Procurator Fiscal Paisley V. A K+a R
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Menzies,Lord Justice General |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] HCJAC 44 |
| Court | High Court of Justiciary |
| Date | 03 April 2012 |
| Published date | 03 April 2012 |
| Docket Number | XC536/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Clarke Lord Menzies | [2012] HCJAC 44 Appeal No: XC536/11 and XC617/11 OPINION OF THE COURT delivered by LORD CLARKE in BILLS OF ADVOCATION in causis K DONNELLY, PROCURATOR FISCAL, PAISLEY Complainer; against (FIRST) AK and (SECOND) AR Respondents: _______ |
Complainer: MacSporran, A.D.; Crown Agent
First Respondent: Clancy, Q.C., Jackson; McSporran McCormick, Glasgow
Second Respondent: Anthony, Q.C., Mitchell; Francis Gill & Co., Edinburgh
3 April 2012
Introduction
[1] These bills of advocation came before the court for a preliminary hearing to determine their competency. The two respondents are elderly retired ladies who have been charged on an indictment containing several charges of physical abuse towards children. The offences alleged on the indictment occurred over a period from 21 September 1970 to 1 July 1972 and involve six complainers. The locus of the alleged offences is an Approved School. The dates of the various charges are the respective dates of admission and discharge from the Approved School of the various complainers.
[2] On 26 and 27 May and 6 June 2011 the sheriff, at Paisley, heard a debate in relation to devolution minutes lodged on behalf of both respondents. On 26 July 2011, in a written determination, the sheriff sustained the first part of the devolution minutes by holding that
"... as a consequence of the passage of time, the loss of records and the death of potential witnesses the risk of prejudice to both Accused is so grave that it would be impossible to direct a jury in such a way that that prejudice could be avoided. I have therefore decided to sustain the first leg of the Devolution Minutes in relation to the arguments advanced in terms of Article 6 of the European Convention on Human Rights that the Accused would not have a fair trial."
By virtue of section 74(1) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") the Crown could have appealed against the sheriff's determination within a period of seven days of its being made. The Crown did not do so. On 24 September 2011 the Crown, however, lodged bills of advocation in both cases. While section 191A of the 1995 Act provides that in proceedings on summary prosecution, bills of advocation must be lodged within three weeks of the date of the conviction, acquittal or, as the case may be, other decision to which the bill relates, no such time limit is provided by statute where the proceedings, as here, are brought on indictment. The pleas-in-law in support of the bills are in identical terms, namely:
"The learned sheriff's decision to allow the devolution minutes, being unjust, erroneous and contrary to law should be recalled and the indictment remitted to the sheriff with a direction to set new diets and extend the time bar if necessary or to otherwise proceed as accords."
In their answers both respondents have a preliminary plea to the effect that "This Bill of Advocation being incompetently before this court for the reasons stated at answer 9 above, their Lordships should dismiss the Bill".
[3] At a procedural hearing on 15 December 2011, the court appointed a hearing to be held on the question of competency raised in the respondent's answers. In the event, as will be seen, that hearing, to which this opinion relates, by agreement of all parties, dealt not only with the issue of competency but also a subsidiary argument, advanced on behalf of the respondents, that the Crown, by its actings or omissions was now barred from bringing the Bills. The first-named respondent lodged a written case and answer. Its terms were adopted on behalf of the second respondent. The submissions made by senior counsel for the first-named respondent, Mr Clancy, Q.C., were adopted also on behalf of the second-named respondent.
Competency of the Bill - the effect of section 74 and section 131 of the 1995 Act
[4] The first argument advanced on behalf of the respondents was that, by virtue of the provisions of section 74(1) of the 1995 Act the Crown had one route, and one route only, to challenge the decision of a court at first instance, made at a first diet, or a preliminary hearing, and that was by way of appeal in terms of the section. Section 74(1) was introduced by the Criminal Justice Act 1980 as an amendment to the Criminal Procedure (Scotland) Act 1975. Before 1980 there had been no statutory procedure available for the Crown to appeal against a decision to uphold a plea in bar of trial or a decision to dismiss a complaint or indictment on grounds of relevancy or competency. The respondents' submission was that when Parliament enacted that provision it did so with the intention and effect of replacing bills of advocation as the competent way of seeking review of any decision which could now competently be appealed against, with leave, under the statutory procedure. That submission was made notwithstanding the provisions of section 131(1) of the 1995 Act, which is to the following effect:
"Without prejudice to section 74 of this Act, the prosecutor's right to bring a decision under review of the High Court by way of bill of advocation in accordance with existing law and practice shall extend to the review of a decision of any court of solemn jurisdiction".
It was contended, on behalf of the respondents, that the purpose of that provision was simply to permit advocation against decisions of a High Court judge. It did not, however, have the effect of preserving review by way of bill of advocation, or recognising the continuing competency of such a procedure, where a statutory right of appeal was now available under section 74(1). There was no good reason in principle or practice, it was submitted, why there should be two alternative avenues of approach available to the Crown. That submission was made, it appeared, on an understanding that the accused would not be able to employ the alternative of proceeding by way of bill of advocation and was confined to the statutory appeal route, an understanding that played a predominant role in a later argument based on Article 6 of the European Convention on Human Rights and the requirements for what is sometimes described as equality of arms under the provisions of that article. The wording in section 131(1) "by way of bill of advocation in accordance with existing law and practice" appearing in section 131(1) was, it was submitted, referring to the law as it existed after the passing of section 74(1), it was not to be read as recognising the maintenance of any right to proceed by way of bill of advocation when a section 74 appeal was available.
Discussion
[5] We reject the foregoing submissions. The combined effect of...
To continue reading
Request your trial
- Her Majesty's Advocate Against David Pyne
-
Bill Of Advocation For Connor Mcateer Against Her Majesty's Advocate
...(Scotland) Act 1995. The appellant then presented this Bill of Advocation. It was maintained, under reference to Donnelly v AK and AR 2013 JC 32, that such a course was competent. [6] This Bill of Advocation is incompetent. It is true that the provisions for leave to appeal in section 74 do......