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JAMES BAIRD CROMBIE v. PROCURATOR FISCAL, KIRKCALDY


Submitted: 08 March 2001

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Prosser

Lord Bonomy

Lord Cowie

Appeal No: 2472/00

OPINION OF THE COURT

delivered by LORD PROSSER

in

BILL OF SUSPENSION

by

JAMES BAIRD CROMBIE

Complainer;

against

PROCURATOR FISCAL, Kirkcaldy

Respondent:

_______

Complainer: J. McInnes, Solicitor Advocate; Gilfedder McInnes

Doherty, Q.C., A.D.; Crown Agent

8 March 2001

[1]On 31 October 1991, in the Sheriff Court at Kirkcaldy, the complainer pled guilty as libelled to the sole charge in a complaint against him at the instance of Alan John Dryden, surveyor of Customs & Excise. The charge was in the following terms:

"Between 1 October 1987 to 24 November 1990, both dates inclusive, at the shop known as 'Bet-A-Bet', 32 Auchterderran Road, Lochgelly, at the house occupied by you at 11 Timmons Park, Lochgelly, and elsewhere in Fife were knowingly concerned in the fraudulent evasion and in the taking of steps with a view to the fraudulent evasion of betting duty amount in cumulo to £32,158.46 of money

CONTRARY to Schedule 1, paragraph 13(3)(b) to the Betting and Gaming Duties Act 1981".

[2]The plea of guilty was tendered by written intimation, by means of a Reply Form, which is dated 17 October 1991, and is signed by the complainer. The court adjourned the diet for personal appearance and to enable the accused to seek legal advice, until 21 November 1991. The complainer was ordained then to appear. On 21 November the complainer was present, and the court adjourned the diet, for the purpose of obtaining a social enquiry report, until 12 December 1991. On 12 December 1991 the complainer was again present, and was on this occasion represented by a solicitor. The court deferred sentence until 23 January 1992, for a financial report to be obtained and for the defence agent to obtain a psychiatric report if required. On 23 January 1992, the complainer was again present, and represented by a different solicitor from the same firm. A motion to have the plea of guilty previously tendered to be withdrawn was refused, and sentence was deferred, to obtain a financial report, until 23 April 1992. After a further deferment on 23 April, the complainer appeared again on 30 April, with the same solicitor, and was fined £500, payment to be by instalments of £10 per fortnight commencing on 14 May 1992. It appears that the complainer was advised by the solicitors who represented him that he had no grounds for appeal, and he did not appeal.

[3]The background to the present Bill of Suspension is an application by the complainer to the Scottish Criminal Cases Review Commission. The Commission referred the case to the High Court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995, and in terms of that section, the case accordingly requires to be heard and determined as if it were an appeal. On 28 September 2000, the court ordained the complainer to lodge a Bill of Suspension. The Bill was duly lodged, and now provides the context and focus for the contentions which the complainer wishes to advance.

[4]The grounds upon which the Commission referred the case are those set out in section 194C of the 1995 Act - that they believe (a) that a miscarriage of justice may have occurred, and (b) that it is in the interests of justice that a reference should be made. As regards (b), we do not think that it is necessary or indeed appropriate for us to make any comment, the matter being one for the Commission and not for us. Moreover, the reference having been made, that aspect of matters is now no longer live. As regards (a), the Commission's belief that a miscarriage of justice might have occurred was of course derived from and based upon material which they considered. Again, we do not think that it is necessary, or indeed appropriate, for us to consider that material, or the reasons for which the Commission came to believe, upon the basis of that material, that a miscarriage of justice might have occurred. The matter having been referred to the High Court, the court must of course consider whether a miscarriage of justice has in fact occurred. But it is perhaps worth emphasising not only that that question is a quite different question from that which the Commission required to resolve when considering whether the ground for reference set out at section 194C(a) was established but also that the Commission abstained from considering the merits of any possible defence - and thus whether there was any miscarriage of justice in the eventual outcome. Counsel for the complainer did not suggest that it would be appropriate for this court, in fulfilling its functions, to proceed upon the basis of what the Commission say, either as to the material which they considered, or as to the conclusions which they reached. The Commission have of course given us a statement of their reasons for making the reference, as required by section 194D(4)(a); and the terms of that statement are of course part of the material available to the complainer as a basis for formulating the Bill of Suspension. But it is the Bill, rather than the statement or any other material, which we require to consider.

[5]Before we turn to the Bill, and the submissions advanced on behalf of the complainer, we think it useful and legitimate, without going back to the grounds for the reference, to note certain passages contained in the Commission's statement of reasons. They identify the focus of their consideration as being the events surrounding the complainer's first appearance in court with legal representation, on 12 December 1991. In particular, they say that they concentrated upon the allegation that his solicitor failed in his professional duty to act on his client's instructions, by ignoring the complainer's stated position that he did not accept "the whole amount" of the betting tax referred to in the libel. And while the language varies, they describe or refer to the complainer's position as being that he "disputed" the amount, or that he "felt" that the figures would show that the amount he owed was considerably less than £32,000, or that he disputed the charge to some extent, or the like. They say that the complainer admitted his guilt in respect of the fraud, but took issue with what they call the "ancillary" matter of quantum. While they say that they were not immediately impressed by the complainer's reliability or credibility, and add that he has "recanted" on remarks alleged to have been made by him to a number of people, it does not appear that the material before them contained any indication that the complainer disputed or had ever disputed his guilt of the offence, although disputing or at least not accepting that the amount involved was or could be as great as the sum stated in the charge. The suggestion that on 12 December 1991 the solicitor failed in his professional duty, and ought to have sought to withdraw the original plea of not guilty, relates to the complainer's wish to dispute the figure, but not the other substantive elements in the charge.

[6]We turn therefore to the Bill, which seeks suspension of the conviction and sentence. We are further asked to remit the case to the Sheriff Court with instructions to record the plea of not guilty, and to proceed as accords. The plea of guilty is described at the outset of the Bill as "tendered by the complainer by letter without legal advice or representation". But it is to be noted that in the Statement of Facts, the complainer reveals that prior to receipt of the complaint, in approximately May of 1991, he had in fact instructed a solicitor, of the firm already mentioned, to deal with the outstanding Customs & Excise investigation, and had instructed him that he did not accept the full amount of money claimed as owing. While it is not clear how that "full amount" relates to the amount stated in the complaint, it is said that the complainer believed that the solicitor would attend to this matter in conjunction with his accountant. He goes on to say that he had not sought nor obtained "specific" legal advice upon receipt of the complaint. This is not therefore a case of a person who has had no solicitor dealing in any way with the subject-matter of the complaint; and while it is true that the complainer chose personally to plead guilty in writing, and not to be represented either on 31 October or after the continuation to 21 November which he was expressly told was to enable him to seek legal advice, he offers no explanation as to why, having instructed the solicitor in the matter, he did not seek specific advice either when charged with the offence or when the matter was continued. He says that he pled guilty but "appears" to have consistently disputed the amount referred to in the complaint. But he says nothing as to why he thought the figure was wrong or unacceptable and nothing as to what he thought the correct amount would be or might be. He avers that he did not appreciate that the plea of guilty would also imply an acceptance of the full amount; but the fact is that he did not dispute the figure, either when he pled guilty in writing or when he subsequently appeared personally on 21 November.

[7]We mention these averments about the background for two reasons. First, because they provide confirmation in the Bill of what we have already mentioned in relation to the Commission's Statement: the complainer's plea of guilty is not said to have been unwarranted or unintended in any respect other than its implied acceptance of the full amount. This is important because in the course of his submissions, counsel for the complainer, evidently in compliance with instructions from his client, suggested that his client was perhaps not guilty of the offence at all, even in relation to some lesser amount. The Bill affords no basis for such a contention, and we proceed upon the basis that the purpose of seeking to withdraw the plea of guilty would have been solely to enable the complainer to put quantum in issue at trial. Secondly, however, the background of having engaged a solicitor to deal with the Customs & Excise claim, but not having told him of the complaint or sought his advice before pleading guilty, without qualification or reservation, is in our opinion of some materiality in relation to the question of whether withdrawal of the plea would have been allowed, if sought on 12 December.

[8]Before the diet on that date, the complainer avers that he attended the solicitors' office on 27 November, and says that "On that occasion the complainer gave instructions which should have resulted in his solicitor making a motion to the court to withdraw the plea of guilty which had earlier been tendered." This is a hopelessly inspecific averment. He says nothing as to what those instructions were. Assuming that they related to his non-acceptance of the full amount as due, it is to be noted that nothing is said as to whether the solicitor was given, or whether the complainer was aware of, any basis for suggesting what was or might be due, or whether his "non-acceptance" or the instructions reflected anything more substantial than incredulity. (It is worth noting that the sum of £32,158.46 may seem quite substantial, but that the period stated in the charge is one of more than three years, so that the no doubt varying weekly amounts would average less than £200).

[9]Whether the unspecified instructions provided the solicitor with anything which, in accordance with his professional responsibilities, he could have put to the court as justifying a withdrawal of the plea is simply not revealed. We acknowledge the view expressed by the Commission, "that a simple denial of amount of the charge would constitute a defence"; but such a defence would not normally result in an acquittal of the accused, and requires careful scrutiny when suggested as a basis for withdrawing a plea of guilty. In the absence of any indication that the defence were or would be in a position to contradict any Crown evidence, or even to suggest in cross-examination that Crown witnesses were in error, it is not clear to us that there was any sufficient basis for a motion to allow withdrawal of the plea, or for such a motion being granted. We should perhaps mention that the Commission say that the solicitor "expressed the sentiment" that the complainer had no defence to present to the court. If the complainer had given him no material which contradicted the charge, as a basis for cross-examination or defence evidence, that could well be not merely a "sentiment" but a well-founded opinion, which in ordinary language does not appear to us to be contradicted by the universal fact that an accused person can simply deny a charge and put the Crown to proof. Even now, the Bill contains no indication that the complainer had any defence in that sense, and no suggestion that the figure contained in the charge was in fact wrong or even inaccurate. It is merely "not accepted", and is a figure which the complainer would apparently wish to dispute, without having indicated any basis upon which he could do so.

[10]It is from this vague allegation as to his instructions, and their supposed implication, that the complainer's averments in the Bill proceed to narrate that on 12 December he was represented by the solicitor, and to assert that the failure to move the court on that date to allow the plea of guilty to be withdrawn "has materially prejudiced the complainer as it has prevented him from stating his defence to the court." He has accordingly been denied a fair hearing, and this has resulted in a miscarriage of justice.

[11]It is of some interest that in addition to relying upon whatever instructions he gave, the complainer refers also to a social enquiry report which was available on 12 December "from which it was also apparent that a plea of guilty was inappropriate". That report is appended to the Bill in a Schedule. As it is relied upon by the complainer in this way, and as there is no suggestion (despite what appears to have been the position when the Commission considered the matter) that the complainer recants on the remarks made to the social worker or denies having made these admissions, it is appropriate to quote the relevant passage:

"Following the decline in the number of customers over the last two years, he tells me that he did suppress the betting tax figures for approximately 14 months as he was not making any profit at all from his takings. He has vehemently denied that the amount of betting tax avoided is anything like the figure quoted in the complaint.

He has told me that he felt completely unable to deal any further with Customs & Excise Department as he had provided them with all the figures which he felt would show that the amount he owed the Department was considerably less than the £32,000 figure which is now quoted. When faced with the indictment he pled guilty without taking any legal advice."

In the summary which follows this account of the offence, it is said that the complainer "seems genuinely at a loss to know how he has ended up in debt to this extent", and reference is made to his saying that he had recently made payment of £7,500 towards his debt. Reference is also made to his emotional distress having made it difficult for him to deal with the officials in an objective way.

[12]In presenting the Bill, counsel for the complainer acknowledged that it would not be appropriate to proceed upon the basis of the Commission's report. What he sought, putting matters briefly, was that we should initiate a factual enquiry, by way of affidavits and material such as the solicitor's files, in the light of which the solicitor himself would be enabled to state his own position. He relied upon the passage which we have quoted from the social enquiry report as showing that the solicitor, if he had read it, would have said that a not guilty plea was appropriate. But while he stated that his client's position was that he had owed (as opposed to defrauded the Customs & Excise of) some hundreds of pounds, he did not suggest that there was any basis for this figure other than his client's simple assertion. The miscarriage of justice was to be found in the fact that the solicitor on 12 December could and should have sought withdrawal of the guilty plea; that if he had done so then (when the complainer had not previously had representation) the motion would, in accordance with normal practice, have been granted; that the motion for withdrawal when eventually made in January was understandably refused on the basis that it had been adhered to when the complainer was represented in December; and that accordingly the complainer had been denied the opportunity to state his defence. The miscarriage of justice was to be found in that simple fact.

[13]The advocate depute submitted that on the face of the Bill, there was no disclosure of any miscarriage of justice. It might be that the complainer did not appreciate the full extent of the tax which he had evaded. But it was apparent that both at the time of the original events, and at the time when the Bill was drafted, he had accepted not merely that he owed some money, but that he was guilty of the offence. Moreover, the averments in the Bill fell far short of a relevant allegation that the solicitor had failed in his professional duties, or arrogated to himself a decision which was for the complainer. It was not said that he had been expressly instructed to withdraw the plea. There were no averments as to the form which his advice to the complainer had taken, either as to the strength of the prosecution case or as to the apparently total absence of contradictory material, or as to the advisability (given that guilt of the offence was accepted) of pleading guilty rather than disputing the prosecution's figure empty-handed. Even if the complainer had wanted to withdraw his plea, and had provided the solicitor either with specific instructions to that effect or with material showing that it was in his interests to make the attempt, the Bill failed to demonstrate circumstances which would warrant withdrawal being allowed. Furthermore, any difference between the figure stated in the complaint and such reduced figure as might have resulted from trial could not be seen as significant in relation to the question of miscarriage of justice. The figure would not appear in the extract conviction. Given the nature of the offence and the period over which it was carried out, the amount was in any event not crucial. The fundamental fact remained that the complainer had still not shown that he would have had any success in fighting for a lower figure. And the fine imposed was in the event so low that it clearly reflected the bare commission of the offence, rather than the amount specified in the complaint. There was no reason to suppose that any miscarriage of justice had occurred.

[14]The difference between the functions of the Commission and the functions of this court must again be noted. The Commission expressly (and we think surprisingly) say that they did not concern themselves with the merits of the applicant's defence "as now stated by him", but rather with whether there was a miscarriage of justice suffered by him at the time he was before the court for the offence. As we have indicated, we do not think it appropriate for us to consider the basis upon which the Commission held the statutory grounds for referral to have been established. But we think it necessary to make it clear that we cannot and do not associate ourselves with the reasoning which led them to that conclusion, the soundness of which was not the subject-matter of submissions to us. In relation to the question which was before us upon the basis of the Bill, we are satisfied that it contains no relevant averment of a miscarriage of justice having occurred, and it is accordingly inappropriate to carry the matter further by any form of factual investigation. On the question whether a miscarriage of justice occurred at the time when the complainer was before the court, and in particular on 12 December 1991, the averments contained in the Bill are entirely inspecific, and provide no basis for concluding that the solicitor failed in his duties. Plainly he might have or may have failed. But the complainer, in what he says in the Bill, makes no relevant case to the effect that he did.

[15]In any event, however, the question of miscarriage of justice cannot in our opinion be limited to those events, without regard to the question of whether there has been any miscarriage of justice looking at the whole history and outcome of the case. In our opinion there is no basis at all for concluding that in this case justice has miscarried, or that the eventual outcome of the case would have been different in any way, either as a matter of conviction or as matter of sentence, if it had not followed the course which it did follow, or if there had been a trial. If the complainer had been "given his voice", there is no basis for any conclusion as to what, if anything, he could have said, far less that the outcome would have been different. It is for the complainer to satisfy us that there has been a miscarriage of justice. That he has wholly failed to do. We refuse to pass the Bill.