Stenton v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 24 July 1998 |
| Date | 24 July 1998 |
| Docket Number | No 33 |
| Court | High Court of Justiciary |
JC
Lord Coulsfield, Lady Cosgrove and Lord Nimmo Smith
Procedure—Solemn procedure—Delay in commencement of trial—Failure by prosecutor to commence trial within 12 months of the first appearance of pannel on petition warrant—Application for extension of time—Original indictment fundamentally null due to Crown's error in not specifying locus in charge—Administrative problems in procurator fiscal's office—Whether sheriff erred in granting extension—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 65(1), (3) and (8)1
A pannel was charged with assault to severe injury and the danger of life. He appeared on petition in the sheriff court on 10 July 1997 and was committed for further examination and released on bail. On an indictment being served, the first diet called on 2 June 1998 with the trial diet being held on 15 June 1998. On that latter day the indictment was dismissed as being incompetent on the ground that a fundamental nullity had arisen in that no locus was specified in the charges. The Crown moved to extend the 12 month time period under sec 65(3) of the Criminal Procedure (Scotland) Act 1995. It was admitted that the mistake had been that of the Crown; there had been administrative difficulties in the procurator fiscal's office. The sheriff granted the motion. The pannel appealed.
Held (1) that the general rule, laid down in the public interest, was that a trial was to commence within the time limit and the judge had to consider whether there was a reason for seeking the extension of a kind which was capable of justifying a departure from that rule; (2) that only then did the next question arise of whether, in the exercise of his discretion, the judge should allow the motion; but (3) that where all that could be said by way of explanation of the need for the extension was that a mistake had been made by the Crown, that was not a reason of the kind which might be capable of providing a justification for the extension; and appeal allowed.
HM Advocate v SwiftSC 1984 JC 83 applied.
Opinion that as the sheriff had stated that there was no point in enforcing the rule for its own sake and had gone straight to an exercise of his discretionary judgment of whether or not the motion should be allowed, he had gone near, at least, to misdirecting himself.
Opinion reserved on the question of the appropriate test to be applied for an extension of the 12 month time limit or on how it might be applied in different circumstances.
Leslie George Stenton was charged on an indictment at the instance of the Right Honourable the Lord Hardie, QC, Her Majesty's Advocate, the libel of which set forth assault to severe injury and the danger of life.
The procedural history of the cause is sufficiently set forth in the opinion of the court.
On 15 June 1998 the cause called before the sheriff who, at advising, granted an application by the Crown to extend the 12 month time limit for commencement of the trial against the pannel by a period of three months.
The pannel appealed to the High Court of Justiciary.
The cause called before the High Court of Justiciary, comprising Lord Coulsfield, Lady Cosgrove and Lord Nimmo Smith for a hearing thereon.
At advising, on 24 July 1998, the opinion of the court was delivered by Lord Coulsfield.
Opinion of the Court—This is an appeal under sec 65(8) of the Criminal Procedure (Scotland) Act 1995. The appellant was charged with assault to severe injury and the danger of life: the indictment served on him alleged assaults upon his son, then aged three weeks, on various occasions between 24 and 29 June 1997. The appellant appeared on petition at the sheriff court at Dumfries on 10 July 1997 and was committed for further examination and released on bail. In the course of time, an indictment was served on him. The first diet was held on 2 June 1998 and a continued first diet on 12 June 1998. The trial diet followed on 15 June...
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Her Majesty's Advocate V. David Shields Montgomery And Andrew Coulter
...support of his argument the Advocate Depute referred to two criminal cases, Stein v. Lowe 1991 S.C.C.R. 693 and Stenton v. H. M. Advocate 1998 J.C. 278. In particular he submitted that, in applying Rule 40.5 (1) the court should apply the kind of two-stage test which has been laid down for ......
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Note Of Appeal Under Section 74(1) Of The Criminal Procedure (scotland) Act 1995 By Her Majesty's Advocate V. David Shields Montgomery And Andrew Coulter
...support of his argument the Advocate Depute referred to two criminal cases, Stein v. Lowe 1991 S.C.C.R. 693 and Stenton v. H. M. Advocate 1998 J.C. 278. In particular he submitted that, in applying Rule 40.5 (1) the court should apply the kind of two-stage test which has been laid down for ......
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Gerald Patrick Early V. Her Majesty's Advocate
...sufficient reason is shown by the Crown (Mejka v HM Adv, supra, Lord Justice Clerk Ross at pp 985-986). The decision in Stenton v HM Adv (1998 JC 278) [12] In Stenton the defence objected to the indictment on the day of the trial on the ground that no locus was specified in the charges. The......
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In The Devolution Minutes By Douglas Fleming In The Cause Of Her Majesty's Advocate V. James Cameron And Douglas Fleming
...provisions and laid out the background. However, when it appeared that Mr Shead would be relying on the decision in Stenton v HMA 1998 JC 278 the Court determined to remit the case to a larger Court of five judges, as had been done the previous week in the appeal of Early. The recovery of d......