H. M. Advocate v Bickerstaff
| Jurisdiction | Scotland |
| Judgment Date | 21 January 1926 |
| Docket Number | No. 13. |
| Date | 21 January 1926 |
| Court | High Court of Justiciary |
Lord Justice-General, Lord Justice-Clerk, Lord Hunter, Lord Sands, Lord Murray.
Procedure—Delays before trial—Delay of more than one hundred and ten days—Right of panel to release—Power of Court after expiry of one hundred and ten days to extend time for trial—Delay due to temporary insanity of panel—Criminal Procedure (Scotland) Act, 1887 (50 and 51 Viet. cap. 35), see. 43.
The power conferred upon the Court by sec. 43 of the Criminal Procedure (Scotland) Act, 1887, to extend the period of 110 days beyond which an accused person may not be detained in custody without trial is not confined to cases in which an application for extension is made to the Court before the expiry of the 110 days, but may be exercised even where the accused has already been incarcerated for more than the statutory period.
A prisoner was committed till liberated in due course of law on 9th December 1924 upon a charge of murder. He was brought to trial upon 16th March 1925, when he was found to be unfit to plead owing to insanity, and was ordered by the Court to be detained during His Majesty's pleasure, the diet being deserted pro loco et tempore. On 22nd October 1925 the accused was liberated from the asylum in which he had been detained, and was re-arrested on the same day. On 27th October he was again committed; a fresh indictment was served upon him on 19th November; and he was brought to trial on 7th December 1925.
A motion having been made in bar of trial, in respect that, even if the period of his detention in the asylum was left out of account, he had already been detained in prison for more than 110 days, and was accordingly entitled to be released forthwith,
Held (1) that—assuming (but not deciding) that the 110 days fell to be reckoned from the date of the first and not of the second commitment, and accordingly that the panel had already been detained in prison for more that 110 days—the Court was entitled, under sec. 43 of the Act of 1887, to order him to be detained in custody, with a view to trial, for such further period as might seem just; and (2) that, as the delay in prosecuting to verdict had been due to the mental illness of the accused and not to any cause for which the prosecutor was responsible, the case was one for the exercise by the Court of its discretionary power.
Procedure—Indictment—Cumulative charges—Separation of trials— Charges of indecent assault upon one person and of indecent assault involving murder upon another person contained in same indictment—Whether charges should be in separate indictments.
Evidence—Competency—Cumulative charges—Similar acts—charges of indecent assault upon one person and of indecent assault involving murder upon another person contained in same indictment—Whether jury entitled to consider evidence on one charge when considering their verdict upon the other.
An indictment charged the accused with (1) indecent assault upon one little girl, and (2) indecent assault, involving murder, upon another little girl. Both offences were libelled as having been committed on the same day at Stirling. A motion for separation of the charges having been made on behalf of the panel,
Held that the offences charged were so connected in time, circumstances, and character as to justify their inclusion in one indictment, and that no sufficient reason had been shown for separation of the charges.
Thereafter the panel was tried before the Lord Justice-Clerk and a jury.
In the course of his charge to the jury the Lord Justice-Clerk directed them that, in reaching a conclusion upon the second charge, they were neither bound, nor entitled, to shut their eyes to what they might consider to have been proved under the first charge, in view of the close association in time, in character, and in circumstances of the incidents alleged with regard to the two charges.
Alexander Bickerstaff was indicted at the instance of His Majesty's Advocate upon an indictment which contained two charges, (1) a charge of indecent assault upon Mary Jane Knox, aged seven, and (2) a charge of indecent assault, involving murder, upon Agnes Bradford Reid, aged four. Both crimes were libelled as having been committed on 18th November 1924 at Stirling.
The second diet was called before the High Court at Stirling on 9th December 1925, when counsel for the panel moved the Court that the panel be forthwith set at liberty and declared for ever free from all question or process for the crimes charged in the indictment, in terms of section 43 of the Criminal Procedure (Scotland) Act, 1887,* in respect that he had not been brought to trial, and his
trial concluded, within 110 days of the date of his being committed till liberated in due course of law. Counsel further intimated that, in the event of the foregoing motion being refused and the case going to trial, he would move that the charges be tried separately.
After hearing argument, the presiding Judge (Lord Murray), in respect of the importance and difficulty of both points, certified the case to the High Court of Justiciary at Edinburgh.
The material facts, so far as bearing on the questions raised, were as follows:—The panel was arrested on 23rd November 1924. On 9th December 1924 he was committed till liberated in due course of law upon the charge of murdering Agnes Bradford Reid. On 27th February 1925 he was served with an indictment containing both charges above referred to. No special plea on the ground of insanity was tendered, but, at the calling of the second diet upon this indictment on 16th March 1925, the presiding judge (Lord Anderson)ex proprio motu directed an inquiry into the mental state of the panel. After medical evidence had been led both for the Crown and for the defence, the Court found that the panel was in a state of insanity and could not be tried under the indictment, deserted the diet pro loco et tempore, and, in terms of the Lunacy (Scotland) Act, 1857,1 ordered the panel to be kept in strict custody until His Majesty's pleasure should be known. Thereafter the panel was conveyed to Duke Street Prison, Glasgow, where he was detained for five days, after which he was transferred to Perth Criminal Lunatic Asylum. He was released from the asylum on 22nd October 1925, but was immediately re-arrested, and on 27th October 1925 he was committed till liberated in due course of law upon both charges. A fresh indictment containing both charges was served on 19th November 1925, and the second diet upon this indictment was called at Stirling on 7th December 1925, when, as above stated, the case was remitted to the High Court at Edinburgh.
The case was heard before the High Court at Edinburgh on 16th and 17th December 1925.
Argued for the panel;—(1) The panel could not now be brought to trial, and should be liberated forthwith. He had been in prison for more than 110 days. When the accused was brought to trial on 16th March 1925 he had been in prison for 98 days. The period of 110 days accordingly expired on 28th March 1925. If the period of detention as a lunatic* were to be left out of account, the 110 days had expired at latest on 7th November 1925. On either view the accused had a constitutional right to be set at liberty now. The question turned upon the provisions of section 43 of the Criminal Procedure (Scotland) Act, 1887,2 and, in particular, upon the second and third provisos to that section, in terms of either of which the accused was entitled to instant liberation. His case fell exactly within the terms of the second proviso. He had been incarcerated for 80 days by 27th February 1925, an indictment was served upon him, he had continued to be detained in custody, and his trial had not been concluded within 110 days from his being committed
for trial. He was, accordingly, in terms of the concluding words of the proviso, entitled to be ‘forthwith set at liberty.’ It was well settled under the Act of 17011 that, after service of letters of intimation by the prisoner, the Crown could not defeat his right to liberation, in the event of his not being tried within the statutory period, by the expedient of releasing the prisoner.2 Similarly, under the Act of 1887, once a prisoner had been detained for 80 days he obtained a right to liberation unless his trial was concluded within 110 days, and that right could not be defeated by the Crown liberating him. The Lunacy (Scotland) Act, 1857,3 created an anomaly, in respect that under its provisions an accused person who was found to be insane and unable to plead might be indefinitely detained. It might well be that, in such a case, the Crown would not be entitled to plead that the period of lunacy detention should not be taken into account in reckoning the 110 days. The detention was not due merely to the prisoner's mental illness. There must, in addition, have been a commitment in order to trial, and the detention was truly a criminal detention, or imprisonment.4 On that view the second proviso to section 43 plainly applied. But the nature of the accused's detention in the asylum was not of great importance, because, even if it was to be regarded as having brought about his release from prison, and apart from the argument that release from prison could not defeat the prisoner's rights under the second proviso if he had suffered 80 days' imprisonment, the case fell under the third proviso to section 43. In terms of that proviso, where an accused person was liberated after having been committed till liberated in due course of law, he could not be detained in prison more than 110 days in all. Under this proviso the accused's case was unanswerable, unless the Court could extend the period of detention, under the concluding words of the section, which, as would be shown later, the Court had no power to do. The important words in the third proviso were ‘in all.’ This clearly showed that the days of detention both prior and...
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