CANTONE LIMITED v. PROCURATOR FISCAL, KILMARNOCK

"The accused in answer to the complaint made a plea to the competency, said plea being made by said solicitor on behalf of the accused. The court continued the case until 8 December 1997 at 10 a.m.".

"The accused in answer to the complaint pled not guilty, said plea being made by representative on behalf of the accused. The court adjourned the diet for trial until 7 August 1998, assigned 14 July 1998 as an intermediate diet".

The case duly went to trial and the appellants were convicted. No point was taken at any stage of the proceedings about the alleged incompetence of the interlocutor of 5 December but the advocate depute accepted, before this court, that if there was in fact a breach of the statutory procedure this would result in a fundamental nullity and there would be no question of acquiescence on the part of the appellants.

"(1) Without prejudice to section 150(1) to (7) of this Act, at the first calling of a case in a summary prosecution the court may, in order to allow time for enquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section, for such period as it considers appropriate, without calling on the accused to plead to any charge against him but remanding him in custody or on bail or ordaining him to appear at the diet thus fixed; and, subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.

(2) Where the accused is remanded in custody, the total period for which he is so remanded under this section shall not exceed 21 days and no one period of adjournment shall, except on special cause shown, exceed seven days.