Criminal Law and Practice in Scotland
| Published date | 01 March 1962 |
| Date | 01 March 1962 |
| DOI | 10.1177/0032258X6203500210 |
| Subject Matter | Article |
fJriminal
Law
and
Praetiee
in
Seotland
POWERS AND PRIVILEGES OF
THE
LORD ADVOCATE
THE
CRIMINAL
PROCEEDINGS in the case of Hester excited no great
interest either publicly or legally. In one respect it was a somewhat
unfortunate case. The facts shortly were that following his arrest
and appearance before the Sheriff, Hester applied for bail. The
amount of the bail was agreed upon by his agent and the Sheriff
Clerk and, on the view that it would be found, warrant for his
liberation was granted. However, it was not forthcoming and
Hester remained in custody. On a full report reaching the Lord
Advocate's Department it was decided to proceed by way of indict-
ment and standing the warrant for liberation Hester's domicile of
citation was given as the Sheriff's Clerk's office. By the time the
service copy had reached the Sheriff Clerk, Hester's agent had
ceased to act for him, and by an oversight the copy was not sent
to the prison in which he was detained and accordingly not served
upon him. Despite the fact that Hester claimed to have brought
this to the notice of the Sheriff, the trial proceeded and after hear-
ing the evidence Hester was convicted and sentenced to a term of
imprisonment. He appealed and on the case coming before the
High Court the Lord Advocate intimated that because of the
irregularity in service he would not insist in the conviction which
was therefore quashed.
Hester then raised an action for damages which he directed
against (i) the Lord Advocate, (ii) the Procurator-Fiscal who, on
the instructions of the Lord Advocate, initiated the proceedings,
and (iii) the Depute Fiscal who conducted the trial. This action
was raised in the Sheriff Court of Lanarkshire. The Sheriff-
Substitute, before whom the case first came, had no difficulty in
dismissing it as irrelevant in so far as it was directed against the
Lord Advocate and the Procurator-Fiscal
but
had doubts about
the position of the Depute, and decided to allow the case against
him to proceed. The Depute promptly appealed to the Sheriff,
who also, though on different grounds, decided to allow the case
to proceed. The Depute then appealed to the Court of Session.
At the hearing there the Judges considered the whole position of
the Lord Advocate and Fiscals so far as claims for damages were
concerned.
The
case is reported fully in (1961) S.L.T. 414.
In the course of his opinion the Lord President (Lord Clyde)
stressed the fact that the responsibilities and privileges of the Lord
140
March-April
/962
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