New address was wrong for indictment
17 Dec 04
Appeal court rules police should have left papers at demolition site
An accused's address recorded as his domicile of citation remains his proper address for service, even where it has been demolished and the police discover his new address.
The criminal appeal court gave this ruling in refusing an appeal by the Lord Advocate against a sheriff's decision to dismiss an indictment against John Holbein.
The accused had been released on bail with his address recorded as a flat in Smeaton Street, Glasgow. By the time the indictment was sent to the police to serve, the block had been demolished. The police learned that the accused had been rehoused in Shannon Street but failed to find him at home. The procurator fiscal instructed them to leave the indictment there on the basis that the accused had no proper domicile of citation.
The Crown argued that the accused's proper domicile had ceased to exist. But the court said the Crown could not ignore the fact that specifying such an address was a necessary prerequisite to the accused obtaining bail. It did not matter that it could not have been given as the address by the time the indictment was served.
"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."