Scottish Court of Session Decisions

Lord Justice-Clerk—If this statement is not materially contradicted, I am of opinion that we ought not to proceed without requiring the personal presence here of the suspender. He is not in the position of a prisoner who has been liberated. If that were the case, he would, for the purposes of this suspension, be bound to be personally present here. I am of opinion, however, that we ought to continue the cause till the suspender appears.

Lord Young—I agree with your Lordship in thinking that the personal presence here of the suspender is a reasonable condition of going on with the appeal. In the general case, the prisoner is in jail, and if he obtain interim liberation before the appeal is heard, it is provided by statute that he must be personally present, so that there shall be an assurance of his being sent back to prison in the event of the appeal being dismissed. Another case is that of a person who may be quite properly sentenced to imprisonment in his absence. He makes his appearance on appeal by counsel and agent, but if he himself remains absent, then I think that it is a reasonable provision that it should be a condition of hearing the appeal that he be in jurisdiction to undergo his sentence if we affirm it.

Lord Craighill—I entirely concur. We must have the personal presence of the appellant here.

The Court therefore continued the cause for a month to enable the suspender to appear personally before the Court as a condition of the hearing of his case.