Varey v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 21 November 1985 |
| Date | 21 November 1985 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Hunter, Brand.
Crime—Previous convictions—Competency of founding on previous convictions—Prison breaking—Indictment setting out details of sentences under which accused imprisoned and crimes in respect of which sentences imposed—Whether competent—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 160.1
The appellants were charged on indictment that, having been lawfully confined in prison, they had attempted to escape. The indictment gave details of the sentence under which each was held and of the crimes in respect of which the sentence had been imposed. The appellants challenged the competency of the indictment at a preliminary diet, contending that it was incompetent under sec. 160 of the Criminal Procedure (Scotland) Act 1975 to make reference to their previous convictions. They contended inter alia that they had been charged in a special capacity, as persons lawfully confined in prison, and that that fact must be held to have been admitted in terms of sec. 67 of the 1975 Act since they had not taken any preliminary objection thereto. It was accordingly unnecessary for the Crown to lead evidence about their sentences. The judge ruled that it was unnecessary for the jury to hear evidence of the nature of the crimes involved in the previous convictions and allowed the indictment to be amended to delete details of the crimes. He held that it was competent to give details of the sentences on which the accused were held and granted the accused leave to appeal.
Held, (1) that, the competency and relevancy of an indictment must be judged as at the date when it was served and sec. 67 of the 1975 Act had no bearing on the matter since the Crown could not know at the date of service
whether the special capacity was to be challenged or not; and (2) that, in order relevantly to aver lawful confinement the Crown must aver the basis therefor, including the existence and date of any warrant and the commencement date and length of any sentence; and appealrefused.William Varey, Andrew Campbell and Joseph James McGrath were charged in the High Court along with another co-accused, Alan Brown, with attempting to escape from prison. The indictment, so far as relating to the accused William Varey included the following:—"(1) Having been lawfully confined in said prison of Peterhead … you William Varey under a sentence pronounced against you by the High Court of Justiciary held at Edinburgh on 28th June 1984 for the crime of assault and robbery which sentence decerned and adjudged you to be imprisoned for 14 years from 31st May 1984 … did attempt to break said prison and escape therefrom." The indictment contained similar details of the sentences under which the other accused were held and of the crimes in respect of which those sentences had been imposed. At a preliminary diet held on 13th November 1985 the accused argued that the indictment was incompetent insofar as it libelled against each accused not only that he had been lawfully confined in the prison on the relevant date but also the nature of the crimes for which they had been convicted and the sentences imposed.
Having heard argument on the matter the presiding judge, Lord Dunpark, stated that he considered it unnecessary for the jury to hear evidence as to the nature of the convictions and allowed the indictment to be amended so as to delete the passages giving details of the crimes involved. So far as the indictment related to the accused Varey, the words "for the crime of assault and robbery" were deleted. Lord Dunpark ruled, however, that the passages in the indictment giving details of the sentences imposed were competent and relevant. He granted the accused leave to appeal. On 18th November 1985 he delivered the following opinion:—
LORD DUNPARK.—[After commencing with details as to which counsel represented the accused at the preliminary diet his Lordship continued.] [The accused] are all charged with attempting to break out from Peterhead Prison. The indictment libels against each of the accused not only that on the relevant date they were lawfully confined in that prison but also the nature of the crimes for which they were convicted and the sentences imposed. Counsel for the defence argued that those parts of the libel were incompetent in respect that the previous convictions of the accused were laid before the jury in contravention of sec. 160 (1) of the Criminal Procedure (Scotland) Act 1975.
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McAllister v Advocate (HM)
...sec. 12 (b) of the 1952 Act; and (3) that legal custody and lawful custody were synonymous; and appeal refused. Varey v. H.M. AdvocateSC 1986 J.C. 28 distinguished. David McKenzie McAllister was indicted at the instance of the Rt. Hon. the Lord Cameron of Lochbroom, Q.C., Her Majesty's Advo......