APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lady Smith Lord Drummond Young	[2013] HCJAC 37 XJ861/12   OPINION OF THE COURT   delivered by LADY PATON   in   BILL OF SUSPENSION   by   CHARLES SWAN   Complainer;   against   PROCURATOR FISCAL, FALKIRK   Respondent:   _____________

 

Complainer: S Collins, Solicitor Advocate; Paterson Bell, Edinburgh (for Finlaysons Solicitors, Kilwinning)

Respondent: Niven Smith AD; Crown Agent

 

19 February 2013
[1] In this Bill of Suspension, the complainer pled guilty on 18 April 2012 to four charges concerning a pet shop and various contraventions of the Animal Health and Welfare (Scotland) Act 2006. The summary complaint libelled 5 August 2011 as the final date of the various offences. Thus in terms of section 136 of the Criminal Procedure (Scotland) Act 1995, proceedings should have commenced within 6 months of 5 August 2011, that is by 5 February 2012. In fact what occurred was as follows.

[2] On 24 January 2012, a diet was assigned in terms of section 139 of the 1995 Act namely, 20 February 2012. A copy of the complaint was sent to the police for service on the complainer. That copy was unfortunately lost and was not served. When the Crown learned of this, a fresh copy of the complaint was obtained and was served on the complainer on 20 February 2012, i.e. on the date of the diet itself (but prior to the calling of the diet). As a result, there had not been the 48 hour induciae required by section 140(2) of the 1995 Act. Not surprisingly, neither the complainer nor a solicitor acting on his behalf was at the diet.

[3] The fiscal moved Sheriff Mundy to exercise his discretion in terms of section 300A to grant relief from the failure to comply with section 140(2). The sheriff excused the failure to serve the complaint on an induciae of 48 hours prior to the assigned diet, being satisfied that the circumstances disclosed an excusable reason for the failure, and that it would be in the interests of justice to excuse it. He then continued the case without plea. After further procedure the complainer pled guilty to all four charges. However, he now seeks to have the convictions suspended on the ground that he was given no opportunity to be heard on 20 February 2012 in terms of section 300A (3).

[4] In considering this case, the factors to which we gave weight are the following. First, there was a procedural route which the fiscal could have adopted, namely section 140(2). That route did not require an opportunity to be given to the complainer to be heard. Secondly, we consider that the sheriff would have granted any application under section 140(2), bearing in mind his response to the application under section 300A, and also the lack of any prejudice to the complainer. Thirdly, the complainer in this case had legal advice throughout and, importantly, time for consideration of his circumstances in the light of legal advice. Fourthly, the complainer agreed to tender pleas, and gained considerable benefits therefrom. For example, pleas of not guilty were accepted in respect of another complaint, and a plea of not guilty accepted on behalf of his daughter. It may be also that the complainer's plea may have an effect in a discounting procedure when sentencing comes to be considered. Finally, today we are not aware of any prejudice suffered by the complainer as a result of the irregularity which occurred.

[5] In all the circumstances, we are minded to excuse the procedural irregularity which occurred in Sheriff Mundy's court on 20 February 2012, namely, determining the section 300A application without giving the complainer the opportunity to be heard in terms of section 300A(3). We excuse that irregularity under and in terms of section 300A(2). Accordingly the appeal is refused.

 

 

 

 

DAW