Appellant: Fairley QC AD; the Crown Agent

Respondent: Borthwick; Anthony Mahon, Glasgow

22 November 2013

[1]        The respondent first appeared on petition at Glasgow Sheriff Court on 10 February 2012 and was fully committed in custody in the following week.  He was served with an indictment on 2 April, charging him with 4 offences occurring on 10 February, notably wilful fire-raising of a car, breach of the peace at the same location, threatening police officers at Maryhill Police Station and assaulting one officer there also.  He was cited to appear at a first diet on 18 April, with a trial diet being fixed for 8 May 2012.  There then followed a significant number of first diets at which various trial diets were postponed.  Eventually, a first diet was fixed for 10 November, with the trial diet fixed for a sitting commencing 10 December 2012. 

[2]        At the first diet in November, the respondent failed to appear and a warrant was granted for his arrest under, and in terms of, section 102A(2) of the Criminal Procedure (Scotland) Act 1995.  The effect of that would normally be that the indictment would “fall” (s 102A(5)).  The Crown, however, made a motion intended to preserve the trial diet.  The court, in terms of section 102A(6), ordered that the “indictment shall not fall”.  The indictment therefore remained live as at the trial diet fixed for the sitting in December.  However, the grant of the warrant meant that the requirement for the trial to commence within 12 months no longer applied (s 65(2)). 

[3]        The respondent appeared by arrangement on 7 December 2012, when his case was continued to the trial diet commencing 10 December.  The trial was not called at that sitting.  In terms of sub-section 81(5) of the 1995 Act, if a case is not brought to trial at the appointed sitting, the Crown may, within a period of two months, give notice on another copy of the indictment that the accused is to appear and answer that indictment at a further trial diet.  No such notice was given in this case.

[4]        A second indictment, containing identical charges, was served on the respondent on 5 March 2013, citing him to a first diet on 10 April.  The first diet was continued on defence motion to 24 April, 13 June and ultimately 8 August, with a trial diet set for 9 September 2013.  On 8 August, a diet of “debate” was fixed for 23 August; the respondent having raised a preliminary plea that the procedure on the second indictment was incompetent as it had not been served within the two month period.  On 29 August, the sheriff sustained the plea, but granted leave to appeal.  However, the diet was not continued or adjourned that day and, as the instance had fallen, the Crown took the view that advocation was appropriate.  The competency of that advocation was not challenged (HM Advocate v K (A) 2012 SCCR 421).

[5]        In reaching the decision that the procedure on the second indictment was not competent, the sheriff took the view that section 81 was, as submitted by the respondent, designed to deal in a comprehensive fashion with the situation of trials not proceeding and that it sought to provide the full range of options once a case had been indicted to a particular sitting.  Criminal diets were peremptory.  If the Crown was either unable, or chose not, to proceed to trial in the sitting and did not move to adjourn the diet, the Crown could have called the case in terms of section 81 and deserted pro loco et tempore.  Alternatively, the Crown could have used the section 81 notice procedure.  The comprehensive code provided by the section resulted in the desirable continuing accountability and judicial oversight of the procedure.

[6]        The advocate depute submitted that the sheriff had been in error.  The short point at issue was whether the “abbreviated procedure”, as it was called in Ryan v HM Advocate 1999 SCCR 792 (LJG (Rodger) at 795), was intended to be an exclusive procedure, or simply an alternative when service of an identical indictment was otherwise thought to be appropriate.  The provision was derived from section 42 of the Criminal Procedure (Scotland) Act 1887.  Under reference to Collins v Lang (1887) 15 R (J) 7, it was submitted that, at least in cases where the Crown had deserted, it was open to it to serve a new indictment and not simply to proceed down the alternative notice route provided by section 81 (cf Sheehan, Criminal Procedure in Stair Memorial Encyclopaedia, vol 17, para 734; and McPhelim v HM Advocate 1997 SCCR 87, LJG (Rodger) at 93). 

[7]        If the sheriff’s conclusion was correct, the advocate depute argued, then it would have three strange consequences.  First, in a non-custody situation, if the indictment fell, having been served, for example, within 3 months of the original appearance on petition, the mandatory effect of the alternative procedure under section 81 would be to restrict the statutory 12 month time limit for the commencement of the trial to one of much shorter duration.  Secondly, the provision would mean that, if the only alternative was service of the notice under section 81, the Crown would be put into a situation whereby it may not be able to locate an accused within that period in order to give him the notice.  Thirdly, there would be no option open to the Crown when it was deemed appropriate to serve an indictment which was not identical to the original.  The arguments, which the sheriff advanced about the absence of judicial control, were not well-founded because, whereas in this case the 12 month time limit may have been disapplied because of the operation of section 65(2), the options of tendering a plea of oppression, or complaining of a breach of the reasonable time requirement under Article 6, would remain open to the accused (see Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, Dyer v Watson 2002 SC (PC) 89).

[8]        In response, it was contended for the respondent that the sheriff’s reasoning was sound and that section 81 was intended to provide a comprehensive route down which the Crown could proceed, or not, as it chose.  The issue was focused on the decision of the Crown to elect not to use the only procedure which was available.  It was accepted that the central issue was whether section 81 did provide a comprehensive procedure and, although there may not be a ready answer to the third consequence referred to by the Crown, that may simply have been an unintended consequence of the provision.  So far as the other matters were concerned, it was important that there was judicial control over the procedure and there was no problem with re-service of the notice under the statutory alternative.

[9]        The issue is indeed whether, since the notice provisions in section 81 have not been followed, it is competent to raise another indictment where the original has not been called at a peremptory trial diet.  The procedure under section 81 was introduced by the 1887 Act and is an abbreviated form of process which allows the Crown simply to serve a notice with a copy of the original indictment, rather than proceed down the conventional route; that is service of a new indictment.  As was held in HM Advocate v Tabram (1872) 2 Coup 259, the only effect of an indictment not calling at a trial diet is that the instance in respect of that particular indictment falls.  It remains open to the Crown, in such circumstances, to serve a second indictment.  The fact, that this procedure is available to the Crown, does not mean that there is no judicial control over what happens thereafter.  A plea in bar of trial based upon oppression, or delay inevitably rendering a trial unfair, remains open to the accused person, should he chose to table one. 

[10]      For these reasons the court will pass the Bill, recall the sheriff’s interlocutor, hold that procedure on the second indictment is competent and remit to the Sheriff to proceed as accords.