Her Majesty's Advocate Against David Pyne
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Kingarth,Lord Justice Clerk |
| Neutral Citation | [2014] HCJAC 129 |
| Docket Number | XC553/13 |
| Published date | 17 November 2014 |
| Court | High Court of Justiciary |
| Date | 22 November 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lord Drummond Young Lord Kingarth
| [2014] HCJAC 129 XC553/13 OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
CROWN BILL OF ADVOCATION
by
HER MAJESTY’S ADVOCATE
Appellant;
against
DAVID PYNE Respondent:
_____________ |
Appellant: Fairley QC AD; the Crown Agent
Respondent: Borthwick; Anthony Mahon, Glasgow
22 November 2013
[1] The respondent first appeared on petition at Glasgow Sheriff Court on 10 February 2012 and was fully committed in custody in the following week. He was served with an indictment on 2 April, charging him with 4 offences occurring on 10 February, notably wilful fire-raising of a car, breach of the peace at the same location, threatening police officers at Maryhill Police Station and assaulting one officer there also. He was cited to appear at a first diet on 18 April, with a trial diet being fixed for 8 May 2012. There then followed a significant number of first diets at which various trial diets were postponed. Eventually, a first diet was fixed for 10 November, with the trial diet fixed for a sitting commencing 10 December 2012.
[2] At the first diet in November, the respondent failed to appear and a warrant was granted for his arrest under, and in terms of, section 102A(2) of the Criminal Procedure (Scotland) Act 1995. The effect of that would normally be that the indictment would “fall” (s 102A(5)). The Crown, however, made a motion intended to preserve the trial diet. The court, in terms of section 102A(6), ordered that the “indictment shall not fall”. The indictment therefore remained live as at the trial diet fixed for the sitting in December. However, the grant of the warrant meant that the requirement for the trial to commence within 12 months no longer applied (s 65(2)).
[3] The respondent appeared by arrangement on 7 December 2012, when his case was continued to the trial diet commencing 10 December. The trial was not called at that sitting. In terms of sub-section 81(5) of the 1995 Act, if a case is not brought to trial at the appointed sitting, the Crown may, within a period of two months, give notice on another copy of the indictment that the accused is to appear and answer that indictment at a further trial diet. No such notice was given in this case.
[4] A second indictment, containing identical charges, was served on the respondent on 5 March 2013, citing him to a first diet on 10 April. The first diet was continued on defence motion to 24 April, 13 June and ultimately 8 August, with a trial diet set for 9 September 2013. On 8 August, a diet of “debate” was fixed for 23 August; the respondent having raised a preliminary plea that the procedure on the second indictment was incompetent as it had not been served within the two month period. On 29 August, the sheriff sustained the plea, but granted leave to appeal. However, the diet was not continued or adjourned that day and, as the instance had fallen, the Crown took the view that advocation was appropriate. The competency of that advocation was not challenged (HM Advocate v K (A) 2012 SCCR 421).
[5] In reaching the decision that the procedure on the second indictment was not competent, the sheriff took the view that section 81 was, as submitted by the respondent, designed to deal in a comprehensive fashion with the situation of trials not proceeding and that it sought to provide the full range of options once a case had been indicted to a particular sitting. Criminal diets were peremptory. If the Crown was either unable, or chose not, to proceed to trial in the sitting and did not move to adjourn the diet, the Crown could have called the case in terms of section 81 and deserted pro loco et tempore. Alternatively, the Crown could have used the section 81 notice procedure. The comprehensive code provided by the section resulted in the desirable continuing accountability and judicial oversight of the procedure.
[6] The advocate depute submitted that the sheriff had been in error. The short point at issue was whether the “abbreviated procedure”, as it was called in Ryan v HM Advocate 1999 SCCR 792 (LJG (Rodger) at 795), was intended to be an exclusive procedure, or simply...
To continue reading
Request your trial