McLEOD v HM ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 01 May 1997 |
| Docket Number | No 33 |
| Date | 01 May 1997 |
| Court | High Court of Justiciary |
JC
LJ-C Cullen, Lord McCluskey and Lord Coulsfield
Procedure—Solemn procedure—Trial—Effect of pre-trial publicity prejudicial to pannel—Whether court should order change of venue to different part of sheriffdom—Whether oppression essential
A pannel was charged on an indictment containing charges under the Misuse of Drugs Act 1971 and a charge under the Licensing (Scotland) Act 1976 relative to the period 1990 until 1995. The pannel was the occupier and was concerned in the management of a particular hotel in Lockerbie. All charges related to events in those premises. The charges had arisen from a police raid in the hotel which had received considerable publicity at the time in local newspapers, the national press and on radio and television. As a result certain prosecutions had taken place and convictions obtained. In the circumstances, the pannel moved,inter alia, that the trial diet should be transferred from a sitting in Dumfries to some other court within the sheriffdom. The sheriff refused that motion. The pannel thereafter appealed to the High Court of Justiciary.
Held (1) that whereas nothing short of oppression would entitle the court to prevent an indictment proceeding to trial, where a trial could proceed in a different court, greater room existed for taking account of the perception of the proceedings by the public and by the pannel; (2) that every case was to be judged on its own facts and circumstances and that the appeal court would be slow to interfere with a decision made by a judge after weighing all the relevant facts and circumstances, but (3) that in this case the sheriff had erred in that there was a lack of focus on the difference between the situation in the present case and in cases where the question was whether the trial could proceed at all and justice had not been seen to be done which meant that the appeal court was entitled to review the decision; and (4) that, having regard to the character of the publicity, the sheriff should have exercised his discretion by granting the motion which, ultimately, was to desert the diet in order to have a fresh indictment brought in a different court; and appeal allowed.
Stuurman v. HM AdvocateSC 1980 JC 111 distinguished.
Alistair McLeod was charged on an indictment at the instance of the Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, the libel of which set forth various charges of contraventions of the Misuse of Drugs Act 1971 and a contravention of the Licensing (Scotland) Act 1976.
The pannel lodged a minute of notice under sec 74(1) of the Criminal Procedure (Scotland) Act 1995 in which, inter alia, he sought the transfer of the trial diet from the sheriff court at Dumfries to another sheriff court within the sheriffdom due to the possible prejudicial effects of pre-trial publicity in respect of the case.
The cause called before a temporary sheriff who refused the motion.
The pannel thereafter, with leave of the sheriff, appealed to the High Court of Justiciary.
Cases referred to:
Advocate, HM v. Mitchell 1994 SLT 144
Atkins v. London Weekend TelevisionSC 1978 JC 48
Kilbane v. HM Advocate 1990 SLT 108
Spink v. HM AdvocateUNK 1989 SCCR 413
Stuurman v. HM AdvocateSC 1980 JC 111
X v. SweeneySC 1982 JC 70
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Coulsfield for a hearing.
At advising, on 1 May 1997, the opinion of the court was delivered by Lord Coulsfield.
Opinion of the Court—The appellant was charged on an indictment containing three charges under the Misuse of Drugs Act 1971 and one charge under the Licensing (Scotland) Act 1976. All the charges related to the same period, from 27 March 1990 until 12 August 1995. The first charge, under sec 8(d) of the 1971 Act, alleged that during the material period the appellant, being the occupier and concerned in the management of the...
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