Scottish High Court of Justiciary Decisons

Hynd v. Procurator Fiscal [2002] ScotHC 52 (26 April 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Osborne Lord Macfadyen	356/02     OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD MARNOCH in BILL OF SUSPENSION by NORMAN HYND Complainer against PROCURATOR FISCAL, ALLOA Respondent _____________

COUNSEL

COUNSEL

26 April 2002

1. In this Bill of Suspension the complaint is that what has come to be known as the "Custody Statement" afforded an insufficient basis for the sheriff granting warrant to imprison the accused "until liberated in due course of law". Such a warrant is often referred to, perhaps rather misleadingly, as a warrant of "full committal" or "committal for trial" but the actual effect, under our present practice, is no more and no less than to incarcerate the accused pending his trial. Thus, even if the present Bill were granted and the warrant in question suspended, it is accepted that an indictment could later be served on the accused. The practical effect of granting the Bill would therefore be identical to granting bail which, as it happens, was refused in this case.
2. The sheriff, in a brief report to this Court, says this:-

"I declined to embark on an examination of the strength of the Crown case on the view that it would not be competent to do so at this stage. In my opinion the modern law is accurately set forth in Renton & Brown's Criminal Procedure, para.12-03".

However, it seems that the passage in Renton & Brown relied on by the sheriff has now been superseded by the decision of this Court in Brown v Selfridge 1999 S.C.C.R.809. In that case the accused objected to the new practice of appending to the petition the so-called Custody Statement and that objection was upheld by the sheriff. When, however, the matter was advocated by the Crown, this Court reversed the sheriff's decision and upheld the validity of the new practice. In doing so, it is clear that the reason for that practice advanced by the Crown, and accepted by the Court, was related, not to the matter of bail, as such, but to the granting of warrants committing accused persons for further examination or, as in this case, until liberated in due course of law. Reference was made to the sheriff "scrutinising the request for a warrant" and, as regards the separate question of bail, it was suggested, indeed, that the new material might have to be disregarded.

3. It follows from the above - and this was conceded by the Crown - that it is necessary to address this Bill on its substantive merits. As to the test to be applied for that purpose, the Advocate Depute submitted that the Custody Statement should disclose a "proper basis" for incarcerating the accused pending his trial but that that involved no more than an indication of sources of evidence from which a sufficiency of evidence might in the end be obtained. In the end, the sheriff should only refuse to grant warrant if it would be oppressive to do so. As at present advised, we see no reason to take issue with the Advocate Depute's submissions on this matter. At all events, whatever may be the precise test, we are satisfied that it was met in this case. The complainer was charged with two housebreakings which took place in Alloa within a three week period and in each case a DNA matching was found between the complainer and cigarette ends found in, or at the point of entry to, the premises in question. It has been held that DNA evidence is comparable to fingerprint evidence (HMA v Welsh 1992 S.C.C.R.108) and the presence of fingerprints on even a moveable item has been held capable of providing a sufficiency of evidence where taken along with other evidence of a circumstantial nature such as the absence of possibility that the prints were left at any time other than when the crime was committed.
4. In all the foregoing circumstances this Bill will be refused.

 

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