Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. ALEXANDER TOUATTI [2001] ScotHC 26 (4th May, 2001)

[1] On 10 January 2000 Alexander Touati appeared on petition at Dundee Sheriff Court charged with breach of the peace. He was committed for further examination. On 17 January 2000 he was committed until liberated in due course of law. He was indicted for trial at the same Sheriff Court on 8 May, with a first diet to take place on 24 April. The trial diet was postponed to 22 May and on 12 May the accused's agents served a devolution minute on the Lord Advocate and Advocate General. The minute raised an issue as to whether the charge of breach of the peace was compatible with Article 7 of the European Convention on Human Rights and Fundamental Freedoms and whether, accordingly, the procurator fiscal, as the Lord Advocate's representative, had the power under Section 57(2) of the Scotland Act 1998 to prosecute the accused on the charge as libelled in the indictment. Having heard argument, the Sheriff decided to refer the issue to this court in terms of paragraph 9 of Schedule 6 to the 1998 Act and, in terms of Rule 40.8 of the Act of Adjournal (Criminal Procedure Rules) 1996, adjourned the trial diet to a sitting of the court on 31 July. A further hearing took place on 19 June to finalise the terms of the reference.

[2] On 19 June the Sheriff adjourned the trial diet until 23 October 2000, again in terms of Rule 40.8. The indictment was not called at that sitting and accordingly the instance fell. Thereafter a fresh indictment was served on the accused for a sitting starting on 20 November, but at the first diet on 13 November on joint motion the Sheriff deserted the diet pro loco et tempore, apparently because this reference was still outstanding. A further indictment was served on the accused, this time for trial in the sitting of 5 February 2001. When the indictment called at the first diet, the trial diet was adjourned until the sitting beginning on 5 March 2001. We understand that it has been further adjourned.

[3] At some point the view was reached in Crown Office that the adjournment of the trial diet from 31 July until 23 October 2000 had been incompetent in terms of Section 80(1) of the Criminal Procedure (Scotland) Act 1995, since the adjournment was not to a date within two months of 31 July. The Crown therefore asked the court to fix a procedural hearing to determine whether the reference, which had been made in respect of the first indictment, was still live. At the hearing counsel for the accused maintained that it was.

[4] The Crown view, that the adjournment from 31 July until 23 October was incompetent because of the terms of Section 80(1) of the 1995 Act, is plainly misconceived. As we have already explained, the Sheriff did not adjourn the trial diet under that provision but under Rule 40.8(1) of the Act of Adjournal which provides inter alia:

That is a deliberately flexible provision which permits the court to make the appropriate order in the particular circumstances. Those circumstances will vary from case to case and the length of the adjournment which may be necessary will depend, for instance, on how quickly this court can hear and determine any reference and on whether there is an appeal to the Privy Council. In this case the Sheriff adjourned the trial diet until 23 October in the hope that the reference could have been disposed of within that period. That was both a proper and a competent order in terms of Rule 40.8.

[5] If the indictment had duly called in the sitting of 23 October, there would have been no problem. In fact, however, for some reason it did not call then and the instance accordingly fell. The second indictment was deserted pro loco et tempore and the accused now awaits trial on the third indictment. We understand that the terms of all three indictments have been identical. At the hearing before us the Advocate Depute came to acknowledge that the original adjournment had been competent but submitted that, nevertheless, the reference to this court had been part of the proceedings on the first indictment and had therefore fallen with those proceedings. Mr. Gebbie, who appeared for the accused, submitted that the reference procedure was designed to allow an accused person to raise a constitutional issue as to the legality of the actings of the Lord Advocate and that this issue was free-standing and so survived the demise of the proceedings on the indictment in respect of which it had been raised.

[6] We are satisfied that Mr. Gebbie's submission is unsound. Paragraph 9 of Schedule 6 to the Scotland Act is in these terms:

The reference is of a devolution issue which arises in the criminal proceedings before the court concerned. The procedure is designed to allow a court, when faced with an issue of difficulty or of some general importance, to refer the issue to this court. As the terms of the paragraph show, it is the original court, and not the parties, which decides whether to make a reference. This is because the reference procedure is designed, not for the benefit of the parties as such, but to assist the court in dealing with the issue before it. The procedure can therefore be seen as simply a stage in the proceedings before the original court: when this court has determined the issue in the reference, the original court will then use the guidance given by this court to reach its decision on the issue confronting it. In a case like the present, for instance, the Sheriff would in due course use any answers which we might give to the questions posed in the reference in deciding how to dispose of the issue raised in the devolution minute. We stress that it is for the original court both to make the reference and ultimately to make the operative decision. This is clearly indicated by the terms of Rule 40.10 which provides for the procedure when the original court receives the determination of a devolution issue. Rule 40.10(2) requires that court to give directions as to further procedure, which are intimated to the parties to the proceedings giving rise to the reference. The reference procedure is therefore a highly practical measure for the benefit of the original court and not some free-standing device to allow parties to air purely academic or hypothetical issues. If, therefore, for some reason the proceedings come to an end and the original court no longer needs to decide the issue which has been referred, the reference procedure too will come to an end. Here, for example, the issue raised in the minute was whether the Lord Advocate had the power under Section 57(2) of the Scotland Act 1998 to prosecute the accused on the charge as libelled in the indictment. When the indictment fell, the Crown were no longer prosecuting the accused on the charge libelled in the indictment. The Sheriff therefore no longer had any need to decide the issue and so the reference, which had simply been designed to help him decide it, came to an end along with those proceedings.

[7] In this case, of course, the Crown have raised a fresh indictment and, we understand, the accused wishes to raise the same issue. In order to do so he must lodge and serve a fresh minute. In due course, the sheriff who deals with that minute may choose to decide the matter for himself or to refer the issue to this court. But in the meantime we are satisfied that the original reference is no longer live. We are aware that, in a case like the present where the Crown have raised a fresh indictment in identical terms, our decision may appear unattractively technical. But much the same can happen, for instance, where an appeal is taken from a decision in a preliminary diet and, for some reason, the indictment falls and a fresh indictment is raised in the same terms. The appeal comes to an end with the proceedings on the first indictment and the matter has to be argued and, if appropriate, appealed in the proceedings on the new indictment.

[8] In the circumstances of this case, it is for the accused, if so advised, to lodge and serve a devolution minute in the proceedings on the present indictment.