Scottish High Court of Justiciary Decisons

GUNTHER ROBERT MACLEOD v. PROCURATOR FISCAL, DINGWALL [1999] ScotHC 174 (2nd July, 1999)

The appellant in this appeal by stated case is Guenther Robert MacLeod. On 7 January 1998, a complaint was served on him, containing three charges, under sections 178, 3 and 143 of the Road Traffic Act 1988. All three charges related to a series of alleged events on 5 July 1997. Service of the complaint was thus effected two days after the expiry of six months from the date of the alleged offences. On 31 December 1997, the Sheriff Clerk at Dingwall had executed that part of the complaint arranging an assigned diet for 29 January 1998 and the complaint was delivered to the Procurator Fiscal's Office that day.

At the diet on 29 January 1998, the appellant's agent intimated a plea of incompetency, based on time bar. A further diet was fixed for 12 February, and on that date the Sheriff heard evidence (from the Courts and Warrants Officer at Dingwall Sheriff Court) and submissions on the plea to competency. He repelled the plea. (One may note that subsequently the appellant pled guilty on charge 1, and was found guilty after trial on charges  2 and 3). Sentence was imposed on 30 June 1998. The second question in the stated case is "Was I correct to repel the plea to the competency?"; and more specifically, the first question is "Was I correct to decide, in the circumstances described, that there was no undue delay in the service or execution of the Complaint with the Warrant to Cite to an assigned diet?".

Section 136 of the Criminal Procedure (Scotland) Act 1995 applies to any offence triable only summarily and consisting of a contravention of any enactment, unless the enactment fixes a different time limit. Sub-section (1) of the section provides that proceedings under Part IX of the Act (Summary Proceedings) in respect of any offence to which the section applies shall be commenced within six months after the contravention occurred (or in the case of a continuous contravention, within six months after the last date of such contravention). Sub-section (3) provides that for the purposes of the section, proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, "if the warrant is executed without undue delay". Section 136 applies to charges 2 and 3 in the present complaint. And service having been effected outwith the six month time bar period, the issue of delay arises. It is not disputed that the period to be taken into account in assessing delay is from the date of granting of the warrant until execution (and not merely the time from the expiry of the prescriptive period until execution) - that period in the present case being the period from 31 December 1997 to 7 January 1998.

The facts which the Sheriff found to be established are not quarrelled. They can be summarised quite briefly. The system by which a complaint is transmitted from the Procurator Fiscal's Office to the police for service is by leaving it in a basket in a known place for uplifting. Such documents are uplifted daily by a police officer, normally the Courts and Warrants Officer. Constable Graham, the Courts and Warrants Officer, was on holiday on 29, 30 and 31 December 1997. And while the Sheriff has found that the complaint was uplifted by a police officer, and transmitted to the Police Station in Dingwall, he says "by whom or when is unknown". The Court building (including the Fiscal's Office) was closed at or around 4.30pm on 31 December 1997, and not re-opened until 9.00am on Monday 5 January 1998. The Police Station was not closed, but there were no civilian staff on duty from

1-4 January 1998 inclusive and only a skeleton civilian staff on 5 January. Civilian staff at normal strength were on duty from 6 January onwards. At the Police Station, the system for dealing with a document such as a complaint is in the first instance to have it "logged" onto a computer by an employee on the civilian staff. This complaint was logged onto the computer at 10.54am on 6 January. The appellant's address was known, and any delay in service was not attributable to him.

The Sheriff has not been able to make a finding as to whether the complaint was uplifted from the Fiscal's Office and transmitted to the Police Station on 31 December, or after the Fiscal's Office re-opened on 5 January. The findings thus leave open both the possibility that the complaint lay in the Fiscal's Office from 31 December to 5 or 6 January, and the possibility that it lay in the Police Station over that period.

The Sheriff says that this was a narrow case.

In submitting that the Sheriff had erred, Miss Scott on behalf of the appellant acknowledged that the matter was one for assessment by the Sheriff and moreover that every case would turn on its own facts and circumstances. She submitted however that in the present case it could and should be held that the Sheriff had erred in holding that the warrant had been executed "without undue delay". A wholly unexplained delay must be regarded as "undue" (Robertson v Carmichael 1993 S.C.C.R. 841) and in the present case the delay was unexplained. Alternatively, if the established facts were seen as providing some kind of explanation for the delay, the Sheriff had himself identified a failure on the part of the Procurator Fiscal to consider and guard against the situation which arose, and had acknowledged that the normal system had failed to deal with the service of this complaint on time. While he had regarded the reason for that latter failure as being the extended holiday period, he could not be regarded as having assessed matters appropriately, in this context of failure.

On the first of these submissions, we are not persuaded that this is a case where one can say that there is no explanation for the delay. The situation appears to us to be very different from that exemplified in Robertson v Carmichael. Here, the Crown led evidence to explain what had in fact happened, and while the two alternative possibilities which we have mentioned remain as alternatives, the Sheriff was in our view well entitled to hold both that the normal system was simple and workable, and that the reason for its failure to deal with the service of this complaint on time was due to the holiday period. If the complaint was lying in the Procurator Fiscal's Office between 31 December and 5 or 6 January, the "explanation" for inaction over that period is plainly that the office was shut. And if over that period the complaint was lying at the Police Station, it is in our opinion a legitimate inference that the absence of action relates to the absence of civilian staff. It is true that there was no evidence establishing which of the two possible histories was correct, or identifying the officer who had uplifted and transmitted the complaint. But the absence of these details does not in our view mean that the delay must, or indeed can, be regarded as unexplained.

In advancing her second submission, counsel adopted a broader approach. The expression "undue delay" was to be understood in terms of what had been said by the Lord Justice General in Smith v Peter Walker & Son (Edinburgh), 1978 J.C. 44. Even if the established facts showed some kind of explanation, it remained true that the Procurator Fiscal had failed to take steps to ensure that the complaint would indeed be uplifted in the normal way on 31 December, and if duly uplifted then, dealt with by the police promptly, rather than lying at the Police Station until after the extended holiday. Reference was made to Singh v Vannett 1998 S.C.C.R. 679, and it was accepted that it was not for the Procurator Fiscal to give specific directions to the police as to how they should conduct matters. But that case was different from the present one: in the present case, if the complaint was not lying about in the Procurator Fiscal's own Office, it was lying about at the Police Station, and that possibility was one which it was for the Procurator Fiscal to take into account. As we understood this submission, it was not being suggested that the Procurator Fiscal could interfere in the carrying out of police duties, but that as the public official with prime responsibility in this public matter, it was for him to take into account, in advance, any delays which were liable to occur once the complaint was in the hands of the police. Such an approach is in our view consistent with what was said in Singh v Vannett, where it is made clear that in the event of significant delay after a complaint has been put in the hands of the police for service, the delay might well be held to be "undue" if the Procurator Fiscal did not take the matter up with the police. (Counsel also drew our attention to the commentary appended to the report of Singh v Vannett, but it does not appear to us that the propositions there set out correctly reflect or throw light upon the views actually expressed by the Court in that case.)

Even a simple and workable system, which normally causes no undue delay, may of course leave open a possibility of abnormal delay in particular circumstances. If such circumstances are liable to recur and are predictable, then no doubt it may be appropriate to consider whether the system requires some special adaptation to meet, or as the Sheriff puts, "guard against", such a situation. But not every variation in the time between warrant and execution has to be ironed out, and the advantages of a simple system are not to be abandoned or overlaid by detail, merely because there will be longer periods in some circumstances than in others. Weekends and public holidays are an obvious example of regular situations which will cause slightly extended delays; and while in this particular instance the period between warrant and execution amounted to a week, straddling a rather longer holiday period than will usually occur, it is to be remembered that there will always be some lapse of time between warrant and execution. We are quite unpersuaded that the additional period of delay in this particular case, having regard to its evident roots in the holiday arrangements, was such that the Sheriff was not entitled (whatever the detailed history of events) to hold as he did, having regard to the whole period, that there was no undue delay. In our opinion his decision was justified, and on that basis he was correct to repel the plea to the competency. We answer both of the questions in the case in the affirmative.