HM Advocate v Farrell
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1984 |
| Docket Number | No. 11. |
| Date | 28 June 1984 |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Cameron, Robertson.
Procedure—Delay in trial—Delay of more than 80 days before service of indictment—Right of panel to release—Application for retrospective extension of time for service of indictment—Competency—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 101 (2) (a), (3)1.
Two accused were fully committed for trial on 20th February and 12th March 1984. In terms of sec. 101 (2) (a) of the Criminal Procedure (Scotland) Act 1975, they were entitled to be liberated if an indictment was not served within 80 days after such committal. An indictment was served on 26th April and their trial began on 28th May. On 31st May the Court deserted the diet pro loco et tempore.The accused were not liberated and on 7th June the Lord Justice-Clerk extended the above period for service of the indictment in terms of sec. 101 (3) of the 1975 Act. The accused appealed on the ground that it was incompetent to do so after the 80 days had expired.
Held (1) that sec. 43 of the Criminal Procedure (Scotland) Act 18872, repeated in sec. 101 of the 1975 Act as originally enacted, explicitly allowed the retrospective extension of the equivalent period of 110 days.
(2) That there was no express indication in the wording of the present sec. 101 that such extension was no longer competent, and the use of the past tense in subsec. (3) clearly implied that it was still competent; and appeal refused.
H.M. Advocate v. Bickerstaff 1926 J.C. 65applied.
Observed that where the Court is faced with such an application it may look for very powerful reasons to justify it.
James Farrell and James Nolan appeared on petition before the sheriff at Kilmarnock on 13th February 1984 and they were committed for further examination. On 20th February and 12th March, they were committed until liberated in due course of law.
On 26th April 1984 an indictment was served on them for a diet at that court on 28th May 1984. Accordingly, that indictment was served within 80 days of full committal.
On 31st May the sheriff (Smith) deserted the diet pro loco et tempore owing to the illness of an essential witness for the Crown.
The accused were not liberated and on 6th June the Crown applied, in terms of section 101 (3) of the Criminal Procedure (Scotland) Act 1975, for extensions of the periods within which an indictment had to be served on the accused.
On 7th June 1984 the Lord Justice-Clerk (Wheatley) ordered that both accused...
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