APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
BILL OF ADVOCATION
PROCURATOR FISCAL, GLASGOW
Complainer: Hamilton, Balfour & Manson
Respondent: Menzies Q.C., Crown Agent
13 October 1999
In this Bill of Advocation by James Keegan the complainer was charged with a contravention of Section 58(1) of the Civic Government (Scotland) Act 1982. The offence was alleged to have been committed on 27 May 1999 and the complainer appeared from custody on the following day. The case was adjourned for a trial diet on 21 June with an intermediate diet on 14 June. On 14 June when the case called it was adjourned to the trial diet and there appears to have been no indication at that stage that the Crown were not in a position to proceed. On 21 June at the trial diet there was a motion by the Crown to adjourn that diet, the reason being that the two Crown witnesses, who were both police officers, were not in attendance.
It is said in the Bill that no executions of service were produced to the Court nor was any explanation offered for the witnesses' failure to attend. It appears that the Court was also advised that the principal Crown production was not available.
What the magistrate tells us in his report is:
"I granted the Crown motion to adjourn the trial on 21 June 1999 due to the absence of the Crown witnesses on the basis that it was the first trial diet and that it was in the public interest do to so. ... I was of the view that it was appropriate in view of the fact that it was the first trial diet to grant the motion made on behalf of the now respondent. I did not regard it as being in the public interest to refuse the motion which was before the Court."
The magistrate's approach would therefore appear to be that if it is the first trial diet and if there is a motion by the Crown to adjourn, that motion will be granted without any investigation of the circumstances. If that is the correct interpretation of what is contained in the magistrate's brief report then, in our view, it is the wrong approach.
The Advocate Depute today accepted that the magistrate should not grant a Crown motion just because it was the first trial diet and that he should make some enquiry at least into the circumstances, however brief.
The Advocate Depute also tells us that it appeared from the Crown papers at the time that the two witnesses had been cited on 11 June for the trial diet on 21 June. It also appeared that there were no executions of citation on the file, but the file note was clear that the witnesses had in fact been cited. It does not appear, however, that this information was before the magistrate and no doubt the reason for that was that the magistrate did not ask for any explanation. Had he been given that explanation it may well be that he would have acceded to the motion which was made to adjourn.
Having regard to the fact that it does appear that the magistrate did not make any enquiries and simply adjourned the case because it was the first trial diet, we consider that that was a wrong approach and that the matter is at large. What we have to consider therefore is whether such explanation as has been given would have justified the magistrate in granting an adjournment. The position is not entirely satisfactory but it does appear at least that the Crown file contained information that the witnesses had been cited and no doubt on the date of the motion being made the fiscal would not be in a position to offer any further explanation as to why the witnesses were not in attendance. Had that situation been explained to the magistrate we are satisfied that he would have been entitled to grant the motion for the adjournment.
In these circumstances we do not consider that it can be said that the motion was in any way incompetent or that it should not have been granted. In the circumstances we shall refuse to pass the Bill and we are informed that this case has an intermediate diet fixed for tomorrow. The matter will therefore be remitted back to the magistrate to proceed as accords.