GRAHAM GORDON v PROCURATOR FISCAL ABERDEEN
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 36
HCA/2014/4847/XJ
Lord Justice Clerk
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the application for a
STATED CASE
by
GRAHAM GORDON
Applicant;
against
PROCURATOR FISCAL, ABERDEEN
Respondent:
Applicant: CM Mitchell; Faculty Services Limited (for George Mathers & Co, Aberdeen)
Respondent: I McSporran AD; the Crown Agent
14 April 2015
[1] On 27 August 2014, after a short trial at the Justice of the Peace Court in Aberdeen, the applicant was convicted of failing to wear a seatbelt in Cromwell Road on 27 July 2013; contrary to the Motor Vehicles (Wearing of Seat Belts) Regulations 1993, regulation 5. He was fined £175.
[2] The complaint had first called on 21 October 2013. After sundry procedure, an intermediate diet was fixed for 15 August 2014. By this time the applicant had been refused legal aid. He raised various issues about this at that diet; maintaining that his rights under Article 6 of the European Convention had been breached in various ways. His contentions were rejected. A trial diet called, before a different JP, on 27 August 2014 as previously scheduled.
[3] The trial itself appears to have been relatively straightforward. Two police officers maintained that they had a good view of the applicant not wearing a seatbelt. They had stopped him; by which time he had put the seatbelt on. According to the police, the applicant had said that he had not been wearing a seatbelt because he had been adjusting his seat because of a sore back. The applicant declined to accept a fixed penalty notice. The applicant testified that he had been wearing a seatbelt. He had been adjusting the belt, not the seat, because of his back. The JP accepted the evidence of the police and rejected the applicant as not credible.
[4] The applicant had represented himself at the trial. On 2 September 2014, he made an application for a stated case. This raised 10 numbered issues. Five of these (questions 1, 2, 3, 4 and 8) related to the legal aid issue which had been argued unsuccessfully at the intermediate diet. The JP at the trial had declined to reconsider these matters. The fifth was whether the JP had been entitled to receive advice in private from his clerk about the possible desertion of the diet, given the lateness of the hour. The sixth challenged the JP’s decision to find the police officers credible and the evidence sufficient. The seventh was a claim that the JP had earlier decided that the case should be deserted. The ninth was whether the JP had been under a duty to pursue an allegation made by the applicant that the police officers had been speaking to each other about the case in advance of the trial. The final issue (10) was whether the procurator fiscal depute had been entitled to proceed with the trial in light of the various human rights issues raised.
[5] The JP prepared the stated case in a manner which covered issues 5, 6, 7, 8 and 9 in a general narrative. This sets out the circumstances in some detail. The JP explains that he had told the applicant that he did not wish to entertain a rehearsal of the previous submissions about legal aid, since these had already been dealt with. The JP had taken the view that he should not adjourn the case further, because the applicant appeared well able to deal with the limited issues involved. The case had been called at about 4.20pm; at a time when there was a further custody case outstanding. The applicant was told that his case would be recalled after it was determined whether the custody case was proceeding. The JP adjourned to chambers, with a view to obtaining advice on how best to proceed with the scheduling of business. When the applicant’s case was recalled, very shortly thereafter, the JP had expressed the view that, given the relatively minor nature of the charge, proceedings had gone on long enough and he would not be inclined to adjourn the case purely on the basis of lack of court time. If the respondent was not in a position to proceed, the appropriate course of action would be desertion simpliciter. The procurator fiscal depute confirmed that she was in a position to proceed, although for certain practical reasons it was necessary to conclude the trial that day. The applicant was asked if he had any comment to make about this. He did not. The trial started at about 4.30pm.
[6] The stated case deals comprehensively with the evidence, but it only poses one question, namely whether “on the facts stated was I entitled to convict the appellant”. The applicant produced a lengthy submission at the adjustment stage, but did not propose any specific adjustments. Efforts were made by the JP to focus the applicant’s concerns. Eventually the JP decided that the best course was to refuse to incorporate anything from the submission, but to intimate that, because of that refusal, the appellant could attempt to raise such arguments as he wished relative to matters covered in the submission at the hearing of the appeal. The JP appended the 13 page document containing the submission.
[7] On 11 December 2014, leave to appeal was refused by the judge at first sift. In giving his reasons for refusal, the judge did not simply confine himself to the question posed in the case (as he might well have done; B v Murphy 2015 SLT 214). Rather, he looked at each issue contained in the application for the stated case having regard to the relative narrative in the stated case. He refused leave on the basis that none of the issues raised an arguable ground of appeal.
[8] Meantime, the applicant obtained legal aid. His advisers have reached the view that there are only 3 issues which might present arguable grounds of appeal. These have been included in a fresh application for a stated case. The first of these (2a) relates back to the original issue 7, about whether the JP had decided that the case ought to be deserted. The second (2b) raises a new issue about bias on the part of the clerk of court, although it does not specify the nature of this bias. There is some suggestion in the papers that the spouse of the clerk may have previously represented the applicant in other proceedings. The third (2c) relates back to issue 8, about whether the JP was entitled to tell the applicant that he did not wish to hear the “human rights arguments repeated”. The applicant recognises that it is not competent, at this stage, to seek to amend a stated case. He has applied to the second sift, pending a determination of the current application, which has as its essential purpose such amendment.
[9] There is a material distinction between the procedure which is to be followed in solemn and summary appeals. In the former, the procedure is by way of Note of Appeal, containing the grounds of appeal to be advanced (Criminal Procedure (Scotland) Act 1995, section 110(1) and (3)). Leave to appeal is granted, or refused, on the basis (amongst others) of this document (1995 Act, s 107). Despite the absence of any provision relative to amendment in primary legislation, it is recognised that amendment of a Note of Appeal can occur during the course of the appeal process (Act of Adjournal (Criminal Procedure Rules) 1996, rule 15.15; High Court of Justiciary Practice Note (No. 2 of 2010), Amended Grounds of Appeal, para 5). This is a necessary consequence of the court’s power to allow an argument not contained in the Note of Appeal as originally lodged (1995 Act, s 110(4)). Because of the ability of an applicant to seek leave of the court in this way, practice has permitted applications for amendment to take place prior to, as well as after, the grant of leave to appeal. In particular, leave to amend may be sought at the stage of the second sift.
[10] The procedure in summary appeals is quite different. In such appeals the applicant sets out the issues which he wishes to raise in the application for a stated case (1995 Act, s 176(1)). The sheriff or JP will draft the stated case (1995 Act, s 178(1)). The draft ought to state “the particulars of any matters competent for review which the appellant desires to bring under the review of the High Court” (s 178(2)). This means that there is an obligation on the court of first instance to frame the stated case in a manner which addresses the issues contained in the application and to pose an appropriate question (1996 Rules (supra), Form 19.2B), at least in the absence of clear irrelevance or incompetence. The applicant has the opportunity to propose adjustments (1995 Act, s 179(1)). This allows him to propose amendments to the case as drafted. At the same time he can amend any matters stated in his application or add any new matter, within certain specified timescales (1995 Act, s 176(3)). The intention therefore is that all issues ought to be finalised by the time the stated case comes to be signed and lodged with the High Court.
[11] Thereafter, amendment is only possible in terms of the specific statutory scheme. This is that the court may, at the hearing of the stated case, remit the case back to the court of first instance to be “amended and returned” (1995 Act, s 182(6)). There is no other method of amending a stated case. It is clear from the statutory provisions that such amendment can only take place at a hearing; that is at a point after leave to appeal has been granted on one ground or another. The provision which permits the court to allow an applicant to argue a ground of appeal for which leave has not been granted is restricted to grounds which are actually contained in the stated case (1995 Act, s 180(8)).
[12] There is, nevertheless, one further safety valve within the system. This is that the court, at the stage of sifting, can “specify the arguable grounds of appeal (whether or not they are contained in the stated case) on the basis of which leave to appeal is granted” (1995 Act, s 180(7)). This means that the court may grant leave to appeal on a ground which is not made the subject of a specific question or, conceivably, narrative. This will be appropriate, for example, where a matter which the applicant sought to be raised, either in his original application or in proposed adjustments, has not found its way into the final stated case for no legitimate reason.
[13] In the present case, the court can well understand the difficulties which the JP faced in attempting to deal with what was a submission and not specific adjustments. Nevertheless, the stated case appears to have dealt adequately with almost all of the issues which were raised in the application, other than those which had been dealt with by another JP relative to the refusal of legal aid. That being so, there does not appear to be any good reason why appropriate questions could not have been framed, which would have encapsulated the issues which the applicant sought to raise in the remaining parts of the application. In these circumstances, it will be open to the court at the second sift to consider the issues so raised and to determine whether it is appropriate to specify arguable grounds of appeal; none of which are contained in the single question posed. The present application, however, is an incompetent one and will be refused accordingly.
[14] Since the court, as presently composed, is seized of the various issues involved, it is intended that the same bench will determine the application for leave to appeal. However, it should be formally recorded that, at a previous diet, there was some issue about whether it was appropriate for a judge, who had previously dealt with a quite different case involving the applicant and against whom the applicant had lodged an unsuccessful complaint, should decline jurisdiction. The issue of whether declinature is appropriate in respect of any of the current members of the bench will be addressed if the applicant seeks such declinature by written application in advance of the second sift, which will occur after the expiry of 7 days from the date of the hearing of this application.