§ Mr. Dewar
I beg to move amendment No. 39, in page 17, line 14, at end insertand such power shall be effective even if there has been a failure to deliver a copy of the said interdict to a chief constable in terms of subsections (4) or (5) below.This matter came up in Committee. The amendment deals with a matrimonial interdict with a power of arrest attached to it. Clause 15(4) and (5) provides for the intermission of a chief constable of that interdict.
I wondered in Committee whether a failure to intimate to a chief constable in terms of the statute would mean that all that flowed from arrest would be invalidated. The 794 Minister said that he did not think that that was so. He made a fair point about the distinction between the wording in the statute about the duty to intimate to the non-applicant spouse and to the chief constable. He seemed to suggest that my proposal was unnecessary because such circumstances could not invalidate the subsequent processes when an arrest had taken place.
The Minister also said that it was unlikely that there would be an arrest if there were no intermission. I can envisage an inexperienced constable arresting a person, having in mind not an interdict but the possibility of a criminal prosecution for assault or breach of the peace.
If no proceedings by a procurator fiscal followed that complaint but his attention was drawn to the fact that there was an interdict, the question that I raised would become real. Would the petition to the court and the two days detention to allow interdict proceedings to take place be invalidated by the failure to carry out intermission under clause 15(4) and (5)? There is a little confusion.
The Minister's arguments in Committee pointed two ways. I tabled the amendment to clarify the position and to make it clear that the failure to intimate to a chief constable is not a legal defect. I assume that that is the Minister's intention. There is a grey area which should be made clear in the statute.
§ Mr. Rifkind
I am happy to give the hon. Gentleman the assurance that he seeks. It is correct that such an arrest would not be invalid simply because intimation had not been made to the chief constable. As long as the power of arrest had been attached to in interdict, if that arrest subsequently flowed, even although intimation had not taken place, although there might be cause for a reprimand against the individual responsible for failing to intimate, it would in no way invalidate the arrest itself in the circumstances to which the hon. Gentleman referred. I am happy to give the hon. Gentleman that assurance.
§ Amendment, by leave, withdrawn.