HM Advocate v M
| Jurisdiction | Scotland |
| Judgment Date | 24 October 1986 |
| Date | 24 October 1986 |
| Docket Number | No. 1. |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Robertson, Dunpark.
Procedure—Solemn procedure—Competency—Two indictments served upon pannel—First indictment dismissed as irrelevant—Second indictment served upon pannel which libelled charges similar, though not identical, to those contained in first indictment—Whether res judicata.
Procedure—Solemn procedure—Indictment—Relevancy—Latitude as to time—Charges libelling offences perpetrated against children—Whether latitude as to time excessive in the circumstances.
Procedure—Solemn procedure—Indictment—Timelimit for commencement of trial—Whether period could competently be extended retrospectively—Criminal Procedure (Scotland) Act 1975 (cap. 21), secs. 76A and 101 (1).1
Section 76A of the Criminal Procedure (Scotland) Act 1975 makes provision for an appeal against a decision taken at a preliminary diet. Where such an appeal has been taken, sec. 76A (2) empowers the High Court of Justiciary to postpone the trial diet for a period and grants that court a discretion to direct that that period shall not count towards any timelimit in respect of the case. Where the court of first instance has dismissed the indictment or part of it then, in disposing of an appeal under sec. 76A (1), the High Court can direct the court of first instance to fix a trial diet (sec. 76A (3)).
Section 101 (1) of the Act imposes the general requirement that the trial of an accused person charged on indictment must commence within a period of twelve months from the date of first appearance on petition subject to the proviso that, on cause shewn, that period might be extended.
M. first appeared on petition in the sheriff court on 26th September 1985 and eventually was charged on an indictment which libelled various offences of lewd, indecent and libidinous practices against certain girls. At the trial diet, that indictment was dismissed by the sheriff (MacLeod) as being irrelevant due to the exceptionally wide latitude of time libelled in the charges. No appeal was taken against that decision. A second indictment was subsequently served upon the pannel which was in similar but not identical terms to the first; a material difference in respect of the latitudes of time libelled in the first indictment and that in the second existed. That second indictment was due to call for trial on 22nd September 1986. It was also dismissed by the sheriff after a preliminary diet held under the 1975 Act on the ground that the sheriff was of the view that the latitude as to time, though less than that contained in the first indictment, was "not sufficiently different" and was, accordingly, res judicata. The Crown appealed the sheriff's decision in terms of sec. 76A (1) of that Act, the appeal being heard after the expiry of the twelve-month timelimit for the commencement of the trial imposed by sec. 101 (1) of the Act, which, if successful, necessitated a motion to extend that timelimit retrospectively. M. argued that that motion would be incompetent.
Held (1) (followingLongmuir v. Baxter (1858) 3 Irv. 287) that the test for res judicata in criminal cases was whether the second libel was identical with the previous libel at the instance of the same prosecutor, and charges the accused with precisely the same crime, which was not the case here as the second indictment for each charge specified what the sheriff correctly regarded as a restricted latitude; and, accordingly, (2) that, where, as here, there was a material difference between the two indictments, the plea of res judicata could not be sustained; (3) (followingFarrell v. H.M. AdvocateUNK 1985 S.L.T. 58) that it was competent for the High Court to extend restrospectively the twelve-month timelimit; and appealallowed, twelve-month timelimit extended by three months, and the court of first instance ordered to fix a trial diet within that period.
Opinion that the latitude as to time taken in the second indictment was not excessive as it was well-recognised that where sexual offences were alleged to have taken place in relation to young children, a wide latitude was permissible.
Mr M. appeared on petition on 26th September 1985 and was subsequently charged on an indictment at the instance of the Rt. Hon. The Lord Cameron of Lochbroom, Q.C., Her Majesty's Advocate, the libel of which set forth, inter alia, that:—"(1) On two separate occasions in 1977 or 1978, the precise dates being to the prosecutor unknown, at the house then occupied by you at … you did use lewd, indecent and libidinous practices and behaviour towards [A.], your niece (born 9.1.69), … and did handle her private parts through her clothing and place your private member in her mouth; (2) on repeated occasions between 1st January
1979 and 4th January 1983, both dates inclusive, at place above libelled, you did use lewd, indecent and libidinous practices and behaviour towards [B.], your niece (born 5.1.70), … and did pull down her pants and insert your finger into her private parts; (3) on repeated occasions between 5th January 1983 and 31st December 1983, both dates inclusive, at place above libelled, you did use lewd, indecent and libidinous practices and behaviour towards said [B.], she being then a girl above the age of twelve years and under the age of sixteen years, and did pull down her pants and insert your finger into her private parts: Contrary to the Sexual Offences (Scotland) Act 1976, sec. 5; and (4) on two separate occasions in 1980 and 1982, the precise dates being to the prosecutor unknown, at place above libelled, you did use lewd, indecent and libidinous practices and behaviour towards [C.], your niece (born 30.11.72), … and did pull down her pants and fondle her bottom." The cause called for trial before the sheriff (N. D. MacLeod) in the sheriffdom of Glasgow and Strathkelvin at Glasgow on 16th July 1986 at which the pannel objected to the relevancy of the indictment due to the excessive latitude as to time libelled in the charges. The sheriff dismissed the indictment on this ground. The Crown did not thereafter appeal that decision but served upon the pannel a second indictment the charges in which set forth, inter alia,that:—"(1) On two separate occasions in 1977 or 1978, the precise dates being to the prosecutor unknown, but during the periods 1st to 6th January 1977, 31st March to 13th April 1977, 29th June to 22nd August 1977, 14th to 24th October 1977, 23rd December 1977 to 4th January 1978, 23rd March to 4th April 1978, 29th June to 21st August 1978, 13th to 23rd October 1978 and 22nd to 31st December 1978, all dates inclusive, at the house then occupied by you at … you did use lewd, indecent and libidinous practices and behaviour towards [A.], your niece (born 9.1.69), … and did handle her private parts through her clothing and place your private member in her mouth; (2) on repeated occasions between 1st January 1979 and 4th January 1982, both dates inclusive, the precise dates being to the prosecutor unknown, but during the periods 1st to 4th January 1979, 6th to 17th April 1979...
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