In the Scottish Courts
| DOI | 10.1177/002201837704100208 |
| Published date | 01 April 1977 |
| Date | 01 April 1977 |
| Subject Matter | Article |
In
the Scottish Courts
Comments
on
Cases
THE
110
DAY
RULE
H.M.
Advocate
v. McCann
At
a
time
when
criminal trials are
becoming
lengthier
and
when
delay in bringing cases to trial is
becoming
acute,
a
Prosecutor's
nightmare
is
to
run
foul
of
the
110
day
rule
embodied
in ss.101(3)
and
(4)
of
the
Criminal
Procedure
(Scotland)
Act
1975.
The
rule has
been
the
subject
of
adverse criticism
from
lawyer
and
layman
alike,
but
remains as an
important
constitutional
safeguard against delay
in proceedings against an accused
person
in
custody.
In H.M.
Advocate
v. McCann
(1977
S.L. T. (Notes)
19)
the
Crown
raised aBill
of
Advocation
against
the
order
of
a
Sheriff
releasing an accused
under
the
rule,
and
in its
opinion
the
Court
was
at
pains to clarify a
most
convoluted
statutory
provision.
The
accused was
detained
for 96 days
after
full
committal,
served
with
an
indictment
and
then
released
on
the
orders
of
the
Procurator
Fiscal. When his case eventually called for trial
(long
after
the
110
days had expired) his
Solicitor
successfully argued
that
since
the
accused
had
been
detained
for
more
than
80 days
and
his trial had
not
been
completed
within
110
days,
s.I
01 (3) applied to
his case
and
that
he should go free.
Such
an
order
was
made
by
the
Sheriff
in spite
of
the
Fiscal's submission
that
the
110
days
had
been
interrupted
by
the
release
of
the
accused.
These
arguments
were rehearsed again
before
the
High
Court,
which was
of
the
opinion
that
when
an accused was in fact
not
incarcerated
under
the
committal
warrant,
the
period
during
which he was
not
so incarcerated
did
not
count
in
computing
the
80
days
or
the
110
days. In
support
of this
proposition
the
Court
referred
to
H.M. Adv. v.
Bickerstaff
(1926
IC.
65), Wallace v. H.M.
Adv.
(1959
j.c.
71)
and
H.M. Adv. v.
Royle
(1972 S.L. T. (Notes)
16),
all
of
which
cases covered
interruptions
in
the
periods for
various reasons.
The
point
of
the
rule was, said
the
Court,
to
ensure
that
an accused was
not
kept
in
custody
for
more
than
110
days,
whether
continuously
or cumulatively,
and
the
respondent's
argument
that
subs. 101 (3)
could
permit
the
Court
to declare an accused free, even if
the
Fiscal
had
ordered
the
factual release
of
the
accused
after
80
days, was based on a
misconception.
118
To continue reading
Request your trial