McFadyen v Annan
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1991 |
| Date | 22 November 1991 |
| Docket Number | No. 11. |
| Court | High Court of Justiciary |
FULL BENCH.
L. J.-C. Ross, Lords Cowie, Morison, Cullen and Milligan
Procedure—Summary procedure—Complaint—Competency—Mora—Police officer charged with assault and brought to trial nine and a half months after alleged incident—Whether bringing of proceedings oppressive by virtue of undue delay—Proper test to be applied—Whether appropriate plea is plea to competency or plea in bar of trial.
The accused, a police officer, was charged on a summary complaint with assaulting the complainer on 5th August 1990, during an incident in which the accused arrested the complainer. A complaint against police officers, but not specifically against the accused, had been made by the complainer on 6th September. Following the complainer's trial and acquittal on 19th September on charges arising from the incident of 5th August, the accused was interviewed on 1st November under caution. The case was reported to the procurator fiscal in January 1991 and on 17th April 1991, after the case had returned from Crown Office with instructions to prosecute the accused, the accused was charged and a complaint served on him on 14th May. The accused raised a plea to the competency of the proceedings on the ground of undue delay in bringing them giving rise to gross prejudice. The sheriff repelled the plea and the accused appealed to the High Court. When the appeal was first head, counsel for both parties explained that they wished the court to consider whether the approach to cases of this kind in Tudhope v. McCarthySC1985 J.C. 48 was correct, and the court accordingly remitted the appeal to a quorum of five Lords Commissioners of Justiciary.
Held (by a bench of five judges, Lord Morisondissenting) (1) that the bipartite test in cases of delay, stated in Tudhope v. McCarthy, whether the delay was undue and whether it caused gross or grave prejudice, was unsound and was too narrowly stated; (2) that the question for the court was whether there was such prejudice to the prospects of a fair trial that it would be oppressive to require the accused to face trial, the test of oppression being the same in such cases as in any other situation; (3) that the court was entitled to consider any delay before proceedings were raised as well as any delay after they were initiated; (per) the Lord Justice-Clerk (Ross) and Lord Cowie) that delay before proceedings were initiated could be considered only if the Crown conceded fault, although the overall passage of time would be relevant; (4) that, in solemn proceedings, the court required to ask whether the risk of grave prejudice to the prospects of the accused receiving a fair trial was so grave that no direction by the trial judge to the jury could be expected to remove it and, in summary proceedings, that the question was whether or not the sheriff or justice could be expected to put that prejudice out of his mind and reach a fair verdict; and (5) that, applying that test to the circumstances in this case, the delay had not prejudiced the prospects of a fair trial to that extent; and appeal refused.
Tudhope v. McCarthySC 1985 J.C. 48; McGeown v. H.M. AdvocateUNK 1989 S.L.T. 625; Connachan v. DouglasSC1990 J.C. 244; Buchan v. H.M. AdvocateUNK 1990 S.C.C.R. 549; and H.M. Advocate v. MechanUNK 1992 S.L.T. 61 overruled.
Stuurman v. H.M. AdvocateSC 1980 J.C. 111 applied.
Per Lord Morison (concurring in the result butdissenting on the reasoning), that the test in Tudhope v. McCarthy was correct in both its branches, was appropriate to both solemn and summary proceedings and should be affirmed. Applying that test to the circumstances of the case, the appellant had failed in both respects.
Observed that when complaining of delay in bringing proceedings, the appropriate procedure was to raise a plea in bar of trial.
Donald McFadyen was charged on a summary complaint in the sheriffdom of Lothian and Borders at Linlithgow at the instance of Hugh Ross Annan, procurator fiscal there, the libel of which set forth charges of assaulting another man on two occasions. The accused took a plea to the competency of the charges on the ground inter aliaof "undue delay giving rise to gross and grave prejudice". After hearing parties on the plea the sheriff (MacLean) dismissed same and the accused appealed, with leave of the sheriff, to the High Court by note of appeal. The cause came before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord Brand and Lord Wylie, for a hearing on 21st August 1991. Their Lordships remitted the cause to be heard by a quorum of five judges. The cause thereafter came before the Lord Justice-Clerk (Ross), Lord Cowie, Lord Morison, Lord Cullen and Lord Milligan, for a hearing thereon on 24th October 1991.Eo die, their Lordships made avizandum.
At advising, on 22nd November 1991,—
LORD JUSTICE-CLERK (Ross).—The appellant was charged at the instance of the respondent on a summary complaint containing the following charges: "The charge against you is that you did, on 5th August 1990, in George Place, Bathgate, West Lothian, (1) assault David Gordon Robb, 53 Mosside Road, Blackburn, West Lothian, and did strike him on the face with a personal radio to his injury; and (2) on an occasion other than that above libelled, assault the said David Gordon Robb and did seize him, strike his head against a motor van, butt him on the face, knock him to the ground, kick him on the body, seize him by the hair and strike his head against the ground, all to his injury."
On 27th June 1991 the sheriff heard parties on a plea by the appellant to the competency of the charges. Three grounds were put forward in support of that plea to the competency, viz, (1) undue delay by the prosecutor giving rise to gross and grave prejudice; (2) it was oppressive due to pre-trial publicity; and (3) the manner of the conduct of the previous trial, and the fact that other officers were involved, and were awaiting internal disciplinary proceedings in relation to the outcome of this complaint. Having heard parties on the plea the sheriff rejected the plea. The appellant then sought and obtained leave to appeal to this court in terms of sec. 334 of the Criminal Procedure (Scotland) Act 1975, and such an appeal was timeously taken.
When the appeal was first heard on 21st August 1991, counsel for the appellant and the advocate-depute explained that they felt that it was desirable that this court should consider whether the approach of the court in cases of this kind was correctly stated in such cases asTudhope v. McCarthySC 1985 J.C. 48. This court accordingly remitted the appeal to be heard by a quorum of five Lords Commissioners of Justiciary.
In opening this appeal before the enlarged bench, senior counsel for the appellant gave a short history of events leading up to the plea to the competency being taken. On 5th August 1990 police officers attended at an incident in Bathgate, and a number of persons were arrested. One of those arrested was the complainer in the complaint, and he was arrested by the appellant and another police officer. On 6th September 1990 a complaint was made on behalf of the complainer to the effect that he had been assaulted by a police officer. No officer was named at the time, but it was a blanket complaint against police officers. On 10th September 1990 a man named Irvine who had been arrested along with the complainer also complained of having been assaulted when he was arrested by police officers on 5th August 1990. Again it was a blanket complaint. No specific complaint was ever made by Irvine against the appellant. The complainer and Irvine went to trial on 10th and 19th September 1990 on charges of breach of the peace, assault and resisting arrest. On the second day of this trial the appellant, who was waiting to give evidence, was brought into court and shown to a female witness. The appellant is unaware whether she purported to identify him. At the end of the day both the complainer and Irvine were acquitted. Thereafter police investigations commenced into the blanket complaint. It appeared that suspicion had focused upon the appellant by 1st November 1990 because on that date he was interviewed by senior police officers under caution.
On the basis of senior counsel for the appellant's information supplemented by information provided by the Solicitor General, it appears that the case was reported to the procurator fiscal in January 1991, and that the case was passed to the regional procurator fiscal in March 1991. The regional procurator fiscal reported the case to the Crown Office on 5th April 1991, and on 9th April 1991 the Crown Office issued instructions for a prosecution of the appellant. The appellant was charged on 17th April 1991 and the summary complaint already referred to was served on 14th May 1991. After sundry procedure a plea to the competency of the complaint was taken, and, as already noted, the sheriff in due course repelled the plea.
Senior counsel for the appellant explained that although three grounds had been stated in support of the plea to the competency he was not now seeking to support the second ground based upon pre-trial publicity. His principal ground was that there had been undue delay in this case, and this was covered by the first ground stated in support of the plea to competency, and to a lesser extent by the third ground. Senior counsel explained that the appellant's contention was that, in the circumstances, having regard to the delay which had occurred, it would be oppressive for the Crown to continue proceedings against the appellant. At the beginning of his submissions he maintained that the delay had resulted in grave prejudice to the appellant. Subsequently, however, he maintained that whether or not prejudice could be described as grave, there had been undue delay with the result that there was a risk of such a level of prejudice that the appellant would not be able to be fairly tried. His...
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