, on cause shown. We were informed that the application for leave to withdraw the plea was not opposed by the respondent.

[17] On 16 February the Justice was addressed on the competency of the proceedings. The appellant's solicitor submitted that the proceedings based on the first complaint were incompetent because the complaint had not been served. The service of the second complaint did not cure the defect, since the proceedings based on that complaint had come to an end on 17 November 2009, when the case failed to call. In reply, the respondent's depute submitted that it was not competent for the appellant to plead want of due citation, since he had tendered a plea of not guilty in terms of the letter of 30 October 2009. Although the plea had subsequently been withdrawn, it was nevertheless effective to cure any defect in citation. Reliance was placed on the decision of this court in Scott v Annan 1981 SCCR 172. In response, the appellant's solicitor submitted that the circumstances of the present case should be distinguished from those with which the court was concerned in Scott v Annan. In particular, the plea tendered on 3 November 2009 had been allowed to be withdrawn on 19 January 2010. In addition, the six month time limit for the commencement of proceedings had expired, in the absence of service of the first complaint. The Justice held, on the basis of Scott v Annan, that any lack of service had been cured by the tendering of the plea of not guilty on 3 November. The plea to the competency of the proceedings was repelled. The present appeal is brought against that decision.

The parties' submissions

[18] On behalf of the appellant, it was pointed out that Scott v Annan had been decided without reference to the earlier decision of this court in Beattie v McKinnon 1977 JC 64. In Beattie, the court had considered the effect of section 334(6) of the Criminal Procedure (Scotland) Act 1975, which was the predecessor of section 144(8) of the 1995 Act. It had drawn a distinction between "want of due citation", which might be a temporal matter such as a failure to observe the proper induciae, and no citation at all: see per Lord Justice Clerk Wheatley at p 67. It had held that section 334(6) was not applicable where there had been no citation at all. That decision, which was binding upon the court in Scott v Annan, had seemingly not been brought to its notice. Its decision that section 334(6) barred the appellant in that case from pleading the absence of citation conflicted with Beattie v McKinnon. The conflict had been noted by the court in the subsequent case of Kirkcudbright Scallop Gear Ltd v Walkingshaw 1994 JC 154. That was a case where the accused company had not been cited in compliance with the relevant statutory provision, in respect that the citation had been left with a director at her home instead of at the company's ordinary place of business. The court had not however sought to distinguish Beattie v McKinnon or Scott v Annan. Without convening a larger court, it had in effect disapproved Beattie v McKinnon, stating (at pp 157-158) that, of the two decisions, Scott v Annan seemed to be more consistent with the principle which lay behind section 334(6). That principle was said to be that the nature or extent of the defect or the informality was not important. If the accused had demonstrated that he was in possession of the information which the citation was intended to convey to him, there could be no substance in his complaint of want of due citation or informality, and he was precluded from taking the point in answer to the complaint. The implication of those dicta was that Beattie v McKinnon, which was binding upon the court as constituted in the Kirkcudbright Scallop Gear case, had been wrongly decided. The court had not dealt properly with the conflict between the two earlier cases. The present appeal should be referred to a larger bench to resolve the matter.

[19] On behalf of the Crown, the Advocate Depute informed the court that the appeal was opposed. The court was bound by the decisions in the Kirkcudbright Scallop Gear case and in Scott v Annan. It was not bound by Beattie v McKinnon. The case of Scott v Annan bore the closest resemblance, on its facts, to the present case.

Discussion

[20] We are persuaded that it is appropriate to refer this appeal to a larger bench in the interests of clarification of the law governing a type of situation which not infrequently occurs.

[21] It is important that the court should be fully addressed on the relevant issues. In that regard, we would observe, first, that it is important in this context to note the distinction between the service of the complaint and the citation of the accused to a sitting or diet. Secondly, it is essential to appreciate that the statutory provision in issue in the present case is one which has a long history. The terms of section 144(8) of the 1995 Act can be traced back, via section 334(6) of the 1975 Act and section 26(6) of the Summary Jurisdiction (Scotland) Act 1954, to section 29 of the Summary Jurisdiction (Scotland) Act 1908. A provision in similar terms had previously appeared in the legislation relating to the burgh police court (e.g. in section 477 of the Burgh Police (Scotland) Act 1892, section 411 of the General Police and Improvement (Scotland) Act 1862, and section 348 of the Police (Scotland) Act 1850), and in earlier local Acts of Parliament (e.g. in section 84 of the Edinburgh Police Act 1848). In order to understand why the provision was enacted, and what it was intended to achieve, it is therefore necessary to go back beyond the cases cited to us. The provision is embedded in the history of summary procedure in the nineteenth and early twentieth centuries, following its establishment in a recognisably modern form by the Circuit Courts (Scotland) Act 1828 and the Criminal Law (Scotland) Act 1830, and its reform by the Summary Procedure (Scotland) Act 1864. We note that there is a substantial body of case law, concerned with defects in service and in citation, relating to proceedings under the legislation which we have mentioned.