Scottish High Court of Justiciary Decisons

MARY RYAN and PATRICK FRANCIS DEVINE and FRANCIS M T O'DONNELL v. HER MAJESTY'S ADVOCATE [1999] ScotHC 191 (22nd July, 1999)

The appellants are Mary Ryan, Patrick Francis Devine and Francis Martin Thomas O'Donnell who were cited, along with William Mackinnon, to stand trial in the High Court at Glasgow. The indictment contained a charge of murder, a charge of theft and a charge of attempting to pervert the course of justice. Ryan and Devine have been in custody since 8 January 1999 and O'Donnell since 28 January 1999. For reasons which it is unnecessary to recount the trial diet had to be postponed on a number of occasions. The final position was that, in the case of each of the appellants, the 110-day period was fixed to expire on 17 June 1999 and the trial began on that date. It proceeded on 18, 22, 23, 24 and 25 June, but at that point the Trial Judge fell ill and the diet had to be adjourned. After various adjournments in terms of Section 87(1)(b)(i) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), on 2 July the Crown moved to desert the diet pro loco et tempore. Lord MacLean sat to hear that application which was opposed by counsel for the appellants. In the result Lord MacLean further adjourned the diet until 7 July when, from a medical certificate, it became clear that the Trial Judge had been advised not to return to work for period of two weeks after 6 July. In the light of that certificate defence counsel no longer opposed the Crown's motion and the presiding judge deserted the diet pro loco et tempore in terms of Section 87(3)(b) of the 1995 Act.

Section 87(4) provides that in that situation

"the Lord Advocate may raise and insist in a new indictment...".

So far as relevant, Section 66(6) provides that a notice shall be served on the accused with the indictment calling upon him to appear and answer the indictment

In order to permit service on the appropriate induciae of 29 clear days and also to allow for other administrative demands on the Crown, the Advocate Depute sought an extension of the 110-day period until 20 August, being the first Friday of the sitting of the High Court at Glasgow beginning on 16 August.

The defence opposed the Crown's motion to extend the 110-day period until that date. They argued that, rather than using the procedure envisaged in Section 87(3)(b), the Crown could instead employ the machinery provided by Section 81(1), (2) and (5):

Counsel argued that, since the sitting was due to finish on 7 July, the Crown could then serve a notice specifying a further diet in the sitting of the High Court at Glasgow beginning on 20 July. If the Crown were to be allowed an extension of the 110-day limit in the circumstances which had arisen, the extension should accordingly be no longer than would be required to allow the Crown to commence the new trial at the further diet in the sitting starting on 20 July.

Section 81 is accompanied by the sidenote "Procedure where trial does not take place". Such sidenotes are not, of course, definitive of the scope of the sections to which they are attached. But in the course of the argument before him the presiding judge drew the attention of counsel to the part of subsection (1) of Section 81 where it is said that the notice may be served "within nine clear days after the last day of the sitting in which the trial diet was to be held." He suggested that these words seemed to indicate - as did the sidenote - that the section was intended to apply only to the situation where the trial did not proceed at all at the trial diet, either because the diet was deserted pro loco et tempore or because the case was not called. In due course, adopting that construction of Section 81(1), the presiding judge held that the Crown could not use that procedure in the present case where the diet had been deserted after evidence had been led.

Before this court it was conceded, of course, by counsel for the appellants that the Crown could proceed by serving a fresh indictment in terms of Section 87(4); their submission was that this was not the only procedure open to the Crown and that, contrary to the view of the presiding judge, the Crown could also use the abbreviated procedure in Section 81(1). The Advocate Depute argued that this abbreviated procedure was not open to the Crown. We were therefore confronted with the slightly unusual sight of defence counsel arguing that the section should be construed in a manner more favourable to the Crown than the manner for which the Advocate Depute was arguing.

We accept that the construction adopted by the presiding judge is a possible construction of the language used in the subsection, looked at in isolation. We had the advantage, however, apparently denied to the presiding judge, of exploring the background to the section in its present form. Its history is instructive. Section 81(1) is a descendant of Section 42 of the Criminal Procedure (Scotland) Act 1887 which was accompanied by a sidenote in identical terms to the sidenote in the 1995 Act. Section 42, so far as relevant, provided:

Section 41 set out circumstances in which, at the second diet, the court could review the proceedings at the first diet and allow the accused to withdraw or modify a plea of guilty tendered at the first diet.

Section 42 was re-enacted as Section 127(1) of the Criminal Procedure (Scotland) Act 1975 which was in these terms:

"Where at the second diet -

(a) the diet has been deserted pro loco et tempore for any of the reasons set

(b) an indictment is for any cause not brought to trial and no order has been

Section 122 of the 1975 Act re-enacted the substance of Section 41 of the 1887 Act.

If we pause at this point to consider the scope of Section 42 of the 1887 Act and of Section 127(1) of the 1975 Act as originally enacted, then it appears that the Crown's power to use the abbreviated procedure was limited to particular defined circumstances: either when the second diet was deserted because the court had allowed a plea of guilty tendered at the first diet to be withdrawn or modified, or when an indictment had not been brought to trial for any reason in the circumstances envisaged in paragraph (b). It is particularly noteworthy that the abbreviated procedure would not have been available in a case such as the present where the trial diet was deserted pro loco et tempore because of the illness of the judge. In that situation the only course open to the Lord Advocate, both under Section 32(1) of the Criminal Justice (Scotland) Act 1949 and later under Section 128 of the 1975 Act, would have been to raise and insist in a new indictment. It may be that this power to raise a fresh indictment following the desertion is stated specifically because under those provisions it was the clerk of court, rather than a judge, who deserted the diet pro loco et tempore and, in that respect, the desertion was out of the ordinary.

Section 12 of the Criminal Justice (Scotland) Act 1980 abolished the mandatory system of fixing two diets of appearance in solemn proceedings. In consequence Section 127(1) was amended so as to read:

"Where at the trial diet -

(a) the diet has been deserted pro loco et tempore for any cause, or

(b) an indictment is for any cause not brought to trial and no order has been

Two points are noteworthy. First, the legislature might have decided that, since first and second diets were being abolished and the particular problem of pleas being modified or withdrawn at the second diet would no longer arise, Section 127(1) should be amended by deleting any reference to desertion pro loco et tempore. Parliament did not adopt that course: rather, it decided to replace the reference to desertions in particular circumstances with a reference to the diet being deserted "for any cause". The provision in those wider terms would be apt to catch the situation where the trial diet was deserted because of the illness of the judge. Secondly, the notice was to be given within nine clear days "after the date of such trial diet". It is clear that any such notice could have been given within nine days of the day on which the trial commenced if the judge fell ill on that day. We see no reason to doubt that, where the illness occurred on a later date to which the trial diet had been continued in the usual way, the notice could have been given within nine days of the date on which the diet was deserted. The section would have been properly interpreted accordingly. Indeed, once the scope of Section 127(1) had been extended to cover desertions for any reason, we can see no reason why Parliament should have wished to restrict the use of the power to situations where, by chance, the desertion happened to occur at the outset of the trial.

In 1995 Parliament returned to the topic and, by virtue of Section 117 of, and paragraph 44 of Schedule 6 to, the Criminal Justice (Scotland) Act 1995, it produced this version of the relevant part of Section 127:

"(1) Where at the trial diet -

(a) the diet has been deserted pro loco et tempore for any cause, or

The change introduced in subsection (1ZA) was designed to cater for the situation where a diet had to be deserted pro loco et tempore but it would be feasible to hold the further trial diet within the same sitting. That had not been possible under Section 127(1) in its pre-existing form and the amendment remedied that problem. Similarly, the amendment to subsection (1) seems to have been designed to allow the Crown greater flexibility by giving them the period of nine days after the end of the sitting to serve the notice on the accused. Section 127(1) as thus amended and (1ZA) became Section 81(1) and (2) of the 1995 Act.

When this history is considered, it appears to us that the words "in which the trial diet was to be held" should properly be seen as intended simply to define the sitting after the end of which the nine-day period is to run. That being their function, we consider that they can be properly interpreted as covering any situation where the accused's trial has been begun but not completed because the diet has been deserted: in that situation the trial may have been begun but in no substantial sense has it been "held". We are confirmed in that view by two further considerations.

First, subsection (2) of Section 81 would clearly apply to any case where the trial diet is deserted pro loco et tempore. If the interpretation adopted by the presiding judge were correct, then, in a case where the trial judge fell ill after evidence had been led, the accused could be required to answer the indictment at "a further trial diet" in the same sitting under subsection (2), but not at "a further trial diet," after the end of the sitting, specified under subsection (1). We can see no reason why Parliament should have intended that the one procedure should apply but not the other. Secondly, if the presiding judge's interpretation is correct, then it implies that, while increasing the time within which the Crown could use this abbreviated procedure, Parliament simultaneously restricted the range of cases to which the procedure could apply. Again, we can see no reason why Parliament should have intended to act in this somewhat ambivalent fashion and the Advocate Depute was unable to suggest any.

For these reasons we are satisfied that it would be open to the Crown in this case to give notice to the appellants in terms of Section 81(1). It is agreed that the last day of the sitting was 7 July and so the Crown still have time to exercise that power, if so advised.

Having reached the conclusion that Section 81 did not apply, the presiding judge went on to extend the 80-day period in each case until 15 July and the 110-day period in each case until 20 August. He was conscious that the additional period of four weeks custody which was entailed in granting the extension sought by the Crown rather than the extension conceded by defence counsel "could be considered a substantial period" against the background of a remand in custody since early January in the case of the first two accused. He added that he "did not see any other competent and appropriate way to avoid an extension of that length".

In saying this the presiding judge was plainly indicating that he considered that it would not have been competent for the Crown to indict the appellants for any sitting earlier than the middle of August because of the requirement in Section 66(6) that an accused be called upon to answer the indictment at a trial diet not less than 29 clear days after the service of the indictment and notice. The presiding judge records that at the hearing on 2 July

Understandably, since the submission was not renewed, the presiding judge does not express any view about it.

In the form recorded by the presiding judge, the submission appears to have been somewhat inappropriate. As the Advocate Depute rightly conceded before the presiding judge, the 29-day period in Section 66(6) is conceived in favour of accused persons. That being so, it would plainly not have been open to the Crown to "waive" all or part of that period. On the other hand, it is well established that an accused person can waive any objection to the regularity of his citation. That was stated, obiter, by Lord Justice Clerk Macdonald as long ago as Lloyd v. H. M. Advocate (1899) 2 Adam 637 at p. 642. Much more importantly, this was precisely the basis of the decision of the Court of Five Judges in Macdonald v. H. M. Advocate 1984 J.C. 94 where the court held that the observations in Lloyd continued to apply despite any intervening statutory changes. Lord Justice General Emslie summarised the position in this way (at p. 103):

The true position therefore appears to be that, although, of course, the Crown could not purport to waive the need to cite the appellants to a diet not less than 29 days after the service of the indictment and notice, the appellants could indeed waive any objection based on the fact that they were being cited to a trial diet less than 29 days after the service of the indictment and notice.

When this matter was explored in the course of the hearing before this court, counsel for the appellants initially indicated that they were not in a position to say that they would waive the need for the usual 29-day induciae. This was because they understood that the Crown might be intending to serve a fresh indictment in substantially different terms, which would require appropriate consideration. The Advocate Depute made inquiries of Crown Office and was able in due course to inform us that only limited changes were to be made: the fourth accused would not be indicted and would be included in the list of Crown witnesses; the witnesses previously included in Section 67(6) notices would be incorporated into the list of witnesses annexed to the indictment; and in charge 3 the word "Road" would be deleted and "Drive" inserted in its place. Counsel for all three appellants then indicated that, since these were to be the only changes made in the fresh indictment, they would be prepared to waive their right to an induciae of 29 days. Their attitude was, in effect, that they were ready and the sooner the trial began the better it would be. That being so, it would in practice be open to the Crown, in this very unusual situation, to serve an indictment with a notice calling upon the appellants to appear and answer it at a sitting of the High Court before the expiry of the 29-day period laid down in Section 66(6).

It is not, of course, for this court to dictate to the Lord Advocate which course he should adopt. It is sufficient that we are satisfied that it would be competent for a trial diet to be held at a date which would be earlier than the expiry of the 29-day period for service of a new indictment under Section 66(6). It is plain on the other hand that the presiding judge granted the extension which he did because he considered that no earlier trial diet could competently be fixed. In that situation counsel for the appellants urged the court to reconsider the matter and to limit the extension to the minimum which would be needed in order to allow the Crown to start the trial in the sitting of 20 July. In advancing that submission counsel rightly emphasised the substantial period during which their clients had already been in custody - most of the extensions having been brought about, it was said, due to the preparations of the fourth accused who was not now going to be indicted. Counsel also pointed out that, if the sittings of the High Court at Glasgow were full, then the trial could be held elsewhere. For his part, the Advocate Depute did not deny that the further delay in bringing the appellants to trial was unfortunate, but he stressed that the circumstances were not the fault of the Crown or indeed of anyone else: they had arisen due to the unfortunate illness of the trial judge. That had to be borne in mind when considering how to proceed. The Crown had already indicted 32 cases into the sitting of 20 July, 18 of which were affected by a time-bar, and 34 cases into the sitting of 2 August, of which 18 also were affected by a time-bar. These sittings were full and this was why the Crown had argued in the court below that any extension should be sufficient to allow the Crown to re-indict this case for the sitting of the High Court at Glasgow beginning on 16 August.

In our view it is indeed relevant to remember that the situation with which we are faced came about through no-one's fault. It is also relevant to bear in mind that this is not just a case of standard length: it is estimated to last 4 to 5 weeks. That being so, while we accept that, because of the length of time that the appellants have been in custody, it would be appropriate for the Crown to give this trial some priority over other cases, we also consider that both the Crown and the court system must be given some time to make arrangements to accommodate the trial. Taking these various factors into account, we shall recall the order pronounced by the presiding judge and substitute an order extending the 110-day period until Friday 6 August, being the end of the first week of the sitting of the High Court at Glasgow which begins on 2 August. Having pronounced this order, we refuse the appellants' application for bail. The Crown did not ask for any further extension of the 80-day limit.