McDOWALL v LEES
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1996 |
| Docket Number | No 35 |
| Date | 19 July 1996 |
| Court | High Court of Justiciary |
Full Bench
LJ-C Ross, Lords Morison, Weir, Johnston and Cowie
Procedure—Summary procedure—Time limits—Pannel previously charged on petition—Summary trial adjourned to date outwith 12 month period—Whether sheriff erred in granting extension of 12 month limit—Criminal Procedure (Scotland) Act 1975(cap 21), sec 101(1)(ii)1
Procedure—Solemn procedure—Time limit—Twelve month rule—Pannel previously charged on petition and thereafter served with summary complaint—Summary trial adjourned to date outwith 12 month period—Whether sheriff erred in retrospectively extending period outwith 12 month period—Criminal Procedure (Scotland) Act 1975 (cap 21), sec 101(1)(ii)1
Section 101(1) of the Criminal Procedure (Scotland) Act 1975 enacts that an accused shall not be tried on indictment for any offence unless his trial is commenced within 12 months of his first appearance on petition, provided that: “(ii) … the sheriff … may, on cause shown, extend the said period.”
A pannel was charged on petition with fraud. She was thereafter committed for further examination and released on bail on 22 June 1995. The cause was reduced to summary complaint and a trial diet was fixed for 18 January 1996, outwith the 12 month period. The Crown applied for an extension of the 12 month period retrospectively. Despite objection from the pannel, the sheriff granted that extension. The pannel thereafter appealed.
Held (by a court of five judges) (1) that since the 1975 Act was a consolidation Act it did not alter the law to the effect that an application for extension could be made retrospectively; (2) that the right conferred upon an accused person by sec 101 was not an absolute right but was subject to qualifications; and (3) that similar language was used in relation to extensions of the 110 day period in solemn matters and a 12 month period in summary matters so that the power to the court to extend that period retrospectively was competent; and appeal refused.
HM Advocate v MSC 1987 JC 1 approved;HM Advocate v Bickerstaff 1926 JC 65; HM Advocate v McCannSC1977 JC 1 and Farrell v HM AdvocateSC1984 JC 80considered.
Alexa McDowall was charged in the sheriffdom of Lothian and Borders at Edinburgh on a summary complaint at the instance of Robert F Lees, procurator fiscal there on a libel which set forth a fraud.
The pannel pled not guilty and the cause came to trial before the sheriff (Crowe) on 18 January 1996. At the trial diet the pannel, with leave, objected to the competency of the proceedings on the ground that they were time-barred in terms of sec 101(1) of the Criminal Procedure (Scotland) Act 1975. The Crown sought an extension of the 12 month period on the ground that a retrospective grant of extension was competent. The sheriff allowed the extension.
The pannel thereafter appealed to the High Court of Justiciary against the decision of the sheriff.
Cases referred to:
Advocate (HM) v Bickerstaff 1926 JC 65
Advocate (HM) v MSC 1987 JC 1
Advocate (HM) v McCannSC 1977 JC 1
Advocate (HM) v WalkerSC 1981 JC 102
Beswick v BeswickELR [1968] AC 58
Farrell v HM AdvocateSC 1984 JC 80
Gardner v Lees 1996 SLT 342
MacDougall v Russell 1986 SLT 403
McGowan (Brian) v Procurator Fiscal, Paisley, High Court of Justiciary, 1 February 1996, unreported (1996 GWD 8ndash;437)
Normand v Walker 1996 SLT 418
O'Neill (Jeff John Anderson) v Procurator Fiscal, Edinburgh, High Court of Justiciary, 1 March 1996, unreported (1996 GWD 18–1040)Whitelaw v DickinsonSC 1993 JC 68
Textbooks referred to:
Craies, Statute Law (7th edn), p 363
Maxwell, Interpretation of Statutes (12th edn), pp 20 et seq
The cause called before the High Court of Justiciary on 23 February 1996 and 16 February 1996 when it was remitted to be heard by aquorum of five Lords Commissioners of Justiciary.
The cause thereafter called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord Morison, Lord Weir, Lord Johnston and Lord Cowie for a hearing on 26 June 1996. Eo dietheir Lordships made avizandum.
At advising, on 19 July 1996, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).
Opinion of the Court—On 22 June 1994 the appellant appeared at the sheriff court at Edinburgh on a petition containing charges of fraud. The case was continued for further examination and the appellant was released on bail.
Subsequently the charge was made the subject of a summary complaint in respect of which the pleading diet was on 10 January 1995. At that diet the appellant pled not guilty. Thereafter the diet for trial was adjourned on a number of occasions, and on 18 January 1996 the procurator fiscal, Edinburgh, applied to the court for an extension of the 12 month period in terms of sec 101(1)(ii) of the Criminal Procedure (Scotland) Act 1975, as amended. The appellant challenged the competency of the application. On 8 February 1996 the sheriff issued a judgment holding that the application was competent, and granting the application for extension of the 12 month period for a period of 12 months from 18 April 1995. Against that decision of the sheriff the appellant has appealed to the High Court. In the appeal the appellant contends that the application was incompetent in respect that it was made after the expiry of the period of 12 months from the first appearance of the appellant on petition. She further contends that esto the application was competent, the extension was in the circumstances unreasonable.
Counsel were heard upon the appeal on 23 February 1996 and 16 April 1996 when the case was remitted to a full bench. The hearing before the full bench has now taken place.
In support of the appeal, senior counsel who appeared with junior counsel for the appellant, submitted that the court had no power to order a retrospective extension of the 12 month period specified in sec 101(1) of the Criminal Procedure (Scotland) Act 1975, as amended, after that period had expired. He reminded us that the provisions contained in sec 101(1) of the Act of 1975 are now contained in sec 65(1) of the Criminal Procedure (Scotland) Act 1995 with certain alterations. Counsel also reminded us that in terms ofGardner v Lees the court had held that the 12 month period specified in sec 101(1) applied where solemn proceedings were reduced to summary proceedings, and that summary proceedings outwith the 12 month period would be incompetent. The second proviso to sec 101(1) provided that the court might extend the 12 month period on cause shown, and the question which arose in the present case was whether that could be done retrospectively. Relying upon certain observations inGardner v Lees, counsel submitted that two recent cases where the court had allowed retrospective extension of the 12 month period had been wrongly decided and should be disapproved. These cases were McGowan v Procurator Fiscal, Paisley andO'Neill v Procurator Fiscal, Edinburgh. Counsel accordingly invited the court to allow the appeal and to reverse the decision of the sheriff.
For the sake of completeness it should be noted that on 8 February 1996, the sheriff adjourned the diet for trial until 20 March 1996 with an intermediate diet on 6 March 1996. On 6 March 1996, the sheriff adjourned the proceedings to await the outcome of the appeal at the instance of the appellant. However, no diet was fixed and no minute was made of the adjournment. The respondent subsequently presented a bill of advocation inviting the court to reinstate the complaint and to remit the case to the sheriff to fix a new diet. The appellant opposed the passing of the bill upon the ground that the instance had fallen on 6 March 1996, and that this court could not retrospectively revive a complaint which had fallen. The court refused to pass the bill with the result that if proceedings...
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