Shields v Donnelly
| Jurisdiction | Scotland |
| Judgment Date | 11 August 1999 |
| Docket Number | No 7 |
| Date | 11 August 1999 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Kirkwood and Lord Cowie
Procedure—Summary procedure—District court—Competency—Justice sitting outside district to conduct proceedings—Whether competent—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 6(1)1
A pannel was charged on a summary complaint with two offences allegedly committed at Helensburgh which was within the jurisdiction of Argyll and Bute district court. The procurator fiscal cited the pannel to appear in answer to the complaint at Dumbarton district court (which was outwith the commission area of Argyll and Bute Council). Preliminary stages of the proceedings were dealt with at Dumbarton but thereafter the court sat at Helensburgh when the pannel was permitted to state a plea to the competency of the proceedings on the ground that jurisdiction had been transferred to Helensburgh without the approval of one or more justices. The justice repelled the plea and the pannel thereafter appealed to the High Court of Justiciary. In the appeal hearing an issue, characterised as one of fundamental nullity, was raised as to the power of a justice to sit outside the district of the district court. The Crown argued that sec 6(1) of the Criminal Procedure (Scotland) Act authorised the justice to do so.
Held (1) that the general rule was that a justice, when conducting the proceedings of his district court, had to do so within the district of the court; (2) that Parliament had not qualified that rule when it enacted sec 6(1) which merely gave to the relevant local authority the power to determine where and when the court was to sit within its district; and (3) that the whole proceedings had therefore to be regarded as tainted by a fundamental nullity; and appealallowed.
Observed that it should not be assumed that the High Court would regard proceedings as fundamentally null where a pannel had acquiesced in any conviction or penalty.
Alan Michael Shields was charged in the district court of Argyll and Bute at Dumbarton at the instance of Christopher C Donnelly, procurator fiscal there, with breach of the peace and a contravention of sec 41(1)(a) of the Police (Scotland) Act 1967 allegedly committed at Helensburgh railway station. The pannel tabled a plea to the competency of the proceedings in respect that the jurisdiction of the district court had been transferred from Dumbarton to Helensburgh without the approval of one or more of the justices. After hearing parties the justice repelled the plea.
The pannel thereafter appealed to the High Court of Justiciary.
Case referred to:
Storie v Friel 1995 SLT 390
Textbooks referred to:
Erskine, Institute, I.ii.3
McGlashan, Sheriff Court Practice (2nd ed, 1842), para. 3.15
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Kirkwood and Lord Cowie for a hearing.
At advising, on 11 August 1999, the opinion of the court was delivered by the Lord Justice-General (Rodger).
Opinion of the Court—In this appeal under sec 174(1) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) the appellant is Alan Shields who was charged on summary complaint with breach of the peace and a contravention of sec 41(1)(a) of the Police (Scotland) Act 1967. In each of the charges the locus was Helensburgh railway station. At the hearing of the appeal parties were agreed, first, that the procurator fiscal who had raised the complaint was the procurator fiscal for the area which includes Helensburgh and, secondly, that at all stages the...
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