APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
NOTE OF APPEAL TO THE COMPETENCY AND RELEVANCY
PROCURATOR FISCAL, GLASGOW
Appellant: Hamilton; Balfour & Manson
Respondent: Menzies Q.C. A.D.; Crown Agent
13 October 1999
This is a Note of Appeal by Carol Wilson. She was charged with a contravention of Section 5(2) of the Misuse of Drugs Act 1971, the offence being alleged to have occurred on 29 May 1998.
In terms of the relevant statute, summary proceedings had to be commenced at any time within twelve months from the date of that offence.
The case first called on 12 January 1999 at which time the complaint had not been served. It appears that the police had been leaving messages for her to contact them but she never did. In these circumstances a warrant was granted on 12 January and the Crown chose to invite the appellant to attend at a diet fixed for 16 February. On that date the appellant failed to appear and then the warrant was sent by the Procurator Fiscal to the police for execution. The warrant appears to have been received by the police on 4 March and on the same day police officers attended at the address on the complaint and received no response. They confirmed with the concierge in the building that the appellant was a resident there. On 14 April the police attended again and received no response after repeated knocking. They made enquiries of neighbours who advised that the appellant was rarely seen at this address. The next thing that happened was that they attended on 8 June when they were successful in finding the appellant and she was apprehended. The date on which she was apprehended was of course 9 or 10 days after the expiry of the twelve month period.
When the case came before the Sheriff it was argued that there had been undue delay in executing the warrant. It appears that the argument before the Sheriff concentrated on the period between 16 February and 4 March which was a period of some 16 days which apparently it took for the warrant to be transmitted from the fiscal's office to the police. However, as was said in Alexander v Normand 1997 S.L.T. 370, that was not a relevant consideration having regard to the fact that at that stage there was still a long period to go before the expiry of the twelve month period, and no doubt this case took a lower place in the queue than all the warrants which were of greater urgency.
What was submitted before this Court, however, was that, looking at the matter as a whole, there was undue delay, and attention in this Court was concentrated more on the period between 14 April and 8 June. During that period, of course, nothing was done at all except that the twelve month period expired. In Singh v Vannett 1998 S.C.C.R. p.679 it was pointed out that while the Procurator Fiscal cannot be regarded as being responsible for police procedures, nevertheless circumstances might arise where, if there was a long delay in the execution of the warrant, there would be a duty on the Procurator Fiscal to enquire what was being done. Counsel before us submitted that no enquiry had been made in the present case, that there was a long delay and that the fiscal should have made certain enquiries.
The Advocate Depute, on the other hand, founded on a passage in Alexander v Normand where what the Court said was:
"In the present case we are persuaded that the Sheriff was entitled in all the circumstances to conclude that there had been no slackness on the part of the respondent. It is true that between 14 August and 23 September no attempt was made to execute the warrant, but that must be viewed against the background that three attempts had been made during the early part of August which had all failed. The police could not, in our view, be expected to go on continuously making attempts when attempts had proved unsuccessful."
Each case has to considered on its own facts, and in our view the facts in the present case disclose circumstances where there can be said to have been undue delay. As the police could perhaps not be criticised for giving a low priority to the service of this warrant when there was still a considerable period to go before the expiry of the time limit, it could not be argued that there was undue delay up to 14 April. What does appear to be the case, however, is that there was no attempt by the Procurator Fiscal to bring to the attention of the police that the time limit was due to expire on 29 May and to enquire of them what steps they were taking and to try to persuade them to make further attempts to serve this warrant. Nothing happened at all during that period. Some seven weeks elapsed between the last visit of the police and the expiry of the time limit and during that period the fiscal apparently took no steps whatever to remind the police of the imminence of the time limit and to remind them that this warrant had to be served if at all possible before that date.
In our view this is a case where the delay was of such a nature that the Procurator Fiscal can be said to have been responsible for it. It is not for this Court to lay down specific procedures which the Procurator Fiscal's department must follow, but we would have thought that it would be advisable, to put it no higher, that there should be a system whereby if a warrant is in the hands of the police a considerable time before a time limit is due to expire, then the Procurator Fiscal's office should be alert to the fact that the warrant has not been served and that the time limit is due to expire shortly. They should then, at that stage, advise the police that this is a warrant which has now assumed a matter of urgency and that greater attempts should be made to serve it.
In the present case, as we have said, nothing happened at all and the time limit was allowed to pass without any further attempt being made to serve this warrant after 14 April. That being so, in our view, it cannot be said that there has been no undue delay and in the circumstances we are satisfied that the Note of Appeal should succeed. We shall accordingly uphold the objection to the competency of the proceedings.