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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Crawford v. Her Majesty's Advocate [2005] ScotHC HCJAC_89 (13 July 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_89.html
Cite as: [2005] ScotHC HCJAC_89, [2005] HCJAC 89
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Crawford v. Her Majesty's Advocate [2005] ScotHC HCJAC_89 (13 July 2005)
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Lord Justice Clerk Lord Osborne Lord Johnston
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[2005HCJAC89] XC333/04 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST CONVICTION by JAMES DAIR CRAWFORD Appellant against HER MAJESTY'S ADVOCATE Respondent _____________ |
For the appellant: Miss Burns; Peacock Johnston, Glasgow
For the Crown: KD Stewart, AD; Crown Agent
13 July 2005
[1] This is an appeal under section 74 of the Criminal Procedure (Scotland) Act 1995. The appellant has been served with an indictment for trial at the sheriff court at Greenock. He has taken a plea to the competency of the indictment. The sheriff has repelled it and granted leave to appeal. [2] The indictment runs in the name of Her Majesty's Advocate in the usual way. It is signed, and below the signature is the designation "Acting Procurator Fiscal." But above the signature the words "By Authority of Her Majesty's Advocate" do not appear. This is an elementary error on the Crown's part. [3] Section 64(4) of the 1995 Act provides as follows:"Indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal and the words 'By Authority of Her Majesty's Advocate' shall be prefixed to the signature of the procurator fiscal."
This provision has not been complied with.
[4] Counsel for the appellant has submitted that the indictment is on that account a nullity. In Christie v HM Adv (2004 JC 13) in a sheriff court indictment, only the words "By Authority" appeared over the signature of the procurator fiscal. Having regard to the full narrative of the libel, this court held that those words sufficiently indicated that the prosecution was brought with the authority of Her Majesty's Advocate. The ratio of that decision is as follows:"[5] Without a signature an indictment would lack authentication or the appearance of finality. In truth it would be no indictment. The inclusion of the full wording which is required by sub-section (4), on the other hand, is no more than a means of informing the reader that, as is required by law, the indictment has been brought with the authority of the Lord Advocate. However, it is only one means of conveying that information. As we have already noted the indictment proceeded in the name of Her Majesty's Advocate, in accordance with sub-section (1) of section 64. Thus no reader could have been in any doubt that the authority referred to above the signature of the procurator fiscal -depute was the authority of the Lord Advocate."
Counsel for the appellant submitted that Christie was distinguishable, since in that in that case there were at least the words "By Authority" above the signature. In this case there were none.
[5] Counsel for the Crown submitted that the ratio of Christie applied in this case too. [6] In our opinion, the submission for the appellant is well founded. Christie is distinguishable. In that case, the court placed some reliance on the fact that at least the words "By Authority" were written above the signature. By reference to the introductory words of the indictment, it was clear to whose authority the indictment referred. In this case there is a complete failure to comply with section 64(4) in this respect. While there is a statement that the indictment is at the instance of Her Majesty's Advocate, there is no statement at all that it is served by his authority. This omission is plainly more fundamental than that in Christie. In our view, it is fatal to the indictment. [7] This wholly unsatisfactory result is entirely the fault of the Crown. Section 64(4) imposes on the procurator fiscal a clear obligation with which it is easy to comply. In the absence of any explanation for the error, we assume that there was an oversight. If that is the case, it highlights the need for effective systems for the checking of indictments before they are served. [8] In the circumstances it is unnecessary for us to decide the second point taken by counsel for the appellant, namely that the signature of an acting procurator fiscal does not constitute the signature of the procurator fiscal for the purposes of section 64(4). We should say, however, that we do not think that that point is sound. If a person is duly appointed to the position of acting procurator fiscal he is, in our opinion, procurator fiscal for the purposes of that sub-section. [9] We shall therefore allow the appeal and sustain the plea to the competency.