Commencement of Criminal Proceedings for the Purposes of SSI 2012/160

NOTE

by

John A Baird, Esq, Advocate

Sheriff of Glasgow and Strathkelvin at Glasgow

PF (Glasgow) v MW

• This case called in a summary trials court, ostensibly for trial, on Friday 2 November 2012. The case could not in fact proceed to trial then for a number of reasons, not least the absence of the two psychiatrists who were expected to give evidence. I required ultimately to adjourn it.

The Relevant Previous Procedure

• The accused is charged on a summary complaint with the alleged commission of 6 offences between the 20^th May and 7^th June 2012. It is obvious from the narrative that there must have been earlier procedure, because the final charge relates to an allegation of the breach, on 7 June 2012, of a condition of a bail order granted obviously upon his release earlier on that same date after appearing on the charges which pre-date that. It transpired however that the earlier charges had not been raised by way of summary complaint, but had appeared on a petition.
• That led to the first appearance of the accused from custody on about 11 June 2012. He appears to have been remanded in custody (or its equivalent for the purposes of the provisions of the Criminal Procedure (Scotland) Act 1995 (hereafter "CPSA") relating to mentally disordered offenders) ever since. By the time I dealt with the case on 2 November 2012, he had been in custody (or its said equivalent) for 147 days.
• What I had before me was the summary complaint referred to, and not the earlier petition. It is important to note that a case may commence by way of petition, but that it is entirely within the discretion of the Crown to decide thereafter that it should proceed to trial (or its said equivalent) by way of summary proceedings. A person cannot proceed to trial on a petition. Even without the need to consider the rest of the argument which took place in this case, it can be seen that the principle to be derived from the existence of two different methods by which criminal proceedings can be instituted is that they are separate proceedings.
• What seems to have happened is that at an early stage after his appearance on petition, the accused was made the subject of an Assessment Order and then a Treatment Order, in terms of sections 52D and 52M of the CPSA. Of course, by virtue of the terms of section 52T of the Act, periods spent in an appropriate hospital or psychiatric institution under the authority both of Assessment Orders and Treatment Orders count as the equivalent of custody for the purposes of the relevant time limits which restrict the time a person must spend in custody before his trial commences, both in solemn procedure (S65) and in summary procedure (S147). Those time periods can of course be extended if justified.
• Apparently, the accused had reached day 103 of his period under treatment in terms of relevant orders when the decision was made to deal with the matter by way of summary proceedings. The summary complaint which is now before the court first called in court on 20 September 2012, when the accused was brought from hospital to answer it. He pleaded not guilty, which is significant, because it indicates that whatever his mental health condition had been at the time of the alleged commission of the offences, it was now such that his advisers considered that he would be fit to give instructions to his lawyer, understand the purpose of a trial and participate in one.
• It is also significant that when a person appears in court on a summary complaint for the first time, S147 provides that the summary time limit of 40 days begins to run. The wording of S147(1) is that "a person charged with an offence in summary proceedings shall not be detained in that respect for a total of more than 40 days after the bringing of the complaint in court unless his trial is commenced within that period...". That is another reason why it seems clear as a matter of principle that summary proceedings are separate from petition proceedings; they permit a separate and potentially additional period of time to elapse during which a person can be detained in custody (or its equivalent) without trial. Even if they arise out of the same circumstances, they are not a continuation of the previous proceedings; they are separate and different from them. Proceedings have in fact commenced anew.
• When I dealt with the case on 2 November 2012, the 40 day period had already been extended (on 22 October) and therefore called before me on the 43^rd day on which the accused had been in custody (or its equivalent), but in respect of summary proceedings. When he appeared before me, the accused was undoubtedly a person "charged with an offence in summary proceedings", as specified in S147 of the Act.

So Called "Reduction to Summary"

• It was strongly argued by Miss Ritchie, solicitor for the accused, and I agreed with her argument, that the expression "reduction to summary," which is a phrase in common usage to denote a situation where after initially deciding to put an accused person on petition and commence criminal proceedings by way of petition (which is the start of solemn) procedure the Crown then decides to proceed for the future of the case by way of summary procedure, does not amount to "reducing" the original charges and continuing with already started procedure, albeit by a different method; it amounts to commencing different procedure and a different form of criminal proceedings. As I have said, a person cannot proceed to trial on a petition. If the Crown wishes that he proceeds to trial (or its equivalent) before a sheriff sitting without a jury, they must commence the procedure that leads to that by producing and serving a summary complaint, and discontinuing the original solemn procedure. Where that happens, it amounts to the commencement of a different form of procedure, with, as I have pointed out, a different custody limit, and of course all of the other myriad procedural rules which differ as between solemn and summary procedure. In other words, where that situation happens, "criminal proceedings", in the form of "summary proceedings" start anew.

The Practical Significance in This Case

The Amendment of the CPSA Provisions Relating to Mentally Disordered Offenders

• All of what I have already set out amounts to a preamble to the argument which then took place. The point is that the Scottish Government laid before the Scottish Parliament in May 2012 a Commencement Order (The Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No 10 and Savings Provisions) Order 2012, SSI 2012/160) , which was enacted and came into force on 25 June 2012. It brought into force a large number of provisions of the 2010 Act, (hereafter the "CJLSA") some of which (SS 168 - 171) change the general law with regard to mentally disordered offenders. As always when that happens, there have to be transitional provisions relative to extant proceedings. Although it is obvious that there will only ever be a very small number of cases affected by the coming into force of sections 168 - 171 of the CJLSA, and the present case is one of them, its potential application to this accused and the way he may present his position is highly significant, and of course this Order brings into force many other sections of the CJLSA with which I am not presently concerned.

The Terms of the Order

• As I have said, it brings into force, inter alia, sections 168 - 171 of the CJLSA and relevant parts of schedule 7. Those sections are all quite brief in their terms but their significance is substantial. They textually amend the already tortuously worded provisions of the CPSA relating to mentally disordered offenders, and change the law substantially.
• Paragraph 3 of the Order makes it clear that those provisions come into force on 25 June 2012 "and apply to criminal proceedings commenced on or after that date irrespective of the date the offence was committed". In the present case, the offences are all alleged to have been committed prior to 25 June 2012. Criminal proceedings in respect of them were commenced prior to that date, but by way of petition. However, the charges presently before the court, and they are, as I understand it the same as appeared on the petition, appear on a summary complaint, which first called in court on 20 September 2012, which is after 25 June 2012.
• If the Crown had continued with the original solemn proceedings and served an indictment, then there would be no doubt that the provisions brought into force by this Commencement Order do not apply in this case, because the service of an indictment would have been a step in solemn proceedings which had been commenced with the appearance on petition, and that was prior to 25 June 2012.
• The argument was that since what is before the court is a summary complaint, which instituted summary proceedings as at 20 September 2012, then the provisions brought into force by this Commencement Order do apply in this case., and that is because the present summary proceedings commenced after 25 June 2012. The Crown disagreed and opposed the proposition that the new rules introduced by the CJLSA applied, and did so on the basis that since proceedings on petition had commenced before 25 June 2012, what the court was dealing with was effectively a continuation of them and so the old rules applied, with the effect that the accused would be deprived of the right to plead the special defence now set out in S51A of the CPSA (S168 CJLSA).

The Significance of the Point Taken, If Correct

• It is this. Parliament decided in 2010 to sweep away the old reference to a plea of "Insanity at the time of the offence" and replace it with the concept of "not being criminally responsible" at the time of the conduct and also decided to sweep away the concept of "Insanity in bar of trial" and replace it with the concept of "unfitness for trial". S168 of the CJLSA adds a new section 51A to the CPSA, and schedule 7 of the CJLSA makes various important consequential amendments. S51A(1), which is of course now in force, provides that a person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. Subsection 3 provides that that defence is to categorised as a special defence, which, by subsection 4, may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities.
• Depending on the findings of psychiatrists on examination, it was argued that a person may well be held to be not criminally responsible for conduct where his mental state at the time of the conduct was something which would not have satisfied the old test of "insanity", but if he establishes that, then he is entitled to be acquitted, because he will have made out the special defence. I have to say that it is not completely clear if it was intended by Parliament to introduce a standard which is less than what might have been required under the old law or if all that was intended was a change in terminology, but not in the relevant test. That point may well have to be argued in an appropriate case.
• It does, however, seem curious that Parliament chose to categorise this as a "special defence". In my understanding, all of the other special defences, self defence, alibi, incrimination, and consent in sexual cases, if upheld, result not only in the acquittal of the accused but the avoidance of any other consequence in those proceedings by way of punishment or order. Not here, however. As will be discussed later, a person whose special defence is upheld in these circumstances is entitled to an acquittal, but is not free from the potential making of a consequential order involving a psychiatrically based disposal in the same proceedings.

Is the Point about the Date of Commencement of Proceedings Correct ?

• This turns on a consideration of paragraph 2 of the Commencement Order. This is not easy to understand or interpret, which it should have been. Bearing in mind that paragraph 3 of the Order provides that the provisions of S168 CJLSA (now S51A CPSA) apply to "criminal proceedings commenced ...after [25 June 2012], paragraph 2(2) then defines what is meant by the "commencement of criminal proceedings".
• It does so in a manner which is not immediately clear. It starts by saying, "For the purposes of this Order criminal proceedings are commenced-..." Pausing there, that implies to me that what follows with regard to a definition of when criminal proceedings may commence is not meant to be a definition of general application, but is limited to cases which are, or may be, affected by the implementation of those provisions brought into force by the Order.
• What follows in then split into sub-paragraphs (a) and (b) and is in the following terms :-"...criminal proceedings are commenced (a) in summary proceedings, on the date of the first calling of the case; and (b) in solemn proceedings on the date on whichever of the following first occur [sic - that should surely be "occurs"] - (i) the grant of a warrant to arrest and commit, (ii) the intimation of a petition; or (iii) the service of an indictment".
• What is immediately clear is that no specific consideration is given to the circumstances which apply here, namely a case which has started by way of solemn proceedings but then proceeds later by way of summary proceedings. The possibility exists that the draftsman was not aware that that could happen, so did not provide for it. I ultimately prefer a different explanation; namely that the draftsman was aware of the sort of case in issue here, and did not specifically provide for it because it is accepted that these two types of procedure are different and separate and that where the court considering the point has before it a summary complaint, it need consider only the terms of sub-paragraph (a).
• There are other oddities about these definitions, though. Summary proceedings, for this purpose, are to commence only on the date of the first calling of the case, (which itself is not necessarily an occasion at which the accused is present, and on which it may transpire that the complaint has not even been served) and not at the date of citation, or of the date of the granting of an initiating warrant. Solemn proceedings, however, are capable of commencing at the date of the grant of a petition warrant, which may well be a considerable time before the first appearance of the accused in court ( a petition cannot call in court unless the accused is present).
• Also, the purpose of sub-paragraph (2)(b)(iii) is clear in that it provides for the situation of an accused being indicted who has not previously appeared on petition, which situation is competent, though again it should be noted that the relevant date is the date of service of the indictment, not, as in summary proceedings, the date of the first calling, since an indictment must be served at a date prior to its first calling.
• The other two parts of sub-paragraph (b) have their own curiosities. Sub- paragraph (b)(ii) refers to a solemn proceedings being commenced on the date of "the intimation of a petition". The Crown does not intimate petitions. That expression is not recognisable as a step in solemn procedure.
• A court will see a petition in one of only two contexts. Firstly, where a person is in custody, and the Crown decide to proceed by way of petition, (the first step in that situation of solemn proceedings), the petition is served on the accused in custody and he appears immediately in court in respect of it. Secondly, where the person is not in custody but the Crown has received a report of the commission of an offence by that person thought worthy of the instigation of solemn proceedings, the Crown will prepare the petition and ask the sheriff to grant the warrant which appears printed on the petition. That warrant authorises the arrest of the person, and his being brought to court, and, once he has appeared in court in terms of the petition, it authorises his committal to prison for further examination or until liberated in due course of law. The power both to arrest and commit appear in a petition warrant, though of course the exercise of both is necessary only where the person is not already in custody. Where the person is already in custody, that part of the warrant which authorises his arrest is not then executed.
• Either way, neither of these situations is covered by the situation provided in sub-paragraph (b)(ii).
• And what is the precise meaning of sub-paragraph (b)(i) ? It says "the grant of a warrant to arrest and commit". Is the word "and" truly meant to be conjunctive ? I have just explained that if on a particular date a court granted a petition warrant, that would be the date of the grant of both the warrant to arrest and commit, and proceedings would commence on that date, in terms of this definition. But, if a person is arrested at the time of the alleged commission of an offence and appears immediately from custody, that part of the warrant which has actual effect thereafter is the warrant to commit. The accused has not been arrested on the basis of any order of court, and so on a first appearance from custody, arguably that constitutes an occasion on which there has been the grant only of a warrant to commit. Have solemn proceedings commenced on that date, in terms of this definition ? Presumably, the grant of a warrant to commit occurs first, and therefore they have, but perhaps the provision should say "the grant of a warrant to arrest or to commit...".
• And in any event, if the date of the granting of a petition warrant to arrest is to be taken as the date on which solemn proceedings are to be commenced, that will certainly pre-date the date of the actual first appearance, which once again means that solemn proceedings, in terms of this definition, commence on dates which pre-date a calling in court, but summary proceedings commence only on their first calling in court (the expression "first calling" which appears in paragraph 2(a) has no meaning unless you read in the words "in court" after them).
• Why this essential difference ? It is not an academic point. Since the "new" rules introduced by the Order apply to proceedings commenced on or after a specified date, it is critical to know when proceedings have been commenced. And if it is correct that under the "new" rules, a person has open to him the opportunity to establish a defence on a basis which may lead to his acquittal but which may not have done so under the "old" rules, the point is anything but academic; it is practical and significant, assuming the new rules do permit the establishment of the point raised but by a standard which is not as stringent as was originally the case.
• I may also say that the Crown indicated that if I ruled against them, they had no instructions to seek leave to appeal, but the defence did want to do that if I ruled against them.

The Position in This Case

• As I have already indicated, I have come to the view that the draftsman of this Order should not be taken to have completely overlooked the possibility that an accused may appear on a charge by way of petition and then ultimately proceed to trial on the same charge by way of summary complaint. I believe that all I require to do in this case is set out certain facts and then apply the appropriate part of sub-paragraph 2, namely part (a), relating to summary proceedings, or part (b) relating to solemn proceedings.
• The date of the alleged offences pre-dates 25 June 2012. That is irrelevant (paragraph 3 supra). The accused appeared in court on these charges on about 11 June 2012, by way of a petition. That date pre-dates 25 June 2012. Solemn proceedings commenced then but have not continued. They have been discontinued. There is no warrant still in existence from a court exercising solemn jurisdiction which authorises the continued detention of the accused. The only document presently before the court on which the court is entitled to proceed is a summary complaint (it should be noted that any original petition and accompanying minutes do not form part of the process of a summary complaint - unless I had heard this argument, I would not have known that the accused had ever appeared on petition).
• What is before the court is therefore the official document which is the foundation for summary proceedings, namely a summary complaint. What the court is therefore dealing with is "summary proceedings". There are no solemn proceedings before the court, or any document constituting them.
• In terms of paragraph 2(2)(a) of the Order, criminal proceedings are commenced in summary proceedings on the date of the first calling of the case. That was on the 20^th September 2012. On that date, the 40 day custody time limit began to run. That date post-dates the 25^th June 2012. That means that the effect of the Commencement Order is that the provisions of SS168-171 CJLSA do apply to this case, and that the appropriate provisions of the CPSA are now S51A, in terms of which it is open to the accused to advance a special defence that at the time of the conduct he was unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct, and S53F which provides that a person is unfit for trial if it is established on a balance of probabilities that he is incapable, by reason of a mental or physical condition, of participating effectively in a trial. Interestingly, that section is silent as to the onus of proof in that situation, unlike S51A(4).
• That may well therefore mean that a person can be acquitted of charges on a basis of lack of criminal responsibility at the time of the conduct short of what might have had to be established in order to support a defence of insanity at the time of the act.

Action Required by Authorities

• The Scottish Government took a long time to produce forms which can be completed by reporting psychiatrists and which contain the pro-forma wording appropriate to all of the individual orders which may be granted by courts authorising detention, removal to an appropriate hospital and the giving of treatment. Prior to that, there was endless and constant confusion on the part of reporting doctors in failing to cover some essential requirement of a particular order, all of which led to delay It looks as if these forms are going to have to re-drafted, again, to cover the situation provided under the new provisions.
• As an example, in the present case, there are two reports before the court. Both describe the accused as having a psychotic illness which existed at the time of the alleged offences. Both continue to certify him as having a mental disorder in the form of mental illness, and that he still requires to be treated under the terms of a Treatment Order. One of them makes no comment on whether he is currently fit to stand trial, and the other says that he is fit to do so, albeit that one contains, in pro-forma form, and dated after 25 June 2012, the question "Is there evidence of insanity at the time of the alleged offence ?", getting the answer "There is evidence the patient was unwell but not sufficient to give rise to plea of insanity bar of trial [sic]", which question shows that the forms persist in asking questions about "insanity", a term abolished by the CJLSA in 2010 and which answer, from an approved psychiatrist illustrates perfectly the confusion in the mind of the psychiatrist between the two situations formerly known as "insanity at the time" and "insanity in bar of trial" and now as lack of criminal responsibility at the time and unfitness for trial respectively, and actually does not answer the first point, albeit it intriguingly raises the possibility of lack of responsibility short of what was required formerly to satisfy the test of insanity. The next pro forma question is: "Is the accused sane and fit to plead or insane in bar of trial ?" to which the answer is given "He is both sane and fit to plead". Again, the terminology of being "sane and fit to plead" no longer has a place in the test, either for the psychiatrist or the court.
• I repeat that until these forms are re-drafted, courts will continue to be presented with opinions based on terminology which has been abolished and replaced. Confusion will continue to reign.

Consequences of the Upholding of the Special Defence Provided by S51A

• I mentioned earlier that, unusually, the upholding of the special defence which I have held is open to the accused here does not necessarily end these proceedings. That is because of the terms of schedule 7 paragraphs 38 and 39 of the CJLSA, which provisions are also brought into force by virtue of this Commencement Order. They amend S57 CPSA, which formerly was prefaced with the words "Disposal in case of insanity" and had a head note saying "Disposal of case where accused found to be insane", but now is prefaced with the words "Disposal where accused found not criminally responsible" and the head note reads "Disposal of case where accused found not criminally responsible or unfit for trial". The provisions of S57 now apply where a person is acquitted by reason of the special defence set out in S51A, and provides that all of the "psychiatric" disposals set out there now apply both to persons acquitted by reason of the new special defence, and to those who have been found unfit for trial and in respect of whom an examination of facts has taken place under the procedure of SS54 and 55.

Possible Combinations

• A person may therefore take a plea of lack of criminal responsibility at the time of the conduct. That is a special defence and he must establish that on the balance of probabilities. By the time of the trial, he may now be fit for trial. In that case, there takes place a trial, in traditional form, with the calling of psychiatric evidence in addition to evidence on the merits of the charges. It is open to acquit the accused on the merits; that would be the end of the matter. If the charges, or at least some of them, are proved on the merits, it is open to acquit the accused by upholding the special defence. In that case, the court will dispose of the case by means of one of the (broadly speaking psychiatric) disposals set out in S57 (which includes making no order at all (S57(2)(e)).
• If the person takes the plea of unfitness for trial, and as I have pointed out, it is unclear on whom any onus of establishing that lies, then there will not be a trial, but an examination of facts under SS54 and 55. Again, if the court acquits on the merits, that is an end of the matter, but if the court finds beyond reasonable doubt that the accused did the acts constituting any of the charges, it makes a finding to that effect and again disposes of the case by means of one of the disposals contained in S57.