Whitelaw v Dickinson
| Jurisdiction | Scotland |
| Judgment Date | 10 December 1992 |
| Neutral Citation | 1993 SCCR 164 |
| Docket Number | No. 12 |
| Date | 10 December 1992 |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Morison, Prosser
Procedure—Solemn proceedings reduced to summary—Oppression—Delay—Trial—Time limit—Accused cited for trial on indictment more than 12 months after first appearance from petition—Fresh proceedings on summary complaint—Whether Crown acting oppressively instigating summary proceedings after indictment had been deserted pro loco et tempore—Competency—Whetherfresh proceedings competent—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 101 (1)1
On 9th July 1991 the respondents had appeared on petition. An indictment was duly served upon the respondents and the trial diet was fixed for 15th July 1992, outwith the 12-month period prescribed by sec. 101 (1) of the Criminal Procedure (Scotland) Act 1975. A plea in bar of trial was argued in respect of the proposed proceedings on 15th July 1992 and, at a preliminary diet on 6th July 1992, the appellant intimated that he did not intend to oppose the plea in bar of trial and moved to desert the diet pro loco et tempore, which motion was granted unopposed. Approximately one month after that preliminary diet the appellant served upon the respondents a summary complaint in identical terms to the previous indictment. A plea was thereafter taken to the competency of those proceedings on the ground that the Crown had acted oppressively in light of the fact that the incompetency of the indictment had been brought to their notice by the respondent's solicitors prior to the expiry of the 12-month period and, accordingly, at a time when it was still possible for them to desert the indictment. The sheriff sustained their plea to the competency of the proceeding. The appellant thereafter appealed to the High Court of Justiciary against that decision.
Held (1) that as fresh proceedings would have been competent in general terms, regardless of whether there had been a desertion pro loco et tempore before the trial diet or a plea of time bar sustained after the commencement of the purported trial, no question of advantage or disadvantage dependent upon the course adopted by the solicitors would arise, so that the only suggested basis for holding the proceedings to be oppressive disappeared; and (2) that, upon any view of the matter, the raising of new proceedings could not be rendered oppressive merely because what alerted the appellant to the position was a proper and responsible decision on the part of the respondents' solicitors; and appeal allowed.
MacDougall v. RussellUNK 1986 S.L.T. 403applied.
Clifford Dickinson, Richard McMahon and Vincent John Bass were charged on a summary complaint in the sheriffdom of Lothian and Borders at Jedburgh at the instance of John Crawford Whitelaw, procurator fiscal there, the libel of which set forth that: "(1) [O]n 1st or 2nd July 1991 you [all] did break into the premises occupied by John Adams & Son in Main Street, Yetholm, District of Roxburgh, and there steal 12,560 cigarettes, a chequebook, a number of cheques, a quantity of tobacco and a safe containing £2,900 of money; (2) on 8th July 1991 you Clifford Dickinson and you Richard McMahon did break into the Hirsel Golf Clubhouse, Coldstream, District of Berwickshire, with intent to steal, and there attempt to force open a lockfast gaming machine with intent to steal therefrom." The cause called before the sheriff (J. V. Paterson) on 20th August 1992 at which diet pleas to the competency of the proceedings were intimated in respect that the cause had been time-barred as the respondents had appeared on petition on 9th July 1991, the cause had been indicted for trial on 15th July 1992 and a plea to the competency of those proceedings had been sustained unopposed at a preliminary diet on 6th July 1992. At advising, on 24th September 1992, the sheriff upheld the plea to the competency and dismissed the complaint in respect of each of the accused. The procurator fiscal thereafter appealed to the High Court of Justiciary by way of note of appeal.
In his report for their Lordships' consideration, the sheriff set forth,inter alia, that: "The solicitor for the accused's third submission was that the appellant was seeking to take advantage of the responsible way in which the respondents' solicitors had conducted themselves. Had the respondents' solicitors chosen to sit on their hands and do nothing, a large number of potential jurors would have been cited. Witnesses would have been required to attend the court. After a jury had been empanelled and the first witness called, the solicitors acting for the respondents...
To continue reading
Request your trial
-
McDOWALL v LEES
...John Anderson) v Procurator Fiscal, Edinburgh, High Court of Justiciary, 1 March 1996, unreported (1996 GWD 18–1040)Whitelaw v DickinsonSC 1993 JC 68 Textbooks referred to: Craies, Statute Law (7th edn), p 363 Maxwell, Interpretation of Statutes (12th edn), pp 20 et seq The cause called bef......