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Cite as: [2004] ScotHC 7

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Procurator Fiscal v. Stuart [2004] ScotHC 7 (05 February 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Macfadyen

Sir Gerald Gordon Q.C.

XJ22/02

OPINION OF THE COURT

delivered by

THE RIGHT HONOURABLE LORD MARNOCH

in

CONTINUED CROWN APPEAL TO THE COMPETENCY AND RELEVANCY

by

PROCURATOR FISCAL, ABERDEEN

Complainer

against

ANDREW SUMMERS STUART

Respondent

_____________

Act: Beckett, A.D.

Alt: J. Gilchrist, Advocate; George Mathers & Co., Aberdeen

5 February 2004

[1] This appellant was charged on summary complaint in the following terms:

"On 13 September 2001 at Grampian Police Headquarters, Queen Street, Aberdeen and on 6 November 2001 at H.M. Prison, Craiginches, Aberdeen you Andrew Summers Stuart did falsely accuse constables of Grampian Police of committing an assault on you by repeatedly punching you on the head and pushing you to the ground to your injury whilst in the course of their duty, on 13 September 2001, at Devanha Terrace, Aberdeen, by reporting such an allegation:-

(a) on 13 September 2001, at Grampian Police Headquarters, Queen Street, Aberdeen, to Paul Gordon Morrison, Sergeant with Grampian Police;

(b) on a separate occasion on 13 September 2001, at Grampian Police Headquarters, Queen Street, Aberdeen, to Mhorvan Sherret, Inspector with Grampian Police; and

(c) on 6 November 2001 at H.M. Prison, Craiginches, Aberdeen, to David Alan Jenkins and Gordon Symonds, both Inspectors with Grampian Police and you did by such false allegations, render Warren Wattie, Constable and Michael Thomson, Sergeant, both of Grampian Police, liable to suspicion and investigation in relation to said false allegation."

[2] The Sheriff decided that the foregoing charge was irrelevant although it is unfortunate that in the course of submissions made to her there appears to have been a confusion between the two quite separate crimes of "wasting the time of the police", on the one hand, and "false accusation", on the other. At all events, the Crown has now appealed her decision to this Court under Section 74 of the Criminal Procedure (Scotland) Act 1995.

[3] Before us the matter was greatly simplified by a concession on the part of the respondent that the charge should be looked at, and its relevancy tested, on the basis that it sought to allege no more, and no less, than the well recognised crime of "false accusation". In these circumstances the only question came to be whether, as was submitted on behalf of the respondent, it was necessary in such a charge to set out expressly that the allegation in question was made maliciously or with knowledge that it was false as well as details of the sort of evidence which would be led by the Crown to establish that allegation. In that connection, Mr Gilchrist, for the respondent, relied on the authority of Simpkins v HMA 1985 S.C.C.R., 30. That, however, was a quite different sort of case in which the libel alleged not just a false accusation but a conspiracy entered into between three accused in an effort to make the accusation appear credible. In that situation we have no doubt whatever that it was proper for the Crown to frame the libel in the terms set out at pages 30-31 of the Report.

[4] So far as the present case is concerned, the Advocate Depute submitted that there was no question of a conspiracy and, further, that it had the peculiarity of alleging as the false accusation something which, of necessity, was within the accused's own knowledge. It would accordingly be tautologous to libel that the accusation was made maliciously as well as having been made falsely. If he was wrong about that, he relied on the provisions of para. 3 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995 which appear to relieve the Crown of much of what might otherwise be thought essential to the relevancy of a charge.

[5] So far as the last matter is concerned, Mr Gilchrist was, we think, well founded in saying that nothing in para. 3 of Schedule 3, or, indeed, in certain similar provisions of the Act in the end relieved the Crown of the requirement to give fair notice to the accused - Yeudell v William Baird & Co 1925 J.C. 62 per Lord Justice-General Clyde at p.64. Looking at the charge in the present case, however, we have no doubt at all that fair notice has indeed been given to the accused. As the Advocate Depute submitted, the situation is one in which what is alleged to have been the substance of the false complaint is a matter directly within the knowledge of the accused himself. In these circumstances we consider there is no substance in the submissions advanced on behalf of the respondent. We shall accordingly allow the appeal and remit back to the Sheriff to proceed as accords.

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