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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Lamb v. Procurator Fiscal [2004] ScotHC 16 (26 February 2004)
URL: http://www.bailii.org/scot/cases/ScotHC/2004/16.html
Cite as: [2004] ScotHC 16
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Lamb v. Procurator Fiscal [2004] ScotHC 16 (26 February 2004)
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Lord Marnoch Lord Abernethy C G B Nicholson, QC
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XJ583/02 (877/02)
OPINION OF THE COURT delivered by C G B NICHOLSON, QC Sitting as a Temporary Judge in BILL OF SUSPENSION by KEVIN LAMB Complainer against PROCURATOR FISCAL, EDINBURGH Respondent _____________ |
Act: McKenzie; Beaumont & Co
Alt: Murphy, QC, AD, Crown Agent
26 February 2004
[1] This is an appeal by Bill of Suspension. On 8 April 2002 the complainer appeared for trial on charges of racially aggravated assault and a charge of acting in a racially aggravated manner contrary to S. 50A(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995. During the morning, evidence was led from three Crown witnesses. At the end of the morning the Procurator Fiscal indicated that any application for bail during the luncheon adjournment would not be opposed, and an application for bail was duly made. However, the sheriff at that stage indicated that he was concerned that the complainer "could not be trusted" not to speak to two further witnesses on the Crown list and, ex proprio motu, he remanded the complainer in custody during the luncheon adjournment. The complainer was subsequently found guilty of all charges on the complaint. In his report to this Court the sheriff has stated that "the factual matters narrated in the Bill of Suspension are quite correct". For the complainer Miss McKenzie submitted, that by using the words quoted above, the sheriff had given the clear impression, prior to the conclusion of the Crown case, that he had already formed an adverse opinion and view of the complainer. That, it was submitted, demonstrated that there had been a miscarriage of justice in this case. [2] In the circumstances disclosed in the present appeal we do not consider that it is appropriate that we should express any concluded views as to the circumstances which may entitle a sheriff and, if so in what manner, to remand an accused person in custody during a lunch adjournment. However, in the present case it appears to be accepted that, when the sheriff decided to remand the complainer, he did so on the basis that he "could not be trusted" not to speak to the remaining witnesses during the lunch adjournment. It was not suggested that the sheriff was other than well-intentioned when he took the decision that he did. In our opinion, however, an impartial observer would have been bound to conclude, on hearing those words, that the sheriff had already and prematurely formed a view which was adverse to the complainer, and that accordingly, justice was not being seen to be done. For that reason we consider that the present Bill must be passed and the convictions quashed.ES