Follen v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 08 March 2001 |
| Neutral Citation | [2001] UKPC D2,2001 SCCR 256,2001 SCCR 255 |
| Court | Privy Council |
| Docket Number | No 5,DP No. 1 of 2000 |
| Date | 08 March 2001 |
[2001] UKPC D2
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Millett
[Delivered by Lord Hope of Craighead]
This is a petition for special leave to appeal from the High Court of Justiciary under paragraph 13 of Schedule 6 to the Scotland Act 1998. As the facts on which the application was based were unclear, it was put out for an oral hearing by the Committee. At the conclusion of the oral hearing their Lordships announced that, for reasons to be given later, they had decided to dismiss the petition. The following are their reasons for that decision.
The petitioner seeks to raise as a devolution issue the question whether the act of the Lord Advocate in continuing to prosecute him for three offences under section 4(3)(b) of the Misuse of Drugs Act 1971 for which he appeared on petition on 3 November 1999 and was committed until liberated in due course of law on 11 November 1999 was incompatible with his right to a fair trial within a reasonable time under article 6.1 of the European Convention on Human Rights and Fundamental Freedoms (1953) (Cmd 8969). The indictment was served on him on 1 August 2000 for trial in the High Court at Edinburgh on 18 September 2000. As this date was a local holiday in Edinburgh, a fresh indictment was served on him for the case to call for trial the following day on 19 September 2000. The period of about 10½ months from 3 November 1999 to 19 September 2000 is the period which the petitioner wishes to bring under scrutiny. He accepts that the further delay that took place in bringing the case to trial was due to steps taken by the accused and cannot be attributed to the Lord Advocate.
Prior to his arrest on 2 November 1999 following an extensive police undercover operation, the petitioner had been serving a sentence of six years' imprisonment for offences under the Misuse of Drugs Act 1971 of which he had been convicted in the High Court at Inverness on 8 February 1995. On 9 February 1998 he was released on licence under section 3(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 after serving half of that sentence on the recommendation of the Parole Board. On 9 November 1999 the Scottish Ministers considered a report by the Northern Constabulary that they had arrested the petitioner in Inverness on 2 November 1999. The report stated that they had stopped and searched a car which the petitioner was driving in which they found 195 bags of cannabis resin, and that he had been charged with being concerned in its supply. In the light of this report the Scottish Ministers issued an order under section 17 (1) of the 1993 Act revoking the petitioner's licence and recalling him to prison. The Parole Board considered the police report at a meeting on 11 January 2000 and decided not to recommend his release.
Section 17(5) of the 1993 Act provides that on the revocation of a person's licence under any of the foregoing provisions of that section he shall be liable to be detained in pursuance of his sentence. The petitioner remained in custody until the trial, which began at the end of January 2001. His sentence of six years' imprisonment expired on 7 February 2001. At the end of the trial on 10 February 2001 he was convicted on two of the three charges which had been libelled against him of being concerned in the supplying of controlled drugs.
Section 65(4) of the Criminal Procedure (Scotland) Act 1995 provides that an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than 80 days unless the indictment is served on him within that period which failing he shall be liberated forthwith, or more than 110 days unless the trial of the case is commenced within that period which failing he shall be liberated forthwith and thereafter be forever free from all...
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