Scottish High Court of Justiciary Decisons

GAYNOR BARRETT v. PROCURATOR FISCAL, DUMBARTON [1999] ScotHC 154 (10th June, 1999)

The complainer in this Bill of Suspension was convicted of a charge of breach of the peace. She seeks suspension of the conviction on the ground of oppression on the part of the justice. The circumstances are set out in the Bill and are that the charge was one of breach of the peace at the Faslane Naval Base.

On the day of the trial it appeared that the complainer's solicitor was delayed through traffic and passed a message to the court through her secretary that she would not be arriving on time. It does not appear however that this message got through to the court and a somewhat garbled message got through to the procurator fiscal, who thought that the message referred to somebody entirely different. The solicitor eventually arrived at the court at about 10.20am to discover that the trial had started without her. The first witness was a police constable who finished giving his evidence-in-chief before the solicitor introduced herself to the court. It does appear, however, that the solicitor was present during at least part of that witness's examination-in-chief. The justice tells us that when the solicitor put in an appearance the justice was somewhat taken by surprise and immediately suggested that there should be an adjournment to allow the solicitor to consult with the complainer for as long as she required. The justice tells us in his report that as far as he was concerned, he did not know that the complainer was to be legally represented and no intimation was made to him by the complainer that she was expecting a solicitor to be present. Mr Jack, on the appellant's behalf today, accepted that indeed no such representation was made. The justice also tells us that if there had been any suggestion that an accused person is to be legally represented, and the solicitor is not present, he would not permit the trial to commence.

After the adjournment had been granted, the complainer's solicitor consulted with the complainer and thereafter she was prepared to proceed with the trial, and she proceeded to cross-examine the first witness. There was no request made that the first witness's evidence should be repeated for her benefit or that the trial should be adjourned or anything of that kind. The justice tells us that the cross-examination did in fact cover the main areas in issue, and he assumed that this was attributable to the fact that the solicitor had heard part of the witness's evidence anyway, and had been briefed by her client as to the content of the remainder.

Mr Jack accepted that the justice was not told that the complainer was expecting to be represented. He accepted that no message had got through to the court that the complainer was expected to be represented. He accepted that the solicitor concerned, after receiving the adjournment, was content to proceed with the trial without making any representations of any sort to the effect that she was, or indeed the complainer was, in any way prejudiced by what had happened. What Mr Jack submitted, however, was not that justice had not been done, but that justice had not been seen to be done, which is of course an appropriate test. However, we are entirely satisfied that as far as any objective observer was concerned he would be quite content with the procedure which had been followed. If there had been any prejudice of any kind to the complainer, this could have been made clear to the court through the complainer's solicitor. No such complaint was however made. The solicitor proceeded with the trial, apparently perfectly content with the procedure which had been followed. We should note, in passing, that it was not until four months later that this Bill of Suspension was presented, although some explanation has been given for that.

On the whole matter, we are quite satisfied that it cannot be said that the justice acted in any way oppressively. Indeed the justice seems to have acted throughout perfectly fairly. The way in which the matter was presented makes it clear that the complainer's solicitor was apparently satisfied at the time that the justice was not proceeding in any way oppressively. On the whole matter, therefore, we shall refuse to pass the Bill.