Temporary Judge C G Nicholson
OPINION OF THE COURT
THE RIGHT HONOURABLE LORD MARNOCH
CROWN BILL OF ADVOCATION
PROCURATOR FISCAL, HAMILTON
ANDREW RICHARD SNEDDON
Complainer: Ms D. Bain, A.D.
Respondent: Ms. Ogg; Jack Grant & Co., Motherwell
29 January 2004 This Bill of Advocation seeks to attack the Sheriff's refusal to adjourn the trial diet in a summary case to another date.  The Sheriff's Note discloses a long history of problems surrounding the discharge or adjournment of trial diets in Hamilton Sheriff Court but we find it unnecessary to go into that history since, in the end, so far as the present case is concerned, there are at least two particular reasons why we are ill disposed to pass this Bill.  In the first place, the immediate reason for the motion to adjourn was the absence of a Crown witness who had been described erroneously by the Procurator Fiscal Depute to be an essential witness for the Crown, who was 81 years old and who had apparently been excused attendance on the ground that he was ill and attending hospital on the day in question. No medical certificate of any sort appears to have been obtained. We were told, however, that the motion was made against a background that those representing the respondent had been told by the Crown at an early stage that there were difficulties with the witness who at that time was in intensive care and might not survive. In that situation the solicitor for the accused submitted, inter alia, that there was no reason to suppose that the witness in question would ever be fit to attend Court and, so far as we can see, that suggestion was not challenged by the Procurator Fiscal Depute. The Sheriff, herself, tells us that the motion to adjourn was "somewhat garbled" so it is perhaps not surprising that there is a lack of detail as to precisely what was said to her. However, on what information we do have, we are unable to say that she was not entitled to conclude, as she did, that there was indeed no real prospect of the trial ever proceeding and on that basis to refuse an adjournment.  In the second place, the Advocate Depute, in her submissions to us today, stated that, had the Sheriff left open the possibility of evidence in the case being part heard, the Crown would have had no complaint. As to that, the fact of the matter is that, towards the end of her Note, the Sheriff states that that option was left open to the Crown but was not taken up by the Procurator Fiscal Depute. Again we have no way of knowing what precisely occurred on the day in question but it is sufficient to say that on this aspect, also, there is real doubt about the merits of the Bill. In this respect the present case is readily distinguishable from the only authority relied on by the Crown, viz Tudhope v Lawrie 1979 J.C. 44.  In the foregoing circumstances this Bill will be refused.