Scottish High Court of Justiciary Decisons

Shaw v. Procurator Fiscal [2002] ScotHC 51 (26 April 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Osborne Lord Macfadyen	1312/01     OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD MARNOCH in NOTE OF APPEAL TO COMPETENCY AND RELEVANCY by ROBERT WEBSTER SHAW Appellant against PROCURATOR FISCAL, WEST LOTHIAN Respondent _____________

26 April 2002

1. This is a Note of Appeal by Robert Webster Shaw under section 174 of the Criminal Procedure (Scotland) Act 1995.
2. The position is that a purported citation was sent to the complainer requiring him to appear at the District Court of West Lothian at Livingston on 1 March 2001 to answer a charge of driving beyond the speed limit. It is accepted, however, that the citation or purported citation was sent not to the appellant at his own address at 14 Leving Place, Livingston but, in error, to his father at 1 Woodmuir Road, Breich, West Lothian. Accordingly, it was not a valid citation under the 1995 Act. Nonetheless, on 1 March 2001, a solicitor did appear for the complainer and, in bar of trial, argued that the execution of the citation could not, and did not, establish that the proceedings had been commenced against the appellant within six months as required by Section 136 of the 1995 Act. This, of course, so far as it went, was correct. The Crown's response before the Sheriff was based on Section 144(8) of the Act which provides:

"It shall not be competent for any person appearing to answer a complaint, or for counsel or solicitor appearing for the accused in his absence, to plead want of due citation or informality therein or in the execution thereof".

3. Mr Scott, Solicitor Advocate for the appellant, accepted in the course of his submissions to us that by reason of Section 144 of the Act no argument could be advanced to the effect that the citation, as such, was defective or that for that reason the subsequent procedure was null. Questions 1 and 3 presented for our Opinion which deal with these matters must accordingly be answered in the affirmative and negative respectively. However, Mr Scott did insist in the separate submission, as advanced in the court below, to the effect that the proceedings were nonetheless time barred.
4. The Justice of the Peace took the view that any defect in the manner of citation had been deemed to have been cured as at the date of the defective citation which was 17 January 2001 and within the six month period referred to above. In our opinion, however, that is not a necessary implication from the wording of section 144(8) of the 1995 Act. On the other hand, we consider that that subsection is designed to give effect to what must be taken to be actual receipt by the accused of the complaint in question, the date of such receipt being the date on which proceedings were commenced against him - Keily v Tudhope 1986 S.C.C.R.251 at p.255.
5. In the result, it seems to us that in this case the solicitor's appearance on 1 March 2001 means that the accused must be taken to have received the complaint at some previous date. If that is so, then it seems to us, as matter of principle, that there was at least an initial onus on the accused to set up his preliminary defence based on time bar. However, no attempt was made to discharge that onus. In particular, no reference was made to when the accused actually received or became aware of the complaint in question, and nor was any submission made that that date fell outwith the six month period. Instead reliance was simply placed on the fact that the initial citation had been defective.
6. In all the foregoing circumstances, albeit for different reasons, we are satisfied that the Justice of the Peace reached the correct conclusion on the matter of time bar. We shall accordingly answer Question 2, which raises that matter, in the negative.

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