Stewart v Hm Advocate (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 01 May 1997 |
| Date | 01 May 1997 |
| Docket Number | No 34 |
| Court | High Court of Justiciary |
JC
LJ-C Cullen, Lord McCluskey and Lord Coulsfield
Procedure—Solemn procedure—Trial—Plea in bar of trial—Insanity plea repelled and Crown authorised to bring fresh proceedings—Whether plea could subsequently be renewed at preliminary diet on second indictment without material change of circumstances—Criminal Procedure (Scotland) Act 1995 (cap 46), secs 54(1) and 72
Section 54(1) of the Criminal Procedure (Scotland) Act 1995 enacts that where the court is satisfied on the written or oral evidence of two medical practitioners that a person charged with the commission of an offence is insane so that his trial cannot proceed or continue, it shall, inter alia, make a finding to that effect and discharge the trial diet. Section 72 enacts, inter alia, that a party to a case may give notice within the period from service of indictment to ten days before the trial diet that he intends to submit a plea in bar of trial.
A pannel was indicted for trial at the sitting of the High Court in Inverness. He lodged a minute of notice under sec 72 intimating a plea of insanity in bar of trial. A preliminary diet was held at which evidence was led in support of the plea. The judge (Lord Hamilton) repelled the plea. That decision was upheld on appeal. The original indictment had, by then, fallen and the Crown were authorised to initiate fresh proceedings. A second indictment was thereafter served in the same terms as the first. The pannel thereafter again lodged a minute of notice under sec 72 indicating a plea of insanity in bar of trial. At the subsequent preliminary diet on that plea, the judge (Lord Abernethy) held that the plea was irrelevant as there was no material change of circumstances averred since the hearing on the plea under the first indictment. The pannel thereafter appealed with leave to the High Court of Justiciary.
Held (1) that sec 54(1) indicated that the finding was with reference to a particular trial rather than any trial which might take place at any later stage after the discharge of the trial diet and, as insanity for the purposes of the section included not only insanity by reason of some permanent condition, but also insanity by reason of a condition which might alter from time to time, so a finding made with reference to a particular trial would not necessarily be appropriate in regard to a trial held at some later stage; (2) that the reference to the continuance of the trial in sec 54(1) showed that the question of insanity might require to be considered during the trial; (3) that sec 72 provided a means by which a party who intended to raise a preliminary issue which fell within the scope of sec 54(1) might give notice of his intention to do so, with the consequence that it fell to the court to order that a preliminary diet should be held and, given the service of a fresh indictment, there was nothing in the terms of sec 72 to deprive the pannel of the right to submit a plea in bar of trial because it was in the same terms and on the same basis as one which he unsuccessfully submitted in respect of a previous indictment; and (4) that there was nothing in the legislation which excluded the right of a pannel to submit a plea of insanity in bar of trial to a preliminary diet following the service of a fresh indictment, despite the fact that such a plea was unsuccessful in respect of a previous indictment; and appealallowed.
John James Alexander Stewart was charged at the instance of the Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, on an indictment, the libel of which set...
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