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Intermediate Diets
No compelling grounds
for retrospective legislation
Legislation to plug the loophole
on intermediate diets could
itself be open to challenge,
writes David Leighton
The 8th of March saw royal assent being granted
to the Criminal Procedure (Amendment) Act
20021 . It is a statute that has been passed through
the Scottish Parliament with considerable haste
after the Court of Criminal Appeal decision in
Reynolds v Procurator Fiscal, Linlithgow. But does
it put to rest the decision in Reynolds?
Reynolds Case
For those not entirely familiar with the facts of
that case, Mr Reynolds appeared on complaint,
pled not guilty and was liberated pending further
procedure. Intermediate diet and trial diet were
fixed. Mr Reynolds failed to appear at the
intermediate diet. As was usual, a warrant for his
apprehension was granted, but the trial was not
explicitly discharged. The trial date came and
went. Subsequently, Mr Reynolds was arrested in
pursuance of the warrant, appeared in court and
maintained his not guilty plea, intermediate diet
and trial diet were fixed. At the intermediate diet,
a plea was taken to the competency of the
complaint.
The defence position was that the instance had
fallen when the case had not been called on the
first trial date, a duly assigned diet in the case.The
crown’s position was that, by implication, the
grant of the warrant discharged the diet. The
sheriff agreed with the crown, though granted the
defence leave to appeal.The defence appeal was
successful. Failure to discharge the trial diet
explicitly when granting a warrant at the
intermediate diet meant that when the case did
not call on the trial date the instance fell.
The decision in Reynolds meant that ongoing
prosecutions for individuals who had failed to
appear at an intermediate diet were in jeopardy.
But the real sting in the tail of the Reynolds case
is acknowledged within the 8th paragraph of the
court’s judgment, when considering whether the
trial date was a pre-emptory diet, the court
states:
In Hull v HM Advocate 1945 J.C. 83 the Lord
Justice-Clerk (Cooper) stated (at page 86) as
follows:
May 2002 Volume 47 No 5 20
“It is a cardinal rule of our criminal procedure
that a criminal diet is, and must be made,
peremptory, and that, if the diet is not called or
duly adjourned or continued on the date in the
citation, the instance falls (Hume, vol. ii, 263, 264;
Alison, vol. ii, 343, 344; Macdonald, (4th ed), 471).
The rule has again and again been rigorously
enforced, its non-observance being treated as
involving a fundamental nullity requiring that any
conviction which has followed should be
quashed.”
Complaints not called are null, not incompetent.
There is no need to advance any sort of
preliminary plea. Clearly this would have a
dramatic effect on a large number of convictions,
opening them to challenge by bill of suspension
or, for sentences already served, by application to
the Scottish Criminal Cases Review Commission
seeking a referral of the case to the appeal court.
The Legislation
Section 1 of the Criminal Procedure
(Amendment) Act provides that there be
inserted in the Criminal Procedure Act 1995 at
the end of section 150:
“(3A) The grant, under subsection (3) above, at
an intermediate diet of a warrant to apprehend
the accused has the effect of discharging the trial
diet as respects that accused.
(3B) Subsection (3A) above is subject to any
order to different effect made by the court when
granting the warrant.”
The section provides, importantly, that this
amendment shall be regarded as having always
had effect.
The section makes similar provision in respect of
s338(1) of the 1975 Act, though only back-dates
the amendment to the coming into force of
section 15 of the Criminal Justice (Scotland) Act
1980, the section that introduced the present
system of intermediate diets.
Section 2 provides for section 1 to take effect the
day after royal assent. As stated, royal assent was
received on 8th March 2002.
The point to note is that this legislation is
retrospective. Although there have been very
similar pieces of retrospective legislation before –
the Criminal Procedure (Intermediate Diets)
(Scotland) Act 1998 being a notable example –
these were passed by the Westminster
Parliament, not the Scottish Parliament. Acts of
the Scottish Parliament, of course, are subject to
being struck down under the Scotland Act if they
are incompatible with Convention rights.
Retrospective effect
In the latter part of last year, the Privy Council
made a decision on the first act of the Scottish
Parliament, a retrospective piece of legislation. In
that case, A v The Scottish Ministers (PC) 2001
SLT 1331, the Privy Council accepted that
retrospective legislation by the Scottish
Parliament was not necessarily incompatible with
human rights.
So if the Privy Council accepts retrospective
legislation and the Scottish Parliament has passed
an act to reverse the decision in Reynolds has the
Reynolds case been consigned to history almost
as soon as it was decided?
Although in A v The Scottish Ministers there was
authority from the Privy Council to the effect that