Anderson (Jj) v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 16 April 1996 |
| Date | 16 April 1996 |
| Docket Number | No 20 |
| Court | High Court of Justiciary |
JC
LJ-C Ross, Lords Cowie, Murray
Procedure—Solemn procedure—Time bar—Extension of 12-month rule—Application to change domicile of citation granted and change intimated to prosecutor—Sheriff clerk's office erroneously telling prosecutor's office that domicile of citation was original address—Whether subsequent service of indictment at original address entitled Crown to extend 12-month limit to enable them to serve indictment at new address—Criminal Procedure (Scotland) Act 1975 (cap 21), sec 101(1)1
Section 101(1) of the Criminal Procedure (Scotland) Act 1975 enacts,inter alia, that: “An accused shall not be tried on indictment for any offence unless such trial is commenced within a period of 12 months of the first appearance of that accused on petition in respect of that offence; and, failing such commencement within that period, the accused shall be discharged forthwith and thereafter he shall be for ever free from all question or process for that offence; provided that—…(ii) on application made for the purpose, the sheriff…may on cause shown extend the said period of 12 months.”
The appellant was charged on petition and released on bail. He subsequently applied to the court to alter the address made in the bail order under sec 2(2) of the Bail etc (Scotland) Act 1980. That application was granted and its grant intimated to the Crown. In accordance with normal practice, the procurator fiscal's office telephoned the sheriff clerk's office in order to check the domicile of citation before effecting service of the indictment. Erroneous information was relayed to the effect that the domicile of citation remained the address originally given in the bail order. The indictment was thereafter served at that address. At the trial diet the Crown conceded that the indictment had not been properly served and did not call it but sought and obtained an extension of the 12 month period to enable a fresh indictment to be served at the new domicile of citation. The appellant thereafter appealed.
Held that in the circumstances the prosecutor could not be faulted for what had occurred as it was reasonable in the circumstances for him to rely upon the information which had been provided by the sheriff clerk's office; and that the sheriff had not exercised his discretion erroneously in granting the extension; and appealrefused.
John James Anderson appeared on petition in the sheriffdom of Glasgow and Strathkelvin at Glasgow...
To continue reading
Request your trial
-
Note Of Appeal Under Section 74(1) Of The Criminal Procedure (scotland) Act 1995 By Her Majesty's Advocate V. David Shields Montgomery And Andrew Coulter
...The case would need to proceed to trial; the accused's only remedy would be to appeal on the basis of Anderson v. H. M. Advocate 1996 J.C. 138 in the event of his being convicted. That consequence of the application of the test favoured by the Advocate Depute appears to us to be profoundly ......
-
Gerald Patrick Early V. Her Majesty's Advocate
...v SwiftSCUNK 1984 JC 83; 1985 SLT 26; 1984 SCCR 216 Advocate (HM) v WeirUNK [2005] HCJAC 122; 2005 SCCR 821 Anderson v HM AdvocateSCUNK 1996 JC 138; 1996 SCCR 487 Ashcroft v HM AdvocateUNK 1997 SLT 60; 1996 SCCR 608 Aslam v HM AdvocateSCUNK 2000 JC 325; 2000 SCCR 243 Bennett v HM AdvocateUN......
-
Her Majesty's Advocate V. David Shields Montgomery And Andrew Coulter
...The case would need to proceed to trial; the accused's only remedy would be to appeal on the basis of Anderson v. H. M. Advocate 1996 J.C. 138 in the event of his being convicted. That consequence of the application of the test favoured by the Advocate Depute appears to us to be profoundly ......
- MacDonald v Ministry of Defence