Paul Stevenson & Scott Rankine & William Stevenson v. Her Majesty's Advocate [2008] HCJAC 12

Criminal Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellants were indicted to Paisley Sheriff Court on charges of violence allegded to have occured on 26 December 2004. The charges included allegations of the use of a variety of weapons including a brick, a shovel, a brush and a broom. After sundry procedure a trial diet was assigned for 19 September 2006. Prior to the commencement of the trial it was discovered that the various weapons, all of which were on the list of label productions on the indictment, were missing. It appears that some months prior to the trial the various items were destroyed having been mistaken for rubbish which was being cleared out from the police station where they had been stored. On 16 October 2006 a fresh indictment, without any reference to the various weapons, was served on the appellants citing them to a trial diet on 15 November 2006, with a first diet on 31 October 2006. On 31 October the appellants tabled two preliminary pleas:- (1) that proceedings on the most recent indictment were incompetent as the date fixed for the first diet was less than 15 clear days after the date of service of the indictment, contrary to the terms of section 66(6)(a)(i) of the Criminal Procedure (Scotland) Act 1995; and (2) that each of the appellants was prejudiced by the loss of these objects to such a degree that they could not receive a fair trial and re-indicting the appellants without including these objects as labelled productions was unfair and oppressive. The sheriff repelled the first plea in law and repelled the second plea in hoc statu, and granted leave to appeal to the High Court of Justiciary. Here the court considered whether the procedural irregularity in not having 15 clear days between service of the indictment and the first diet amounted to a fundamental ity. The court considered whether the shortening of the induciae by one day caused the appellants any prejudice and whether the shortened induciae represented a defect in procedure sufficiently grave to have the effect of rendering subsequent procedure . In relation to the plea of oppression the court considered whether the re-indicting of the appellants without including the objects as labelled productions was unfair and oppressive. The question for the court was whether there was such prejudice to the prospects of a fair trial that it would be oppressive to require the accused to face trial, the test of oppression being the same in such cases as in any other situation, namley, the court required to ask whether the risk of grave prejudice to the prospects of the accused receiving a fair trial was so grave that no direction by the trial judge to the jury could be expected to remove it.