APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Wheatley Lord Bonomy	[2009] HCJAC 6 XC473/09 AND XC474/09 OPINION OF THE COURT delivered by LORD WHEATLEY in BILLS OF ADVOCATION by HER MAJESTY'S ADVOCATE Complainer; against DAVID SAMUEL THOMPSON First Respondent; and HER MAJESTY'S ADVOCATE Complainer; against DAVID KINNAIRD and CHRISTOPHER BARNEY Second Respondents: _______

Act: Mackay, A.D.; Crown Agent

Alt: Stephenson, Solicitor Advocate: Bruce Short, Dundee (for First Respondent)

Alt: Jackson; Graeme Murray & Co, Aberdeen

Keenan, solicitor-advocate; Bryan Keenan & Co, Aberdeen (for Second Respondents)

3 November 2009

[1] The respondents in each of these two cases were indicted on various charges at Aberdeen Sheriff Court. The relevant procedural history in each case is essentially similar, and the point at issue in these Bills of Advocation is the same. The respondents were cited to attend at Aberdeen Sheriff Court for a first diet on their respective indictments on 9 June 2009 and to a trial diet on 22 June 2009.

[2] For jury trials, Aberdeen Sheriff Court operates a system of fortnightly sittings, which run consecutively. On 22 June 2009, the first day of the relevant sitting, the indictment against the first respondent, and the indictment against the second respondents (as well as a number of other cases), had to be adjourned to the next day. The indictments against the respondents did not call in court on 22 June 2009; instead, after a number of other cases had called before Sheriff Buchanan and had been dealt with in various ways, a motion was made by the Crown to continue the other remaining cases in the sitting to the following day. The sheriff clerk pronounced a general minute to this effect in the interlocutor recording the day's business, the relevant terms of which are:

"further on Crown motion the court continued all outstanding trials until 23 June 2009 at 10am and ordained all concerned there to appear under pains of law."

The minute was signed by the sheriff clerk.

[3] It appears that a view was subsequently taken that the general minute had been entered into the wrong process, and on 24 June 2009 Sheriff Buchanan corrected the interlocutor sheets of the cases in which the general minute appeared, deleting it from what was deemed to be the wrong process and introducing it into the correct one. This was the last case dealt with by Sheriff Buchanan on 22 June 2009, at the conclusion of which the Crown motion for continuation of the outstanding cases had been made. At one stage in his argument, counsel for David Kinnaird suggested that what had happened might mean that the original minute, written into the wrong process, was therefore incompetent, rather than merely incorrect. However, we are satisfied that this is not so. The minute was merely written into the wrong process, and this was corrected in terms of the court's power under section 299 of the Criminal Procedure (Scotland) Act 1995. What is unquestionably the position is that on 22 June 2009 the court, on the motion of the Crown, pronounced a general minute adjourning the respondents' cases among others to the following day without the cases calling in court.

[4] In the event, on the morning of 23 June 2009, the respondents' cases called before Sheriff Cusine. He questioned whether the cases ought to have called in court on the previous day, and whether, if they should have called, that meant that the instance in each of the indictments had fallen. It was agreed that the matter should be the subject of fuller debate on the following day. At the debate on 24 June 2009, the procurator fiscal depute submitted that the general minute of 22 June 2009 was sufficient in its terms to continue all the cases not specifically called in court on that date. Section 66(1) of the Criminal Procedure (Scotland) Act 1995, as amended by section 7 of the Criminal Procedure (Amendment) (Scotland) Act 2004, which refers both to the High Court and the sheriff court, provided that the Act itself was sufficient authority for the citation of the accused, witnesses and jurors to court. The amendment removed the need for a warrant for that purpose to be issued by the sheriff clerk. The general minute was then sufficient to continue that citation from day to day. He also argued that sittings continue to exist in the sheriff court as a normal feature of administrative convenience, and that had not been changed by the amended form of section 66(1) of the 1995 Act. For the respondents it was submitted that the respondents had been cited to a trial diet on 22 June 2009, and that therefore the case had to call in court on that date and, if necessary, be adjourned to another specific date. The change effected by the amendment to section 66(1) of the 1995 Act meant that sittings no longer existed as a matter of law. The general minute was merely a matter of practice which did not contain the necessary authority to continue cases from day to day. The cases against the respondents ought to have called on 22 June and when they did not the instance fell at midnight on that date.

[5] The sheriff decided that the failure to call the cases against the respondents in court on 22 June 2009 meant that in each case the instance fell. He concluded, as he has explained in his report, that the date fixed for the trial on 22 June 2009 on both indictments was a peremptory diet, and for that reason the cases should have called in court. He also was of the opinion that the amendment to section 66(1) of the 1995 Act had the effect of removing the notion of sittings from sheriff court procedure. The sheriff found support for his view in the decision of the High Court of Justiciary to pass the Bill of Advocation in respect of Dylan Andrew Leslie and Andrew Sutherland (another case from Aberdeen Sheriff Court) on 3 June 2009. His reasoning appears to be that, because this court had overturned a decision by the sheriff to refuse to allow a case to be "parachuted" - the term employed by the sheriff - into a sitting in Aberdeen, that implied that sittings no longer existed. It is against the sheriff's decision that the instance had fallen in each of these two indictments that the present Bills of Advocation are taken.

[6] In our view, the sheriff was wrong to hold that the indictments in these cases should fall. It has never been part of our criminal procedure that because a case appears at, or has been continued to, a peremptory diet, that means that the case has to call in court. What has to happen at such a diet is that the case has to be dealt with in some competent manner. In Hume; Commentaries on the Law of Scotland Respecting Crimes 3^rd ed, vol. ii, p.263, the author notes:

"... it is a point of ancient and invariable custom, that the diet of a criminal process is a peremptory diet ... Unless expressly continued by an act of Court on the day of compearance, the libel must be called therefore on that day, and in some way or other disposed of; otherwise the particular action, or instance as we call it, perishes and can never afterwards be stirred or resumed. This ... is the consequence, unless the diet be continued to another day, by an act of Court. But so it may be, by an entry in the Book of Adjournal, made in the presence of one Judge only, and in the absence, and without calling of the parties; such an act is not even signed by the judge and is the operation of the Clerk of Court, under his eye, and with his tacit authority."

This is reiterated in Alison; Practice in the Criminal Law of Scotland vol. ii, 343-4:

"It is a point of invariable and ancient custom, that the diet of a criminal process is a peremptory diet ... Unless then expressly continued by an act of Court on the day of compearance, the libel must be called on that day, and in some way or other disposed of, or it perishes and can never afterward be revived. It may be continued, however, by an entry in the Book of Adjournal, in the presence of a single judge, and does not even require his signature, provided it is signed by the clerk in his presence; and when several cases stand for trial on the same day, ... they are continued from one day to another, by the general continuation of diets at the close of each day's sittings."

In our view, the principles disclosed in these authorities are clear; each and every criminal diet is peremptory in nature, but that does not mean, and never has meant, that the case has necessarily to be called in court at that diet. All that is required is that the case has to be properly dealt with. That may be achieved by calling the case in court, with the Crown and the accused and his representatives present: it may also be achieved by the adjournment of the case, if appropriate along with others, by a simple order, or general minute of the court, without the case calling in court and outwith the presence of the accused. This is also consistent with universal practice in our jurisdiction, in both the High Court and the Sheriff Court, since the time of the institutional writers. In these circumstances we therefore consider that the sheriff was in error holding, contrary to what is said in Hume and Alison, that a peremptory diet of necessity requires the calling of the case in court. We note that Hume in the passage earlier cited appears to distinguish between calling the libel in court, and the calling of parties to court; this may explain the apparent confusion. Be that as it may, we have no doubt that the general minute, as pronounced by the sheriff in these cases on 22 June 2009, was an example of what Hume and Alison had in mind when they referred to the case being continued by an act of Court in the absence and without the calling of the parties. Accordingly, we are satisfied that the general minute was competent to continue these cases, and to keep them live, until the following day.

[7] The problem which appears to have exercised the sheriff may possibly stem from a confusion between the requirements of the legislation, reflecting the common law position described by Hume, and the administrative practices which have developed - in relatively recent years - in the main sheriff courts and, at least until the coming into force of the 2004 Act, in the High Court. As mentioned in greater detail later, the legislation envisages the fixing of specific single dates upon which the court will sit and to which the accused, witnesses and jurors may be cited (in casu 22 June 2009). In former times the cases cited to that single date would be continued from day to day until all had been disposed of in one manner or another, since the single sitting dates were usually separated by a sufficient interval of time to allow that to happen. But with increasing pressure of business, and the need to manage that business, the practice has arisen of endeavouring to place in management terms a finite dimension to the extent to which a specific sitting date may be continued from day to day in order to ensure that a sufficient complement of judges is available to tackle the batch of cases set down for the next, fixed, specific sitting day - the trial diet - to which those concerned have all been cited. The administrative practice, with which the Crown has generally co-operated (perhaps because it has a similar problem of mustering the necessary complement of personnel) may understandably have led to the notion that a "sitting" constitutes a defined period during which the case must call. But in our view, the proper concept is that the "sitting" is the day to which the accused (and the other dramatis personae) are cited as the trial diet and each and all of the ensuing days to which those cited to the trial diet are required to appear by a continuation minute.

[8] Against that background we turn to the respondents' central and indeed only submission in these Bills. In that submission we were asked to hold that the effect of the amendment to section 66(1) of the Criminal Procedure (Scotland) Act 1995 was to abolish the idea of sittings, and this too was at the centre of the sheriff's reasoning when he held that the instances in these indictments had fallen. The argument was that the concept of a sitting had been referred to in the original form of section 66(1) when it came into effect in 1995, but the term was absent in the amended version of that section resulting from the 2004 Act. This, it was suggested, meant that Parliament had intended to abolish the idea of "sittings". This, in turn, would mean that the court could not continue the case to succeeding days, because there was no statutory context into which the case could be continued.

[9] We can find nothing in the terms of section 66(1) of the 1995 Act as amended which suggests that "sittings" are abolished. The original terms of section 66(1) were as follows:

"When a sitting of the sheriff court or of the High Court has been appointed to be held for the trial of persons accused on indictment -

(a) where the trial diet is to be held in the sheriff court, the sheriff clerk; and

(b) where the trial diet is to be held in the High Court, the Clerk of Justiciary, shall issue a warrant to officers of law to cite the accused, witnesses and jurors, in such form as may be prescribed by Act of Adjournal ... and such warrant authenticated by the signature of such clerk, or a duly certified copy thereof, shall be a sufficient warrant for such citation."

Section 7 of the 2004 Act amended section 66(1) so that it reads as follows:

"(1) This Act shall be sufficient warrant for -

(a) The citation of the accused and witnesses to -

(i) any diet of the High Court to be held on any day, and at any place, the court is sitting;

(ii) any diet of the sheriff court to be held on any day the court is sitting ..."

In our view it is clear that all the amended section 66(1) does is to provide that the Act itself shall be sufficient warrant for the citation of the accused and witnesses to any diet of the High Court or sheriff court. The mere fact that a sitting was mentioned in the original section and is not mentioned in the current version of the Act does not mean that Parliament intended to abolish sittings. As follows from what we have already said the term "sitting" has no statutory definition; it is not a creature of statute, and the existence of a sitting in our procedure did not disappear simply because it is mentioned in one version of an Act and not in another. To suggest that Parliament intended to abolish "sittings" in this way in our view is to misunderstand the meaning of the term. As we have already sought to explain, the purpose of a sitting, whether in the High Court or the sheriff court, is and always has been to provide a single date on which a number of accused under indictment are cited (now in terms of section 66(1) as amended) to attend court for a trial diet, and a subsequent period during which it is certificated that indictments will be continued from day to day as required (see Kiely v HM Advocate 1990 JC 264). It is the warrant for citation to the trial diet which is important, not the practical term used by practitioners to describe the period when in administrative terms the citation is to have practical effect. Nothing in the amending provisions of the 2004 Act, in our view impinges on the existence or otherwise of sittings. What has been removed by the amendment to s.66 of the 1995 Act is the necessity of the issuing of a warrant for each sitting. Thus accused persons would still be cited to any diet of the court, and thereafter if necessary to any continued diets, by virtue of the warrant contained in section 66(1) of the 1995 Act as amended.

[10] Nor do we consider that the court's decision in the case of HMA v Leslie and Sutherland implies that "sittings" have been abolished. In that case the complaint was that the fiscal had "parachuted" a case (presumably nearing the expiry of its time bar) into a sitting, and it was held that he was entitled to do that. This appears to have led the sheriff to think that this demonstrated that this court took the view that sittings had been abolished. We disagree with that conclusion. We have been supplied with papers relating to that case. What appears to have occurred is that the accused - Leslie and Sutherland - were indicted to a specific trial diet on a date other than the fortnightly sitting dates in custom in Aberdeen, in other words, to a date which was midway within one of the two week periods regarded in management terms as the standard sitting period. But that would have been possible prior to the amendments effected by the 2004 Act, subject to the need for the sheriff clerk to issue a warrant for the citation of the accused and the others concerned in the criminal process to that specific diet. What the amendments so effected did was to elide the need for the issuing of a warrant for citation by the sheriff clerk. Hence a separate or specific sitting could be created, on the simple authority of the amended terms of the 1995 Act, by citing an accused and witnesses and, if necessary, jurors to a trial diet, albeit not co-incident with the normal management concept of a "two-week sitting", but which in itself could nonetheless be continued by a general continuation minute.

[11] We are further confirmed in our view that a sitting continues to form a central part of our procedure by reference to section 2 of the 1995 Act which specifically mentions the fixing of sittings in the High Court, and to section 17 of the Sheriff Courts (Scotland) Act 1971, which is still in force, and which allows the Sheriff Principal to fix sittings for the disposal of criminal business. Had it been Parliament's intention in the 2004 Act to withdraw the explicit statutory power of the High Court or the Sheriff Principal to fix sittings, it would have said so. Nor do we find any support for the abolition of sittings from an examination of the various forms contained in the Acts of Adjournal relating to the original section 66(1) or its amendment. Mr Stephenson, solicitor advocate for the first respondent conceded, correctly in our view, that if sittings continue to exist, his submissions could not succeed. We therefore reject the respondents' submissions, and pass the Bills.