H. M. Advocate v Walker
| Jurisdiction | Scotland |
| Judgment Date | 28 July 1981 |
| Docket Number | No. 17. |
| Date | 28 July 1981 |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Dunpark, Grieve.
Solemn procedure—Indictment—Delays before trial—Indictment timeously served—At second diet case not called due to industrial action—Fresh indictment served outwith 80 days—Whether first indictment a nullity—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 101 (2) (a) (as amended by Criminal Justice (Scotland) Act 1980 (cap. 62), sec. 14).1
On 3rd February 1981, three persons were charged on petition with mobbing and rioting. They were detained in custody and on 10th February they were committed until liberated in due course of law. The last day for serving an indictment was 30th April. An indictment was served on them 56 days later, on 6th April; on 26th April they appeared at the pleading diet. All tendered pleas of not guilty quoad the first charge against them. The first and third accused tendered pleas of not guilty to the second charge. The second accused stated objections to the relevancy of the second charge and the Crown subsequently amended the indictment. On 11th May, the date of the second diet, the case was not called because of industrial action by the clerks of court. The indictment fell and the Crown served another indictment on the same day in terms identical to the original one. On 21st May the Sheriff, after hearing pleas to the competency, held the indictment had not been served timeously within 80 days of committal and liberated the accused under sec. 101 (2) (a) of the Criminal Procedure (Scotland) Act 1975. The Lord Advocate presented a bill of advocation to the High Court of Justiciary craving recall of the Sheriff's order and warrant to apprehend the accused.
Held (1) that the diet of 11th May was a peremptory diet and, as it had not called on that day, the instance fell as did all that had gone before, including the indictment of 6th April 1981.
Hull v. H. M. AdvocateSC 1945 J.C. 83 followed.
(2) That there was therefore no indictment served in relation to the proceedings before the Sheriff on 21st May which had been served on the accused within 80 days of their having been committed until liberated in due course of law; and bill of advocation refused.
Douglas M'Leod Walker, Alexander M'Leod Walker and John Munro Houston Heron, all appeared on petition in Glasgow Sheriff Court on 3rd February 1981 and were committed for further examination. Bail was refused. On 10th February 1981 they were committed until liberated in due course of law. Bail was again refused. An appeal to the High Court of Justiciary was refused on 13th February.
On 6th April, an indictment was served on the respondents for diets at Glasgow Sheriff Court on 26th April and 11th May. Accordingly, that indictment was served within 80 days of full committal.
On 26th April, Douglas Walker and John Heron tendered pleas of not guilty to the charges against them and the case was adjourned for trial until 11th May. Alexander Walker objected to the relevancy of the second charge against him and the case was continued for debate until 5th May. On...
To continue reading
Request your trial
-
McDOWALL v LEES
...to: Advocate (HM) v Bickerstaff 1926 JC 65 Advocate (HM) v MSC 1987 JC 1 Advocate (HM) v McCannSC 1977 JC 1 Advocate (HM) v WalkerSC 1981 JC 102 Beswick v BeswickELR [1968] AC 58 Farrell v HM AdvocateSC 1984 JC 80 Gardner v Lees 1996 SLT 342 MacDougall v Russell 1986 SLT 403 McGowan (Brian)......
-
McDONALD v HM ADVOCATE
...be free from further prosecution. Although counsel, when he first addressed us, did not refer to the case of H.M. Advocate v. WalkerSC 1981 J.C. 102, that case appears at first sight to assist his argument. In that case at p. 105 the Lord Justice-Clerk (Lord Wheatley) said this:—"He founded......
-
Jamieson v Advocate (HM)
...is referred to in the case ofMcDonald v. H.M. AdvocateUNK 1988 S.L.T. 693. In that case reference is made to H.M. Advocate v. WalkerSC 1981 J.C. 102. In the former case the view was expressed that when there had been desertion all that had gone before in connection with that instance fell. ......