Advocate v Montgomery
| Jurisdiction | Scotland |
| Judgment Date | 14 September 2000 |
| Neutral Citation | 1999 SCCR 959 |
| Date | 14 September 2000 |
| Docket Number | No 17 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Johnston and Lord Eassie
Procedure—Solemn procedure—Preliminary diet—Devolution issue—Pannels serving minutes raising devolution issue subsequently seeking to found on additional minutes—Presiding judge considering additional minutes as in interests of justice to do so—Whether additional minutes competent—Whether hearing on minutes a preliminary diet—Whether “cause shown” to consider additional minutes—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 72(1), (2) and (3)1—Act of Adjournal (Criminal Procedure Rules) 1996 (1996 SI No 513), r 40.2(1) and 40.5(1)2
Section 72 of the Criminal Procedure (Scotland) Act 1995 enacts,inter alia, that where a party to a High Court case gives written notice to the court and the other parties that there is some point which could in his opinion be resolved with advantage before the trial, the court may order that a preliminary diet be held to consider the point. Subsection (2) enacts that the written notice shall specify the point which is to be resolved and subsec (3) enacts that the fact that a preliminary diet has been ordered in respect of a particular notice shall not preclude the court's consideration of any other such notice which has been intimated to the court and the other parties at least 24 hours before the preliminary diet. Rule 40.2(1) of the Act of Adjournal (Criminal Procedure Rules) 1996, as inserted by the Act of Adjournal (Devolution Issues Rules) 1999, enacts that where a party to proceedings on indictment proposes to raise a devolution issue he shall, not later than seven days after the date of service of the indictment, give written notice of the fact to the clerk of court and at the same time a copy of the notice shall be served on the other parties to the proceedings and on the Advocate-General. Rule 40.5(1) enacts that no party shall raise a devolution issue except in accordance with r 40.2 unless the court, on cause shown, otherwise determines.
The pannels were served with an indictment charging them with murder while acting along with C who was alleged to have assaulted the deceased. Both C and the pannels had originally appeared on separate petitions charging them with the murder but C was subsequently tried separately for the murder and acquitted of it. At the conclusion of the trial, in which C was found guilty of assaulting the deceased, the trial judge (Lord McCluskey) had commented critically on the decision not to prosecute the pannels who appeared, from the evidence led the C's trial, to have been involved in the fatal assault. The trial jude's comments and the Lord Advocate's response were widely reported in the press. Within seven days of service of the indictment on them the pannels served minutes giving notice of their intention to raise a devolution issue arising, out of the publicity given to the trial judge's comments and the Crown's alleged failure to obtain an order under the Contempt of Court Act 1981 restricting of C's trial. After the pannels' minutes had been considered on 12 August 1999, the pannels served additional minutes seeking to amend their minutes by adding a further complaint raising a devolution issue. At the continued hearing on 26 August 1999, the Crown argued that the additional minutes were incompetent because r 40 made no provision for further minutes to be raised after the expiry of the seven days period allowed for in r 40.2(1). The presiding judge (Lord Abernethy) repelled the objection and held that cause had been shown, in terms of r 40.5(1), for the additional
minutes to be entertained because it was in the interests of justice to consider them. The Crown appealed with leave of the presiding judge.Held (1) that the continued hearing on 26 August 1999 was to be regarded as a preliminary diet held for the purposes of sec 72(1)(d) of the Criminal Procedure (Scotland) Act 1995, notwithstanding the absence of provision for such a diet in the Act of Adjournal (Criminal Procedure Rules) 1996; (2) that in terms of sec 72(3) the presiding judge was not precluded from considering the additional minutes; (3) that when considering whether or not to entertain an additional minute the presiding judge had to have regard to r 40.5 of the Act of Adjournal but it was doubtful whether it was particularly helpful to regard the test of “cause shown” as being whether it was in the interests of justice to entertain the additional minute; (4) that the mere fact that there had been some failure by the pannels or their representatives to raise the devolution issue in accordance with r 40.2(1) did not necessarily mean that cause had not been shown for allowing the issue to be raised late: part of the cause might be the prima faciesignificance of the devolution issue, particularly for the course of the proceedings as a whole; and (5) that the presiding judge's decision that cause had been shown to permit the additional devolution issue to be raised though late, was one which a reasonable judge could properly take; and appeal refused.
Observed that while devolution issues were distinct to the extent that the Scotland Act 1998 requires notice to be given to the relevant authorities, and while there could well be devolution issues which stood on their own and required to be given effect in a distinctive way, certain devolution issues could equally be focused in terms of common law pleas which required to be, or were conveniently, raised at a preliminiary diet.
Observed further that (assuming that it were competent to do so at that stage) there were probably few cases where the presiding judge would grant leave to appeal before the devolution issue was determined by him but this was one of those rare cases where because of the complexity of the legal issues raised by the new legislation, leave had been appropriately granted.
David Shields Montgomery and Andrew Alexander Marshall Coulter were charged at the instance of the Right Honourable The Lord Hardie, QC, Her Majesty's Advocate, on an indictment the libel of which set forth inter alia a charge of murder allegedly committed on 4 November 1998 by the pannels while acting with Ronnie Coulter, who was said to have assaulted the deceased.
The pannels were served with the indictment on 2 July 1999 and on 9 July 1999 they gave written notice to the Lord Advocate of their intention to raise a devolution issue in accordance with r 40.2(1) of the Act of Adjournal (Criminal Procedure Rules) 1996, as amended. On 10 August 1999 Lord Cowie ordered that the minutes be considered on 12 August 1999 when consideration of the minutes was adjourned to 26 August 1999. On 20 August the first-named pannel served a further minute raising an additional devolution issue and on 24 August 1999 the second-named pannel served a further minute in similar terms.
on 26 August 1999 Lord Abernethy held that cause had been shown in terms of r 40.5(1) for the pannels being allowed to found on their additional minutes but granted leave to the Crown to appeal against his decision to hold the additional minutes to be competent.
The Crown thereafter appealed by note of appeal to their Lordships in the High Court of Justiciary in terms of sec 74 of the Criminal Procedure (Scotland) Act 1995.
Cases referred to:
Anderson v HM AdvocateSC 1996 JC 138
McFadyen v AnnanSC 1992 JC 53
McLeod v HM Advocate (No 2)SC 1998 JC 67
Stein v LoweUNK 1991 SCCR 692
Stenton v HM AdvocateSC 1998 JC 278
The cause called before their Lordships in the High Court of Justiciary comprising the Lord Justice-General (Rodger), Lord Johnston and Lord Eassie, for a hearing on 14 September 1999.
Eo die the court allowed the appeal and subsequently gave its reasons in an opinion delivered by the Lord Justice-General (Rodger).
Opinion of the Court—In this Crown appeal the respondents are David Shields Montgomery and Andrew Alexander Marshall Coulter. On 2 July 1999 they were served with an indictment containing a number of charges, including a charge in these terms: “on 4 November 1998 at Garrion Street, Overtown, Wishaw, you David Shields Montgomery and Andrew Alexander Marshall Coulter did while acting with Ronnie Coulter, 8 Caplaw Tower, Gowkthrapple, Wishaw assault Surjit Singh Chhokar, 65 Caplaw Tower, Wishaw seize hold of his body, struggle with him and strike him on the body and you David Shields Montgomery and Andrew Alexander Marshall Coulter did strike and Surjit Singh Chhokar repeatedly on the body with a knife or similar instrument and a piece of wood and metal and you did murder him and you Andrew Alexander Marshall Coulter did previously evince malice and ill-will towards him.” The trial diet was fixed for 16 August 1999 in the High Court at Glasgow.
Rules 40.2 and 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996, which were added by the Act of Adjournal (Devolution Issues Rules) 1999...
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