Scottish High Court of Justiciary Decisons

RICKY BROUWER v. PROCURATOR FISCAL, PERTH [1999] ScotHC 10 (13th January, 1999)

This is an appeal by Stated Case against a decision of the Sheriff at Perth, holding at a preliminary diet that there had not been undue delay in execution of a warrant of citation. The submission is that that decision was wrong, and that there had been undue delay. The appeal was originally taken under reference to the lapse of time while the matter was in the hands of the procurator fiscal and also to a further lapse of time after the matter had been put in the hands of the police. On behalf of the appellant Miss Scott intimated that she was not now founding upon that latter chapter as the decision reached by the sheriff was one which he was entitled to reach.

The appeal proceeded on the basis of the lapse of time which occurred while the matter was in the hands of the procurator fiscal.

The offence was alleged to have occurred on 26 September 1996. The ordinary six month period would therefore have elapsed on 25 March 1997. The warrant was in fact signed on 21 March and was received in the fiscal's office either on Friday 21 or Monday 24. We are satisfied that in the circumstances it is appropriate to proceed upon the basis that it was probably received only on Monday 24. The warrant was sent to the police on 26 March, for immediate service, this being inferred from the fact that it was received by the police on 27 March. The lapse of time while the matter was in the hand of the procurator fiscal was therefore from Monday 24 until Wednesday 26 when it was sent out. The submission was, of course, that it is in the circumstances for the fiscal to explain the delay where service has not been effected within the six month period. As the sheriff observes the obligation is not to do things as quickly as possible and Miss Scott accepted that that was so. The submission was that it was necessary to provide an explanation for the delay so that the court could consider whether there had been an undue delay. What had been submitted on behalf of the fiscal was that it was not undue delay to take two days to process the warrant. The warrant had to go out with a pro forma letter, this had to be signed by a depute fiscal and for that to be done of course there had to be a depute fiscal available as well as the pro forma letter being produced. It also appears that it was in that letter that it was intimated to the police that execution should be effected immediately.

Miss Scott's submission was that this explanation was not an explanation. It did not explain what in fact had happened over these two days. It was merely a general statement that the warrant required a pro form letter signed by a fiscal and that a fiscal had to be available. No explanation had been given why that could not have been achieved on the first day of receipt and/or the day after rather than in time merely for it to be sent out on 26 March.

It is true that it is for the Crown to explain and justify what occurs in such cases but as this court has said before there is a limit to the extent to which one has to go into either the practices or the actual facts of individual cases. It will not do simply to be silent where there has been a delay; but if there has been an account as to the kind of things that have to be done and the period is, as here, only one of a day or two, it appears to us that the sheriff was justified in reaching the conclusion which he did. We see no need for further detail as to quite what happened in the particular circumstances, or as to why it takes a day or two to issue a warrant in the circumstances.

In these whole circumstances the appeal is refused.