Company director accused of breaching disqualification order fails in time-bar challenge against prosecution

The Sheriff Appeal Court refused an appeal by Stephen Roberts after ruling that a certificate from the Lord Advocate confirmed that sufficient evidence to justify proceedings against the appellant came to his knowledge within 12 months of proceedings being commenced.

‘Disqualification order’

Sheriff Principal Duncan Murray, sitting with Appeal Sheriff Grant McCulloch and Sheriff Norman McFadyen, heard that the appellant Stephen Roberts was charged with two contraventions of section 13 of the Company Directors Disqualification Act 1986. 

Proceedings commenced by a warrant to cite that was granted on 26 May 2016 with the appellant cited to a pleading diet on 9 June 2016.

The appellant took a preliminary plea to the competence on the basis that proceedings were time-barred. 

The appellant maintained that section 21(4) of the 1986 Act provides that the time for proceedings under section 13 is regulated by section 431of the Insolvency Act, which provides that summary proceedings in Scotland under section 13 of the 1986 Act “shall not be commenced more than three years after the date of the commission of the offence”. 

However, it also provides that subject to this provision, and notwithstanding anything in section 136 of the Criminal Procedure (Scotland) Act 1995, “such proceedings may (in Scotland) be commenced at any time within 12 months after the date on which evidence sufficient in the Lord Advocate’s opinion to justify the proceedings came to his knowledge or, where such evidence was reported to him by the Secretary of State, within 12 months after the date on which it came to the knowledge of the latter”.

‘Time-barred’

The dates of the alleged offences were between 8 September 2011 and 18 July 2014.

The summary complaint contained a docketed certificate that evidence, sufficient in the view of the Lord Advocate to justify the proceedings against the appellant, came to his knowledge on 9 June 2015. 

That docket was provided for the purpose of section 431(4) and constituted a certificate of the Lord Advocate, as to the date at which such evidence as was referred to in section 431(3) came to his knowledge, as conclusive evidence of that matter.

However, on behalf of the appellant it was submitted that matters came to the knowledge of the Secretary of State from a Crown witness, a solicitor for Scottish Enterprise, who wrote a letter dated 4 December 2013 to The Insolvency Service, a sub department to the Department of Trade and Industry, detailing his concerns over the complainer’s activities and citing possible contravention of his disqualification.

There was then further correspondence from another individual, dated 13 April 2014, which complained about the appellant’s actions.

The appellant argued that the reference to “or where such evidence was reported to him by the Secretary of State within 12 months after the date in which it came to the knowledge of the latter” must have some purpose and that that “information” was provided in the letter of 4 December and the subsequent 13 April letter, meaning the proceedings were time-barred.

‘Sufficient evidence’

But the Crown’s position was that the certificate of the Lord Advocate was “conclusive evidence” as to the date in which evidence sufficient in the Lord Advocate’s opinion to justify proceedings came to his knowledge. 

It may be that information came to the attention of The Insolvency Service which caused enquiries to be made, but it was the case, as provided for and stated in the certificate, that the evidence in the opinion of the Lord Advocate sufficient to justify proceedings was only received in terms of a full police report on 6 June 2015. 

It was argued that the court was “not entitled to go behind the face of the certificate”, the authority for that being Walkingshaw v McLaren 1985 SCCR 293 and Henderson v Wardrope 1932 JC 18.

Refusing the bill of suspension, the appeal sheriffs said they were “not persuaded by the appellant’s argument”.

Delivering the opinion of the court, Sheriff Principal Murray said: “The authorities make clear that the court is not to go behind the certificate from the Lord Advocate and we are satisfied that the certificate verifies the point at which the Lord Advocate found there to be a sufficiency of evidence.”