Kennedy v Heatly
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1951 |
| Date | 26 June 1951 |
| Docket Number | No. 22. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Russell.
Summary procedure—Preliminary investigations—Detention of accused in custody—Right of accused to bail—Jurisdiction of magistrate—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII, cap. 65), secs. 8, 9 and 24.
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Sec. 8 of the Summary Jurisdiction (Scotland) Act, 1908, enacts that a Court of summary criminal jurisdiction other than the Sheriff Court shall not have jurisdiction to try certain offences, including theft to an amount exceeding ten pounds, but that such a Court may, to the extent and in the manner provided by sec. 9, take cognisance of the cases of persons accused of those offences. Sec. 9 enacts:—"If … in the preliminary investigation … it shall appear that the offence charged is one which cannot competently be tried in the Court … it shall be lawful for the Court to commit the accused to prison for examination for any period not exceeding four days, and the prosecutor shall forthwith give notice of such committal to the procurator-fiscal. … in order that the accused may be dealt with according to law." Sec. 24 enacts:—"The Court, in order to allow time for inquiry …, may from time to time continue the case for such reasonable time as may in the circumstances be necessary, not exceeding in all a period of seven days, or on special cause shown fourteen days, from the date of the apprehension of the accused, and may liberate him on bail or commit him to prison …: Provided that no judge shall be entitled to allow bail in any case which he is not competent to try."
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The complainer in a bill of suspension had been apprehended on 2nd November; had been brought before a magistrate on 3rd November, when he had been ordered to be detained in custody until 10th November; and had again been brought before the magistrate on 10th November, when he had been ordered to be detained in custody until 14th November. The magistrate's first order had been pronounced on a petition at the instance of the prosecutor which stated that the complainer was charged with theft to an amount exceeding ten pounds and that the detention was necessary "in order to allow time for inquiry"; his second order had been pronounced on a similar petition "in order to allow time for further inquiry." On the second occasion a motion by the complainer for liberation on bail had been refused as incompetent under the proviso to sec. 24, and a further motion that the case should be remitted to the Sheriff had also been refused because of opposition by the prosecutor.
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Held that the magistrate, by refusing the motion for liberation on bail, had affirmed judicially that the offence could not competently be tried in the Police Court, and that accordingly sec. 9 of the Act required him to grant the complainer's further motion for an immediate remit to the Sheriff.
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Observed, "In the general case a remit should be made as soon as it appears to the magistrate that the case is beyond his jurisdiction, especially if an application has been presented for liberation on bail."
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Opinion reserved on the question whether, in any event, a bare averment of the necessity of "time for further inquiry" amounted to "special cause" warranting further detention under sec. 24.
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M'Phee v. Macfarlane's Executor, 1933 S. C. 163,commented on.
James Donaldson Neatly, City Prosecutor, Edinburgh, presented in the Burgh Court on 3rd November 1950 a petition under section 17 of the Summary Jurisdiction (Scotland) Act 1908, which set forth that Frank Ebermyer Kennedy and two other men "have been apprehended within the City of Edinburgh charged with theft to an amount exceeding ten pounds which is an offence beyond the jurisdiction of this Court, and it is necessary in order to allow time for inquiry that warrant should be granted to detain the said accused in custody until Friday 10th November 1950." The magistrate granted warrant as craved. On 10th November 1950 the City Prosecutor presented a further petition which, on the same narrative, set forth that it was necessary "in order to allow time for further inquiry" that warrant should be granted to detain the accused in custody until 14th November 1950. The magistrate again granted warrant as craved.
In these circumstances Kennedy presented a bill of suspension craving suspension of the latter warrant and interim liberation. He averred:—"(1) The complainer was arrested on Thursday, 2nd November 1950, in connexion with a suspected implication in a theft and was thereafter placed in custody. (2) The complainer appeared before the Edinburgh Burgh Court on Friday, 3rd November 1950, when he made no plea. On the motion of the respondent, a petition under section 17 of the Summary Jurisdiction (Scotland) Act, 1908, having been presented to the Court, the presiding magistrate ordered the complainer to be detained in custody pending further investigation for a period of seven days. (3) The contents of the...
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