JEAN WAUGH v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Marnoch Lord Penrose | Appeal No: MISC 389/04 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in PETITION to the nobile officium by JEAN WAUGH Petitioner; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For petitioner: Scott, solicitor advocate; Gilfedder McInnes
For respondent: Bell QC, AD; Crown Agent
22 December 2004
History
[1]On 16 May 2003 the petitioner pled guilty on indictment at Glasgow Sheriff Court to charges of racially aggravated breach of the peace and assault to severe injury. The charges related to an incident that occurred on 8 February 2001.
[2]On 16 June 2003 the petitioner was sentenced to two months imprisonment on the first charge and five months imprisonment on the second charge, the sentences to run concurrently. On 19 June 2003 she lodged a Note of Appeal. On 26 June 2003 she was granted interim liberation. On 21 July 2003 leave to appeal was refused. On 10 September 2003 the petitioner's appeal against that decision was refused and a warrant was issued for her apprehension and detention. On 12 September 2003 Justiciary Office sent the warrant to Crown Office. On 22 September 2003 Crown Office forwarded the warrant to the warrants unit of Strathclyde Police at Glasgow for execution.
[3]Since then Strathclyde Police have not executed the warrant. Throughout the period of her interim liberation, the petitioner has lived at her domicile of citation at 166B Ardencraig Road, Castlemilk, Glasgow and since 10 September 2003 has there awaited arrest.
The petition
[4]The petitioner craves the court in the exercise of its nobile officium to suspend the warrant and to quash the sentences of imprisonment on which it proceeds. She avers that the authorities have failed to act with due diligence in the execution of the warrant and that there are no special circumstances that would justify the execution of the warrant after such undue delay.
[5]The petition was served on the Lord Advocate and on the Chief Constable of Strathclyde Police. Neither lodged answers.
The explanation for the delay
[6]At the outset of the hearing the advocate depute indicated that the Crown did not oppose the petition. We asked him for the explanation that the circumstances plainly call for. This is the explanation.
September 2003 - 7 July 2004
[7]When the warrant was received by Strathclyde Police it was allocated to G Division; but because of an administrative error it was not forwarded to G Division until 7 July 2004, nine and a half months later. It may in the meantime have been misdirected to another department at Headquarters.
[8]The Crown accepts that that period of delay is "inexplicable and unacceptable." In the view of the Crown, the blame lies with Strathclyde Police.
7 July 2004 to date
[9]After 7 July 2004 there was a further chapter of inefficiency. When the warrant staff at G Division received the warrant, they placed it on the warrant system and allocated it to Cathcart Sub-Division. On 21 July 2004 the Procurator Fiscal, Glasgow, wrote to the warrants clerk at G Division asking for a progress report on the execution of the warrant. It appears that this enquiry was sent as part of a periodical review of outstanding warrants.
[10]The warrant system at G Division shows that no enquiries were made by Cathcart Sub-Division at the petitioner's address. No one at Cathcart Sub-Division has any recollection of having dealt with this warrant. The only available information comes from an acting shift sergeant who recalls that when the warrant was allocated to Cathcart Sub-Division, the group had a heavy workload and was short staffed. The Crown understands that soon after the Procurator Fiscal's enquiry, a Sub-Divisional warrants team was brought in to deal with the problem.
[11]On 9 September 2004 the warrant was transferred from Cathcart Sub-Division to the Warrants Department at Helen Street, Glasgow, for allocation to a newly-formed warrants squad. On 15 September 2004 the enquiry was allocated to the warrants squad.
[12]The advocate depute accepts that from 22 September 2003 to 17 September 2004 the police took no practical steps to execute the warrant.
[13]On 17 September, 21 September, 28 September and 1 November 2004, police officers called at the petitioner's address. The petitioner was not at home on any of these occasions. On the first occasion her husband, from whom she is separated, happened to be in the house. He falsely alleged that she was in hospital. On the subsequent occasions, other family members denied any knowledge of her whereabouts. We are less surprised by this attitude to authority than the advocate depute seemed to be; but this part of the history may not matter because the Crown does not suggest that the pursuer herself bears any responsibility for her family's unhelpfulness or that it is relevant to the issue in the petition.
[14]When the police made the last of these visits, this petition had already been lodged. On 12 November 2004 the court granted interim suspension of the warrant.
Decision
[15]In our opinion, it would be oppressive to the petitioner if the authorities were now to execute this warrant 15 months after it was issued. A similar petition was presented to the court in Beglan, Petr (2002 SCCR 932). The petitioner in that case had been granted interim liberation on 30 May 2001 pending the hearing of his appeal against sentence. He later abandoned the appeal and a warrant was granted for his apprehension. Almost a year elapsed thereafter during which Strathclyde Police took no action on the warrant. During that period, the petitioner's solicitors wrote three times to the warrants officer notifying him of the petitioner's desire to "hand himself in" and asking when the warrant was to be issued so that the petitioner could begin his sentence. The police replied to none of these letters. After the warrant was issued the petitioner's solicitors notified the procurator fiscal of his anxiety to get on with his sentence and later asked their Edinburgh agents if they could expedite matters. Meanwhile the petitioner had gained a place at university. The court considered that the Crown had given no satisfactory explanation why the warrant had not been executed. It concluded that the failure of the authorities to execute it was oppressive. The court took the view that, apart from the sentence of imprisonment, the authorities had in effect sentenced the petitioner to a period of almost one year's anxiety while he waited for the warrant to be executed. The court considered that these facts and circumstances were so prejudicial and unfair to the petitioner that the warrant and the sentence should be quashed.
[16]In our opinion, the circumstances of this case are equally prejudicial and unfair to the petitioner. If the warrant had been executed promptly, she would have completed her sentence a year ago. The fact that the petitioner's solicitors did not entreat the authorities to arrest her, or the fact that her personal circumstances appear not to have changed in the interim, does not, in our view, materially distinguish this case from Beglan, Petr (supra). The essential feature in both cases is a seemingly unreasonable and oppressive delay that the Crown cannot justify.
[17]If the offender is kept in suspense during a prolonged period of delay and then has to serve the remainder of the sentence, that delay constitutes an additional punishment. It might be that in certain circumstances such a delay could be justified, even though the offender himself was not to blame. That question can be decided if and when it arises. No such circumstances are put forward in this case.
[18]Since the Crown does not oppose the petition, it would have been open to us to grant the prayer in terms. In this case, however, the solicitor advocate for the petitioner moved only for suspension of the warrant. He said that he was content that the sentence should be left undisturbed since without the warrant the petitioner could not be required to serve it. We shall therefore grant the petition only to the extent of suspending the warrant.
[19]In the result this court again finds that by reason of a serious administrative failure a just and lawful sentence will not be served by the offender. This is an unsatisfactory result. It erodes public confidence in the administration of justice. Despite Beglan, Petr (supra), Strathclyde Police have again been responsible for the same failure. It troubles us to think that even more cases like this may be lurking in their files. The advocate depute could give us no reassurance on the point. It is essential that Strathclyde Police should have effective systems in place to prevent further mishaps of this kind. We hope that the Chief Constable will give the problem his immediate attention.