Advocate v McCann
| Jurisdiction | Scotland |
| Judgment Date | 26 November 1976 |
| Docket Number | No. 1. |
| Date | 26 November 1976 |
| Court | High Court of Justiciary |
JC
L. J.-C. Wheatley, Lords Thomson, Wylie.
Procedure—Trial—Delay in trial—110-day rule—Construction thereof—Detention for more than 80 days before release—Trial not concluded within 110 days of the date of committal till liberation in due course of law—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 101 (3) and (4).
The respondent appeared on petition in the Sheriff Court at Glasgow on 2nd April 1976 on charges inter alia of assault and robbery. He was committed for further examination, and on 8th April he was committed until liberated in due course of law. On 13th July an indictment was served on him and he was released from prison on the instructions of the Procurator-fiscal, 96 days after committal until liberation in due course of law. Thereafter he remained at liberty. On 5th August he appeared in court and tendered a plea of not guilty. His case was adjourned for trial until 23rd August but was not called on that date. On 23rd September a new indictment containing the same charges was served on him. On 30th September he appeared in court and intimated a plea to the competency of the indictment. On 19th October his agent submitted that since he had been in custody for more than 80 days, an indictment had been served on him and his trial had not been concluded within 110 days of his being committed until liberated in due course of law, he should be set at liberty in terms of section 101 (3) of the Criminal Procedure (Scotland) Act 1975. The Procurator-fiscal submitted that the running of the period of 110 days had been interrupted by his release from custody on 13th July and that in terms of section 101 (4) of the Act the period of 110 days had not expired. The sheriff sustained the plea to the competency. The Lord Advocate brought a bill of advocation seeking recall of the Sheriff's order declaring the respondent for ever free from all question or process for the crime with which he was charged.
Held, passing the bill and recalling the Sheriff's order, (1) that release from custody interrupts the running of the 110 days even if an accused has been in custody more than 80 days and an indictment is served upon him; (2) that the words "liberated from prison" in section 101 (4) are apt to cover liberation by the Procurator-fiscal without recourse to the Court.
Anthony M'Cann, 23 Halliburton Crescent, Glasgow, the respondent, appeared in Glasgow on petition on 2nd April 1976. He was committed for further examination and bail was refused. On 8th April 1976 the respondent was committed until liberated in due course of law. Bail was refused and the respondent appealed to the High Court of Justiciary. His appeal was refused on 27th April 1976. On 13th July 1976 an indictment charging him inter alia with assault and robbery was served on the respondent in H.M. Prison, Barlinnie, for diets at Glasgow Sheriff and Jury Court on 5th and 23rd August 1976. The respondent was then released from prison on the instruction of the Procurator-fiscal of Glasgow and Strathkelvin. The respondent was thus liberated 96 days after he had been committed till liberated in due course of law and after an indictment had been served. Thereafter the respondent remained at liberty and was no longer detained in custody. On 5th August 1976 the respondent appeared at Glasgow and tendered a plea of not guilty. The case was adjourned for trial until 23rd August 1976. On that date there were 11 cases set down for trial by Sheriff and jury. In five of the trials, the accused were in custody. At the end of the sitting on 27th August, two cases were adjourned to another sitting. The case in which the respondent was an accused was not called, partly due to pressure of work and also to the fact that one of the co-accused was ill and unable to attend for trial. On 23rd September 1976 a new indictment containing the same charges was served on the respondent at his home. The respondent was cited for diets at Glasgow on 30th September and 19th October 1976. On 30th September 1976 the respondent appeared and intimated a preliminary plea to the competency of the indictment. The case was adjourned for debate and trial until 19th October 1976. On 19th October 1976 the agent for the respondent submitted that, since the respondent had been in custody for more than 80 days and an indictment had been served on him and his trial had not been concluded within 110 days of the date of his being committed until liberated in due course of law, he should be set at liberty in terms of section 101 (3) of the Criminal Procedure (Scotland) Act 1975. The Procurator-fiscal submitted that in terms of section 101 (4) of the 1975 Act the running of the period of 110 days had been interrupted by the release from custody of the respondent on 13th July 1976 and that the period of 110 days had accordingly not expired. The learned Sheriff held that, the respondent having been incarcerated for more than 80 days, an indictment having been served on him and the trial of the respondent not having been concluded within 110 days of his committal till liberated in due course of law, he should be set at liberty. The Sheriff ordered that the respondent be forthwith set at liberty and declared for ever free from all question or process for...
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