Paul Stevenson+scott Rankine+william Stevenson
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Philip,Lady Paton |
| Neutral Citation | [2008] HCJAC 12 |
| Court | High Court of Justiciary |
| Date | 30 April 2008 |
| Docket Number | XC799/06, |
| Published date | 30 April 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Nimmo Smith Lord Philip Lady Paton | [2008] HCJAC 12 Appeal Nos: XC799/06, XC800/06 and XC801/06 OPINION OF THE COURT delivered by LORD NIMMO SMITH in APPEALS under section 74 of the Criminal Procedure (Scotland) Act 1995 by PAUL DANIEL STEVENSON, SCOTT GEORGE RANKINE and WILLIAM DANIEL STEVENSON Appellants; against HER MAJESTY'S ADVOCATE Respondent; _______ |
Act: Shead, McKenzie; Hunter & Robertson, Paisley: MacLeod, Q.C., Templeton; McCusker McElroy, Paisley: Ogg, Solicitor Advocate; Tod & Mitchell, Paisley
Alt: K. Stewart, A.D.; Crown Agent
19 February 2008
Introduction
[1] These appeals arise from events which are alleged to have taken place at an address in Paisley on 26 December 2004. Charge 1 in the present indictment alleges that the first appellant assaulted the first male complainer by striking him on the head with a brick to his severe injury and permanent impairment. Charge 2 alleges that the second appellant assaulted the second male complainer by throwing a brick or similar instrument at him. Charge 3 alleges that all three appellants committed a breach of the peace, in terms which are not relevant for present purposes. Charge 4 alleges that the second and third appellants assaulted the female complainer by seizing hold of her wrists, pushing her into a hedge and striking her on the body with a brush or similar instrument, all to her injury. Charge 5 alleges that the first appellant assaulted the second male complainer by throwing a shovel and a brush or similar instruments at him.
[2] The appellants were originally indicted for trial on these charges in the Sheriff Court at Paisley at the sitting commencing on 18 April 2006, with a first diet on 4 April 2006. On 11 April 2006 the diet was deserted pro loco et tempore and the time-bar was extended from 15 July to 15 October 2006. The appellants were subsequently re-indicted for trial at the sitting commencing on 10 July 2006, with a first diet on 27 June 2006. On 27 June 2006 the first diet was continued until 4 July 2006. On that date the case was adjourned to a sitting commencing on 2 October 2006 with a new first diet on 19 September 2006. At the same time the time-bar was extended to 15 November 2006.
[3] Prior to the commencement of the trial it was discovered that certain labelled productions, namely a brick, a shovel, a brush and a broom ("the implements") were missing. It appears that they had been destroyed approximately six months previously, having been mistaken for rubbish which was being cleared out from the police station where they had been stored. The Crown moved the court to desert the diet pro loco et tempore and to extend the time-bar. These motions were opposed by the appellants who argued that the case should be deserted simpliciter. On 16 October the Crown motion to desert the diet pro loco et tempore was granted and the motion to extend the time-bar was refused. On the same date an indictment was served on the appellants citing them to a trial diet on 15 November 2006, with a first diet on 31 October 2006. On 31 October the appellants tabled two preliminary pleas. Following a hearing on 6 and 8 November 2006 the sheriff repelled the first plea, repelled the second plea in hoc statu, and granted leave to appeal to the High Court of Justiciary. We heard the appeals in two stages.
The first plea: competency
[4] The first preliminary plea was to the effect that proceedings on the most recent indictment were incompetent as the date fixed for the first diet was less than 15 clear days after the date of service of the indictment, contrary to the terms of section 66(6)(a)(i) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). Before this court it was argued on behalf of the appellants that the first diet was a peremptory diet and as such provided a procedural safeguard for the protection of the accused. The failure to give the appellants the period of notice provided for by section 66(6) of the 1995 Act rendered the indictment incompetent. Counsel for the appellants urged us to follow the approach adopted in Hull v H.M. Advocate 1945 JC 83, a case in which an accused charged on indictment in the Sheriff Court was cited to a first diet on 7 September 1944 and thereafter to a trial sitting on 19 September 1944. The first diet was adjourned on three occasions for the disposal of pleas to the relevancy. On the last of these occasions, on 14 September 1944, the sheriff purported to adjourn the first diet to 21 September 1944, a date two days after the trial diet. No diet was called on 19 September 1944. It was held by the High Court of Justiciary that the trial diet was a peremptory diet and if it was not called or adjourned or continued on the date in the citation the instance fell, even although the accused acquiesced in the procedure and no prejudice or injustice was suffered by him. Lord Justice Clerk Cooper said at page 88:
"The interest to be protected is not that of the individual appellant but of the whole body of the public, and we cannot adopt the view that the requirements of solemn criminal procedure are only obligatory if and so far as any deviation may be thought to have adversely affected the individual immediately in question. Were it once admitted that it was a question of facts and circumstances in each case whether a serious deviation from regular procedure should be ignored, the anchor of the entire system would drag"
[5] In H.M. Advocate v McDonald and Others 1984 SCCR 229, the respondents were cited to a trial diet in the High Court on an induciae which was one day shorter than it should have been. The questions which the court of five judges in that case had to decide were whether, because the period between service of the indictment and the trial diet was less than 29 clear days in terms of sections 75 and 111A of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act"), the proceedings at the trial diet were fundamentally null, regardless of the wishes of the respondents, and whether the objection to the citation could be stated by the respondents at the trial diet when they had failed to give notice of the objection within 15 days of the service of the indictment in terms of sections 76(1)(a) and 108(1) of the 1975 Act.
[6] In delivering the Opinion of the Court, Lord Justice General Emslie said at p. 237:
"As to the first of these questions the answer is to be found by asking whether an objection of invalid citation - want of due citation - can be waived by an accused."
He then cited examples of situations which the law regarded as involving fundamental nullity even where the accused had concurred or acquiesced, and went on,
"Invalidity of citation, however, has never had in our law the consequence that proceedings at a trial diet fall to be regarded as incompetent and fundamentally null because, while invalidity of citation is open to objection by an accused, it is an objection which can be waived."
[7] In the course of their submissions, counsel for the appellants argued that the court's decision on the question of fundamental nullity in McDonald was obiter. We reject this submission. The court required to decide that question before it could decide the question of the competency of the objection at the trial diet.
[8] In Kerr v Carnegie 1998 SCCR 168 the complainer, who was charged on summary complaint in Greenock Sheriff Court, sought to argue that the proceedings were rendered incompetent by the failure to fix an intermediate diet when the case was adjourned for trial in terms of section 148(1) of the 1995 Act. It was accepted that no prejudice had been caused to the complainer. The court repelled the argument on competency on the ground that section 148 was administrative in character, designed to make more efficient use of court time. It was directed to pre-trial preparation, and was not specially conceived in favour of the accused. It was not fundamental to the achieving of a fair trial.
[9] Kerr v Carnegie was followed in Hogg v H.M. Advocate 1998 SCCR 338, in which an appellant charged on indictment with three charges was not called upon to tender a plea in respect of each of those charges at the first diet in terms of section 71(6) of the 1995 Act. In relation to one of the charges he had lodged a special defence of alibi, the words of which, in accordance with the normal form, incorporated a plea of not guilty. In rejecting the argument that the proceedings were rendered null as a result of the failure to call upon the appellant to tender a plea, Lord Justice General Rodger said that the purpose of the first diet in Sheriff Court solemn procedure was similar to that of an intermediate diet in summary procedure. It was administrative in character and not specially conceived in favour of the accused.
[10] Counsel for the appellants again argued that the statement in Hogg that the proceedings were not rendered null by the fact that the appellant had not tendered a plea to two of the charges at the first diet was obiter. Again we do not agree. It was the de quo of the...
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