Final is still final

The Famine Song

It was surely inevitable that someone caught singing the notorious “Famine Song” at a football match involving Rangers would end up in a criminal court, and now the first case has worked its way through both trial and appeal courts: Walls v PF Kilmarnock [2009] HCJAC 59 (19 June 2009). There, the accused was convicted on a libel in which it was averred that he did conduct himself in a disorderly manner, shout, swear, sing sectarian songs, shout remarks of a religious and racial nature and commit a breach of the peace. The libel also included two aggravations of religious and racial prejudice.

It is perhaps trite to observe that the essential element of the crime of breach of the peace consists of conduct which is severe enough to cause alarm to ordinary people and threaten serious disturbance to the community; it must be genuinely alarming and disturbing, in its context, to any reasonable person. Indeed, context is all-important, for everyone knows that shouting and singing are normal at a football match. But in Walls the sheriff held that the conduct of the accused went well beyond the limit of acceptable behaviour.

The appeal court agreed, citing four elements: (a) the shouting of religious abuse (“F… the Pope”); (b) the repeated shouting of “Fenian bastards”, words which the court declined to hold as referring to the American brotherhood founded in the 1850s, but rather to persons of Irish ancestry or Roman Catholic faith; (c) the singing of the refrain from the Famine Song, in which those of Irish descent are called on to go home, the court holding that no reasonable comparison could be made to “Flower of Scotland” or “God Save the Queen”; and (d) the fact that the accused repeatedly stood up and refused to desist. All of this proved behaviour was, said the court, quite sufficient to constitute a breach of the peace. Likewise the two aggravations gave the court no difficulty: on the facts, both were clearly proved.

Finality of proceedings

The import of s 124 of the Criminal Procedure (Scotland) Act 1995 ought to be well known: in relation to a criminal appeal arising from solemn proceedings, every interlocutor and sentence of the High Court is final and conclusive and cannot be brought under review by any court, except where the case is referred to the court by the Scottish Criminal Cases Review Commission or where there is an appeal to the Privy Council under the provisions of the Scotland Act 1998. For criminal lawyers of a certain age, “final” has always meant “final”, but it appears from McIntyre v HM Advocate [2009] HCJAC 63 (8 July 2009) that in some quarters the term “finality” has been thought to have a degree of elasticity. Happily, such heresy has now been firmly dispelled.

The appellant had appealed against his conviction on the statutory charge of pursuing a racially aggravated course of conduct. He also appealed against the sentence imposed on this and two other charges of which he was also convicted. His appeal against conviction was heard and refused on 20 April 2005; his appeal against sentence was continued, but when it came before two judges on 29 September 2005, the case came off the rails. Without objection at the time from anyone, the appellant was allowed to lodge (without notice) a further ground of appeal against conviction; this was sent for sifting and leave to appeal was granted. Various procedural hearings were then fixed but did not proceed; but on 8 June 2006 the Crown challenged by letter to the Deputy Principal Clerk of Justiciary the competency of what was happening. Sadly and after further delays, it was not until 6 February 2009 that the court finished hearing argument on the matter.

On all points the Crown was successful. After an extensive review of the statutory provisions governing appeals and the related case law, the court had no doubt that it was quite wrong to suggest (as the appellant had done) that inter alia because there was an outstanding appeal against sentence, the new ground of appeal against conviction could somehow be entertained because s 124(2) had to be interpreted in the light of s 3 of the Human Rights Act 1998 and article 6 of the ECHR relating to overall “fairness”. There was clear authority that an appeal against conviction was a separate proceeding from an appeal against sentence; once an appeal in the former category had been determined, the decision could not be reviewed. The present purported appeal was incompetent; the two judges who allowed receipt of the new ground were not empowered to do so; arguments about waiver and acquiescence foundered because of the grave nature of the defects in the procedure adopted on 29 September 2005; and the court also declined to allow or to refuse a devolution issue minute said to be directed to the acts of the Crown, on the basis that there were no live proceedings to which it could relate.

Sifting reasons

A sharp difference of judicial opinion emerged in Akram v HM Advocate [2009] HCJAC 67 (24 July 2009) as to the adequacy of the reasons given for a decision to refuse leave to appeal at the second sift. The aggrieved appellant lodged a petition to the nobile officium following his conviction on summary complaint on a charge of culpable and reckless conduct, the principal evidence against him consisting of dock identification. He appealed against this conviction by stated case, but at the first sift, leave to appeal was refused because the crucial finding in fact depended on the sheriff’s assessment of credibility and reliability, an issue which was not arguable on appeal.

His agents then lodged an application for a second sift, setting out a number of points which they wished to be taken into account. However the second sift judges refused leave, stating simply and without amplification that they agreed with the views of the first sift judge. In the petition (lodged almost 12 months later) it was averred inter alia that it appeared that the second sift judges had taken no account of the material presented in the agents’ letter; that they had failed to address the question of the propriety of the dock identification; and that the petitioner was entitled under ECHR to a reasoned judgment.

The first question for the appeal court was of course whether the petition was competent. After hearing argument on the merits, Lords Osborne and Clarke thought that the circumstances were extraordinary or unforeseen, rejecting Crown arguments that the petitioner had a remedy through the Scottish Criminal Cases Review Commission and that because no objection to the dock identification had been taken at the trial, the point could not be taken later. The two judges also came to the view that the failure at the second sift to address the points raised for the appellant amounted to a denial of his right to receive adequate reasons for the decision to refuse leave to appeal; accordingly the decision would be set aside and a new sift would be required.

By contrast, Lord Emslie dissented strongly from this conclusion. Assuming that the petition was competent (on which his Lordship expressed no concluded view), this was an entirely unsuitable case for the exercise of the nobile officium. The matters complained of were not extraordinary or unforeseen; it ought to be assumed that the second sift judges (when stating simply that they agreed with the first sift judge) had taken account of the agents’ letter; to hold otherwise would be to run the risk of subverting the statutory sifting process. Further, there had been a failure to identify any material injustice, especially since the dock identification had not been challenged at the trial. Finally, there was no sound basis for the exercise of the equitable jurisdiction, having regard to the unexplained delay in the presentation of the petition.

It will be interesting to see whether the malign consequences of the decision foreseen by Lord Emslie will in fact come to pass. Summary proceedings are of course supposed to be summary, something which goes for appeals in summary cases too.

Proceedings against a company director

MacLachlan v Procurator Fiscal, Oban [2009] HCJAC 68 (24 July 2009) deserves brief note. There, a director of four limited companies was charged in a representative capacity with a waste disposal offence under

s 33(1)(b) of the Environmental Protection Act 1990. The sheriff repelled a plea to the competency of the complaint, rejecting an argument that an individual director could only be the subject of a prosecution under that section if simultaneous proceedings were being taken against the company or the company had already been the subject of a finding of guilt of the offence in question. He also rejected two further propositions, (a) that if an accused was to be prosecuted in his capacity as a director, it would require to be under s 157 of the 1990 Act, requiring an averment that the company had committed the offence “with the consent and connivance” of the director; and (b) that s 157 “trumps” s 143 of the Criminal Procedure (Scotland) Act 1995, which is the general provision about the prosecution of companies and which specifically provides (in s 143(3)) for representative prosecution. These decisions were upheld on appeal.