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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Osborne
Lord Johnston
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[2007] HCJAC 9
Appeal No: XC757/06
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in the Appeal of
MATHEW JAMES BROOKS
Appellant;
against
THE PROCURATOR FISCAL,
Dumbarton
Respondent:
_______
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For the appellant:
MacDonald; Cairns Brown, Dumbarton
For the Crown: Prentice, sol
adv, AD; Crown Agent
19 January 2007
The charge and the proposed amendment
[1] The
appellant was indicted for trial at Dumbarton
Sheriff Court on seven charges. We are concerned in this appeal with charge
(7). It was in the following terms:
"on 28 November 2005 at 15 Hall Street, Bonhill,
Alexandria you MATHEW JAMES BROOKS did have in your possession without the
authority of the Secretary of State a prohibited weapon, namely a revolver and
air cartridges; CONTRARY to the Firearms
Act 1968, section 5(1)(b) as amended by the Transfer of Functions (Prohibited
Weapons) Order 1968"
[2] On
25 October 2006 when the
case called at a first diet, the procurator fiscal depute sought leave to amend
the charge as follows:
"(1) By
deleting the words 'and air cartridges' ... and by substituting the words 'which
was used or was designed or adapted for use with a self-contained gas cartridge
system';
(2) By
deleting the letter 'b' ... and by substituting the letters 'af';
(3) By
deleting the words 'amended by the Transfer of Functions (Prohibited Weapons) Order
1968' ... and by substituting the words 'substituted by the Firearms (Amendment)
Act 1988 and amended by the Firearms (Amendment) Act 1997.'"
[3] The
procurator fiscal depute said that a ballistics report on the firearm in
question had been disclosed to the defence when the indictment was served. The report referred to section 5(1)(af) of
the Firearms Act 1968 (the 1968 Act), as amended, but the indictment had
erroneously referred to section 5(1)(b).
The weapon was recovered from the appellant. The report identified what type of weapon it
was.
[4] The
solicitor for the appellant opposed the amendment on the basis that it would
alter the character of the offence libelled and that a contravention of section
5(1)(af), unlike a contravention of section 5(1)(b), attracted a minimum
penalty of five years imprisonment unless there were exceptional circumstances
(1968 Act, as amended, s 51A).
[5] The
sheriff allowed the amendment. He
considered that the essence of the charge was that the appellant had in his possession
a prohibited weapon and that that weapon was a revolver. The appellant had been given fair notice of
the fundamentals of the charge in its original form and in the ballistics
report. The fundamentals remained
unchanged. The amendment accurately
reflected the type of prohibited weapon that the appellant was alleged to have
had in his possession.
The relevant legislation
[6] Section
5 of the 1968 Act, as amended, provides inter
alia as follows:
"5 (1) A
person commits an offence if, without the authority of the Secretary or the
Scottish Ministers ... he has in his possession, or purchases or acquires, or
manufactures, sells or transfers - ...
(af) any air
rifle, air gun or air pistol which uses, or is designed or adapted for use
with, a self-contained gas cartridge system;
(b) any
weapon of whatever description designed or adapted for the discharge of any
noxious liquid, gas or other thing; ...
(2) The
weapons and ammunition specified in subsection (1) and (1A) of this section
(including, in the case of ammunition, any missiles falling within subsection
(1A)(g) of this section) are referred to in this Act as 'prohibited weapons'
and 'prohibited ammunition' respectively ... "
[7] Section
96 of the Criminal Procedure (Scotland) Act 1995
(the 1995 Act) provides inter alia as
follows:
"96 (2) It
shall be competent at any time prior to the determination of the case, unless
the court see just cause to the contrary, to amend the indictment by deletion,
alteration or addition, so as to-
(a) cure any error or defect in it;
(b) meet
any objection to it; or
(c) cure
any discrepancy or variance between the indictment and
the evidence.
(3) Nothing
in this section shall authorise an amendment which changes the character of the
offence charged, and, if it appears to the court that the accused may in any
way be prejudiced in his defence on the merits of the case by any amendment
made under this section, the court shall grant such remedy to the accused by
adjournment or otherwise as appears to the court to be just."
Submissions for the parties
[8] Counsel
for the appellant submitted that the effect of the amendment was to change the
character of the offence libelled. It
was therefore excluded by section 96(3) of the 1995 Act. MacArthur
v MacNeill (1986 SCCR 552) was
analogous. In that case the Crown sought
leave to amend a charge of failure to provide a specimen of breath under
section 8(7) of the Road Traffic Act 1972 to a charge of failure to provide a
specimen of blood under the same subsection.
It was held inter alia that
the proposed amendment changed the character of the offence. In this case section 5(1) enumerated the
prohibited weapons to which that provision applied. The proposed amendment would substitute a
different form of prohibited weapon. The
case could be contrasted with Fenwick v
Valentine (1993 SCCR 892) where the
complainer was charged with a contravention of section 5(1)(a) of the Road
Traffic Act 1988 by driving when he had a specified proportion of alcohol in
his breath. The prosecutor was allowed
to amend the complaint by deleting the reference to breath and substituting a
reference to the corresponding proportion of alcohol in his blood. The essence of the charge was driving with an
excess of alcohol in the body. The
amendment merely substituted one method of proof for another.
[9] Moreover,
since the amended charge would normally carry a minimum sentence of five years,
the allowance of the amendment would be prejudicial to the appellant. In Cook
v Jessop (1990 JC 286) the effect
of the amendment was to found the complaint on the then current statutory
provision in place of its repealed predecessor.
The decision to allow the amendment was upheld although the substituted
provision carried a greater penalty.
That decision was distinguishable because the amendment did not
introduce the possibility of a minimum sentence.
[10] The advocate depute submitted that the appellant had known
since he appeared on petition that he was charged with possession of a
handgun. The appellant did not suggest
that the revolver referred to in the ballistics report was not the revolver
that was seized by the police. On any
view, section 5(1)(af) applied. The
essential character of the offence remained the same. The question of prejudice arose only if the
amendment would prejudice the appellant in his defence on the merits of the
case. Consideration of the different
penalties applicable to section 5(1)(af) did not alter the character of the
charge. The decision was within the
sheriff's discretion.
Conclusions
(1) The
character of the offence
[11] We are satisfied that the amendment in this case does not
change the character of the offence charged.
The essence of an offence under section 5(1) of the 1968 Act, as
amended, is the possession of a prohibited weapon (cf s 5(2)). The charge in its original form gave the
appellant notice that the prohibited weapon in question was a revolver. In its amended form, that remains the
case. The fact that a contravention of
section 5(1)(af) attracts a minimum penalty, unlike a contravention of section
5(1)(b), cannot be said to change the character of the offence charged.
(2) The
significance of the minimum sentence under section 5(1)(af)
[12] Counsel has moved us to sustain the appeal under section 96(3)
of the 1995 Act on the ground that the amendment would be prejudicial to the
appellant. We do not consider that this
provision is apposite. We doubt whether,
in the event of there being relevant prejudice, the court's power to "grant
such remedy to the accused by adjournment or otherwise" includes the power to
refuse the amendment outright. In our
view, that provision applies where the court is minded to allow an amendment
but is concerned to protect the accused against his being unfairly
disadvantaged by it. In any event, that
provision applies where there would be prejudice to the accused "in the conduct
of his defence on the merits of the case," and not where the prejudice
apprehended consists in his being exposed to a possibly severer penalty.
[13] In our opinion, the relevant provision is section 96(2) which
empowers the court to refuse a proposed amendment where it sees "just cause"
for doing so. We do not consider that
the appellant's being at risk of a minimum sentence of imprisonment could
constitute just cause. There is no
material distinction in this respect between this case and Cook v Jessop (supra), which was decided on the
virtually identical wording of the predecessor of section 96(3).
Disposal
[14] We shall refuse the appeal.
