Scottish High Court of Justiciary Decisons

ROBERT PHILLIPS McSHANE v. PROCURATOR FISCAL, EDINBURGH [2001] ScotHC 33 (31st May, 2001)

[1] In this Bill of Advocation the complainer attacks the competency of a decision by Temporary Sheriff Vaughan whereby, on 16 November 1999, he ex proprio motu discharged an ongoing trial and adjourned the case to a new intermediate diet and a new trial diet. The Temporary Sheriff tells us in his Note that the reason he took that course was that he had learned of the decision in Starrs v. Ruxton; Ruxton v. Starrs 2000 JC 208 and in light of that decision considered it would not be competent for him to proceed further with the trial. As it happened, the trial had been adjourned for a period of two weeks while the Temporary Sheriff considered the merits of a motion of no case to answer at the end of the Crown evidence. The Temporary Sheriff tells us that he invited representations on his proposed course of action from both the defence solicitor and the Procurator Fiscal Depute and that neither offered any objection or made any adverse comment. The lack of any comment from the Crown is doubtless explained by a Lord Advocate's instruction which was apparently issued after the decision in Starrs v. Ruxton; Ruxton v. Starrs to the effect that in all trials due to proceed before a Temporary Sheriff the court should be moved to discharge the trial diet in order that the accused might be tried before a permanent Sheriff. According to Mr. McCluskey, Advocate, for the complainer, the defence solicitor queried whether the Sheriff might first give his decision on the motion of no case to answer but, in our view, that query of itself amounted neither to an express acceptance of the course indicated by the Temporary Sheriff nor to an express waiver of any right which the complainer then had to object to the Temporary Sheriff as being other than an impartial tribunal in terms of Article 6(1) of the European Convention on Human Rights. In any event, it is clear from the subsequent decision of this court in Millar v. Dickson 2000 S.C.C.R. 793 that by that stage in the proceedings the complainer had impliedly waived his right to put forward any such objection, the trial having commenced long after 20 May 1999 when the relevant provisions of the Scotland Act 1998 came into effect. In this respect the present Bill is clearly distinguishable from the Bills of Advocation for the accused which were considered in Starrs v. Ruxton; Ruxton v. Starrs cit. sup.

[2] It is clear to us that the decision taken by the Temporary Sheriff in the present case, while in the circumstances entirely understandable, was in fact taken on a wrong view of the law as it was eventually laid down in Millar v. Dickson cit. sup. He was not, as he thought, automatically disqualified from proceeding with the trial and, indeed, as was made clear in the disposal of the Bill of Advocation at the instance of the Crown in Ruxton v. Starrs, it was prima facie his duty to continue with the part-heard trial. It is equally clear, in our opinion, that the circumstances in which a trial Judge or Sheriff can properly exercise his discretion to discharge an ongoing trial diet with a view to the trial commencing of new are, for obvious reasons, very limited and the fact that such a discharge proceeds on a wrong view of the law, however understandable, would not, of itself, justify such a course being taken. Nonetheless, there are clearly circumstances when such a course can, or may have to be, taken and it follows that it is a course which is capable of being acquiesced in by or on behalf of the accused. In these circumstances the real question, in our view, is whether the subsequent events which transpired in this case amount to such acquiescence.

[3] The subsequent events, in so far as material, were that there was sundry correspondence between those acting for the accused and the Crown querying whether it was truly the Crown's intention to proceed with a new trial. This question was eventually answered in the affirmative and on 13 January 2000 a Minute in terms of Rule 40.3(1) of the Act of Sederunt (Criminal Procedure Rules) 1996, as amended, was lodged to the effect, inter alia, that it was unfair and prejudicial to the accused to begin the trial again. After further sundry procedure that Minute came before Sheriff Horsburgh for debate on 17 May 2000. Sheriff Horsburgh declined to give effect to the Minute and, in the course of his Report in an associated Note of Appeal (which was abandoned only when the two cases called before us), pointed out that the accused's proper remedy, if any, would have been to attack the competency of the course taken by the Temporary Sheriff by way of Bill of Advocation. That Report is dated 31 May 2000 and was lodged with the Justiciary Office on 1 June 2000. It was only some months afterwards, in August 2000, that the Bill of Advocation now before us was finally lodged. In all these circumstances we are clearly of opinion that the Bill cannot be allowed to proceed. Whether the rationale for that decision should properly be expressed in terms of acquiescence or bar is perhaps a moot point but, one way or the other, we are clear that long before August 2000 the complainer must be held to have departed from any fundamental challenge to competency such as that contained in the Bill. The fact that those advising the complainer misconceived the legal position - if that was, indeed, the case - cannot now be used as an excuse. As was pointed out in Millar v. Dickson cit. sup. solicitors must, in general, be deemed to know the law, and the fact of the matter is that it was only some nine months after the Temporary Sheriff was last seized of the case that it was first suggested in this Bill that the trial before him should proceed. In the meantime, the argument was that the accused should go free. This simply will not do. Quite apart from the practicalities involved, the situation is clearly one of bar or acquiescence, call it what you will.

[4] For the foregoing reasons the present Bill is refused.