Scottish High Court of Justiciary Decisons

PETER DAVID KELLY v. HER MAJESTY'S ADVOCATE [2001] ScotHC 35 (6th June, 2001)

[1] On 2 August 1999 the appellant, Peter David Kelly, appeared on petition in the Sheriff Court at Dundee, charged with assault and robbery. The diet was continued for further examination and the appellant was released on bail. The Crown served an indictment for trial in the sheriff court with a first diet on 19 June 2000, but on that date they deserted the diet pro loco et tempore and the court granted a three-month extension of the twelve-month period in terms of Section 65(3) of the Criminal Procedure (Scotland) Act 1995. The Crown served a fresh indictment for trial in the sitting beginning on 25 September 2000, with a first diet on 11 September. The appellant attended court on 11 September when the first diet was continued to 20 September. The appellant failed to attend the continued first diet and the Crown sought and obtained a warrant "to apprehend and commit the accused, Peter Kelly, to any lawful prison until liberated in due course of law". He does not suggest that the warrant was granted improperly. It was executed on 29 October and the appellant appeared from custody on 3 November, when he was again admitted to bail. The Crown sought no further extension of the twelve-month period, but on 19 December they served an indictment for trial at a sitting beginning on 22 January 2001, with a first diet on 8 January. The first diet was adjourned to 17 January when the appellant adhered to his plea of not guilty and, on the motion of his agent, the court adjourned the trial diet to the sitting beginning on 5 March. The diet was called on 16 March, the last day of that sitting, when, on the motion of the Crown, it was adjourned to the sitting beginning on 19 March. The diet was called on 30 March, again the last day of the sitting, when the Crown once more moved the court to adjourn the diet, this time to the sitting beginning on 3 April. It was then still further adjourned to the sitting beginning on 30 April, with a first diet on 16 April "to enable the question of time bar to be addressed". On 16 April counsel for the appellant submitted that, by reason of Section 65(1) of the 1995 Act, it was incompetent for the Crown to proceed to trial, since any trial would not be started within the twelve-month period, as extended by a further three months. The Sheriff repelled the plea and granted leave to appeal.

[2] Section 65 of the 1995 Act provides inter alia:

[3] On behalf of the appellant Mr. Shead's argument was simple. Hitherto, the court had misinterpreted subsection (2) of Section 65 as meaning that, where an arrest warrant had been granted for an accused's failure to appear at a diet of trial, subsection (1) had no further application to his case and, subject to any plea of oppression or any plea under Article 6 of the Human Rights Convention, the Crown could bring the accused to trial at any time. The proper interpretation, Mr. Shead contended, was that subsection (2) operated only so long as the warrant had not been executed and the accused had not been brought back before the court and released on bail. Once he had been released again on bail, subsection (2) ceased to apply to the accused's case and he once more enjoyed the protection of subsection (1). In the present case, accordingly, subsection (2) had applied to the appellant only from the time when the court granted the warrant for his arrest on 20 September 2000 until he appeared before the court on 3 November and was released on bail. Thereafter the protection of the twelve-month limit under subsection (1) had revived, with the result that no trial could now take place.

[4] In H. M. Advocate v. Taylor 1996 S.C.C.R. 510 the accused originally appeared on petition on 4 November 1993. On 17 October 1994 he was not present in court when the diet called. A warrant was granted for his failure to appear. In fact, however, he was present in another part of the building to which an official had directed him. Just after the hearing, his solicitor came across him and learned what had happened. He immediately explained the position to the procurator fiscal who undertook that the warrant would not be executed. The Crown did not seek an extension of the twelve-month period and, after a number of events which we need not rehearse, served an indictment on the accused for trial at a sitting beginning on 11 March 1996. In these circumstances this court held that the sheriff had been wrong to look behind the warrant and to sustain a plea to the competency of the proceedings on the basis of Section 101(1) of the Criminal Procedure (Scotland) Act 1975, the equivalent of Section 65(1) of the 1995 Act. Giving the opinion of the court, Lord Justice General Hope said (1996 S.C.C.R. at pp. 513 F - 514 C):

As Mr. Shead acknowledged, the decision in Taylor, and this passage in particular, appear to stand squarely against the interpretation of subsections (1) and (2) of Section 65 which he asked us to apply. The court held that the words of subsection (2) were to be construed in a straightforward fashion, as meaning that subsection (2) applied whenever a warrant was granted for the accused's failure to appear. By virtue of subsection (2), in those circumstances he never again enjoyed the protection of subsection (1).

[5] Mr. Shead sought, however, to advance his argument by reference to a later passage in the opinion (1996 S.C.C.R. at p. 514 F - G) where the court explained what the accused's advisers should have done in the circumstances of Taylor:

Mr. Shead argued that a subsequent grant of bail could be equated to the suspension of the arrest warrant. He referred to the reasoning in the opinion of the Lord Justice General in H. M. Advocate v. Muir 1998 J.C. 20 which indicated, we understood him to suggest, that a subsequent grant of bail wiped out the effect of the original arrest warrant in just the same way as the effect of the warrant could be suspended by this court in the exercise of its common law powers.

[6] We reject that argument. If a warrant is suspended by the court, matters are then treated as if the warrant had never been granted in the first place. That is why the court in Taylor pointed out that suspension of the warrant would have restored the effect of the equivalent of Section 65(1). By contrast, where a warrant is executed and the accused is subsequently released on bail, these steps are taken on the footing that the court has previously granted a valid order for the accused's arrest. All that happens is that the order granting the warrant is followed by another order for the accused's liberation on bail. That second order does not impinge upon the validity of the first order. Nothing said in Muir suggests that it does.

[7] Mr. Shead said that such a conclusion would work unfairly in practice, since the protection of Section 65(1) could be lost permanently or regained, depending upon the chance of timing. If a warrant were granted in inappropriate circumstances and the accused had it suspended before he was arrested, then he would regain the protection of Section 65(1). But if he were arrested, brought to court and bailed before he could have the warrant suspended, then the warrant would be exhausted and could not thereafter be suspended. The accused would therefore remain without the protection of Section 65(1). The flaw in this argument is the assumption that, because it had been executed, the warrant could not be suspended. In our view, where the accused could show that the warrant had been granted improperly, he could have it suspended, even though it had been executed, if circumstances arose where the twelve-month time-bar would apply. Suspension of the warrant could be sought precisely because the wrongful granting of the warrant would continue to have a practical effect, by depriving the accused of the right, which he would otherwise have, to be tried within twelve months.

[8] The starting point for Mr. Shead's alternative argument is also to be found in the opinion of the Lord Justice General in Muir. Having interpreted Section 65(4) as applying to a prisoner who had been kept in custody on the basis of a non-appearance warrant, he added (1998 J.C. at pp. 29 I - 30 A):

Mr. Shead submitted that, mutatis mutandis, Section 65(2) should be interpreted in the same spirit. Even though the appellant might be to some extent the author of his own misfortune, he should still be protected like any other accused from undue delay in bringing him to trial. The court should find it hard to believe, in the absence of any compelling indication to the contrary - and there was none - that Parliament would have wished to deprive the appellant of the protection afforded by Section 65(1). The court should therefore interpret Section 65(2) as applying only for so long as an accused person, such as the appellant, remained in effect an "outlaw", but when he was once more within the criminal justice system and released on bail, he should be regarded as being no longer "an accused for whose arrest a warrant has been granted for failure to appear". The Crown's position would be preserved by their right to apply for an extension of the twelve-month period in terms of Section 65(3).

[9] Despite the attractive way in which Mr. Shead presented this argument, we are satisfied that it, too, is untenable, given the terms of Section 65(2). We acknowledge that there is, at first sight, some force in the contention that the court might find it hard to believe that Parliament - which intended that a person who failed to appear should nevertheless have the protection of the 80- or 110-day rule - would not similarly have wished such a person to enjoy the protection of the twelve-month rule. But the time-limits perform different functions. The 80- and 110-day rules are designed to prevent accused persons being kept too long in custody before being served with an indictment or brought to trial. The twelve-month rule is designed to ensure that persons are brought to trial within a year of their first appearance on petition. Parliament may well have attached even more importance to the first of these aims than to the second, important though it may be. That being so, there is no real inconsistency in holding that Parliament intended that persons who fail to appear at a diet should have the protection of the 80- and 110-day rules but not the protection of the twelve-month rule.

[10] In any event, as the Lord Justice General recognised in Muir, any a priori assumption as to the likely intention of Parliament would require to yield to a compelling indication to the contrary in the terms of the legislation. Here we are satisfied that the plain meaning of Section 65(1) and (2) is that Parliament did not intend an accused in the appellant's position to have the benefit of the twelve-month rule contained in subsection (1).

[11] As the Advocate Depute pointed out, in what was also an attractive submission, there is a marked difference in the formulation of the two sets of provisions. In subsection (1) the trial must be commenced "within a period of 12 months of the first appearance of the accused on petition". That envisages a single period which runs from a fixed starting-point and expires at the end of twelve months, unless extended. By contrast, under subsection (4) an accused is not to be detained "for a total period of more than" 80 or 110 days, as the case may be. As the court held in Muir, Parliament envisages that the relevant total period in custody may comprise not just a single period but a number of distinct periods, separated by a period or periods at liberty. Under subsection (4) Parliament has therefore provided machinery by which the time-limits can operate satisfactorily even though there are distinct periods of custody. By contrast, under subsection (1) there is a single period of twelve months and there is no provision for it to be suspended or interrupted. In terms of subsection (2), where a warrant is granted for the arrest of an accused who has failed to appear, the running and eventual expiry of that period are not to bar his trial. In other words, subsection (2) removes the accused from the sphere where he can rely on the running and eventual expiry of the twelve-month period in subsection (1). But the period continues to run, even though it does not avail the accused. If, by contrast, subsection (2) had been intended, as Mr. Shead submitted, to apply only while there was an outstanding warrant for an accused, then Parliament would have had to create a mechanism by which the grant of the warrant stopped the twelve-month period running and the subsequent grant of bail restarted it. There is no such mechanism. This shows that either, as in the normal case, the twelve-month rule applies to an accused's case, or else, where a warrant is granted for his non-appearance, it does not apply. There is no half-way house. We are therefore satisfied that, by enacting subsections (1) and (2) in these terms, Parliament has indeed given a compelling indication that an accused in the appellant's position is not to have the benefit of the twelve-month limit in Section 65(1).

[12] For these reasons we refuse the appeal. We should record that, in the course of his submission, Mr. Shead suggested that whether or not a warrant was sought for the accused's non-appearance often depended on the "whim" of the individual prosecutor. The prosecutor might choose simply to instruct the police to try to contact the accused and see if he would come to court voluntarily. Alternatively, the prosecutor might have the accused arrested for failing without reasonable excuse to appear for the diet, in contravention of Section 27(1)(a) of the 1995 Act. If the prosecutor chose either of these courses of action, Section 65(2) would not apply and the accused's rights under Section 65(1) would remain intact. If, on the other hand, the prosecutor sought and was granted a non-appearance warrant, the accused was virtually at the mercy of the prosecutor so far as the timing of his trial was concerned - as the facts of the present case showed all too clearly.

[13] We express no view on the application of Section 65(2) in a case where the accused is charged with a contravention of Section 27(1)(a). But Mr. Shead pointed out that prosecutors tended not to ask for a warrant from the trial court because it was thought that, by granting the warrant, the court would automatically bring the proceedings against the accused to an end. We are aware that this is a widely held view. We are less clear as to precisely what its basis is thought to be. At one time, of course, if an accused failed to appear for trial in the High Court, the court could pronounce a sentence of fugitation, which undoubtedly meant that those proceedings against the accused came to an end, because he could not appear in court while he remained outside the law. Since fugitation was abolished many years ago, however, that doctrine cannot be the explanation of any such rule today. Equally, we can see that, if the court were to grant a warrant and not continue the diet to a fixed date, then the instance would necessarily fall. But that would be because of the failure to continue the diet to a fixed date, rather than because of the granting of the warrant. We are aware, for instance, that in H.M. Advocate v. Leslie 1985 J.C. 1 on 25 January 1984 the second accused, Mackay, failed to attend the trial diet. At a continued diet later that day the trial judge, Lord Hunter, granted a warrant for his arrest with a view to him being brought before the court at a continued diet on 27 January. The police were unable to execute the warrant and on 27 January Lord Hunter granted a further warrant for his arrest with a view to his being brought before the court at a continued diet on 30 January. On 30 January the court was informed that Mackay had fled to Spain. Lord Hunter granted a non-appearance warrant; Mackay's bail was forfeited and "the Crown was allowed to desert pro loco et tempore" against him (Lord Hunter's opinion, 31 January 1984, unreported on this point). In the present case, the question of the effect of granting a non-appearance warrant does not arise for determination, however, and it was not indeed the subject of any detailed argument. We therefore express no view upon it.