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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gates v. Procurator Fiscal [2003] ScotHC 52 (30 October 2003)
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Cite as: [2003] ScotHC 52
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Gates v. Procurator Fiscal [2003] ScotHC 52 (30 October 2003)
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Lord Marnoch Lord Carloway Temp. Judge G. Nicolson, Q.C.
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XJ676/03
OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD MARNOCH in BILLS OF SUSPENSION by PAUL MICHAEL GATES Appellant against PROCURATOR FISCAL, DUMBARTON Respondent _____________ |
30 October 2003
[1] This is a Note of Appeal under Section 174(1) of the Criminal Procedure (Scotland) Act 1995, the position being that the citation served on the accused and now appellant was unsigned, contrary to the requirements of Rule 16.2(1) of the Act of Adjournal (Criminal Procedure Rules) 1996. In that situation, the appellant's solicitor duly tabled a plea to the competency of the proceedings, claiming that in the circumstances they were fundamentally null. That plea has however been rejected by the Sheriff who decided that the absence of a signature was an informality in the execution of the Complaint which, in terms of Section 144(8) of the 1995 Act, was "cured" by the appearance in answer to it of the appellant's solicitor.[2] The argument that the proceedings were fundamentally null has today been renewed before us by Mr Crozier, Solicitor Advocate. In particular, he relied on the authority of Lowe v Bee 1989 S.C.C.R. 477. That was a case in which the initiating document, namely the principal Complaint, was itself unsigned and it is hardly surprising that in these circumstances the Sheriff held the whole proceedings to be fundamentally null. In our opinion, however, the present case is readily distinguishable and is perhaps more akin to McCoull v Skeen 1974 S.L.T. 438 where a failure to sign a notice of penalty was held to be remediable. It makes no difference, in our opinion, that Rule 16.2(1) of the Act of Adjournal covers in the same sentence the signature of the principal complaint and the signature of the citation to the accused. The first of these matters is also covered by Section 138(1) of the 1995 Act whereas on the second matter the Act, itself, is wholly silent. In any event, as the Advocate Depute pointed out, subordinate legislation cannot be read as limiting the meaning and effect of the principal Statute including the terms of Section 144(8). Towards the end of his Note, the learned Sheriff says this:
"It seems to me, in considering what weight to attach to a defect in citation, that it is relevant to have regard to the effect of that defect, and in particular any prejudice, upon the appellant. The over riding purpose of the citation, like the notices of penalty in McCoull, is to impart information to an accused. All the information which was required to be contained in the citation was so contained and the appellant, therefore, suffered no prejudice."
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