Handley v Pirie
| Jurisdiction | Scotland |
| Judgment Date | 17 June 1976 |
| Docket Number | No. 14. |
| Date | 17 June 1976 |
| Court | High Court of Justiciary |
JC
L. J.-G. Emslie, Lords Cameron, Avonside.
Summary Procedure—Commencement of trial—Diet fixed for trial called and adjourned—Adjourned diet of trial—Road traffic offence—Requirement of service of analyst's certificate not less than seven days before trial—Service after diet fixed for trial and before adjourned diet—Whether diet fixed for trial of adjourned diet the commencement of the trial—Whether test to determine if trial has commenced is whether Crown can move to desert diet pro loco et tempore—Whether power to move to desert exercisable up to time of leading evidence—Analogy with Solemn Procedure—Road Traffic Act 1972 (cap. 20), Sec. 10 (1) and (3).1
The first diet at which an accused was called to answer a charge of a contravention of sec. 6 (1) of the Road Traffic Act 1972 was on 30th July 1975. At that diet the accused pled not guilty, and the diet was adjourned to 3rd November 1975 for trial. On 3rd November the accused appeared for trial. He pled not guilty in answer to the complaint. Before evidence was led the Procurator-fiscal moved the Court to adjourn the diet because he had omitted to serve on the accused a certificate by an authorised analyst under sec. 10 of the 1972 Act (certifying the blood-alcohol content of a specimen of blood). The Sheriff adjourned the diet to 28th November 1975 for trial. More than seven days before the diet of 28th November, but after 3rd November 1975, a certificate by an authorised analyst was served on the accused.
At the trial on 28th November 1975 the Sheriff accepted the certificate of the analyst as competent and sufficient evidence of its contents by virtue of sec. 10 (1) and (3) of the 1972 Act.
Held (1) that in summary proceedings when the diet of trial has been called and the accused has pled not guilty he is then in the same position as the accused on indictment when the jury has been sworn, for he is then, upon his plea of not guilty, before the Court competent to try him having by his plea elected to put the Crown to the proof of guilt; (2) that, accordingly, the trial began on 3rd November 1975; and (3) that the subsequent conviction and sentence having proceeded on the incompetent and inadmissible evidence of the analyst's certificate, which had not been served on the accused not less than seven days before the trial diet of 3rd November, the conviction and sentence would bequashed.
Ross et Ors (1848) Arkley 481; Stewart v. Mackenzie 2 Irv. 616; John Martin 3 Irv. 177,referred to.
Observed, that if a prosecutor wished to move to desert the diet pro loco et tempore in summary proceedings, or to protect his right to rely later on a sec. 10 (1) certificate which has not by then been served, he must make the appropriate motion at the diet of trial before the accused has been called upon to plead.
Roy M'Gregor Handley was charged in the Sheriff Court at Dumfries on a complaint at the instance of Iain Gordon Pirie, Procurator-fiscal. The charge set forth that "on 27th April, 1975, on a road or other public place, namely Goldie Avenue, at a part thereof, near to its junction with College Street, Dumfries, you did drive a motor vehicle namely a motor car, having consumed alcohol in such a quantity that the proportion thereof in your blood, as ascertained from a laboratory test for which you subsequently provided a specimen under section 9 of the aftermentioned Act, was 222 milligrammes of alcohol in 100 millilitres of blood, which exceeded 80 milligrammes of alcohol in 100 millilitres of blood, the prescribed limit at the time you provided the specimen: Contrary to section 6 (1) of the Road Traffic Act 1972.
On 5th December 1975, after a trial, the Sheriff (Ramsay) convicted the accused of the said offence, fined him £30 and disqualified him from driving for four years.
The accused presented a bill of suspension against his conviction and sentence.
The statement of facts attached to the bill, and answers thereto lodged by the respondent, set forth the following narrative of events: "(Stat. 2) The said Complaint assigned 30th July, 1975 within the Sheriff Court Dumfries as a diet. At the diet on 30th July, 1975 the Complainer tendered by a letter a plea of not guilty and trial was fixed to take place on 3rd November, 1975. (Ans. 2) Admitted. (Stat. 3) On 3rd November, 1975 the Complainer appeared and was represented by a solicitor. The Complaint against him was called and the Complainer's solicitor intimated that the Complainer adhered to his plea of not guilty. The Respondent then called his first witness, a police officer, who entered the witness box. The presiding Sheriff, Sheriff Kearney, rose to administer the oath but was interrupted by the Respondent who moved him to adjourn the trial. In support of that motion the Respondent stated he was unable to proceed because, as was the fact, he had not availed himself of the procedure provided in Section 10 of the said Road Traffic Act 1972 and had not served on the Complainer a...
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...evidence was tendered, usually but not invariably with the swearing of the first witness (pp 483I–484A); and billpassed. Handley v PirieSC 1976 JC 65 and Mitchell v Vannet 1999 SLT 934 overruled. Linda Margaret Ruxton, procurator fiscal, Linlithgow brought a bill of advocation against Jamie......
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Procurator Fiscal, Linlithgow V. Jamie Graham Borland
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Procurator Fiscal, Linlithgow V. Jamie Borland
...Sheriff Fleming could deal with the matters before him. But in the light of Mitchell v. Vannet 1999 S.C.C.R. 547, and Handley v. Pirie 1976 J.C. 65, Sheriff Fleming raised the question of whether the trial had perhaps commenced before Sheriff Maclean on 5 March 1999, by virtue of the fact t......
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