Scottish High Court of Justiciary Decisons

BLAIR GALLOWAY v. PROCURATOR FISCAL, KIRKCALDY [2001] ScotHC 50 (11th July, 2001)

[1] The appellant in this Note of Appeal is Blair Galloway. He was the subject of a summary complaint which included a number of charges under the Road Traffic Act 1988. The circumstances which give rise to the present appeal relate to the execution of the initiating warrant following upon the raising of the complaint. The statutory charges were subject to the time limit as provided for in section 136 of the Criminal Procedure (Scotland) Act 1995. The six month period terminated on 18 June 2000. The facts disclosed in the sheriff's report are as follows. The complaint that was ultimately served on the appellant disclosed that an initiating warrant had been granted apparently on or about 6 June 2000 but that execution of service of that initiating warrant at the appellant's domicile of citation did not take place until 28 June 2000.

[2] When the sheriff was addressed on the matter he was advised by the depute fiscal that the initiating warrant had been granted on 16 June 2000 (and not 6 June as originally represented to him) and that the warrant had been received back from the sheriff clerk's office on 19 June. The sheriff was further advised that upon receipt of the warrant, a letter had been prepared within the fiscal's office for the purpose of being sent with the warrant to the police. The letter was to state that the appellant would be invited to attend court rather than have the warrant executed. The sheriff was informed that the preparation of this letter took almost five days because of typing pressures in the fiscal's office. As a consequence of these pressures the sheriff was told that it took until Friday 24 June to have the letter dispatched to the police with the warrant. He was also informed that the letter did not arrive in the post at the relevant police office until Monday 27 June. It was the next day, 28 June, it was said, that the police attempted to deliver the letter and/or execute the warrant.

[3] The sheriff, as his report makes clear, was addressed on the basis that the period, to which reference was being made, was the period between 19 June and 28 June 2000, a period of some 9 days. It was urged for the appellant that that delay was one such as constituted undue delay in terms of section 136 and therefore that the proceedings, so far as the statutory charges were concerned, had not been timeously commenced.

[4] The sheriff had accepted that, as made clear in the cases referred to before him, to delay service of a complaint charging a statutory contravention was a circumstance that would always call for explanation, otherwise it would be regarded as excessive. He took the view that, in the case as presented to him, he was satisfied that the explanation given to him by the fiscal for the delay was appropriate and justified and that the delay was not undue. In the first place, he said that it was clearly demonstrated to him that as, at 19 June 2000, the Crown's intention was invite the appellant to attend court rather than to enforce the warrant. Furthermore, he said that the fiscal had clearly stated that to get a letter typed in the fiscal's office at that time took several days in all and thus the delay was due to lack of resources in the fiscal's office. In addition, he took into account the fact that the letter was sent to the police by post on Friday 24 June and the whole point of the exercise was to invite the appellant to attend court.

[5] At this stage we observe the sheriff tells us that he was also informed that when the police went with the warrant to the address given for the appellant's domicile, the police officers spoke to the appellant's mother. She advised the police that the appellant was serving in the British Army and was abroad on duty. She had immediately contacted the solicitor who subsequently appeared for the appellant, to have him inform the fiscal that she had let her son know that the police were looking for him with the warrant. It was following upon that indication that the arrangement was made for the appellant to attend court voluntarily, as he did ultimately on 26 September 2000.

[6] In our opinion, the fact that a letter was being prepared was not sufficient in itself to excuse the delay that took place before execution of the initiating warrant. We observe, in the first place, that the sheriff must have been made aware, through the reference, in the submissions before him, to the case of Young v McPhail, of what had been said by the Court in Smith v Peter Walker & Son (Edinburgh) Limited 1978 JC 44. In particular, in the latter case Lord Justice General Emslie specifically approved a passage in Renton & Brown's Criminal Procedure, 4^th Edition, p. 187 as follows:

The Lord Justice General went on to say that in the circumstances of that case there were a number of particular features which were of importance. One of these features was that the six month time limit was almost at an end before warrant to cite the respondents was sought and granted. Later on in his judgment, the Lord Justice General says this:

[7] In the present case the sheriff appears to have taken the view that the time taken to prepare the letter and send the warrant off with the letter to the police was a delay which in the circumstances was not undue but rather was appropriate and justified. We do not agree. This was a case in which a warrant to cite was in fact received by the fiscal after the statutory time limit had expired. It was therefore of supreme importance that he should proceed without any delay to have the warrant passed on to the police for execution. It is suggested before us today that there had been difficulties within the fiscal's office in relation to typing staff, including the loss of one experienced typist on maternity leave, the absence of the typing manager and the fact that there were two new recruits in the office for typing duties. Nevertheless, no explanation is tendered as to how, given the priority that such a warrant required, it was not possible to have a letter typed within a very short period after the warrant was received and thereafter have that warrant and letter, as a matter of expedition, passed on to the police.

[8] In the whole circumstances of this case we have come to the conclusion that the sheriff did not fully and properly consider the circumstances as he was required to do in accordance with the judgment in Smith v Peter Walker & Son Limited, a judgment which, we observe, has been cited with approval in subsequent cases and, in particular, in the case of Young v McPhail. For these reasons, there being undue delay in execution of the warrant to cite, the plea to the competency of the second to fifth charges on the complainer must succeed. We shall, accordingly, allow the appeal.