HER MAJESTY'S ADVOCATE v. JOHN HOLBEIN
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice General Lord Hamilton Lord Sutherland | Appeal No: XC934/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in BILL OF ADVOCATION by HER MAJESTY'S ADVOCATE Appellant; against JOHN HOLBEIN Respondent: _______ |
Appellant: Stewart, A.D.; Crown Agent
Respondent: Brown; Doonan & McCaig
15 December 2004
[1]In this bill of advocation the Lord Advocate seeks the recall of a decision of the sheriff at Glasgow to sustain the respondent's plea to the competency of an indictment on the ground that it had not been served on him in accordance with the relevant legislation.
[2]The facts out of which the present case arises can be briefly stated. On 24 November 2003 the respondent appeared in the Sheriff Court at Glasgow on a petition charging him with a contravention of section 4 (3) (b) of the Misuse of Drugs Act 1971. He was committed for further examination and liberated on bail, his domicile of citation being specified as Flat 4/1, 2 Smeaton Street, Glasgow. In due course an indictment for trial before sheriff and jury at a special sitting on 23 November 2004 was prepared. The Procurator Fiscal at Glasgow sent a copy of the indictment and notice of compearance to Strathclyde police with instructions for service. On 20 October 2004 officers of Strathclyde police found that the block of property of which Flat 4/1 had formed part had been demolished in July 2004, and that all that was left was a vacant site. They were informed that the respondent had been rehoused in May 2004 and was living at Flat 2/2, 30 Shannon Street, Glasgow. On two occasions police officers called at that address but did not find him there. Thereafter police officers were instructed by the Procurator Fiscal, on the strength of rule 2(2)(d) of the Act of Adjournal (Criminal Procedure Rules) 1996 (the 1996 Rules), to put the copy indictment through the letterbox at the latter address. At the first diet on 9 November 2004 the sheriff sustained the respondent's plea that the indictment had not been competently served in terms of section 66 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act").
[3]Rule 2.2 of the 1996 Rules makes provision for the citation of, and service on, an accused under section 66(4)(a). Paragraph (2) states:
"Service shall be effected by an officer of law-
- delivering the document to the accused personally;
- leaving the document in the hands of a member of the family of the accused or other occupier or employee at the proper domicile of citation of the accused;
- affixing the document to the door of, or depositing it in, the proper domicile of citation of the accused; or
- where the officer of law serving the document has reasonable grounds for believing that the accused, for whom no proper domicile of citation has been specified, is residing at a particular place but is unavailable-
- leaving the document in the hands of a member of the family of the accused or other occupier or employee at that place; or
- affixing the document to the door of, or depositing it in, that place."
Paragraph (3) states:
"In this rule, 'proper domicile of citation' means the address at which the accused may be cited to appear at any diet relating to the offence with which he is charged or an offence charged in the same proceedings as that offence or to which any other intimation or document may be sent".
[4]The same definition of "proper domicile of citation" appears in the subsection 3(3) of section 25 of the 1995 Act, subject to the addition of the words "and any citation at or the sending of an intimation or document to the proper domicile of citation shall be presumed to have been duly carried out". Section 25 is concerned with what is to be specified in an order by which an accused is granted bail. In addition to the bail conditions the order is to specify, in terms of subsection (1)(b), "an address, within the United Kingdom (being the accused's normal place of residence or such other place as the court may, on cause shown, direct) which, subject to subsection (2) below, shall be his proper domicile of citation". Subsection (2) provides:
"The court may on application in writing by the accused while he is on bail alter the address specified in the order granting bail, and this new address shall, as from such date as the court may direct, become his proper domicile of citation; and the court shall notify the accused of its decision on any application under this subsection".
[5]The specification of a proper domicile of citation accordingly provides, in the case where an accused has been granted bail, a means by which there may be constituted due citation of the accused and the due sending to him of an intimation or document. The case of Welsh v Her Majesty's Advocate 1986 SCCR 233 provides a striking illustration of this. In that case the court, on granting bail to the accused, had specified his domicile of citation "11b Beaumont Street, Liverpool". By the time that the police in Liverpool sought to effect service on the accused he had moved from this address because demolition and renovation work was to take place there. The police officers stuck the citation and the indictment on the main door of the 11 Beaumont Street, being the door through which access to the 11b and various other subsidiary flats could originally have been gained. The court held that the accused's plea to competency should be refused, on the ground that so long as 11b Beaumont Street, Liverpool, remained his proper domicile of citation, what required to be done was that the indictment should be served there. By sticking the indictment to the door of 11 Beaumont Street the police officers had done all that was reasonable to effect service at the proper domicile of citation. The court observed that the accused was responsible for any difficulty which had arisen because he ought to have applied to have the proper domicile of citation altered. What required to be done in order to carry out execution of the service was "to stick the indictment to 11b Beaumont Street or the nearest place that could reasonably be regarded as the equivalent of 11b Beaumont Street" (page 236).
[6]The Advocate depute sought to argue that in circumstances in which the block of property of which the domicile of citation had formed part had been demolished, so that only a vacant site was left, it was competent for service to be effected by means of the method set out in sub-paragraph (d) of rule 2.2(2) of the 1996 rules. For this purpose it was sufficient that the proper domicile of citation which had previously been specified by the court in granting bail had ceased to exist. He sought to fortify this argument by pointing out, under reference to the general provisions for service in rule 2.3, that it was no longer possible to send an intimation or document, such as a copy of the judicial examination, to a postal address which had ceased to exist.
[7]In our view the submissions made by the Advocate depute were not well-founded. The fundamental difficulty for them is that, on its plain terms, sub-paragraph (d) of rule 2.2(2) it does not enable the Crown to ignore the fact that a domicile of citation had been specified, as a necessary prerequisite to the granting of bail to the accused. Recourse to the terms of rule 2.3 does not advance the Crown's argument to any extent. In the present case the flat at Smeaton Street, having been specified and not subsequently altered, remained the respondent's proper domicile of citation at the time when the police officers sought to effect service. The fact that the demolition of the flat meant that at that time a court would not have the regarded it as appropriate for specification as the respondent's proper domicile of citation is nothing to the point. Sub-paragraph (d) is intended to cover, as Mr Brown for the respondent submitted, cases in which the court has not specified a proper domicile of citation. He gave as examples cases in which bail had been granted on the authority of the procurator fiscal, or where an indictment had not been preceded by a petition in the Sheriff Court. It follows that in the present case all that the police officers could do was to affix the indictment, together with the related list of witnesses and notice to appear, to the site, as being the nearest place that could reasonably be regarded as equivalent to Flat 4/1, 2 Smeaton Street. The respondent would have had no cause to complain about lack of due service, since it had been open to him to apply to the court in accordance with section 25(2) of the 1995 Act for the alteration of the address specified in the bail order.
[8]We will accordingly refuse to pass the bill.