McFadyen v Annan
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1992 |
| Neutral Citation | 1992 SCCR 186 |
| Date | 22 November 1992 |
| Court | Court of Session (Inner House - Full Bench) |
Court of Criminal Appeal
Before the Lord Justice-Clerk (Lord Ross), Lord Cowie, Lord Morison, Lord Cullen and Lord Milligan
Scots criminal procedure - delay - prejudicing fair trial - relevant considerations
Where the court had to consider whether delay in bringing a prosecution had prejudiced the prospects of a fair trial, it was not in a position to determine whether or not delay by the prosecution had been justified, but a concession by the Crown that delay had been caused by fault on its part would be a relevant consideration, as would be fault on the part of the accused. Moreover, the court could also consider any delay prior to the raising of proceedings as part of the overall delay, irrespective of fault.
The whole court of the High Court of Justiciary, sitting as the Court of Criminal Appeal, so held, refusing an appeal by Donald McFadyen against the rejection by the sheriff of a preliminary plea in bar of trial on the ground of oppression caused by delay in a summary complaint brought at the instance of Hugh Annan, Procurator Fiscal, Linlithgow, charging the appellant with assault to injury.
Mr Donald FIndlay, QC and Mr Derek Batchelor, for the appellant; The Solicitor-General for Scotland (Mr Alan Rodger, QC) for the Crown.
THE LORD JUSTICE-CLERK said that the charges related to events in August 1990. A complaint had been made about a police officer in September 1990 and suspicion had focused on the appellant, who was a serving police officer, in November. He had been charged in April 1991.
Mr Findlay submitted that it would be oppressive for the Crown to continue proceedings because of the delay. His ultimate position was that it did not matter whether the delay had been due to fault on the part of the Crown.
The issue was the proper approach to such a plea. Since 1984 it had been recognised that the test was whether there had been undue delay which had resulted in grave prejudice to the accused.
In Tudhope v McCarthyUNK (1985 SCCR 76) the court had approved the approach adopted by Lord Hunter in HM Advocate v Leslie (January 31, 1984): (1) Was there undue delay? (2) Did it result in gross or grave prejudice?
Mr Findlay maintained that it did not matter whether the delay was due or undue; if there was delay which caused prejudice then it would be oppressive for the Crown to proceed.
The Solicitor-General had submitted that the question was whether the risk of prejudice was so grave that no...
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