Scottish High Court of Justiciary Decisons

JAMES GILDAY v. PROCURATOR FISCAL, STIRLING [1999] ScotHC 226 (1st October, 1999)

The appellant was charged on a summary complaint with contraventions of sections 4(3)(a) and 5(3) of the Misuse of Drugs Act, 1971. The circumstances giving rise to the charges were said to have happened on 9 October, 1997. It was agreed between parties that there was undue delay in the execution of the warrant to cite the appellant, and that the proceedings must be treated as having commenced on 4 February, 1999, the date on which the appellant was first brought before the court. An objection was taken to the competency of the proceedings on the basis that by that date they had become time barred in terms of section 25(5) of the 1971 Act. So far as material, that subsection was enacted in the following terms:

Section 23(1) of the Summary Jurisdiction (Scotland) Act, 1954 at that time provided, inter alia:

As enacted, therefore, section 25(5) extended the six months' time limit for the commencement of summary criminal proceedings in cases under the 1971 Act from six months to twelve months.

Section 331 of the Criminal Procedure (Scotland) Act, 1975 in superseding the 1954 Act, (section 23 of which was repealed) repeated the provision in section 23(1), with minimal adaptation. Accordingly, the result was that the 1971 Act provided a specific, and extended, period for the commencement of relevant proceedings in substitution for the general time limit prescribed for summary criminal proceedings by section 23(1) of the 1954 Act, and in turn by section 331 of the 1975 Act.

Section 62 of the Criminal Justice (Scotland) Act, 1995 amended the material part of section 331 so that it read (with the amendment in italics):

The qualification introduced by section 62 is now contained in section 136(2) of the Criminal Procedure (Scotland) Act, 1995. So far as material section 136 provides:

It is clear that there are provisions of the 1971 Act, as amended, which are triable only summarily: see sections 9(A) and 17(3). In those cases, the interaction of section 25(5) of the 1971 Act, and section 136 remains straightforward. Section 136 applies, but only subject to the provisions of section 25(5), and accordingly the twelve month time limit in section 25(5) applies.

The controversy between parties arose where, as in the case of the offences with which the appellant was charged, offences under the 1971 Act were triable both summarily and on indictment. For the appellant Miss Scott argued that section 136 had no application to such offences, and that the twelve month period stipulated by section 25(5) in the case of summary proceedings was applicable. It followed that the current proceedings, being summary proceedings, were time barred, and that the sheriff erred in repelling the plea to the competency which was argued before him. The Advocate Depute argued that section 62 of the Criminal Justice (Scotland) Act, 1995 took offences which were triable both summarily and on indictment out of the scheme of the summary time limiting provisions; that section 25(5) of the 1971 Act was merely ancillary to the general provisions; and that, as a result of that amendment, now consolidated in section 136, there was no operative time limit on the commencement of summary proceedings in such cases.

There are significant structural changes between the amended 1975 provisions and section 136. In the former provisions the qualification relating to the particular statute creating the offence was clearly related to the time limit. The qualification relating to the class of offence was general. As the provision now stands, the words: "unless the enactment fixes a different time limit" appear to qualify sub-section (2). The limitation to offences triable only summarily is excluded where the enactment creating the offence fixes a time limit different from six months. It was not suggested to us that these structural differences had any bearing on the disposal of the present appeal. Since the Criminal Procedure (Scotland) Act, 1995 was a consolidating statute it ought to be construed consistently with the pre-consolidation amendments at least.

In our opinion, the contentions of the appellant are to be preferred. Section 25(5) provides for a twelve months' time limit for summary proceedings under the 1971 Act "notwithstanding anything in section 136...". The sheriff, correctly, in our view, construed the reference in section 25(5) to sub-section (2) of section 23 of the 1954 Act as a reference to sub-section (3) of section 136. That provision is therefore irrelevant to the present issue. He took the view that the restriction on the operation of the general time limit to cases triable only summarily affected the operation of section 25(5) of the 1971 Act generally. In our opinion that view is erroneous. One is directed by section 25(5) to disregard the six months' time limit in relation to offences under the Misuse of Drugs Act, 1971, but there is nothing in the 1971 Act which imports the restriction of the time limiting provisions to cases triable only summarily. If, properly construed, the words "unless the enactment fixes a different time limit" now found in section 136(2) operated as a proviso to that sub-section, the result would be that where an enactment provided a different period from that fixed generally for the commencement of summary criminal proceedings, section 136(1) would apply generally, and in particular without the limitation to cases triable only summarily, but subject to qualifications provided elsewhere in the criminal procedure code. Section 136(1) would then be subject to the alternative summary time limits in all cases. That would be the same result as would have applied under the 1975 Act as amended by the Criminal Justice (Scotland) Act, 1995. The alternative view would be that, by the 1995 provisions, Parliament had removed the time limits for summary prosecution in cases where offences were triable both summarily and on indictment, subject only to any common law restraint which might be applicable. If that were the purpose of the legislation, and one might have understood it as part of a wider purpose to restrict the operation of time limits on the prosecution of relatively serious statutory offences, the language used has failed to achieve it.

In the result, nothing in section 136 of the Criminal Procedure (Scotland) Act, 1995 affects the operation of section 25(5) of the Misuse of Drugs Act, 1971 in the case of offences which may be tried summarily or on indictment. The twelve month time limit applies to such offences. The proceedings against the appellant were out of time. The appeal is allowed, and the case will be remitted to the sheriff to proceed as accords.