Scottish High Court of Justiciary Decisons

DARREN O'BRIEN v. PROCURATOR FISCAL, LINLITHGOW [1999] ScotHC 8 (13th January, 1999)

This is a Bill of Suspension at the instance of Darren O'Brien. The complainer had been charged with a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, that is to say having possession of an article with a blade in a public place. His defence was that available under section 49(4) of having good reason for having the knife on the occasion in question.

The procedural background had been a little complicated in that there had been an intermediate diet in December 1997 when a particular witness named Speirs could not be traced. That remained the position at a continuation in January, and that resulted in a new trial diet having to be fixed. By the new intermediate diet on 1 April the witness had been traced and cited for trial and the complainer was ready to go to trial, the trial diet being 24 April. On that date the witness Speirs, although cited, did not appear. He had apparently phoned to say that he would not appear because of fears in relation to his job. In these circumstances the sheriff was moved to adjourn the trial diet, being told that Speirs was an essential witness. What the sheriff says is that he considered it unlikely, if the motion was granted and a further trial diet fixed, that the witness would attend that further diet without compulsion and he says that he was not moved to grant a warrant for the witness's apprehension.

We are not sure that we fully understand the reasoning: compulsion would of course be possible and a motion for the grant of a warrant could of course be made if the adjournment were allowed.

At all events the sheriff goes on to say that he deliberated as to whether or not it was necessary in the interests of justice or fairness to the complainer that the defence motion should be granted. He says that he decided:

Miss Scott submitted that this was defective reasoning. There was of course no need for corroboration, but the witness was essential as someone closely involved in what had actually happened. He was essential not merely to corroborate but as another witness on the crucial matter and it was the support of that witness and the additional evidence on that point which was vital. One cannot tell whether what in fact happened, which was that the sheriff disbelieved the complainer on this matter, would have happened had he heard the other witness. He has not considered anything beyond the issue of corroboration and we are satisfied that Miss Scott is well founded in saying that the reasoning is defective. We were referred to a number of authorities but we do not find it necessary to go to those in detail. This is defective reasoning and it invalidates the decision.

That being so, we will pass the Bill and set aside the conviction and sentence. The Crown moved us to allow a new trial. Having regard to the age of the alleged offence and the relatively small sentence that was imposed which was a fine of £300 we do not think that that would be an appropriate course at this stage and we will refuse that motion.