Scottish High Court of Justiciary Decisons

PETITION TO THE NOBILE OFFICIUM BY MARK ANTHONY POTTER v. PROCURATOR FISCAL, GLASGOW [1999] ScotHC 31 (18th February, 1999)

The petitioner is Mark Anthony Potter who appeared in Glasgow Sheriff Court on a summary complaint alleging assault. The petitioner adhered to his plea of not guilty and the trial began. After evidence had been led, the trial was adjourned for lunch until two o'clock. During the lunch adjournment the petitioner left the court building, as he was entitled to do. He was, however, arrested by the police in connection with a separate matter and, even though he explained the situation to the police, he was kept in custody by them and so was unable to return to the courtroom where his trial was being held. When two o'clock came and the petitioner was not present, the sheriff granted a warrant to apprehend him but, in addition, under reference to Rule 33 of the Act of Adjournal (Criminal Procedure Rules) 1996, the sheriff made a direction discontinuing his entitlement to criminal legal aid in respect of those proceedings.

As this court has had only too frequent occasion to remark recently, the provisions of Rule 33.3 give a sheriff power to make a direction only after hearing the accused or his agent in relation to the matter. Here it is plain that the sheriff purported to make an order under Rule 33.3(1) because the petitioner had failed to attend the adjourned diet after lunch. The petitioner was not present and the agent could not have addressed the sheriff on the reason for his absence. In that situation the sheriff had not heard the petitioner or his agent as to the reason for his absence. The sheriff was therefore not in any position to conclude that the petitioner had, in terms of Rule 33.3(1), without reasonable cause failed to attend the diet. In effect, as we have explained, it appears that he could not attend for the very good reason that he had been arrested.

In those circumstances it is obvious that the sheriff was not entitled to make the direction on 1 July. He should simply have granted the warrant for the petitioner's arrest and should have postponed consideration of any direction under Rule 33.3(1) until the petitioner eventually appeared in court by virtue of the warrant and the reason for his failure to attend could be ascertained.

In all the circumstances, and for these reasons, we shall quash the direction.