Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Cameron of Lochbroom Lord MacLean	Appeal No: 2392/01 OPINION OF THE COURT delivered by LORD MacLEAN in APPEAL TO COMPETENCY AND RELEVANCY by CHRISTOPHER JOHN SLATER Appellant; against THE PROCURATOR FISCAL, Dumfries Respondent: _______

 

 

Appellant: Shead; Oag & Co

Respondent: Di Rollo, Q.C., A.D.; Crown Agent

1 October 2002

1. The appellant, Christopher John Slater, was charged on a summary complaint at the instance of the Procurator Fiscal, Dumfries, who is the respondent in this appeal, with a contravention of the Road Traffic Act 1988, section 3, in respect of an alleged offence said to have been committed on 17 February 2001. In terms of section 136 of the Criminal Procedure (Scotland) Act 1995 proceedings in respect of the alleged offence had to be commenced within 6 months of 17 February 2001. Section 136(3) of the 1995 Act provides that for the purposes of the section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or cite the accused is granted, if the warrant is executed without delay.
2. On 2 August 2001, the respondent requested from the Sheriff Clerk at Dumfries an initiating warrant to apprehend the appellant. On 6 August 2001 it was granted. On 7 August 2001 it was received in the respondent's office. On the same day instructions were given to invite the appellant to appear voluntarily at the Sheriff Court, Dumfries on 14 August 2001. An entry was made on a computer within the respondent's office requesting that a letter inviting the appellant to attend at Dumfries Sheriff Court on 14 August 2001 be produced. In response to the request a letter would normally be printed and sent on 8 August 2001. The daily log sheet for that date kept within the respondent's office indicates that such a letter was printed. It does not, however, identify the case to which the letter relates. No copy of the letter which was printed exists in the respondent's file relating to the appellant. The respondent, therefore, cannot establish that such a letter was sent to the appellant.
3. In the belief, however, that it had been sent to the appellant the respondent or a member of his staff attended at Dumfries Sheriff Court on 14 August 2001. The appellant did not appear. In response to his non-appearance the respondent's depute wrote to the appellant on the same day in the following terms:

"I am writing to inform you that when you failed to appear at Sheriff Court House, Buccleuch Street, Dumfries on 14 August 2001 a warrant was issued for your arrest.

I do not intend to have you arrested provided that you are prepared to attend court voluntarily. You are therefore required to attend at Sheriff Court House, Buccleuch Street, Dumfries at 10.00 am on Tuesday 21 August 2001.

Please bring this letter with you. Failure to attend as required may result in your arrest."

4. On the afternoon of 14 August 2001 the appellant telephoned the respondent's office. He had never before been in touch with the office about any case involving him. The official in the respondent's office who took the appellant's phone call made the following note of their discussion:

"Mr Slater phoned on 14 August 2001 and said that he had been told that proceedings were being taken against him regarding a driving offence. I advised him that he was supposed to be in court today and that we were inviting him to attend on 21 August 2001 as he had failed to turn up. He said he was not advised of this."

5. The letter of 14 August 2001 was duly sent out to the appellant on that day. It was not correct to say, as the letter did, that a warrant was issued on 14 August 2001 for the appellant's arrest. The only warrant issued in respect of the appellant was the warrant issued on 6 August 2001. On 21 August 2001 the appellant appeared at Dumfries Sheriff Court when a copy complaint was served on him. On the same date a plea to the competency of the complaint was taken by the appellant on the ground that by then the time limit in terms of section 136 of the 1995 Act had expired. On 12 September 2001 the sheriff at Dumfries, after debate, repelled the plea, and granted leave to appeal.
6. Mr Shead, who appeared for the appellant before us, submitted that the sheriff had set out the correct test but that he had failed properly to apply it to the circumstances of this case. He ought to have concluded that the respondent had not acted without undue delay in inviting the appellant to appear in court on 17 August 2001. In his submission the advocate depute concentrated our attention upon the events which took place on 14 August 2001. He maintained that it was only then that the respondent realised that the appellant had not received the letter of 8 August 2001 which was believed to have been sent out. The decision taken on 14 August 2001, especially following the conversation with the appellant on the afternoon of that day, not to execute the warrant but to invite the appellant to attend at court on 17 August 2001, two working days after the expiry of the 6 month period, was not unjustifiable.
7. When the court has to consider the expression "without undue delay" it is obvious that it has to assess the nature and degree of the delay in light of the circumstances of each case. In Smith v. Peter Walker & Son (Edinburgh) Limited 1978 J.C. 44 the court (at page 47) adopted and approved a passage in Renton and Brown's Criminal Procedure (4^th edition) at page 187 in the following terms:

"What constitutes undue delay must be a question of fact in each case. It must not be due to any act for which the prosecutor is responsible. The expression 'without undue delay' implies that there has been no slackness on his part and that any delay in execution is due to some circumstance for which he is not responsible, e.g. the conduct of the accused."

8. In Young v. Smith 1981 S.C.C.R. 85, the court held that the execution of any warrant obtained by the prosecutor was not a condition precedent to his right to rely on it. Provided that there was no undue delay on his part, the necessity for its execution was elided by the voluntary act of the accused concerned which achieved the entire objective of the warrant (at page 89). (See also Chow v. Lees 1997 S.C.C.R. 25 1 per Lord Justice General Rodger at pages 251 - 252). In light of the facts of the present case it is worth noting that in Young the appellant was alleged to have committed certain offences against the Road Traffic Act 1972 on 22 October 1979. On 18 April 1979 a warrant was granted for his arrest. On 23 April 1980 the Procurator Fiscal sent the appellant a letter telling him of the existence of the warrant and offering him an opportunity to appear voluntarily at the Sheriff Court on 1 May 1980, when the complaint was served on him. The sheriff held that in these circumstances there was no undue delay and the court (at page 89) saw no ground upon which his decision on that matter - a question of fact, circumstances and degree - could possibly be disturbed.
9. In this case every step, except service of the copy complaint upon the appellant, was carried out within the 6 month period. Service was effected by the appellant's voluntary attendance at court only 4 days (2 working days) after the expiry of the 6 month period. The question nevertheless remains whether, following the obtaining of the warrant, there was undue delay on the part of the respondent. Clearly something appears to have gone wrong in the respondent's office on 8 August, as a result of which he was unable to show that a letter had been sent to the appellant on that day. But, as the sheriff says, steps had been taken to effect its sending and anyone enquiring of the computer used might reasonably have assumed that on 8 August 2001 that had been done. It is perhaps not surprising that on the faith of a letter having been sent out to the appellant, the prosecutor appeared at the Sheriff Court on 14 August 2001. As soon as it was understood from conversation with the appellant that he claimed not to have received the letter, he was told that a further letter was being sent out to him, inviting him to attend at court on 21 August 2001 rather than having him arrested in terms of the warrant. The terms of that letter seem entirely reasonable to us. The fact that it refers in error to a warrant dated 14 August 2001, is wholly irrelevant to a consideration of undue delay.
10. In all the circumstances we are unable to detect any slackness on the part of the respondent which could be characterised as undue delay on his part. The sheriff was not prepared to make the inference, which the respondent's depute invited him to make on the basis of the agreed facts, that the letter had been sent as instructed on 8 August 2001. He did so because the inference seemed to him to be too remote either to make the fact of sending that letter "either probable or to remove any reasonable doubt about whether it had been sent". In such circumstances it is not possible to assert that the letter had not been sent any more than it was proved that it had been sent. Accordingly it seems to us that too much is uncertain about the letter instructed on 8 August 2001 and whether it was sent for that to be regarded as slackness. In any event, the respondent immediately recovered from that position by writing promptly the letter he did on 14 August 2001, and directly and personally informing the appellant on the same date that he was being invited to attend at court on 21 August 2001.
11. In the result we agree with the sheriff that there was no undue delay in executing the warrant in this case, and we refuse the appeal.