TUDHOPE v McCARTHY
| Jurisdiction | Scotland |
| Judgment Date | 08 February 1985 |
| Date | 08 February 1985 |
| Docket Number | No. 10. |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Robertson, Jauncey.
Summary procedure—Pleas in bar of trial—Long, unexplained and unjustified delay in bringing accused to trial—Whether grave prejudice to the accused.
A police officer was charged on 26th September 1984 on a summary complaint with assaulting a girl on 28th October 1982. The charge arose out of an incident after which the mother of the girl was charged with an offence. The accused was interviewed on the day following the incident by senior officers and a report sent to the procurator fiscal on 22nd February 1983. It was the practice not to issue a complaint until the outcome of the first trial arising out of the incident. The trial of the mother was adjourned on 1st and 22nd September 1983 and took place on 9th March 1984. On 18th July 1984 the procurator fiscal sought the instructions of Crown counsel, which were received on 26th September. The accused was never cautioned or charged with the offence. It was pleaded on behalf of the accused and in bar of trial that there had been undue delay in raising the proceedings and consequent prejudice. The sheriff sustained this plea and dismissed the complaint. The prosecutor appealed to the High Court of Justiciary.
Held (1) that the relevant test of mora, both in solemn and summary cases, was whether there had been undue delay by the prosecutor and whether this had resulted in gross or grave prejudice to the accused.
H.M. Advocate v. Leslie and Others, 31st January 1984, unreported approved and applied.
(2) That, despite the apparent concession for the respondent, the delay had to be considered from the date of the alleged offence and not simply the date of the first trial.
(3) That the sheriff had considered both branches of the tests, and in the circumstances, particularly in the absence of satisfactory explanations for the periods of delay and given the number of incidents a police officer required to deal with and the absence of any previous charge, it could not be said that the sheriff had exercised his discretion unreasonably; and appeal refused.
Observed that the court had difficulty in understanding the justification for the practice of the appellant.
Fraser McCarthy was charged in the sheriff court at Glasgow on a summary complaint at the instance of James Mackenzie Tudhope, procurator fiscal, which set forth that "on 28th October 1982, in Kent Street, Glasgow, near Brechin Street, you did assault Sharon Reid, then aged 13 years, 15 Brechin Street aforesaid, and strike her on the groin with your knee".
At the diet on 21st November 1984, a plea in bar of trial was tendered on the ground that there had been undue delay on behalf of the prosecutor in instituting the proceedings with consequent prejudice to the accused. The sheriff (Lothian) sustained the plea and dismissed the complaint.
The procurator fiscal appealed to the High Court of Justiciary by note of appeal in terms of sec. 334 (2A) of the Criminal Procedure (Scotland) Act 1975. The note of appeal stated inter alia: "The learned sheriff erred in law in the particular circumstances of this case in finding that the appellant had acted with undue delay in raising said proceedings".
The relevant findings of fact are set out fully in the opinion of the court.
In his note the sheriff stated inter alia:—"Mr Kavanagh's argument on behalf of the respondent may I think be summarised as follows. There had been a delay of almost two years from the time when the allegation was made against the respondent until the time when the complaint was served upon him. At no stage during this period was the respondent told that he might be liable to prosecution in respect of said incident. There was no question of the respondent's whereabouts being unknown since he was a serving police officer throughout the period. In the circumstances this amounted to oppressive conduct on behalf of the appellant in as much as the respondent was effectively being charged in respect of something which had happened almost two years ago when on the information presently available he could have been so charged at or about the time of the allegation. I was referred by Mr Kavanagh...
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McFadyen v Annan
... ... In Tudhope v McCarthyUNK (1985 SCCR 76) the court had approved the approach adopted by Lord Hunter in HM Advocate v Leslie (January 31, 1984): (1) Was there ... The Solicitor-General recognised that his submissions differed from HM Advocate v Leslie and Tudhope v McCarthy. In his Lordship's opinion, the general approach for which the Solicitor-General had contended was the correct one although there might be ... ...
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Philips v Tudhope
...which he did arrive at, namely that although there had been delay, that delay was not undue; and appealrefused. Tudhope v. McCarthySC 1985 J.C. 48 applied. John Bowman Philips was charged in the sheriffdom of Glasgow and Strathkelvin at Glasgow on a summary complaint at the instance of Jame......
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In The Minute By Douglas Fleming In The Cause Her Majesty's Advocate V. James Cameron+douglas Colin Fleming
...reconsideration of the appropriate test in cases of alleged oppression by reason of delay, as previously stated in Tudhope v McCarthy 1985 J.C. 48. The majority of the Court disapproved Tudhope. In the course of his opinion the Lord Justice Clerk said this (McFadyen v Annan supra at 60): ".......
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McFadyen v Annan
...for both parties explained that they wished the court to consider whether the approach to cases of this kind in Tudhope v. McCarthySC1985 J.C. 48 was correct, and the court accordingly remitted the appeal to a quorum of five Lords Commissioners of Justiciary. Held (by a bench of five judges......