M'Lean v Falconer
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1895 |
| Date | 28 June 1895 |
| Docket Number | No. 12. |
| Court | High Court of Justiciary |
Lord Adam, Lord M'Laren, Lord Kinnear.
Process—Adjournment of diet by unsigned deliverance—Validity.—
At the trial of a summary complaint, on 29th January, the Sheriff adjourned the diet, but the interlocutor appointing a day for the next diet was not signed. The accused appeared on the day named in the unsigned interlocutor, and, after evidence, was convicted.
In a suspension, held that as the diet of 29th January had not been adjourned to a fixed date, subsequent proceedings were incompetent, and conviction quashed.
Lord Advocate v. Fraser, June 1, 1852, 1 Irvine, 1, followed.
On 14th January 1895 John M'Lean, residing in East Damside, Kinross, was charged upon a summary complaint with the crime of malicious mischief.
On 15th January the Sheriff-substitute (Tyndall Johnstone) granted warrant to apprehend the accused, but the warrant was not signed. On the same day the accused, who had been verbally informed of the charge by the Superintendent of the Kinross-shire Police, appeared in Court and pleaded not guilty to the complaint.
The diet was adjourned to the 29th day of January by an interlocutor signed by the Sheriff-substitute.
On 29th January the cause was again adjourned, but the interlocutor adjourning the case to 12th February was not signed.
On 12th February the accused again appeared, and, after evidence led, was convicted of the offence charged.
M'Lean brought this bill of suspension on the grounds—‘(1) That no warrant to cite the complainer, or to apprehend him, or cite witnesses or havers, was ever granted. (3) That when the case was called on 29th January 1895 and not disposed of no interlocutor or deliverance of any kind was pronounced adjourning the diet.’
Argued for the complainer;—(1) There was no warrant to cite the accused, and therefore the proceedings were ab initio invalid.1 (2) It was settled that where a diet was adjourned, it must be adjourned to a fixed day.2 Here the interlocutor of 29th January not being signed, there was no valid continuation of the diet, and the subsequent proceedings were therefore incompetent.
Argued for the respondent;—(1) Where the accused appeared and pleaded to the complaint, and the informality resulted in no injustice being done to him, informality in the citation would not invalidate the proceedings.3 It was necessary to give the Court jurisdiction that there should be a properly authenticated complaint before it;4 but a warrant of apprehension or citation was merely executorial, and was not an essential part of the proceedings. (2) The interlocutor of adjournment was also executorial, and any informality in it was obviated if the accused appeared and stood his trial at the adjournment diet. In Fraser's case, the trial was upon indictment, in which stricter adherence to form was required than in summary prosecutions. Here the adjournment was granted at the request of the accused.
At advising,—
Lord Adam.—Two preliminary objections are urged in this case against the conviction which the complainer seeks to set aside. The first is that he was brought before the Court without a warrant, there being no signed warrant in existence when the first diet of his trial was called.
It appears that the complaint charging the crime of malicious mischief was signed by the fiscal; a warrant for the apprehension of the accused was then made out in the usual terms, but was not signed. The accused was afterwards met by a policeman, who told him that a warrant for his arrest had been issued, and that he was required to appear...
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