Shaun George Reynolds V. Procurator Fiscal, Linlithgow
| Jurisdiction | Scotland |
| Judge | Lord Kirkwood,Lord Nimmo Smith |
| Court | High Court of Justiciary |
| Date | 14 February 2002 |
| Docket Number | 1858/00 |
| Published date | 14 February 2002 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Kirkwood Lord Nimmo Smith Lord Weir
| Appeal No: 1858/00 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL to the Competency and Relevancy by SHAUN GEORGE REYNOLDS Appellant; against PROCURATOR FISCAL, Linlithgow Respondent: _______ |
Appellant: Shead; Adams Whyte
Respondent: S. Woolman, Q.C., A.D.; Crown Agent
14 February 2002
[1]This is an appeal at the instance of Shaun George Reynolds in terms of section 174(1) of the Criminal Procedure (Scotland) Act 1995. The appellant faced a complaint charging him with theft, the offence having been committed when he was on bail. He appeared at Linlithgow Sheriff Court on 15 February 2000 and pleaded not guilty. The trial diet was fixed for 30 June 2000 with an intermediate diet on 7 June. On 7 June the appellant failed to appear and, on the motion of the procurator fiscal depute, the sheriff granted a warrant to apprehend the appellant as he was authorised to do by section 150(3) of the Criminal Procedure (Scotland) Act 1995. The court minute of 7 June is in the following terms:
"The Court in respect that the accused SHAUN GEORGE REYNOLDS has failed to appear to answer the foregoing complaint after being duly cited/ordained to appear at this diet, grants warrant to apprehend the said accused".
The trial diet, which had been fixed for 30 June, did not take place, the case not being called. The warrant was duly executed and the appellant appeared from custody on 14 July. On that date a new trial diet was fixed for 18 August and an intermediate diet was fixed for 26 July, the appellant being remanded in custody. At the new intermediate diet on 26 July the appellant's solicitor tendered a plea to the competency of the proceedings. The court continued the intermediate diet and a debate took place on 2 August.
[2]At the debate the appellant's solicitor submitted that the trial diet fixed for 30 June had not been discharged on 7 June and as the case had not called on 30 June the instance had fallen at midnight on that date. On 7 June a warrant had been granted for the apprehension of the appellant, but the court minute did not make any reference to the trial diet and, in particular, there had been no specific discharge of the trial diet. It was submitted that a trial diet, which had been fixed by order of the court and was a peremptory diet, could not be discharged by implication simply because a warrant for the apprehension of the appellant had been granted in terms of section 150(3) of the 1995 Act. Section 150(3) did not provide that the grant of a warrant had the effect of discharging the trial diet. As the trial diet fixed for 30 June had not been discharged, and the case had not called on that date, the instance had fallen. In reply, the procurator fiscal depute accepted that if the trial diet had not been discharged the instance had fallen, but he submitted that the granting of the warrant had the effect of automatically discharging the trial diet. The prosecution could not continue after a warrant had been granted as it could not be known when the warrant would be executed, and the grant of the warrant had the effect of discharging any further procedure until the accused was brought before the court.
[3]The sheriff was satisfied that the grant of the warrant for the apprehension of the appellant on 7 June had the effect of discharging the trial diet fixed for 30 June. The sheriff who presided at the intermediate diet on 7 June could either have adjourned the proceedings to another diet and ordered the appellant to attend at that diet, in terms of section 150(2), or granted a warrant for his apprehension, in terms of section 150(3). Section 150(3) is silent on the effect of the granting of a warrant on the trial diet, but the sheriff concluded that it carried with it, by implication, the discharge of the trial diet which had an overall suspensive effect on the prosecution. In these circumstances the failure to call the case on 30 June had not resulted in the instance having fallen. The sheriff granted leave to appeal.
[4]Section 150(1), (2) and (3) provides as follows:
"150.-(1)This section applies where the accused in a summary prosecution fails to appear at any diet of which he has received intimation, or to which he has been cited other than a diet which, by virtue of section 148(5) of this Act, he is not required to attend.
(2)The court may adjourn the proceedings to another diet, and order the accused to attend at such diet, and appoint intimation of the diet to be made to him.
(3)The court may grant warrant to apprehend the accused."
[5]Counsel for the appellant repeated the submission that the grant of the warrant on 7 June had not had the effect of discharging the trial diet, and that since the case was not called on 30 June the instance had fallen. It would have been open to the sheriff who had granted the warrant expressly to discharge the trial diet, but he had not done so and the court minute did not contain any reference to a discharge of the trial diet. In the absence of a formal order for discharge of the trial diet, the date fixed for the trial diet remained a peremptory diet and it was common ground in this case that the case had not called on 30 June. The comparable position in solemn procedure was not relevant to summary procedure which is regulated by statute. If an accused person fails to appear at an intermediate diet and a warrant is granted, it is open to the sheriff to discharge the trial diet and, once the warrant has been executed and the accused is brought before the court, the court could fix a new trial diet and a new intermediate diet. However, the discharge of a trial diet cannot be left to...
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