F.B. AGAINST PROCURATOR FISCAL, ABERDEEN
APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lady Dorrian Lord Bracadale | [2015] HCJAC 14 XJ1068/13 OPINION issued by LORD CARLOWAY, the LORD JUSTICE CLERK in the application under section 180(9) of the Criminal Procedure (Scotland) Act 1995 by FB Appellant; against Procurator Fiscal, Aberdeen Respondent: _____________ |
Appellant: CM Mitchell; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Respondent: Wade QC, AD; the Crown Agent
21 February 2014
Introduction
[1] This application raises a sharp point about the function of a sifting judge in summary criminal appeals. This Opinion is designed to emphasise that the sifting decision must relate to the stated case, notably the questions posed in it, and not to the content of any earlier, and essentially superseded, application for a stated case. The latter ought not to form any material part of the judge’s sift decision.
Statutory Interpretation
The Stated Case
[2] The Criminal Procedure (Scotland) Act 1995 makes detailed provision for appeals against conviction in summary cases. These are by stated case; the principal object being to incorporate all material relevant to the appeal within the four walls of that case. The system was adopted from English procedure and has been the primary mode of appeal since the Summary Prosecutions Appeals (Scotland) Act 1875. It has its critics but it has stood the test of some time.
[3] The procedure commences with an application to the court within one week of the final determination of the prosecution (1995 Act, s 176(1)). The application must contain a “full statement of all the matters which the appellant desires to bring under review” (s 176(2); see Act of Adjournal (Criminal Procedure Rules) 1996 Form 19.2-A). The applicant may amend the statement within a further three weeks (s 176(4); but meantime the sheriff or justice of the peace ought to have prepared a draft (s 178(1)).
[4] The form of the case is prescribed (Act of Adjournal (supra) Form 19.2-B) and it is to “set forth the particular of any matters competent for review…, of the facts, if any, proved… any point of law decided, and the grounds of the decision” (s 178(2)). The manner in which this is done is to set out the charge, procedural history, decision and disposal followed by the facts admitted or proved. Where, as here, the appeal is directed towards matters of sufficiency, the Crown evidence and the inferences capable of being drawn from it may require narration. A section, usually headed “Note”, will contain any analysis by the court which led to a particular decision.
[5] There then follow, the “question[s] submitted for the opinion of the court” in numbered paragraphs (Form 19.2-B supra). It is these questions that define the issues for determination on appeal. In short, they set out in interrogative form the matters on which the applicant has sought review. If the sheriff fails to pose an appropriate question to cover issues raised in the application, the applicant has an opportunity to pose such a question by way of adjustment (s 179(1)). If the sheriff fails to pose a competent question proposed by way of adjustment, the court can take that into account in determining the appeal (s 182(5(f)). The questions eventually posed, following upon adjustment, may (or may not) be significantly different from the matters specified in the original application for a stated case. The applicant may have decided to depart from some, having read the sheriff’s findings or determination, or he may have amended or added to them during adjustment. In that respect, the content of the application is superseded by the expression of the issues in the stated case.
Leave to Appeal
[6] Before the appeal can proceed, the applicant requires leave to appeal (1995 Act, s 180). This process involves placing before a single judge specified documents (s 180(1)), namely the stated case and certain formal documents such as the complaint and minute of proceedings (ss 180(2), 179(8)(b)). Significantly, these documents do not include the application for the stated case. This is in contrast to the position in a solemn case, where what is under consideration is the note of appeal and the judge’s report (s 107(1)(a) and (2)). In this respect, the content of an application for a stated case is not the same in effect as that of a note of appeal.
[7] It is upon a consideration of the relevant documents that the judge must determine whether or not to grant leave. In a summary appeal, apart from the formal documents regarding the process (supra), the decision must be based solely upon the content of the stated case. The questions in the case (and not the matters in the application) determine the scope of the issues for review by the High Court. It is in respect of each question that the first sift judge must decide whether leave should be granted. This is again in contrast to a solemn case, where the grounds of appeal in the note will determine that scope and the sifting judge will grant leave on all or only some grounds.
[8] In a solemn case, the sifting judge may decide to grant leave upon a ground which is not stated in the note of appeal (s 107(7)). This ought not to pose a significant problem, as the court can call for a further report on the new matter from the sheriff or judge. There is an equivalent provision for summary appeals, whereby the sifting judge can specify “grounds of appeal (whether or not they are contained in the stated case)”. This is a curious provision because it may result in a ground being stated, which is not the subject of a question; thus ultimately requiring a possible remit for re-statement of the case at the hearing (s 182(6)) in order to provide an opportunity to the first instance court to deal with the new ground. Be that as it may, the significant point remains that a decision at sift in a summary appeal must otherwise relate to the questions posed in the case presented to the High Court and not to the content of any original application to the court of first instance.
Procedure and Decision
[9] On 15 August 2013, at Aberdeen Sheriff Court, the appellant was convicted of a contravention of section 12(1) of the Children and Young Persons (Scotland) Act 1937 (wilfully causing unnecessary suffering or injury to a child) in respect of an incident on 26 January 2012. The Crown led evidence from two doctors and a police officer, after which there was an unsuccessful “no case to answer” submission followed by testimony from the appellant and her husband. On 18 October 2013 the sheriff imposed a Community Payback Order.
[10] On 23 October 2013 the appellant lodged an application for a stated case, which contained six matters which the appellant sought to bring under review. The first (2a) is in general terms, stating that the sheriff had erred in failing to sustain the no case to answer submission. The second (2b) is in slightly odd form and it is not clear whether it relates to the admission of testimony from a doctor or the corroborative effect of that testimony. It seems to be the latter. The third (2c) is that there was insufficient evidence that a crime had been committed, since there was a “realistic possibility” of an unknown cause of the injury. The fourth (2d) is again focussed upon sufficiency and, in particular, whether there was corroborated evidence of the appellant as the perpetrator of the injury. The fifth (2e) is that it had not been proved that what was done was likely to cause unnecessary suffering etc., and thus, once more, a sufficiency of evidence point. The sixth (2f) is of a different nature. It is that the sheriff erred in finding the libel established beyond reasonable doubt. There were, it is said, no “facta probanda” established from which an inference of intent could be drawn. This relies upon the evidence of the appellant herself.
[11] The sheriff could, no doubt, have posed a series of detailed questions for the High Court to address. However, he did not do so. Rather, he has framed only two questions, viz:
“1. On the basis of the evidence narrated, did I err in rejecting the submission by the appellant to the effect that there was no case to answer in respect of the charge libelled?
2. On the facts stated, was I entitled to convict the appellant?”
[12] In relation to the latter, it is important to note that the sheriff found as a fact that:
“22. The appellant failed to adequately supervise the child, in consequence of which a quantity of hot liquid made contact with the child’s skin, resulting in her sustaining an injury.”
At adjustment, the appellant made no attempt to pose any question which challenged any finding in fact or one which reflected her sixth complaint (supra) about the sheriff erring in finding intent proved to the requisite standard.
[13] When it came to the sift, the judge determined as follows:
“The only arguable grounds of appeal are grounds 2a, 2e and 2f. There was sufficient corroborated evidence that the injury was a scald and caused by hot liquid”.
There were further remarks specific to the “unarguability” of “grounds” 2b, 2c and 2d.
[14] The problem with this approach is that paragraphs 2a to 2f of the application are not grounds of appeal for determination by the High Court. They are matters specified in an application for a stated case which are effectively superseded, at least for sift purposes, by the stated case itself, which alone contains the questions for determination. The issue for the sift judge to determine was not whether the content of the application contained matters which might have formed an arguable challenge to the conviction but whether there were arguable grounds to support an appeal in relation to one or other of the two questions actually posed by the sheriff upon a consideration of the application and any adjustments proposed.
[15] In relation to the first question, it seems to have been the first sift judge’s view that there were arguable grounds to support an appeal. That is evident most clearly from her stated view that “ground” 2a, which relates to whether the no case to answer submission was correctly repelled, is arguable. On that basis, the court will grant leave to appeal in relation to that question. It will then be a matter for the appellant to determine what precise submissions to deploy in support of her position. These may include the matters contained in paragraphs 2b to 2d, even if the sift judge viewed them as unarguable in themselves.
[16] The answer to the second question must be in the affirmative, standing the unchallenged findings in fact, and especially finding 22. The court has therefore not granted leave in respect of that question.
[17] That leaves the fact that the first sift judge has granted leave to argue the content of paragraph “2f”. The court has no power to reverse the grant of leave to appeal upon a ground stated by a sifting judge. If that judge considers that leave ought to be given in respect of a matter not contained in the stated case, then he/she may grant such leave (s 180(7), see supra). The appellant is therefore entitled to pursue this matter at the appeal hearing. Just how the court can or will deal with this at the hearing is not for this court to say. There is an obvious problem in that it relates to whether the sheriff erred in finding any necessary intent established. That is not a matter of sufficiency and there is no question posed to cover it. However, the court may (or may not) feel able to reach a conclusion on the matter on the basis of the findings in fact stated.