Lord Justice Clerk

For first appellant: Shead, Miss Mitchell; Drummond Miller

For second appellant: Miss Scott QC, Borthwick; Balfour & Manson

For the Crown: Murphy QC, AD; Crown Agent

14 February 2006

Introduction

[1] On 8 November 2004 at Greenock Sheriff Court the appellants pled guilty to the following charges, as amended:

"On 6 October 2002 at Prospecthill Place, Roxburgh Street, and elsewhere in Greenock you JOHN ROBERT BEATON, JOHN GAMBLE and KENNETH HENDRY did with [sic] acting along with others meantime to the Prosecutor unknown, assault Scott Harper ... pursue him and did strike him on the head and body with knives and a golf club or similar instruments to his severe injury and permanent disfigurement

you JOHN ROBERT BEATON did commit this offence while on bail, having been granted bail on 20 September 2002 and 30 September 2002 both at Greenock Sheriff Court

you KENNETH HENDRY did commit this offence while on bail, having been granted bail on 4 March 2002 at Greenock Sheriff Court."

On 1 December 2004 the first appellant was sentenced to two years detention to run consecutively after a sentence of eight years detention that he was then serving. The second appellant was sentenced to three years and three months detention.

[2] Both appellants were granted leave to appeal against sentence on the question whether the sheriff had made an appropriate discount in respect of their pleas.

[3] On 30 March 2005 the appeals came out before a court of two judges. When the appeals were called, counsel for the appellants attempted to abandon them. It appears that they had been instructed to do so by the appellants at a consultation shortly before the hearing. The court remitted the appeals to a court of three judges "for consideration of the question of leave to abandon."

[4] On 18 October 2005 the court of three judges, having reviewed the law on the question, remitted the appeals to a bench of five judges for a decision on the question whether an appellant has the right to abandon his appeal when the case is called, but before any argument is heard. The answer to the question matters to the appellants because they are apprehensive that these sentences might be increased.

Statutory provisions

[5] This court has the power in an appeal against sentence to quash the sentence and substitute a greater sentence (Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s 118(4)(b)). That provision goes back to the foundation of the appeal court (Criminal Appeal (Scotland) Act 1926).

[6] There was a time in the professional experience of each of us when that power was regularly exercised, often in the case of party appellants. But two reforms have had a significant effect on modern practice. The first is the introduction in the 1995 Act of the rule that an appeal may be allowed to proceed only if the court grants leave on the basis that it is arguable (1995 Act, ss 106(1), 107(1)). The second is the conferment on the Crown of the right to appeal against a sentence on the ground that it is unduly lenient (1995 Act, s 108). In consequence of these reforms, the power of the court to increase a sentence ex proprio motu is now rarely exercised.

[7] Section 116 of the 1995 Act provides inter alia as follows:

"(1) An appellant may abandon his appeal by lodging with the Clerk of Justiciary a notice of abandonment in as nearly as may be the form prescribed by Act of Adjournal; and on such notice being lodged the appeal shall be deemed to have been dismissed by the court."

The Act of Adjournal (Criminal Procedure Rules) 1996 (SI No 513) provides inter alia as follows:

"15.6 A notice of abandonment under section 116(1) of the Act of 1995 (abandonment of appeal) shall be in Form 15.6."

The earlier versions of section 116 provided that the appellant might abandon his appeal "at any time." The omission of these words from section 116(1) is not material. There is no time limit on an abandonment. But despite the breadth of section 116(1) and its predecessors, the court has recognised that there is a point at which an appellant is no longer free to abandon at his own option. The case law suggests two views as to when that point is reached.

The case law

[8] In West v HM Adv (1955 SLT 425) counsel for the appellant presented his submissions against a sentence of imprisonment and moved the court to substitute a probation order. The court declined to pronounce that order and continued the appeal for a report on the appellant's suitability for a sentence of preventive detention. The report favoured that sentence. The appellant thereupon craved leave to abandon. The court refused leave on the view that the appellant had the right to abandon only up to the point when the hearing began and counsel addressed the court. After that point, the dismissal of the appeal was in the discretion of the court. The court expressed the principle in the following way:

"It would be a denial of justice to permit an accused to lodge an application for leave to appeal against sentence, to argue his appeal in full and when he realises that he will or may very probably fail, then to permit him to withdraw his appeal and take refuge in what the court may well consider an inappropriate sentence. Accused persons who choose to exercise their rights to appeal under the provisions of the 1926 Act must realise that though they may succeed in securing a reduction of sentence they also run the risk of a long sentence being imposed" (ibid, Lord Justice General Clyde, at p 426).

Although in that case the court had heard the submission for the appellant, it referred with approval to the decision of the Court of Criminal Appeal in R v Gibbon ((1946) 31 Cr App R 143). In that case, under similar English legislation, the appellant was entitled at any time to abandon by lodging a notice of abandonment. When the case was called, counsel at once abandoned the appeal. The court held that he was entitled to do so at that stage and that it would be unduly severe and technical to insist that he gave notice in writing. Having described the circumstances, Goddard LCJ said:

"In those circumstances, as [counsel for the appellant] told us the moment when the case was called on that he had abandoned his appeal against sentence, we think that he had a right to do so, and, therefore, the sentence cannot be increased by this Court. If it had not been for that, and if he persisted in his appeal, the sentence certainly would have been increased by this Court" (at p 145).

[9] The principle that an appellant was entitled to abandon at any time up to the point when his argument was tendered to the court applied in Scotland until Ferguson v HM Adv (1980 JC 27). In that case the appellant instructed the abandonment on the morning of the hearing. When the case was called, and before he had advanced any argument on the merits, counsel moved for leave to abandon. The court refused leave and increased the sentence. The appellant petitioned the nobile officium on the ground that the substituted sentence was incompetent. The court held that the exercise of the nobile officium was not appropriate; but it also expressed the view that the right to abandon was lost once the case had been called. Thereafter, it was in the discretion of the court whether or not to grant leave. Lord Justice Clerk Wheatley expressed the ratio decidendi as follows:

"Once the case has called, the Court becomes master of the procedure. If any motion is made to the Court thereafter it is a matter for the discretion of the Court whether it should be granted or refused, unless there is statutory authority governing the matter. There is no statutory authority governing the situation here. In our view our Scottish procedure does not give an absolute right to an applicant or an appellant to withdraw an Application or an Appeal after the case has been called and is before the Court provided the motion is made before the argument in support of the Application or Appeal has started (at p 30) ...

As previously indicated we consider that an abandonment which carries an automatic dismissal of an Application or an Appeal can only be achieved if the statutory procedure of section 244 is followed. If it is not, and the Application or Appeal is before the Court, as it is when the case is called, the applicant or appellant has no right under statute or at common law to abandon the Application or Appeal except with the leave of the Court" (at p 31).

The court declined to follow R v Gibbon (supra), in which the circumstances were identical, and distinguished West v HM Adv (supra) on the basis that a full argument had been submitted in that case before the abandonment was attempted.

Submissions for the parties

[10] Counsel for the appellants submitted that Ferguson v HM Adv (supra) had no basis in authority. If it was correctly decided, counsel could be required to proceed with an appeal that in his judgment could not responsibly be insisted in, and to do so contrary to his instructions. There would be no such difficulty if, in accordance with the view taken in West v HM Adv (supra), a party could abandon at any time before his submissions began.

[11] The advocate depute submitted that the rule stated in West v HM Adv (supra) was to be preferred. There could be many reasons why advice was tendered to an appellant at a late stage. If an appellant was granted leave to appeal but was advised at a late stage that the appeal had no realistic prospects of success, it would be unfortunate if the appeal could not be abandoned without leave merely because the case had been called. The practical effects of Ferguson v HM Adv (supra) in relation to counsel's presentation of such an appeal should be avoided. If an appeal was abandoned before the appellant was heard on the merits, it could not be said in any meaningful sense that the appeal had begun.

Decision

[12] In our opinion Ferguson v HM Adv (supra) was wrongly decided and should be overruled. In that case, the Lord Justice Clerk stated it to be the law that an appeal could not be abandoned without leave after it had been called. There was no trace of such a rule in the practice manuals and no authority was cited by the court in support of it. But there were dicta to the contrary effect in West v HM Adv (supra). The fact that those dicta were obiter does not, in our view, deprive them of their cogency.

[13] In this case we are not constrained by prior authority and we have the opportunity to consider the merits of these competing views. The obvious starting point is to consider what mischief the court is seeking to avoid. While the power to refuse leave to abandon may be useful in an exceptional case where an appellant abuses the procedure of the court (eg R v De Courcy (1964) 49 Cr App R 329), the undoubted purpose of it is to prevent an appellant from presenting a speculative appeal against a sentence and then abandoning it when the risk emerges that the sentence may be increased. To serve that purpose, it would be sufficient if the right to abandon without leave were lost at the point at which submissions in support of it began.

[14] On the other hand, if an appeal could not be abandoned without leave after the case had been called, the refusal of leave before a word had been said on the merits could be construed, however mistakenly, as an indication that the court had reached a view as to the appropriate sentence. In R v Gibbon (supra, Goddard LCJ at p 145) the court did exactly that. In our view, a consequence of that kind is to be avoided.

[15] We are therefore satisfied that the principle set out in West v HM Adv achieves a proper and useful purpose and is sound law.

[16] We should mention two other practical points. The first relates to legal aid. In the course of the discussion counsel for the appellants suggested that the legal aid fee structure discouraged consultations with a view to the early abandonment of appeals, with the result that the first opportunity to abandon often came on the day. That is a side issue that is not for us to pursue.

[17] The second point relates to the remarks of the Lord Justice Clerk in Ferguson v HM Adv (supra, at pp 30-31) in which he stressed that for an effective abandonment written notice was essential. It is certainly the case that in current practice, many appeals against sentence are abandoned at the bar. In such cases, the general practice of the court is to allow counsel to abandon orally. Notwithstanding section 116 of the 1995 Act (supra), we consider, largely for the reasons given in R v Gibbon (supra), that that practice is not objectionable.

Disposal

[18] Since the appellants sought to abandon the appeals as soon as they were called, we consider that their abandonments were valid and effective. Therefore, in terms of section 116(1) (supra), the appeals shall be deemed to have been dismissed by the court.