Normand v Rooney
| Jurisdiction | Scotland |
| Judgment Date | 07 January 1992 |
| Neutral Citation | 1992 SCCR 336 |
| Docket Number | No. 15. |
| Date | 07 January 1992 |
| Court | High Court of Justiciary |
JC
L. J.-G. Hope, Lords Cowie, Brand.
Procedure—Summary procedure—Complaint—Competency—Mora—Police officer accused of assault in December 1989 served with complaint in May 1991—Plea to competency on ground of undue delay upheld by sheriff—Whether correct test applied—Whether competent to challenge proceedings before pleading—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 334 (1).1
Section 334 (1) of the Criminal Procedure (Scotland) Act 1975 enacts that an accused may, prior to pleading, state an objection to the competency or relevancy of the complaint or the proceedings, and that no such objection shall be allowed at any future diet except with the leave of the court on cause shown.
The accused, a police officer, was alleged to have assaulted the complainer on 27th December 1989 and was charged on a summary complaint dated 13th May 1991. On 17th July 1991, in answer to the complaint and prior to pleading, the accused took a plea to the competency of the complaint on the ground of undue delay and the sheriff, applying the test in Tudhope v. McCarthySC1985 J.C. 48, upheld the plea and dismissed the complaint. The Crown appealed to the High Court on the grounds that the appropriate plea in such a case was a plea in bar of trial, and thus was outwith the terms of sec. 334 (1) of the 1975 Act, and, in any event, that the sheriff had failed to consider whether the delay was so gross or grave as to prejudice the accused. Before the final hearing of the appeal, Tudhope v. McCarthy was overruled by McFadyen v. AnnanSC1992 J. C. 50.
Held (1) that sec. 334 (1) could be broken down into three parts, the objections which could be stated being (a) as to the competency of the complaint, (b) as to the relevancy of the complaint, and (c) as to the proceedings, and that it was therefore open to the accused to challenge the proceedings prior to pleading on the ground of undue delay under the subsection; and (2) that, applying the test inMcFadyen v. Annan, since any prejudice which the accused might suffer as aresult of the delay was not so gross or grave that no sheriff, hearing the evidence, would be able to arrive at a fair verdict, the sheriff had erred in dismissing the complaint; and appealallowed and cause remitted to the sheriff to receive a plea from the accused and to proceed as accords.
McFadyen v. AnnanSC 1992 J.C. 50 applied andexplained.
Observed that the test in McFadyen v. Annanin relation to summary proceedings was, in effect, whether the prejudice was so grave that no sheriff or justice could be expected to reach a fair verdict in all the circumstances.
Matthe Rooney was charged on a summary complaint in the sheriffdom of Glasgow and Strathkelvin at Glasgow at the instance of Andrew Christie Normand,
procurator fiscal there, the libel of which set forth a charge of assaulting an individual on 27th December 1989. On 17th July 1991, in answer to the complaint and prior to pleading, the accused submitted a plea to the competency of the complaint, alleging that there had been undue delay in serving the complaint upon him. On 14th August 1991 the sheriff (Sischy) upheld the accused's plea and dismissed the complaint.The Crown appealed to the High Court, with leave of the sheriff, on the ground that the sheriff had erred in law in so acting.
The cause came before the High Court of Justiciary, comprising the Lord Justice-General(Hope), Lord Allanbridge and Lord Kincraig, for a hearing on 9th October when their Lordships continued the appeal until 7th January 1992.
The cause thereafter came before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Cowie and Lord Brand, for a hearing thereon on 7th January 1992.
Eo die, their Lordships allowed the appeal and subsequently delivered the following opinions.
LORD JUSTICE-GENERAL (Hope).—The respondent, who is a serving police officer, was charged in the sheriff court at Glasgow on a summary complaint dated 13th May 1991 with assaulting Derek Connor on 27th December 1989 at Shettleston police office, Glasgow on two occasions by punching him on the face to his injury. On 17th July 1991 in answer to the complaint the respondent stated a plea to the competency on the ground of what was described as "undue delay". On 14th August 1991, having listened to a debate on this issue, the sheriff concluded that there had been undue delay resulting in gross or grave prejudice to the respondent, and he sustained the respondent's plea and dismissed the complaint as incompetent. He granted leave to the prosecutor to appeal against this decision, and the appellant has now appealed on the ground that the sheriff erred in law in...
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