GEORGE BRYCELAND+ROSEMARY LYNCH v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice General Lord Kirkwood Lord McCluskey | Appeal No: Misc. 276/02 Misc. 275/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in PETITIONS to the nobile officium of the High Court of Justiciary of (FIRST) GEORGE MACKIE THOMPSON BRYCELAND, also known as GEORGE NELSON; and (SECOND) ROSEMARY BURNS LYNCH Petitioners; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Petitioners: N. Shaffer, Q.C., Crowe; Bruce Short (Bryceland):
W. Lindhorst, Walker; Muir Myles Laverty (Lynch)
Respondent: Armstong, Q.C., A.D.; Crown Agent
16 October 2002
[1]Each of the petitioners seeks the recall by this court of an interlocutor pronounced by Lady Paton on 8 October 2002 in so far as it permitted the substitution for the record copy indictment in proceedings against them of a certified copy of that indictment, where the record copy had been destroyed in the circumstances aftermentioned.
[2]The issue which the petitioners take with the decision of Lady Paton arises in the following circumstances. On 11 December 2001 the petitioners appeared on petition at the Sheriff Court in Dundee facing a number of charges of contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. On 19 December 2001 they again appeared in the Sheriff Court and were fully committed. The first petitioner was refused bail. He has remained in custody since that time. The 110 day period has been extended under section 65(7) of the Criminal Procedure (Scotland) Act 1995 on a number of occasions. The second petitioner was allowed bail.
[3]Thereafter, on 17 July 2002, the petitioners, along with a co-accused, Steven Millar, went on trial in the High Court on indictment. However, on 18 July the trial diet was deserted as Millar had failed to attend court. Thereafter an indictment containing charges only against the petitioners for a trial in the High Court at Glasgow in the sitting commencing on 7 September was prepared. This indictment, to which we will refer as the "Glasgow indictment", was served on the first petitioner. However, it was not effectually served on the second petitioner since she was no longer at her original domicile of citation. Her application for alteration of that to a new domicile had been granted in the Sheriff Court in early August, but this information had not been passed to the High Court unit of the Crown Office.
[4]On 29 August a further indictment, to which we will refer as the "Edinburgh indictment", was served on the petitioners for their trial at a sitting of the High Court in Edinburgh commencing on 30 September. The charges in this indictment were in the same terms as those in the Glasgow indictment. On 11 September the Crown applied for a further extension of the 110 day period so as to enable them to proceed against both of the petitioners at the same time. This application was refused, apparently on the ground that the failure to make effectual service on the second petitioner had been due to the fault of the Crown. On 13 September the Glasgow indictment called in the High Court in Glasgow against the first petitioner. The trial was adjourned and the Crown was granted an extension of the 110 day period to 20 September. On 17 September the Glasgow indictment again called, and trial was adjourned to the sitting in Edinburgh commencing on 30 September. The 110 day period was extended to 4 October.
[5]It appears that in the following week, after the Glasgow record copy indictment and its process reached Justiciary Office, a member of its staff noticed that there were then two indictments for proceedings against the petitioners at the sitting commencing on 30 September. The view was formed that one of them had been superseded or that there had been a duplication. A member of the staff made a telephone call to an administrator in the Crown Office, enquiring whether the "duplicate" should be sent to the Crown Office. The Edinburgh record copy indictment was thereafter taken by messenger to the Crown Office where it was destroyed. We understand that prior to its destruction the papers bore a label of unknown origin stating "duplicate copy not required".
[6]On 4 October the case was called in the High Court at Edinburgh. The 110 day period in respect of the first petitioner was extended to 7 October. The Advocate depute, after making some enquiries, informed us that on that occasion the clerk had before him or her the Glasgow record copy indictment. It appears that none of the parties were aware at that time that the Edinburgh record copy indictment had been destroyed.
[7]On 7 October, shortly before the commencement of the trial against both petitioners, on the basis of the Edinburgh indictment, defence counsel and the Advocate depute became aware that the Edinburgh record copy indictment had been destroyed by a member of Crown Office staff. The case was not called, but the 110 day period was extended to 8 October to enable the Crown to consider what steps should be taken. On that day the Advocate depute presented to Lady Paton a petition to the nobile officium at the instance of the Lord Advocate in which she was invited
"to hold that the indictment having been lawfully served upon both accused, and the principal indictment having been returned by your Lordship's clerk to the petitioner and having since been destroyed, a true copy of that principal indictment duly certified by or on behalf of the petitioner be substituted and by these means the trial of both accused to proceed in the current sitting before the High Court of Justiciary at Edinburgh".
Having heard argument Lady Paton granted the prayer of the petition. When the diet was called later in that day counsel for the second petitioner indicated that her ruling would be challenged. Counsel for the first petitioner's position was at that stage undetermined. In these circumstances the trial was adjourned to the sitting in Edinburgh commencing on 14 October, and the 110 day period was further extended to 18 October.
[8]In each of the present petitions the petitioner craves the court to recall the interlocutor of Lady Paton. The crave of the petition for the first petitioner goes further and seeks a declaration by this court that in so far as the record copy indictment was not before the court, it having been removed from the custody of the clerk of court and destroyed by a representative of the prosecutor, the diet could not call and accordingly, no further proceedings could take place on the Edinburgh indictment.
[9]Before coming to the main arguments which were presented in this court we will deal with two preliminary matters. The first was whether, by the time that the respondent's petition came before Lady Paton, further proceedings against the petitioners had become incompetent. Mr. Shaffer, who appeared for the first petitioner emphasised, by reference to a number of provisions in the 1995 Act, that it was of critical importance that the record copy indictment remained in the hands of the clerk of court after it was lodged there in accordance with section 66(5) of the Act. He stressed its importance as a yardstick with which other copies of the indictment could be compared, and as an official record in the hands of the court of the terms of the charges faced by the accused. These propositions are uncontroversial. Further, all parties appeared to be in agreement that for a trial to commence or proceed in the absence of the record copy indictment would involve a nullity. However, this does not appear to have happened in the present case since none of the proceedings on 4, 7 or 8 October prior to the granting by Lady Paton of the respondent's petition involved the calling of the diet for trial of the petitioners. In these circumstances we are satisfied that there is no question of the proceedings against them having become incompetent before she gave her decision.
[10]The second matter is the question whether it is open to a single judge to exercise the nobile officium for the purpose sought by the Crown. Mr. Shaffer made no submission on this point, whereas Mr. Lindhorst for the second petitioner reserved his position. All parties proceeded on the basis that the proceedings before us should be regarded as an appeal against the decision of Lady Paton (cf. Express Newspapers plc, Petitioners 1999 S.C.C.R. 262). In these circumstances this is not an issue which we are required to consider.
[11]We come then to the question whether Lady Paton was wrong in considering that this is a case in which it is appropriate that the nobile officium should be exercised for the purpose sought by the Crown. The general requirements for the exercise of this extraordinary remedy are well settled. In Anderson v. H.M. Advocate 1974 S.L.T. 239 Lord Justice General Emslie, delivering the Opinion of the Court, stated at page 240, after citing a number of authorities:
"These classical descriptions of the power have been accepted by this court as authoritative in all cases in which the scope of its power under the nobile officium has been called in question, and as the cases show, have been interpreted to mean that the power will only be exercised where the circumstances are extraordinary or unforeseen, and where no other remedy or procedure is provided by the law".
Later, on the same page, he went on to say:
"To complete this review of the nature, scope and limits of the power we have only to add that the nobile officium of this court, and for that matter of the Court of Session, may never be invoked when to do so would conflict with statutory intention, express or clearly implied".
We would add that it is plain that, even if a case can be brought within the general requirements to which we have referred, it still requires to be shown that there is a compelling case for the exercise of the power, consistent with considerations of what is fair and just in the circumstances.
[12]Counsel for the petitioners submitted that the replacement of the missing record copy indictment in this case was inconsistent with the implied intention of the 1995 Act in the provisions to which we have already referred. The record copy indictment was said to be "fundamental". Reference was made to the Opinion of the Court, delivered by Lord Justice General Hope, in Wilson v. Carmichael 1992 S.L.T. 541. In that case it was held that it was incompetent for the proceedings to continue in the absence of the principal complaint in summary proceedings after the accused had pled guilty. At page 543 Lord Justice General Hope said:
"There seems to be no doubt that the statute is deficient in that it makes no provision for what may be done if the principal complaint is lost or for some other reason cannot be produced. If this defect is to be attended to, it will be necessary for detailed consideration to be given to the circumstances in which a certified copy of the complaint may properly be used in place of the principal and what safeguards, if any, are needed to avoid the risk of confusion and prejudice to the accused. All we can do in this case is to apply the statute as we find it. It would not be right for us to sanction the use of copies in circumstances which the statute has not authorised, nor was this what we were invited to do by the Lord Advocate".
It was pointed out by counsel that following upon that case provision had been made by section 157 of the 1995 Act for the use of a certified copy complaint. It was significant that no corresponding provision had been made in regard to proceedings on indictment.
[13]It has, however, to be noted that that case was concerned with a bill of suspension of conviction and sentence, and not with an application for the exercise of the nobile officium. Further, it dealt only with summary proceedings and against the background of the statutory provisions which apply peculiarly to that form of procedure. It does not, in our view, provide authority which has a significant bearing on the petition which was presented to Lady Paton. More importantly, counsel for the petitioners did not assert that in no circumstances would it be apt for the court to exercise its nobile officium for the purpose of replacing a record copy indictment which had been lost. It was accepted that, where the loss had been due to fire or theft by a third party, it might well be open to the court to exercise its inherent power to authorise a replacement. We are in no doubt that this is correct, and our attention was drawn to two recent cases in which the replacement of a missing indictment had been sanctioned by the court, where the record copy indictment had been mislaid by the clerk of court. In our view, while it is one thing to say that a trial should not proceed where the record copy indictment has been lost, it is another thing to say that it may not be replaced before the trial is allowed to proceed. On that point the 1995 Act is simply silent. The Act does not, in our view, rule out such a replacement either expressly or by implication.
[14]We then consider whether the present circumstances qualify as "extraordinary or unforeseen". That expression does not, in our view, refer simply to the question whether the circumstances are unusual, although the loss of a record copy indictment is no doubt a highly unusual event. It also refers to the question whether the situation is one for which no provision is made, or is one which cannot be made good by the taking of any alternative steps, that is to say steps other than by use of the court of its nobile officium.
[15]As we have already observed, the 1995 Act makes no provision for the replacement of a record copy indictment which has been lost. The purpose of the Crown in presenting its petition was to enable the petitioners to be tried together at the sitting of the High Court in Edinburgh which had commenced on 30 September. In the circumstances there was no other means of achieving this unless the missing record copy indictment was replaced. While it is possible to look at matters in that fairly narrow way we would prefer to rest our judgment on a broader view of the circumstances. For the petitioners it was submitted that they could have been re-indicted. However, it is plain that that would have involved more delay in bringing them to trial, with consequent further inconvenience to witnesses. Further, it appears likely that this course of action would have led to the court refusing further extension of the 110 day period. The Advocate depute on his responsibility emphasised that the Crown was anxious to avoid the need to release the first petitioner. This is a factor which we require to take into consideration. Counsel also submitted that the Crown could have proceeded to trial against the first petitioner alone on 7 or 8 October, when the witnesses were present. However, this would have involved further delay and the need for additional proceedings against the second petitioner. Accordingly, when a wider view is taken of the consequences or other action which might have been taken it is clear that there were significant drawbacks in withholding the remedy sought by the Crown, from the point of view of the administration of justice.
[16]We turn then to a number of considerations relating to interests of justice which, it was submitted, Lady Paton had failed to take adequately into account.
[17]Mr. Shaffer argued that it was not appropriate for the nobile officium to be exercised where the prosecutor had deliberately destroyed the record copy indictment. Mr. Lindhorst submitted that the Crown did not come to the court with clean hands. It was not the first time that it had sought the court's indulgence, the previous occasion being when it sought to avoid the consequence of its so-called administrative error which led to the failure to effect service on the second petitioner.
[18]We do not regard these considerations as of any material significance. It is clear that the record copy indictment was destroyed by an unqualified member of the staff of Crown Office. While the destruction was deliberate, it was not done with the intention of bringing to an end the ability of the Crown to go to trial on the indictment, but on the view that what was destroyed was merely superfluous paperwork. It would be correct to regard this, as Lady Paton did, as a matter of inadvertence rather than one of fault.
[19]Mr. Lindhorst submitted that it was important that it should be borne in mind that the second petitioner was not in the same position as that of the first. The evidence against her was not as strong as that against the first petitioner. She had never sought or been granted any adjournment. She had attended court on the numerous occasions on which her appearance had been required. No delay was due to her. We appreciate the significance of these points, but they hardly bear on the question which Lady Paton had to resolve. As she pointed out in her opinion, it was in the interests of justice that the trial diet, to which all the witnesses had been cited and in relation to which considerable expense had presumably already been incurred, should be preserved, particularly bearing in mind the procedural history of the case, with various adjournments at the instance of the first petitioner and the Crown, and also the fact that both the defence and the Crown were prepared and ready to go to trial. Giving effect to the petition by the Crown did not involve any delay to the proceedings, let alone any prejudice to the interests of either petitioner.
[20]It was also submitted on behalf of both petitioners that it had been inappropriate for Lady Paton to grant the prayer of the petition since it could not be taken that what was certified was indeed a true copy of the record copy indictment which had been in the hands of the clerk of court. It was pointed out by counsel that the copy had been certified by an Advocate depute other than the Advocate depute who had signed the original indictment, in accordance with the requirement of section 64(3) of the 1995 Act. In our view this objection is wholly without merit. We have no doubt that the record copy of the indictment, along with the service copy indictments and any further copies of the indictment which were required, would have been printed from a single source in the memory of a computer, in accordance with modern practice. All that the certifier, in this case the Advocate depute who appeared before Lady Paton and before us, required to do was to certify a further copy which had been printed from the same source. If there were any question of the substitute being other than a true copy of the record copy indictment this could readily have been detected by those representing the petitioners comparing the substitute with the service copy indictments in their hands.
[21]In the result Lady Paton was faced with a situation in which the record copy indictment had been destroyed, not as a result of a conscious attempt to abandon reliance on the Edinburgh indictment but through inadvertence on the part of unqualified staff. The substitution of a fresh copy indictment would cause no delay or prejudice to either petitioner. While there were alternative courses of action which might have been pursued by the Crown, each of them was attended with disadvantages in the administration of justice. For these reasons we are satisfied that she was correct in recognising this as a case in which it is both competent and appropriate for the nobile officium to be exercised for the purpose of enabling a substitute indictment to be put in place of the original record copy indictment.
[22]We accordingly refuse the prayers of the petitions.