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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Lean v. Falconer [1895] ScotLR 32_609 (28 June 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0609.html
Cite as: [1895] SLR 32_609, [1895] ScotLR 32_609

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SCOTTISH_SLR_Court_of_Session

Page: 609↓

Court of Session Inner House Second Division.

Friday, June 28 1895

(Before Lord Adam, Lord M'Laren, and Lord Kinnear.)

32 SLR 609

M'Lean

v.

Falconer.

Subject_1Justiciary Cases
Subject_2Process
Subject_3Diet
Subject_4Adjournment of Diet — Unsigned Deliverance.
Facts:

In a trial upon a summary complaint the diet was adjourned by an unsigned deliverance to a subsequent day, when the accused appeared and after trial was convicted of the crime charged. The Court suspended the conviction on the ground that there had been no valid continuation of the diet.

Lord Advocate v. Fraser, 1 Irvine 1, followed.

Headnote:

John M'Lean was charged upon a summary complaint in the Sheriff Court of Kinross, with the crime of malicious mischief. A warrant for his apprehension was made out upon 15th January, but was not signed. On the same date the accused, who had been verbally informed of the charge against him, appeared in Court and pleaded not guilty to the complaint. The diet was then adjourned to the 29th January by an interlocutor signed by the Sheriff-Substitute.

On 29th January a second adjournment was made till 12th February, but the interlocutor by which this was done was not signed.

On 12th February the accused again appeared, and after trial was convicted of the offence charged.

Against this conviction the present suspension was brought, in which the complainer pleaded, inter alia—“(1) That no warrant to cite the complainer, or to apprehend him, or to cite witnesses or havers was ever granted. (3) That when the case was called on 29th January 1895 and not disposed of, no interlocutor or deliverance of any kind was pronounced adjourning the diet.”

Argued for the complainer — (1) There was no warrant to cite the accused, and therefore the proceedings were ab initio invalid— Gallacher v. Auld, 1 White 130; Parr v. Henderson, 4 Coup. 252; Stevenson v. Watson, 2 Irv. 592. (2) It was essential there should be a continuation of the diet to a fixed day— Lord Advocate v. Fraser,

Page: 610↓

1 Irv. 1. The interlocutor adjourning the diet not being signed, it must be held that there was no continuation of the diet, and the subsequent proceedings were therefore incompetent.

Argued for the respondent — (1) Informality in the citation will not invalidate the proceedings if the accused appears and pleads to the complaint, and if the informality has resulted in no injustice to the accused — Armstrong and Another v. Stevenson, 3 White 373; Spowart v. Burr, 32 S.L.R. 527. It was necessary to give the Court jurisdiction that there should be a properly authenticated complaint before it — Stewart v. Lang & Sinclair, 32 S.L.R. 67; but a warrant of apprehension or citation was merely executorial, and was not an essential part of the proceedings. (2) The interlocutor of adjournment was also executorial, and any informality in it was obviated if the accused appeared and stood his trial at the adjournment diet. In Fraser's case the trial was upon indictment, in which stricter adherence to form was required than in summary prosecutions. Here the adjournment was granted at the request of the accused.

At advising—

 Judgment:

Lord Adam —Two preliminary objections are urged in this case against the conviction which the complainer seeks to set aside. The first is that he was brought before the Court without a warrant, there being no signed warrant in existence when the first diet of his trial was called. It appears that the complaint charging the crime of malicious mischief was signed by the fiscal; a warrant for the apprehension of the accused was then made out in the usual terms, but was not signed. The accused was afterwards met by a policeman, who told him that a warrant for his arrest had been issued, and that he was required to appear in Court on a specified date. The complainer accordingly appeared on 14th January, and pleaded not guilty. On the same date the diet was adjourned until the 29th of January by an interlocutor signed by the Sheriff. On the 29th the diet was adjourned till the 12th of February by an interlocutor which was not signed. On 12th February the trial proceeded, and the complainer was convicted of the crime charged. His second objection to this conviction is that, there being no signed interlocutor adjourning the diet to 12th February, the proceedings on that date were incompetent and without warrant, and must therefore be set aside. It is argued that the case must be treated as if there had been no interlocutor, and that consequently the proceedings came to an end on the 29th January. It seems to me that this objection is well founded, and that consequently it is unnecessary for us to pronounce any opinion as to the merits of the first objection urged by the complainer. Ever since the case of Fraser, 1 Irvine 1, it has been settled that diets in criminal cases must be made peremptory, that is, must be fixed for days certain. In the case referred to, this rule was laid down as regards a common law charge in the High Court, but there is no reason why the same rule should not apply in all cases truly criminal whether the proceedings are summary or not, or whether in the Sheriff Court or in the High Court. The charge in this case is one of malicious mischief, and that is a criminal charge. The rule, therefore, applies that every adjournment of the diet must be to a day fixed. If there is no adjournment, or if the adjournment is not to a day fixed, the whole proceedings come to a close. It was perfectly competent for the Court, assuming there was a warrant, or that the want of a warrant duly signed was got over, to go on with the trial on the 29th of January. But this was not done, and there being no adjournment of the diet the proceedings came to an end. If, therefore, we treat the unsigned interlocutor of 29th January, as we are clearly bound to treat it, as no interlocutor, the proceedings on the 12th February were clearly incompetent. The conviction must therefore be quashed.

Lord M'Laren—There are two ways in which a defender may be made amenable to the jurisdiction of a criminal court. He may either be cited to appear by a warrant of citation, or he may be brought up under a warrant for his apprehension. It is equally true that no man can be brought before any civil court except either under a warrant issued in the name of the sovereign by the signet being affixed to the summons, or under a warrant of citation signed by the judge. The first objection to the proceedings is founded on the fact that the defender was not brought into Court on a warrant. The argument submitted to us is that the first objection, which is founded on the absence of a signed warrant, was waived by the accused pleading to the complaint. The second objection is that the case was continued from one diet to another by an interlocutor which was not signed. It is admitted that this was the case, and it thus appears that on the first of these diets the Court adjourned the diet without appointing another date, because, if an interlocutor is unsigned, it is equivalent to no interlocutor. Now, it is also a fundamental principle of the administration of criminal justice that an accused person is not bound to submit to indefinite delay. If the case cannot be finished upon the day appointed, it must be put off to a definite date.

As regards the first of the objections now urged, I hold a strong opinion, which it is not, however, necessary to express, since I agree with your Lordship that the second objection is sufficient for the decision of the case. It is impossible to sustain a conviction pronounced upon a day subsequent to that originally fixed, and to which the original diet has not been adjourned, and on this ground I am of opinion that the conviction now under review should be set aside. Although in the particular case the error may have resulted in no tangible injustice to the accused, it is of essential

Page: 611↓

importance that we should enforce the strict observance of rules which are intended as securities for the liberty of the subject. One can easily see that if a dispensing power were permitted to be exercised by the judge, or if deviations from this proper and regular form of proceedings were allowed in one case, it might be that in other cases injustice or oppression might result. In consequence of the failure to observe them in this case, I think the bill of suspension must be sustained.

Lord Kinnear concurred.

The Court suspended the conviction with expenses.

 Counsel:

Counsel for the Complainer— Orr. Agents — George Inglis & Orr, S.S.C.

Counsel for the Respondent— Constable. Agent— N. Briggs Constable, W.S.

 1895

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URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0609.html