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Cite as: [2004] ScotHC 34

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Mitchell v. Procurator Fiscal [2004] ScotHC 34 (03 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Hamilton

Sir Gerald Gordon, Q.C.

XJ563/04

OPINION OF THE COURT

delivered by

SIR GERALD GORDON, Q.C.

(Sitting as a Temporary Judge)

in

BILL OF SUSPENSION

by

GARY MITCHELL

Complainer

against

PROCURATOR FISCAL, HADDINGTON

Respondent

_____________

Act: Collins, Solicitor-Advocate, Adams Whyte

Alt: Bain, A.D.

3 June 2004

[1] This Bill of Advocation arises out of events which began on 18 December 2003 when the Sheriff refused a devolution minute on behalf of the complainer, granted leave to appeal in terms of Section 174 of the Criminal Procedure (Scotland) Act 1995 and adjourned the case to a trial diet on 27 February 2004. That adjournment was made in compliance with Section 174(3) of the 1995 Act which provides that:

"If leave to appeal under subsection (1) above is granted by the court it shall not proceed to trial at once under subsection (2) of section 146 of this Act; and subsection (3) of that section shall be construed as requiring sufficient time to be allowed for the appeal to be taken."

[2] No doubt the Sheriff was being unduly optimistic in expecting this Court to have dealt with the appeal by 27 February 2004, despite the provision of Rule 19.1(8) of the 1996 Act of Adjournal which requires the Clerk of Justiciary to arrange for the High Court to hear appeals under Section 174 as soon as possible. We note here that the Rule goes on to require the Clerk of Justiciary to cause to be copied any documents necessary for the High Court, and we understand that the principal complaint and minutes remain in the Sheriff Court.

[3] The case called for trial in the Sheriff Court on the due date, 27 February 2004, by which time the appeal had not been heard. On that date the Sheriff adjourned the trial diet to 4 June 2004, and it is that adjournment which is the subject of this appeal. The complainer bases his case upon Section 174 itself, and in particular upon Section 174(2) which provides that:

"Where an appeal is taken under subsection (1) above, the High Court may postpone the trial diet (if one has been fixed) for such period as appears to it to be appropriate."

[4] The complainer submits that the effect of that provision is that only the High Court has power to alter the trial diet where a Section 174 appeal is pending, and that accordingly the Sheriff acted incompetently when he adjourned the case for trial. Reference was made before the Sheriff and briefly before us to the maxim expressio unius est exclusio alterius, and the Sheriff was also referred to the case of Elliott v HMA 1995 SCCR 280.

[5] We accept that only the High Court has power to postpone a trial diet in a case which is the subject of a Section 174 appeal. Indeed, there is authority that a Sheriff has no power to postpone a trial diet in the absence of specific statutory authority to do so: see Vannett v Milligan 1998 S.C.C.R. 305. We agree, however, with the learned Sheriff that what he did on 27 February was not to postpone the trial diet but to adjourn it.

[6] Before this Court Mr Collins, solicitor advocate for the complainer, accepted that there is a difference between adjournment and postponement, but submitted that they both had the same purpose, and that Section 174, looked at as a whole, meant that the only way in which the trial diet could be altered pending the determination of an appeal under Section 174 was by bringing the case before a quorum of the High Court. We do not agree with that submission. Adjournment and postponement are two quite independent procedures even if they are directed to what might be regarded as the same end, and we see no reason why a provision for the use of one should preclude the use of the other. As Mr Collins accepted, a diet is postponed when the date is altered in advance of the date originally fixed for the diet, so that the diet originally fixed is never called. What happened here was that the trial diet was called on its due date, and was then adjourned in terms of Section 146(7) of the 1995 Act which provides that the trial court may from time to time at any stage of the case grant such adjournment as is necessary for the proper conduct of the case.

[7] If authority is needed for this approach it may be found in two cases in 1998. The first is Reith v Bates 1998 S.C.C.R. 426, where the Court stressed the importance of any minute altering a diet being precise as to whether the diet was postponed or adjourned. The second is Vannett v Milligan to which we have already referred. In that case the Court referred to the power given to postpone a trial diet at an intermediate diet, a power given specifically by statute. The Lord Justice Clerk then went on to say at page 310B that without such a power the Court could not competently postpone the trial diet before its arrival, and that if the question of postponement arose at the trial diet itself, this would be dealt with by the Court using its general power to adjourn a diet in terms of Section 146.

[8] The Bill is accordingly refused.

JJ

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