Jones v Milne
| Jurisdiction | Scotland |
| Judgment Date | 25 October 1974 |
| Date | 25 October 1974 |
| Docket Number | No. 4. |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Johnston, Kissen.
Procedure—Fugitive Offender—Arrest under provisional warrant—Detention for period fixed as reasonable for receipt from Secretary of State of "authority to proceed"—Whether detention beyond that period without that authority, unlawful—Fugitive Offenders Act 1967 (cap. 68) sec. 7 (3), (4) and (5).
Evidence—Sufficiency to warrant trial—Admissibility—Answers to police questioning.
A person accused of having committed offences in Australia was arrested in Scotland under a provisional warrant issued within the terms of sec. 6 (1)(b) of the Fugitive Offenders Act 1967. That such a warrant had been issued was duly brought to the notice of the Secretary of State within the terms of sec. 6 (3) of the said Act—the statutory purpose of requiring that to be done, being that the Secretary of State should consider whether to issue an authority to proceed, or otherwise to cancel the warrant and discharge the arrested person from custody. In keeping with the requirement of sec. 7 (1) of the Act, the accused was, on 16th July 1974, brought before a Sheriff of the Lothians and Peebles at Edinburgh, who under the powers so to do, contained in sec. 7 (3) of the Act, adjourned the case and remanded the accused in custody until 6th August 1974. On this latter date the Sheriff again adjourned the case and remanded the accused in custody for a further like period, that is, until 27th August 1974. This time, however, the Sheriff, in so acting, did so under express reference to the terms of sec. 7 (4) of the Act, and consistently therewith gave notice to the Secretary of State that this further period of adjournment and remand, also represented a "reasonable period" fixed in terms of the said last-mentioned section, and, literally, "after which (the accused) will be discharged unless such an authority (to proceed) has been received." Although no authority to proceed had been received by 27th August 1974, the Sheriff further adjourned the case and remanded the accused in custody until 17th September 1974, purporting so to do under the powers given by said sec. 7 (3) of the Act. An authority to proceed was received on 9th September 1974, and on 17th September 1974, under a fresh petition of that date, the Sheriff, being satisfied that the offences to which the authority related were relevant offences, and further that the evidence tendered in their support was sufficient to warrant trial for these offences if such had been committed within the jurisdiction of the court, purported to act under sec. 7 (5) of the said Act in committing the accused "to custody to await his return to Australia."
Held that on the expiry of a "reasonable period" fixed under sec. sec. 7 (4) of the Act a person detained under a provisional warrant was entitled to be discharged from custody unless by then an authority to proceed had been received; that sec. 7 (5) only came into play where an authority to proceed had been issued in the case of a "person arrested," meaning a person in lawful arrest; and accused discharged from custody.
Opinion, in relation to the sufficiency of evidence in support of certain of the offences attributed to the accused, that it was not the law of Scotland that a suspect's answers to police questioning will never be admissible, the test of inadmissibility, in this context, always being whether, on an examination of the whole circumstances surrounding the questioning there is found to have been unfairness on the part of the police.
Dicta of Lord Justice-General (Cooper) in Chalmers v. H. M. AdvocateSC1954 J.C. 66approved.
Lynn Tasman Jones, sometime of Australia, presented a note of application in terms of section 8 of the Fugitive Offenders Act 1967 to the High Court of Justiciary, craving his discharge from custody.
The note of application set forth inter alia:—"(1) That on the Petition of Norman Milne, Procurator Fiscal, Edinburgh, dated 12th July 1974 the Sheriff of the Lothians and Peebles at Edinburgh on 12th July 1974 granted a provisional warrant for the arrest of the appellant in terms of section 6 (1) (b) of the Fugitive Offenders Act 1967 (hereinafter referred to as “the Act”). (2) That on 16th July 1974 the appellant, having been arrested under said provisional warrant, was brought before the Sheriff of the Lothians and Peebles at Edinburgh. On the motion of the Procurator-fiscal the Sheriff in exercise of his powers under section 7 (3) of the Act adjourned the case until 6th August 1974 and remanded the appellant in custody pending said adjourned hearing. The Sheriff made no order under section 7 (4) of the Act. (3) That on 6th August 1974 the appellant again appeared before the Sheriff of the Lothians and Peebles at Edinburgh. On the motion of the Procurator-fiscal, opposed on behalf of the appellant, the Sheriff further adjourned the case until 27th August 1974 and remanded the appellant in custody pending said adjourned hearing. In so doing the learned Sheriff made reference to her powers under section 7 (4) of the Act. The appellant avers that in so far as the Sheriff's powers to adjourn the case...
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