Scottish High Court of Justiciary Decisons

Reynolds v. Procurator Fiscal [2002] ScotHC 2 (14 February, 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Kirkwood Lord Nimmo Smith Lord Weir

Appeal No: 1858/00 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL to the Competency and Relevancy by SHAUN GEORGE REYNOLDS Appellant; against PROCURATOR FISCAL, Linlithgow Respondent: _______

 

Appellant: Shead; Adams Whyte

Respondent: S. Woolman, Q.C., A.D.; Crown Agent

14 February 2002

1. This is an appeal at the instance of Shaun George Reynolds in terms of section 174(1) of the Criminal Procedure (Scotland) Act 1995. The appellant faced a complaint charging him with theft, the offence having been committed when he was on bail. He appeared at Linlithgow Sheriff Court on 15 February 2000 and pleaded not guilty. The trial diet was fixed for 30 June 2000 with an intermediate diet on 7 June. On 7 June the appellant failed to appear and, on the motion of the procurator fiscal depute, the sheriff granted a warrant to apprehend the appellant as he was authorised to do by section 150(3) of the Criminal Procedure (Scotland) Act 1995. The court minute of 7 June is in the following terms:

"The Court in respect that the accused SHAUN GEORGE REYNOLDS has failed to appear to answer the foregoing complaint after being duly cited/ordained to appear at this diet, grants warrant to apprehend the said accused".

The trial diet, which had been fixed for 30 June, did not take place, the case not being called. The warrant was duly executed and the appellant appeared from custody on 14 July. On that date a new trial diet was fixed for 18 August and an intermediate diet was fixed for 26 July, the appellant being remanded in custody. At the new intermediate diet on 26 July the appellant's solicitor tendered a plea to the competency of the proceedings. The court continued the intermediate diet and a debate took place on 2 August.

2. At the debate the appellant's solicitor submitted that the trial diet fixed for 30 June had not been discharged on 7 June and as the case had not called on 30 June the instance had fallen at midnight on that date. On 7 June a warrant had been granted for the apprehension of the appellant, but the court minute did not make any reference to the trial diet and, in particular, there had been no specific discharge of the trial diet. It was submitted that a trial diet, which had been fixed by order of the court and was a peremptory diet, could not be discharged by implication simply because a warrant for the apprehension of the appellant had been granted in terms of section 150(3) of the 1995 Act. Section 150(3) did not provide that the grant of a warrant had the effect of discharging the trial diet. As the trial diet fixed for 30 June had not been discharged, and the case had not called on that date, the instance had fallen. In reply, the procurator fiscal depute accepted that if the trial diet had not been discharged the instance had fallen, but he submitted that the granting of the warrant had the effect of automatically discharging the trial diet. The prosecution could not continue after a warrant had been granted as it could not be known when the warrant would be executed, and the grant of the warrant had the effect of discharging any further procedure until the accused was brought before the court.
3. The sheriff was satisfied that the grant of the warrant for the apprehension of the appellant on 7 June had the effect of discharging the trial diet fixed for 30 June. The sheriff who presided at the intermediate diet on 7 June could either have adjourned the proceedings to another diet and ordered the appellant to attend at that diet, in terms of section 150(2), or granted a warrant for his apprehension, in terms of section 150(3). Section 150(3) is silent on the effect of the granting of a warrant on the trial diet, but the sheriff concluded that it carried with it, by implication, the discharge of the trial diet which had an overall suspensive effect on the prosecution. In these circumstances the failure to call the case on 30 June had not resulted in the instance having fallen. The sheriff granted leave to appeal.
4. Section 150(1), (2) and (3) provides as follows:

"150.-(1) This section applies where the accused in a summary prosecution fails to appear at any diet of which he has received intimation, or to which he has been cited other than a diet which, by virtue of section 148(5) of this Act, he is not required to attend.

(2) The court may adjourn the proceedings to another diet, and order the accused to attend at such diet, and appoint intimation of the diet to be made to him.

(3) The court may grant warrant to apprehend the accused."

5. Counsel for the appellant repeated the submission that the grant of the warrant on 7 June had not had the effect of discharging the trial diet, and that since the case was not called on 30 June the instance had fallen. It would have been open to the sheriff who had granted the warrant expressly to discharge the trial diet, but he had not done so and the court minute did not contain any reference to a discharge of the trial diet. In the absence of a formal order for discharge of the trial diet, the date fixed for the trial diet remained a peremptory diet and it was common ground in this case that the case had not called on 30 June. The comparable position in solemn procedure was not relevant to summary procedure which is regulated by statute. If an accused person fails to appear at an intermediate diet and a warrant is granted, it is open to the sheriff to discharge the trial diet and, once the warrant has been executed and the accused is brought before the court, the court could fix a new trial diet and a new intermediate diet. However, the discharge of a trial diet cannot be left to implication. There is no provision in section 150 which indicates that Parliament intended that the grant of a warrant on the accused's non-appearance at an intermediate diet would have the effect of discharging the trial diet. Some sheriffs had adopted the practice, on granting a warrant, of stating that the trial diet was discharged and the court minute contained an entry to that effect, the entry being added in writing to the standard computer-generated minute which did not refer to a discharge if a warrant was granted. If the trial diet was to be discharged, that would be the appropriate procedure and it would remove any doubt. It was important that, if the trial diet was to be discharged, there should be a court order to that effect. In the present case the sheriff on 7 June had not stated that the trial diet was being discharged and the court minute did not contain any reference to a discharge. That being so, the trial diet fixed for 30 June remained in force and the instance had fallen. Counsel submitted that, if an accused failed to appear at an intermediate diet and a warrant was granted, section 148 of the 1995 Act applied and, if the court concluded on the basis of the available information that the case was unlikely to proceed to trial on the date assigned for the trial diet, then an order postponing the trial diet could be made and a further intermediate diet fixed. Intermediate diets are administrative in character (Kerr v. Carnegie 1998 S.C.C.R. 168) and there was no reason in principle why the failure of an accused to appear at such a diet, and the granting of a warrant, should automatically result in the discharge of the trial diet. In any particular case it might be that the Crown, and the defence, wished to try to preserve the trial diet, particularly if there was information to the effect that the accused was likely to be apprehended within a very short time. If the trial diet was automatically discharged on a warrant being granted, the fixing of a new trial diet would result in considerable delay and it is clearly in the public interest that trials should proceed as soon as possible. In the course of his submissions counsel also referred to McLeod v. Williamson 1993 J.C. 25, Vannet v. Milligan 1998 S.C.C.R. 305, Reith v. Bates 1998 S.C.C.R. 426 and Kelly v. H.M. Advocate 2001 S.C.C.R. 534.
6. The advocate depute accepted that, if the grant of the warrant on 7 June had not had the effect of discharging the trial diet, then the instance had fallen when the case had not been called on 30 June. However, he submitted that the granting of the warrant for the apprehension of the appellant had automatically discharged the trial diet by necessary implication and there had been no need for any reference to that discharge to appear in the court minute. It was accepted that the computer-generated court minute, in the event of a warrant being granted, contains no reference to discharge of the trial diet. But no such reference was necessary if the grant of the warrant had the effect of automatically discharging the trial diet. If an accused person failed to appear at an intermediate diet, and a warrant for his apprehension was granted, it could not be known when he would be able to be apprehended and it was sensible, in the interests of all concerned, that the trial diet should be discharged. In that event, the proceedings against the accused would effectively be suspended until the accused had been apprehended and brought before the court, and at that stage a new trial diet and a new intermediate diet could be fixed. If an accused failed to appear at an intermediate diet the sheriff, in terms of section 150, could either adjourn the proceedings to another diet and order the accused to attend at that diet, or grant warrant to apprehend him, but could not do both. The advocate depute referred to a statement in Renton & Brown's Criminal Procedure, para. 21-02 to the effect that this was the normal course but accepted that the passage was unsupported by authority. A further relevant consideration was that if an accused failed to appear, and a warrant was granted for his apprehension and a new intermediate diet fixed, and he failed to appear at that diet, then he would be guilty of a further criminal offence. The advocate depute accepted that there was nothing in the 1995 Act which stated that sub-sections (2) and (3) of section 50 were mutually exclusive and conceded that, if they were not mutually exclusive, the effect would be that a further option would be open to the sheriff which could be in the public interest. However, it was submitted that section 148 has no application in the case of a failure by an accused to appear at an intermediate diet.
7. Section 148(2) and (3) of the Act provides as follows:

"(2) Where at an intermediate diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court -

(a) shall, unless having regard to previous proceedings in the case it

considers it inappropriate to do so, postpone the trial diet; and

(b) may fix a further intermediate diet.

(3) Subject to subsection (2) above, the court may, if it considers it appropriate to do so, adjourn an intermediate diet."

8. The short, but by no means straightforward, question for determination is whether, if an accused person in summary proceedings who is required to attend at an intermediate diet fails to appear, and a warrant is granted for his apprehension, that has the effect of discharging the trial diet. There is no doubt that the trial diet is a peremptory diet. In Hull v. H.M. Advocate 1945 J.C. 83 the Lord Justice-Clerk (Cooper) stated (at page 86) as follows:

"It is a cardinal rule of our criminal procedure that a criminal diet is, and must be made, peremptory, and that, if the diet is not called or duly adjourned or continued on the date in the citation, the instance falls (Hume, vol. ii, 263, 264; Alison, vol. ii, 343, 344; Macdonald, (4th ed), 471). The rule has again and again been rigorously enforced, its non-observance being treated as involving a fundamental nullity requiring that any conviction which has followed should be quashed."

In summary proceedings trial diets and intermediate diets are creatures of statute and the common law does not provide authority for the holding of diets in summary cases (Vannet v. Milligan 1998 S.C.C.R. 305). Intermediate diets were introduced in 1980 with a view to avoiding the waste of court time and inconvenience to the public caused by cases not proceeding at trial diets which had been fixed. Section 150(1) and (3) of the 1995 Act provides that if the accused in a summary prosecution fails to appear at a diet which he is required to attend, the court "may grant warrant to apprehend the accused", but the section, which is not restricted to intermediate diets, does not contain any reference to the effect on the court proceedings of granting a warrant. In particular, there is no provision stating what effect, if any, the granting of a warrant at an intermediate diet is to have on the trial diet. If it had been intended that the granting of a warrant at an intermediate diet would have the effect of discharging the trial diet a specific provision to that effect could have been inserted. The advocate depute submitted that once a warrant had been granted it could not be known when the accused would be able to be apprehended and that was put forward as the reason why the grant of the warrant should have the effect of automatically discharging the trial diet.

9. We have considered all the relevant statutory provisions which must, of course, be read together. In our opinion, the granting of a warrant at an intermediate diet does not per se have the effect of discharging the trial diet. The discharge of the trial diet, which is a peremptory diet, should not in such circumstances be left to implication. If, at the intermediate diet, the accused fails to appear and the sheriff decides to grant a warrant for his apprehension, the sheriff may decide to discharge the trial diet. Each case must, of course, depend on its own particular circumstances. If the sheriff does decide, having granted a warrant, to discharge the trial diet then the decision to discharge the trial diet should be recorded in the court minute. The course taken by the sheriff must depend on the particular circumstances of each case but if, for example, there is information before the sheriff to the effect that it is likely that the accused will be apprehended within a short time, and it is desired to try to retain the existing trial diet, then it would be open to the sheriff to adjourn the intermediate diet to another date in terms of section 150(2) of the Act and appoint intimation of the new diet to be made to the accused once he had been apprehended. In that connection we do not regard subsections (2) and (3) of section 150 as necessarily being mutually exclusive. If the accused is not apprehended before the date of the new intermediate diet, then the sheriff may decide to discharge the trial diet and the decision to discharge should be recorded in the minute. If the accused has been apprehended before the new intermediate diet takes place, and he appears at that diet, but the sheriff concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, then section 148(2) would come into play and the trial diet could be postponed. We do not consider that the granting of a warrant at the intermediate diet must necessarily result in the discharge of the trial diet with the resultant delay in the disposal of the case. In our opinion, the fact that there is another option available to the sheriff, which could result in the existing trial diet being preserved and further delay being avoided, is in the interests of justice.
10. In the particular circumstances of the present case the sheriff granted a warrant but did not make a formal order discharging the trial diet. In our opinion the granting of the warrant on 7 June did not have the effect of discharging the trial diet which had been fixed for 30 June and, as the case was not called on that date, it follows that the instance fell and the appellant's plea is well-founded.
11. We would only add that while there was a brief reference in the submissions of counsel for the appellant to the comparable position in solemn proceedings, under reference to Kelly v. H.M. Advocate, supra, the effect of granting a non-appearance warrant in proceedings on indictment was not argued before us and we express no opinion on it.