Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lord Bonomy Lord Wheatley	[2011] HCJAC 7 XC716/10 OPINION OF THE COURT delivered by LORD HARDIE in APPEAL AGAINST SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by david mcfarlane Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: R Renucci; Culley McAlpine, Perth

Respondent: G Wade; Crown Agent

26 January 2011

[1] The background to this appeal is that on the 20 August 2009 the appellant appeared on petition in respect of two charges of lewd and libidinous practices. On the 12 March 2010, Crown counsel instructed the procurator fiscal to reduce the charges to summary complaint. That decision was based upon the evidence then available to the Crown and it was intimated to the appellant by letter dated 17 March 2010 enclosing a summary complaint containing the two charges. On 13 April 2010 the appellant appeared at Kirkcaldy Sheriff Court to answer the summary complaint when he pled not guilty and intermediate and trial diets were fixed for 20 August and 16 September respectively.

[2] On 14 June 2010 the Crown first became aware of other allegations against the appellant including two allegations of rape and one of indecent assault. On 30 June Crown counsel instructed the procurator fiscal to seek an extension of the 11 and 12 month time limits which expired on the 20 July and 20 August respectively. On 13 July having heard the procurator fiscal and the solicitor for the appellant, the sheriff granted the application for extension of the statutory periods. The appellant has appealed against that decision. We should observe that since the decision, which is the subject of this appeal, an indictment has been served on the appellant alleging two charges of rape and four charges of indecent assault including the two charges from the summary complaint already referred to.

[3] The basis of the appeal is that the letter dated 17 March 2010 with the accompanying summary complaint precluded the Crown from prosecuting on indictment the two charges specified in that complaint, although it was acknowledged that the letter did not amount to a renunciation of the Crown's right to prosecute these charges. The Crown could still prosecute these charges on summary complaint. It was also accepted that the mere service of a summary complaint could not amount to a renunciation of the right to prosecute on indictment (Griffiths v H.M.A 2009 SLT 1054). It was further accepted that a letter of intention to proceed by way of summary complaint was also by itself insufficient to amount to such renunciation (Murphy v H. M. Advocate 2002 SCCR 969). What was relied upon in this case was the combination of the letter and the complaint. The letter amounted to an unequivocal decision to proceed by way of summary complaint in respect of the two charges in that complaint. It was also submitted that it would be oppressive to allow the Crown to prosecute these charges on indictment.

[4] We reject these submissions. As in the case of Murphy v H. M. Advocate, we consider it unnecessary to determine the general question of whether the Crown may bind itself to proceed only by way of summary complaint. While we consider that it is difficult to envisage circumstances in which that might apply, we recognise that each case will depend upon its own particular circumstances, although we would anticipate that it would be necessary to establish oppression if such an argument were to succeed in any case. In that regard we respectfully agree with the observations in Murphy v H.M. Advocate at paragraph 17 to the following effect:

"We would, however, observe that in view of the established practice by which the Crown may, at its discretion, change from a summary to a solemn proceeding even after a complaint has been served, there seems to us to be considerable difficulty in advancing the argument that the Crown can become bound to one form of procedure rather than the other, in the absence of circumstances which might be held to amount to oppression".

[5] We do not consider that the letter and summary complaint in this case amounted to an unequivocal renunciation of the right of the Crown to prosecute these charges on indictment. Rather it was a decision based upon the factual position known to the Crown at that time. As with any decision to proceed by way of summary complaint or on indictment, it is, in the ordinary course, subject to review at anytime until the case is concluded. If additional information becomes available, as occurred in this case, the Crown is free to review that decision.

[6] As far as oppression is concerned no basis for such a plea was advanced before us, other than a hypothetical one that the solicitor might have given the appellant different advice if the solicitor had appreciated that there was still a possibility of a trial on indictment of these charges. That falls far short of what is required for a plea of oppression to be successful. We shall accordingly refuse this appeal.

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