APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HON. LORD CAPLAN
BILL OF SUSPENSION
PROCURATOR FISCAL, GLASGOW
Complainer: C.M. Shead; Brodies, W.S.
Respondent: F.A. Mulholland, Crown Agent
30 April 1999
This is a Bill of Suspension in which the complainer is Carolyn Brown and the respondent is the Procurator Fiscal at Glasgow. The matter arises out of a summary complaint raised against the complainer in the District Court at Glasgow. In that complaint the complainer was charged with breach of the peace and police assault. The Bill proceeds upon the assertion by the complainer that she is a deaf mute but able to communicate by sign language. The respondent did not challenge these facts. The complaint called in Court on 26 October 1998. The complainer's solicitors had written to the respondent on 16 October 1998 seeking to have the complaint continued without plea for the purpose of their taking instructions. On that occasion they informed the respondent that the complainer was profoundly deaf and that an interpreter would be required to take her instructions. When the case called on 23 November 1998 a plea of not guilty was intimated by letter. The Court fixed an intermediate diet for 23 February 1999 and a trial diet for 16 March 1999. At the calling of the intermediate diet on 23 February the complainer was present in court and represented by her solicitor. However, as it happened, the respondent had failed to arrange for the presence of an interpreter. The answers for the respondent indicate that this was because he was not clear as to the kind of interpreter required and an enquiry that he had made to the complainer's solicitor had not been answered. In any event the respondent then moved to adjourn the diet and in fact the diet was adjourned to later in the day to secure the presence of an interpreter. This was opposed by the complainer's solicitor on the basis that without an interpreter the whole proceedings were incompetent. However, the case having been continued until 2pm on the same day, it transpired that at time there was still no interpreter available. The stipendiary magistrate accordingly adjourned the intermediate diet until 5 March 1999 to give the prosecutor an opportunity to arrange for a suitable interpreter. The complainer's solicitor had referred the magistrate to the case of Mikhaelechenko v Normand 1993 SCCR 56 which was relied upon for the view that in the absence of an interpreter no proceedings at all are competent. Accordingly the stipendiary magistrate could not competently continue the case to a new preliminary diet as he in fact did. It was maintained that the complainer had not heard nor understood any of the relevant proceedings. We were accordingly asked to recall as incompetent the stipendiary magistrate's deliverance which had allowed a new intermediate diet.
In support of the Bill the complainer's counsel argued what has to be recognised as a very extreme view of the procedure. He contended that this case is governed by the case of Mikhaelechenko and that accordingly the failure of the Crown to obtemper an obligation to provide and interpreter vitiates the whole proceedings. He further referred to Article 6(3)(e) of the European Convention of Human Rights which requires that in a case like this an interpreter should be provided. It was submitted that no proceedings at all can occur if the complainer was not able to understand what was happening and such proceedings would include making an adjournment to allow the services of an interpreter to be secured. We were also referred by the complainer's counsel, to McGowan v Ritchie 1997 SCCR 322 and to Rule 18(1) of the Act of Adjournal of 1996 which is to the effect that at an intermediate diet a plea needs to be tendered by the accused or his representative. It was further suggested that in arriving at the decision to allow and adjournment the magistrate had the benefit of discussions not only on procedure but on questions of law, and we were reminded that these of course would have been unintelligible to the complainer.
In response to the complainer's submissions the Advocate Depute for the respondent submitted that Mikhaelechenko could be distinguished. He explained that there had been a reference in the initial police report to the fact that the complainer although having a hearing problem, could not understand sign language. The procurator fiscal had considered the use of a typing screen system of interpretation. Later correspondence ensued between the procurator fiscal and the complainer's solicitors and the former eventually wrote to the complainer's solicitors asking what kind of interpreter was required. The procurator fiscal had no record of a written or telephonic reply. This explains why no interpreter was available at the diet. We were also referred to section 148 of the Criminal Procedure (Scotland) Act 1995 and we were asked to notice the case of Kerr v Carnegie 1998 SCCR 168. At page 173 of that report the Lord Justice Clerk had observed that the clear objective of holding or fixing an intermediate diet is directed to pre-trial preparation and is an administrative function. No proceedings relating to the intermediate diet had actually occurred. Mikhaelechenko was a case of a trial diet having taken place. It was also submitted that it is unhelpful to consider the European Convention which is not even in force at the moment.
In our view the case is clearly distinguishable from the case of Mikhaelechenko. In the Mikhaelechenko case in the absence of a properly qualified interpreter the sheriff had heard debate on the motion by the procurator fiscal to adjourn the trial diet specifically because of the unavailability of a Crown witness. The sheriff also had taken a plea from the accused. The proceedings took place on 20 August 1992. There was an opportunity to secure the services of a suitable interpreter for the morning following upon the original trial proceedings but the sheriff did not adjourn for 24 hours for that purpose, as had been suggested to him, but chose to grant the original motion to adjourn because of the absence of a Crown witness. In fact the case was adjourned until 14 January 1993, a matter of some five months. This was in contradistinction to giving effect to the possibility which existed of continuing the case for 24 hours for the simple administrative purpose of securing a properly qualified interpreter. Thus in Mikhaelechenko proceedings had taken place other than the technical formalities necessary to adjourn the case until matters could competently proceed. In any event the case was a trial diet and not an intermediate diet as was the position in this case. In the present case the stipendiary magistrate did not ask the complainer to state a plea as had happened in Mikhaelechenko. As the magistrate observes in his note, no proceedings relative to the progress of the diet took place other than the bare technical steps required to cure the procedural incompetency which would have resulted if any proceedings had taken place without an interpreter. It can be accepted that this may have involved some discussion both as to facts and as to law but these were purely ancillary to the technical objective we have been referring to.
If an adjournment is essential because a critical procedural gap would otherwise result, it is not always necessary that the accused should be present and able to understand the procedures leading to the adjournment. Thus it is common to find a case adjourned for inquiries if an accused fails to turn up when required at court. Such might well result if, for example, there is some doubt about whether or not he had experienced traffic or similar problems. Indeed on one view the physical presence in court of a person who cannot understand a word is little different in pragmatic terms from his total absence. In circumstances such as those which have occurred in the present case, it would be intolerable if for example a complaint were to fall because the interpreter had taken ill and failed to attend court or even because he had taken ill while conducting his interpretation function and had been unable to proceed. In any event, as was observed by the respondents, in the case of Kerr the function of an intermediate diet is administrative which in this particular case reinforces the view we have been expressing.
In all these circumstances we shall refuse the Bill.