Scottish High Court of Justiciary Decisons

PROCURATOR FISCAL, LINLITHGOW v. GARY JOHN JOHNSTONE and DAVID MICHAEL GUNN [1999] ScotHC 243 (11th November, 1999)

My opinion in these proceedings should be read in conjunction with my opinion in regard to the Bills of Advocation for Hugh Latta Starrs and James Wilson Chalmers and the Bill of Advocation for the Procurator Fiscal in the proceedings against them, which were heard along with the present case.

The proceedings in the sheriff court out of which the present Bill of Advocation arises are as follows. On 7 June 1999 the respondents appeared in court in answer to a summary complaint. They pled not guilty and trial was fixed for 8 July, with an intermediate diet on 23 June. On 8 July the trial began before Temporary Sheriff Alexander but was not completed. The trial diet was adjourned to 28 July. On the latter date the respondent Gunn intimated to Temporary Sheriff Alexander that he intended to raise a devolution issue by means of a minute which had been lodged and intimated two days before. The respondent Johnstone intimated that he intended to lodge a similar minute. The sheriff determined that a devolution issue might arise and that the respondent Gunn had shown cause for raising it. He adjourned the diet to 30 July for consideration of Gunn's Minute. On 30 July the case came before Sheriff Ross, who was a permanent sheriff. He adjourned the trial diet and continued consideration of Johnstone's minute to enable it to be duly intimated. Thereafter the Lord Advocate lodged a notice of intervention and both respondents lodged proposed adjustments to their respective minutes. The case came before Sheriff Ross again on 10 August when he refused the motion of the complainer and the Lord Advocate that the respondents' adjustments should be refused and that the devolution issue should be referred back to Temporary Sheriff Alexander. He adjourned consideration of the minutes.

In this court Mr Bovey, Q.C., and Mr Sharp appeared for Johnstone, and Mr Davidson, Q.C., and Mr Collins for Gunn. The Solicitor-General appeared for the Procurator Fiscal, and, along with Mr McCreadie, for the Lord Advocate.

The remaining live issue in the present case is whether the decision of Sheriff Ross on 30 July, or at any rate his decision on 10 August, was erroneous in respect that he purported to deal with a devolution issue which could only properly came before the trial sheriff. For the reasons given in my opinion in the Bills of Advocation for Hugh Latta Starrs and James Wilson Chalmers, I am of the opinion that the Crown's challenge is correct in regard to the decision of Sheriff Ross on 10 August. On that occasion, unlike 30 July, he took a decision as to whether the respondents should be allowed to adjust their minutes. That was in my view a question which could not properly be dealt with by a sheriff who was not the trial sheriff. He should have referred the matter to Temporary Sheriff Alexander, and, for reasons which are explained in my other opinion, the proper course would have been for the latter to discharge the trial diet.

In these circumstances I invite your Lordships to pass the Bill, to repel the first and second pleas-in-law for the complainer and to sustain the third plea-in-law. The case will require to be remitted accordingly to Temporary Sheriff Alexander to deal with the present case in the light of the opinions expressed by the members of this court.

I agree.

I agree with the Opinion of your Lordship and have nothing to add.