APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Reed Lord Bonomy Lord Emslie Lord Osborne	[2011] HCJAC 7 Appeal No: XJ438/10 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by CHRISTOPHER CHILCOTT Appellant; against PROCURATOR FISCAL, STONEHAVEN Respondent: _______

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

Respondent: Brodie, Q.C., A.D.; Crown Agent

12 January 2012

Introductory

[1] The appellant is charged on a summary complaint in the Justice of the Peace Court in Stonehaven with having contravened sections 88 and 89 of the Road Traffic Regulation Act 1984 on 9 May 2009 by having driven a motor vehicle at a speed in excess of the speed limited applying to the road in question.

[2] That statutory offence is triable only on summary complaint. No special time limit for bringing a prosecution under those provisions of the Road Traffic Regulation Act 1984 is set by that Act and accordingly the general time limit for prosecuting statutory offences triable only summarily laid down in section 136(1) of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act" - applies. That time limit - namely a period of 6 months - would expire on 9 November 2009.

[3] The basic issue in this appeal is whether the prosecution brought against the appellant was duly "commenced" prior to the expiry of that 6 month period on 9 November 2009.

[4] At the outset it may be noted that section 136(3) of the 1995 Act contains a provision respecting a deemed time of commencement of summary proceedings. That subsection provides:

"(3) For the purposes of this section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if the warrant is executed without undue delay".

It was not in dispute that, as interpreted by this Court in Keily v Tudhope 1986 SCCR 251, this deeming provision requires the interposition of a specific act on the part of the relevant court of summary jurisdiction by its granting, in terms of section 139 of the 1995 Act, either a warrant to apprehend the accused, or to cite him to a diet specifically assigned by the court. It is also not in dispute that in the present prosecution the procurator fiscal in Stonehaven did not seek to use this "deemed" commencement procedure; no doubt for the reason that, in practice, resort is generally had to section 136(3) where the expiry of the time limit is imminent, which was not the case when the procurator fiscal sought to embark upon this prosecution in August 2009. So to that extent one may leave aside the special provision on commencement of proceedings to be found in that subsection of section 136.

[5] What happened in and after August 2009 is conveniently summarised in the Opinion of the Court
[1] delivered by Lord Reed at an earlier stage in this appeal when a bench of three judges decided that a larger bench should be convened. That course was taken in light of the then perceived positions of parties and apparent inconsistencies in certain of this Court's earlier decisions on the statutory predecessor of what is now s 144(8) of the 1995 Act, which was thought to be a determining issue in the appeal. We adopt that résume of the proceedings set out in paragraphs [3] to [17] of that Opinion:

"[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 (sic 16) 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".

Parties' respective positions

[6] Against that history the argument for the appellant was, in short summary, that since citation of the appellant to a diet had never been effected, no proceedings had been validly commenced against him and any prosecution was thus time-barred. Citation, it was submitted, was essential to the proper commencement of a summary prosecution. There having been no citation at all, the purported first calling of the complaint on 11 August 2009 was void, with the consequence that all of the subsequent adjournments were similarly tarnished with that nullity. In so far as the Crown had sought to rely on the tendering of a plea on 3 November 2009 and the terms of section 144(8) of the 1995 Act as curing the want of citation, that reliance was misplaced since that provision could not be invoked where there had been no citation at all; and in any event the Crown had consented to the plea being withdrawn on 19 January 2010.

[7] Similarly, again in short summary, the argument advanced by the Advocate depute was to the effect that citation was not an essential requirement for the purposes of the commencement of a summary prosecution. Where a citation had been duly executed, the date of that execution constituted the commencement of the proceedings. But in the absence of execution of a citation, and hence commencement by that means prior to the first calling of the complaint, proceedings would commence when the accused attended, or was represented, at the first calling and pled in answer to the complaint. Thus, in the case of an accused appearing from custody, the proceedings against him are commenced when the complaint is called and he answers to the complaint by tendering a plea to the charge or charges in it. The same position would obtain where an accused attended by arrangement and pled in answer to the complaint. Further, notwithstanding the absence of successful citation of the appellant prior to 11 August 2009, the adjournment of the present proceedings on 11 August 2009, and at subsequent diets, until 3 November 2009 was rendered competent by virtue of section 145A of the 1995 Act. On that date - 3 November 2009 - the appellant answered the complaint by tendering a plea of not guilty which was tendered and recorded. The proceedings against the appellant were thus commenced timeously on 3 November 2009 when the appellant pled in answer to the complaint.

While the court had allowed the plea to be withdrawn to facilitate the debate sought by the appellant, that could not alter the facts that the complaint had called and had been answered by a plea of not guilty on 3 November 2009 and that the proceedings had thereby been commenced on that date.

The statutory provisions

[8] Before examining these submissions more closely it is convenient to mention a number of the provisions of the 1995 Act bearing upon the issues in this appeal.

[9] Section 138 stipulates inter alia that summary proceedings for the trial of offences shall be instituted by a complaint signed by the prosecutor. Section 139(1)(a) provides:

"(1) On any complaint under this Part of this Act being laid before a judge of the court in which the complaint is brought, he shall have power on the motion of the prosecutor-

(a) to pronounce an order assigning a diet for the disposal of the case to which the accused may be cited as mentioned in section 141 of this Act;".

But, unless the prosecutor intends to invoke the deemed commencement provisions of section 136(3) to which reference was made earlier, it is not necessary for him to make a motion to the Court under section 139(1)(a) since section 140(1)(b) provides:

"140-(1) This Act shall be sufficient warrant for

....

(b)              the citation of the accused and witnesses in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or any adjournment thereof".

The methods by which citation of an accused to a sitting or diet of the court, or any adjourned sitting or diet, may be effected are treated in section 141. Put briefly, in addition to personal service of the citation, the methods include service by registered post, recorded delivery post, or ordinary post and also electronic means. It may be observed however that an accused may not be arrested for failure to appear at a diet or sitting unless it is proved to the court that "he received the citation or that its contents came to his knowledge".

[10] Section 144 is concerned with procedure at the first diet. Its provisions include:

"(1) Where the accused is present at the first calling of the case in a summary prosecution and-

(a) the complaint has been served on him, or

(b) the complaint or the substance thereof has been read to him, or

(c) he has legal assistance in his defence,

he shall, unless the court adjourns the case under the section 145 or 145ZA of this Act and subject to subsection (4) below, be asked to plead to the charge.

(2) Where the accused is not present at a calling of the case in a summary prosecution and either-

(a) the prosecutor produces to the court written intimation that the accused pleads not guilty or pleads guilty; or

(b) counsel or a solicitor, or a person not being counsel or a solicitor who satisfies the court that he is authorised by the accused, appears on behalf of the accused and tenders a plea of not guilty or a plea of guilty,

subsection (3) below shall apply.

(3) Where this subsection applies-

(a) in the case of a plea of not guilty, this Part of this Act except section 146(2) shall apply in like manner as if the accused had appeared and tendered the plea; and

(b) in the case of a plea of guilty, the court may, if the prosecutor accepts the plea, proceed to hear and dispose of the case in the absence of the accused in like manner as if he had appeared and pled guilty, or may, if it thinks fit, continue the case to another diet and require the attendance of the accused with a view to pronouncing sentence in his presence.

.........

(8) 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.

(9) In this section, a reference to the first calling of a case includes a reference to any adjourned diet fixed by virtue of section 145, 145ZA or 145A of this Act".

[11] Sections 145 and 145A provide respectively as follows:

"145 Adjournment for inquiry at first calling.

(1) Where the accused is present at the first calling of a case in a summary prosecution the court may, in order to allow time for inquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section, for such period as it considers appropriate, without calling on the accused to plead to any charge against him but remanding him in custody or on bail or ordaining him to appear at the diet thus fixed; and, subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.

(2) Where the accused is remanded in custody, the total period for which he is so remanded under this section shall not exceed 21 days and no one period of adjournment shall, except on special cause shown, exceed 7 days.

(3) Where the accused is remanded on bail or ordained to appear, no one period of adjournment shall exceed 28 days.

145A Adjournment at first calling to allow accused to appear etc.

(1) Without prejudice to section 150 of this Act, where the accused is not present at the first calling of the case in a summary prosecution, the court may (whether or not the prosecutor is able to provide evidence that the accused has been duly cited) adjourn the case under this section for such period as it considers appropriate; and subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.

(2) An adjournment under this section shall be -

(a) for the purpose of allowing -

(i) the accused to appear in answer to the complaint; or

(ii) time for inquiry into the case; or

(b) for any other cause the court considers reasonable.

(3) No one period of adjournment under this section shall exceed 28 days.

(4) The clerk of court may perform the functions of the court under subsection (1) above without the court being properly constituted".

[12] Section 166(2) applies where the prosecutor intends to place a previous conviction before the court. It states:

"(2) A notice in the form prescribed by Act of Adjournal or as nearly as may be in such form specifying the previous conviction shall be served on the accused with the complaint where he is cited to a diet, and where he is in custody the complaint and such a notice shall be served on him before he is asked to plead".

It appears that save for that reference the 1995 Act does not make express provision to the effect that citation of an accused to a diet shall be accompanied by service of a copy of the complaint. However, the form of citation prescribed by the Act of Adjournal, namely Form 16.1.B, requires a copy of the complaint to be enclosed with the citation.

[13] Many of the foregoing sections of the 1995 Act have a legislative history, earlier statutes concerned with procedure in summary prosecutions having contained provisions worded in terms of varying similarity. The parties to this appeal helpfully included in the materials with which we were provided copies of those earlier

versions but we have come to the view that for present purposes it is not necessary to enter into a detailed, archaeological examination of the antecedents of the current statutory provisions.

Discussion

[14] We turn now to the competing submissions. As we understood the argument advanced by Miss Ogg on behalf of the appellant, a central proposition of that argument was that, absent any execution of citation to a sitting or diet, there were no competent proceedings. If that proposition is to be understood as being to the effect that in every summary prosecution there be an overriding requirement of citation of the accused, we consider the proposition to be unsound. It is plain that citation is not required in every case. A person arrested by the police and detained in police custody until brought before the court does not receive a citation to appear in court subject to the elapse of the induciae required for citation to a diet. Similarly an accused for whom an initiating arrest warrant may have been granted, but not executed, may appear by voluntary arrangement; and there may be other circumstances in which arrangements are made for an accused to appear voluntarily at the calling of a complaint against him.

[15] The submissions made on behalf of the appellant included an extensive review of reported decisions on procedure in summary prosecutions going back to 1836. We do not think it necessary to discuss all of those decisions, which are helpfully summarised in the appellant's written case and argument. It is, in our view, evident from those decisions that service of a copy of the complaint has not been seen as an essential requirement - see in particular Kelly v Rae 1917 JC 12. Indeed, the terms of section 144(1)(b) and (c) are consistent with service of the complaint not being essential to the validity of the prosecution. While there is of course a distinction between citation to a diet and service of the complaint, the existence of a rule which demanded prior citation in every case might be expected to carry with it the similar requirement for service of the complaint. On the other hand, the authorities to which our attention was brought also demonstrate that, depending on the particular circumstances, this Court may regard omission to serve a copy of the complaint, or the circumstances in which the accused was led to attend the Court of summary jurisdiction, as oppressive - see among other examples Carlin v Malloch [1896] 2 Adam 98; Kelly v Mitchell [1907] 5 Adam 268 and Ferguson v Brown 1942 JC 113. However the approach in such cases is one of treating the irregularity as oppressive or unfair. Having considered the cases to which we were referred, we have come to the conclusion that they do not establish a rule that the competency of any summary prosecution is dependent upon the execution of a citation. Indeed, Miss Ogg appeared to accept that the authorities recognised an exception to the rule for which she contended at least in the case of an accused apprehended in flagrante delicto and then brought in custody before the court of summary jurisdiction.

[16] While we thus cannot accept the submission for the appellant to the extent that it contended for an overarching requirement of citation in every case, it remains necessary to consider whether due citation was necessary in the present case, if the proceedings are to be seen as having been timeously commenced on the date for which the Advocate depute contended, namely 3 November 2009. In that respect Miss Ogg argued that since there had been no citation prior to 11 August 2009 the calling of the complaint in the absence of the accused, and the adjournment of proceedings on that date, were on that account incompetent; and it followed that all the subsequent purported adjournments were also incompetent.

[17] This branch of the argument for the appellant relied strongly on the decision of this Court in Lees v Malcolm 1992 JC 173; 1992 SCCR 589. In that case there had been no appearance by or on behalf of the accused on the first calling of the case and, on the motion of the procurator fiscal, the case was continued to a later date without plea, the procurator fiscal not having produced to the court any execution of citation of the accused to the diet. On that later date, service of the complaint still not having been effected, the Crown moved for, and obtained, a warrant to arrest which they successfully contended to be an initiating warrrant, even though written on the original complaint. The Court held that at the time of granting the warrant the original proceedings were at an end; one reason for that being that the purported continuation at the "first calling" was a nullity for the reason that service had never been effected. In delivering the Opinion of the Court the Lord Justice Clerk (Ross) referred to the commentary annexed to the report of Scott v Annan 1981 SCCR 172. In that commentary the editor drew attention to the practice in some courts of summary jurisdiction of continuing the case at its first calling even though citation had not been effected and drew attention to the difficulties in the legislation in force at that time. The final sentence of the Opinion of the Court in Lees v Malcolm reads:

"We hope that consideration will be given to amending the current statutory provisions for adjourning summary cases, so that they take account of present day practice and, in particular, so that the circumstances in which continuations without pleas may be granted are more clearly defined".

[18] At the time of the decision in Lees v Malcolm the relevant section of the Criminal Procedure (Scotland) Act 1975, namely section 328, allowed continuation without plea "for inquiry into any case, or for other necessary cause" but required that the accused be present or represented. There was at that time no provision equivalent to section 145A of the 1995 Act, that section having been inserted by section 63 of the Criminal Justice (Scotland) Act 2003. (The section thus inserted was thereafter amended by sections 9 and 14 of the Criminal Proceedings etc Reform (Scotland) Act 2007). Accordingly, the concerns expressed by the Court in the final paragraph of its Opinion in Lees v Malcolm were subsequently addressed - at least in part- by the legislature inter alia in its amending the 1995 Act by inserting section 145A. Section 145A of the 1995 Act does not, of course, require that the accused be present or represented before the Court may adjourn the case without plea.

[19] Miss Ogg submitted that the power to adjourn the case without plea in the absence of the accused which was thus conferred by section 145A did not extend to cases in which citation had not in fact been effected. Its ambit, she said, extended only to relieving the prosecutor of the formal burden of producing to the court, on the day, an execution of citation. The reference, within the phrase in parentheses in section 145A, to the providing of evidence that the accused had been duly cited indicated that it was only concerned with the provision of evidence of such citation and thus relieved the prosecutor of the need to tender an execution of citation. Only in a case in which citation had in fact been duly effected, could the case competently be continued in terms of section 145A.

[20] We are unwilling to accept that restrictive interpretation of section 145A of the 1995 Act. Particularly where postal citation has been employed, it may not infrequently emerge subsequently to the first calling of the case that, despite no indications to the contrary, service of the citation and the complaint was ineffective, the complaint not having been received by the accused and its contents not having come to his knowledge. Were the power conferred by section 145A to adjourn at the first calling to be restricted to cases in which citation may in due course be demonstrated to have been in fact successful, the result would be that in such cases a prima facie competent adjournment would be retroactively invalidated. We do not consider that such a result was intended and we find nothing in the wording of the section which compels an interpretation producing that unsatisfactory procedural result. On that view, and given our conclusion that citation is not an essential, over-arching requirement, we have come to the further conclusion that s 145A is habile to include a case in which it is known that citation has so far been unsuccessful but in which it is thought that further attempts at citation or attendance by arrangement may be successful. We therefore consider that the continuation of the present case which was granted on 11 August 2009 was not incompetent; and the same applies to the subsequent adjournments up to and including 3 November 2009.

[21] The terms of section 144(9) of the 1995 Act provide for any adjourned diet fixed pursuant to section 145A being the first calling of the case. Accordingly the diet which was held on 3 November 2009 was the first calling of the present proceedings against the appellant. At that diet there was tendered written intimation on behalf of the appellant of a plea of not guilty. By virtue of sections 144(2)(a) and 144(3)(a) of the 1995 Act, the appellant is thus to be treated as having appeared personally and tendered the plea. The plea was recorded by the Court and a diet of trial was fixed.

[22] In these circumstances we consider that the contention advanced by the Advocate depute that the prosecution was commenced on 3 November 2009 when the appellant answered the complaint by tendering his plea is well founded. We do not consider that conclusion to be affected by the fact that on 19 January 2010, with a view to facilitating the debate on competency which the appellant sought, the Justice allowed the plea to be withdrawn. In our view, the proceedings having been validly commenced on 3 November 2009, they could not be retroactively "de -commenced" on that account.

[23] Given, first, that the provisions of section 145A (to which no reference appears to have been made before the Justice of the Peace or when this appeal was previously before this Court) result in the complaint having competently called on 3 November 2009; secondly, that the appellant answered the complaint on that date without having taken any objection to the proceedings; and thirdly that, notwithstanding the allowance of the withdrawal of that plea, we consider that proceedings were timeously commenced on 3 November 2009, it is, in the event, not necessary for us to consider in detail the argument invoked by the Crown at earlier stages in the proceedings which was based on the terms of section 144(8) of the 1995 Act. Suffice it to say, first, that the enactment of section 145A may have brought about a change to the legal landscape in which the perceived conflicting decisions of this Court on that particular legislative provision were issued; and secondly, that the approach of the Court in Scott v Annan and Kirkcudbright Scallop Gear Ltd v Walkingshaw 1994 SLT 1325 appears to be more consistent with a statutory régime in which actual citation and service of a complaint are not essential requisites of any valid summary prosecution than the Court's approach in Beattie v McKinnon 1977 JC 64 and Lees v Malcolm.

Decision

[24] In these circumstances we consider that the appeal must be refused.