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Procurator Fiscal v. Kelly & Ors [2004] ScotHC 8 (10 February 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Macfadyen

C G B Nicholson QC

Appeal Nos: XJ7/03

XJ8/03

XJ9/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

BILLS OF ADVOCATION

for

PROCURATOR FISCAL (HAMILTON),-

Complainer;

against

MICHAEL JOSEPH KELLY,

GRAEME STEWART and

STEVEN JOHN SHAW,-

Respondents.

_______

Complainer: Ms. D. Bain, A.D.; Crown Agent

Respondents: Ms. S. Rao; McClure Collins: J. Carrol, Solicitor Advocate; McClure Collins:

Ms. Burke; McClure Collins

10 February 2004

Introduction

[1] The respondents were charged together on a summary complaint at the instance of the Procurator Fiscal at Hamilton ("the complainer"). The complaint contained five charges of assault allegedly committed on 24 September 2001 at the Palace Nightclub in Keith Street, Hamilton. The first charge was that the respondent Michael Kelly assaulted Christopher Friel by striking him on the forehead with a bottle to his injury. The second charge was that the respondent Steven Shaw assaulted Colin Friel by punching him on the head to his injury. The third charge was that Steven Shaw assaulted Christopher Friel by punching him on the head. The fourth charge was that all three respondents assaulted Christopher Friel by running after him and attempting to punch and kick him on the body. The fifth charge was that all three respondents assaulted Colin Friel by running after him and attempting to punch and kick him on the body.

[2] At a trial diet on 25 November 2002 the complainer's depute, in circumstances which we shall discuss in more detail in due course, moved the Sheriff to adjourn the trial to a later date. For reasons which she explains in her Report, the Sheriff refused that motion. Thereafter the Sheriff deserted the diet simpliciter. The complainer presented this Bill of Advocation complaining that those decisions of the Sheriff were unjust and oppressive and should be reversed.

Procedural history
[3] Proceedings were originally commenced on 25 September 2001 by petition against the respondent Michael Kelly alone. Subsequently summary proceedings were commenced by the complaint against all three respondents containing the five charges which we have summarised above. That complaint first called on 26 June 2002. All three respondents pled not guilty, and the proceedings were adjourned to a trial diet on 10 September 2002, with an intermediate diet on 20 August 2002. On 10 September on the complainer's motion the proceedings were adjourned to a new trial diet on 25 November 2002. The reason for the complainer's motion was that two essential Crown witnesses, Christopher Friel and Colin Friel, were absent. The motion to adjourn was not, on that occasion, opposed by the respondents.

[4] The reason for the witnesses' absence on 10 September 2002 is explained in paragraph 5 of the Statement of Facts appended to the Bill of Advocation in the following terms:

"The addresses of the witnesses in the Crown papers had been changed to c/o Hamilton Police Office, due to sensitivity about disclosure of the witnesses [sic] addresses. In this situation it is believed that citations were sent out to the police showing the addresses as c/o Hamilton Police Office on the understanding that the police would establish the addresses of the witnesses from their own records."

The statement of facts does not expressly say so, but it seems that the citations did not reach the witnesses.

[5] On 25 November 2002 the two witnesses again failed to attend. In paragraph 6 of the Statement of Facts that is attributed to "a misunderstanding and breakdown in communications". It is said that, again, citations were sent to the police bearing the address "c/o Hamilton Police Office". Again it appears that the citations did not reach the witnesses. At any rate, the Procurator Fiscal Depute was unable to produce executions of citations to the Sheriff (see the Sheriff's Report, page 30). The reason for the witnesses' non-attendance on 25 November 2002 thus seems to have been identical to the reason for their non-attendance on 10 September 2002. In paragraph 7 of the Statement of Facts it is acknowledged that a new address for Christopher Friel had been noted by the precognoscer, but had never been intimated to the police or put in the correct place in the Procurator Fiscal Depute's papers.

Proceedings on 25 November 2002
[6] In considering the various motions made on 25 November it is convenient to bear in mind the provisions of section 152(2) of the Criminal Procedure (Scotland) Act 1995, which provides as follows:

"If, at a diet of trial, the court refuses an application by the prosecutor to adjourn the trial or to desert the diet pro loco et tempore, and the prosecutor is unable or unwilling to proceed with the trial, the court shall desert the diet simpliciter".

[7] It seems clear that the question of whether the case should be adjourned to a later date came before the Sheriff on more than one occasion in the course of 25 November. Various sources of information give conflicting accounts. In the Bill of Advocation, there is reference, in paragraph 6 of the Statement of Facts, to "an initial call over of cases", after which the Procurator Fiscal Depute made some inquiries about the missing witnesses, but there is no reference to a motion to adjourn having been made at that stage; then in paragraph 7 reference is made to a motion to adjourn made "during the late afternoon"; and we understand the reference in paragraph 8 to the motion renewed "at the end of the day" is concerned with the same motion as is mentioned in paragraph 7. However, the Sheriff, in her Report says (at page 30 of the print):

"The case first called before me in the early part of the morning at which time the Crown made a motion to adjourn the trial as two essential Crown witnesses were not in attendance";

and (at page 31):

"It was at approximately 4.20 pm when the Complainer's Depute recalled the instant case. ... The motion was renewed ...".

Miss Rao, who appeared for the respondent Kelly, informed us, on the basis of notes taken by the solicitor who appeared on 25 November, that the first adjournment motion was made at about 11.50 am, and that the second was made at about 4.00 pm.

It seems to us that the proper conclusion is that there was a motion to adjourn made before noon, and another at or after 4.00 pm.

[8] It is, we think, important to understand what happened when the question of adjournment first came before the Sheriff, because it appears to us that at that stage the Procurator Fiscal Depute may have misunderstood something said by the Sheriff. The realisation that there had been such a misunderstanding emerged in this way. In paragraph 8 of the Statement of Facts, in the context of describing the course taken by the Sheriff at the end of the day, the complainer averred:

"She [the Sheriff] also intimated that any motion to adjourn the proceedings part-heard would also have been refused."

In her Report, at page 31, having narrated her refusal of the first motion to adjourn, and the Procurator Fiscal Depute's indication that the case would be called later in the day once he had made further inquiries, the Sheriff said:

"It is also my recollection that it was at this stage that the Complainer's Depute raised the question of perhaps having to make a motion for the trial to be part-heard. As I recollect matters, he seemed to imply that I could not refuse such a motion. Obviously I pointed out that this was not necessarily the case."

Miss Rao had no note of the question of the case being part-heard and then adjourned being raised at the time of the first adjournment motion, but her narrative of the events when the motion was heard for the second time - which was that, having refused the motion to adjourn, the Sheriff called on the Procurator Fiscal Depute to lead his first witness, but he declined to do so and indicated that he had no further motion to make, and that it was then that the Sheriff proceeded to desert the diet simpliciter - confirms that the complainer's original averment about the Sheriff intimating at the stage of the second motion that any motion to adjourn the proceedings part-heard would be refused was incorrect. It seems to us to be clear that the Sheriff did not say that she would refuse any motion to hear part of the case then adjourn to a later date; what she did do, at the time of the first motion to adjourn, was point out to the Procurator Fiscal Depute that the matter of hearing part of the case was not wholly within his control, and that she [the Sheriff] had a say in that matter. As we understood her, the Advocate Depute ultimately accepted that that was what had happened. She maintained, however, that the Procurator Fiscal Depute must have misunderstood what the Sheriff meant, and thereafter proceeded on the basis that there was no point in attempting to arrange for the case to be part-heard that day, believing that the Sheriff had indicated that she would refuse to adjourn the case part-heard.

[9] Having identified that misunderstanding, it is now appropriate to return to consider what happened at the time of the first motion to adjourn. That motion was refused, but with no irretrievable consequences, because the Procurator Fiscal Depute indicated that he would make further inquiries and call the case again later in the day. By so doing, he put off the stage at which in terms of section 152(2) he might have to proceed with the trial or else suffer desertion simpliciter.

[10] It appears from paragraph 6 of the Statement of Facts that the inquiries which the Procurator Fiscal Depute undertook began with a conversation with the one civilian witness who had attended on 25 November, namely Jacqueline Dalziel. She was the former fiancée of Christopher Friel. Although their relationship was at an end, she was able to provide his mobile telephone number. That enabled the Procurator Fiscal Depute to make contact with Christopher Friel, and discover that he was working in Girvan. It would have taken him 90 minutes to travel to court by car, and longer by public transport. It is not clearly identified when that conversation took place. It is, however, averred by the complainer that her Depute "felt that it was unreasonable to expect him to attend in those circumstances". Christopher Friel provided a partial new address for Colin Friel, but it is not suggested that he could have been traced and brought to court that day. At the end of paragraph 6 the complainer avers that the respondents' trial was not the most urgent trial in the particular court.

[11] It appears that when the motion to adjourn was made for the second time, it was acknowledged that the absence of the witnesses was the result of fault on the part of the Crown in failing to effect valid and effective citations. It is evident that the Sheriff formed an impression that the Procurator Fiscal Depute was trying to manipulate the court. In her Report at page 31 she said:

"It was approximately 4.20 when the Complainer's Depute recalled the instant case. His inquiries had obviously been completed in the morning but he had made no attempt to re-call the case earlier to explain the position or renew his motion to adjourn. The motion was renewed at the end of the day inter alia on the basis that there was inadequate time to part hear the proceedings. It appeared to me that leaving the motion to adjourn until such a late time was merely an attempt to circumvent my earlier ruling".

The Sheriff further indicates that, having refused the second motion to adjourn, she asked the Procurator Fiscal Depute if he had any other motion to make; and that he did not make a motion to have the case part heard, and indicated that he had no other motion. The Sheriff states that she did not refuse a motion to have the case part heard, and did not indicate that the case could not commence because of the lateness of the hour. On the contrary, she states that she would have been prepared to have the Procurator Fiscal Depute call his first witness and have the trial commence. She records that she was told that the Procurator Fiscal Depute, having made contact with Christopher Friel, had "taken it upon himself to tell the witness not to come to court". By that stage Jacqueline Dalziel had been allowed by the Procurator Fiscal Depute to leave court; it is, we think, to her that the Sheriff is referring when she says in her Report at page 32: "I was also told that another witness had a relative who was ill"; we were informed that the relative was a child who was going into hospital.

The Advocate Depute's submissions
[12] The Advocate Depute submitted that the proper approach to a motion to adjourn a summary trial was set out in the opinion of Lord Cameron in Tudhope v Lawrie 1979 JC 44 at 49:

"There can of course be no doubt that it lies within the power of a Sheriff to refuse to grant an adjournment of a diet with the consequence (as in this case) that the instance may fall and a prosecution [be] brought to an end. But at the same time this is a power which, in view of the possible consequences of its exercise to parties and to the public interest, must be exercised only after the most careful consideration, on weighty grounds and with due and accurate regard to the interests which will be affected and prejudiced by that exercise. And when it appears that the Sheriff has either failed to have proper regard to the interests which will suffer or may suffer prejudice by a refusal of an adjournment ... or has misdirected himself as to the extent or consequences of the prejudice to be suffered or has erred in his balancing of relative prejudice which will or is likely to arise from such a refusal, then his decision is open to attack and may be set aside."

[13] The Bill of Advocation, as presented, sought to attack as unjust and oppressive both the Sheriff's refusal of the motion to adjourn and her desertion of the diet simpliciter. In the course of the debate, however, the Advocate Depute came to recognise that (whether as a result of a misunderstanding of what the Sheriff had said earlier or not) the Procurator Fiscal Depute had, after the refusal of the second motion to adjourn, neither moved for desertion pro loco et tempore nor proceeded with the trial, as the Sheriff (according to Miss Rao's information) expressly invited him to do. It followed that the Sheriff could not be criticised for deserting the diet simpliciter, since that was her duty under section 152(2). The Advocate Depute therefore moved for, and was granted, leave to amend her plea-in-law by deleting the words "and subsequent desertion simpliciter ex proprio motu".

[14] The Advocate Depute maintained her attack, however, on the refusal of the motion to adjourn. If that decision was erroneous, it, as well as all that followed upon it, should be set aside. While it was acknowledged that the absence of the witnesses was attributable to fault on the part of the Crown, on a proper balancing of considerations, the public interest in the prosecution of crime outweighed the prejudice to the respondents. The Bill, as amended, should therefore be passed.

Background
[15] Before considering the outstanding issue focused by the Advocate Depute, it is necessary to take note of a matter of background raised by the Sheriff in her Report. At page 26 she says:

"Hamilton Sheriff Court has one of the worst records in Scotland for concluding summary trials within a reasonable time. Various factors have been identified for this over the years. One major reason for trials not proceeding on the due date has been identified as Crown witnesses not being in attendance. ...

... [In] Hamilton Sheriff Court we have a major problem in that Crown witnesses are frequently not in attendance and the Crown cannot say whether or not a witness has been cited and cannot produce an execution of citation. In such cases there is no information as to what steps have been taken to try and cite the witness."

The Sheriff goes on to narrate various steps that have been taken by the Hamilton Sheriffs to attempt to cure the problem. The Advocate Depute informed us that the complainer does not wholly accept the detail of the Sheriff's narrative of the problem and the lack of success of the steps taken to address it, but we did not understand the Crown position to be that there was at the material time no such problem as the Sheriff identified. We accept the Advocate Depute's submission that each motion to adjourn a diet must be considered on its individual merits, but we are of opinion that the problem described by the Sheriff was a matter of serious concern, and that the Sheriff was fully entitled to bear the general problem in mind as a matter of background when considering on its merits the motion made in this case.

Discussion
[16] It is in our opinion clear that, as the Advocate Depute accepted, the absence of two essential Crown witnesses on 25 November was the result of fault on the part of the Crown in failing to take proper and effective steps to secure that they were cited. There was no suggestion that the witnesses were uncooperative, or would have failed to answer their citations if they had been served. The matter is made worse by the fact that this was the second diet which had been rendered abortive by virtue of a duplication of fault on the part of the Crown. As we have said, the Sheriff was entitled to view those circumstances against the background of the general problem experienced in Hamilton Sheriff Court in connection with securing the attendance of Crown witnesses. Moreover, as the Sheriff pointed out in her Report at page 30 of the print, the respondents and their witnesses had, for a second time, been put to the inconvenience of taking time off work to attend an abortive diet of trial. The Sheriff was in our view entitled to take that factor also into account as weighing against granting the motion to adjourn.

[17] It is, of course, right that, as the Advocate Depute submitted, proper weight must be given to the public interest in securing that those who are accused of having committed crimes are prosecuted. The weight of that consideration is, however, a matter of degree, and we note that in the present case the most serious charge is one of assault to injury with a bottle, that two other charges each involve a single punch, one of which was to injury, and that the remaining two charges involved chasing and attempts to punch and kick. While by no means negligible, these are not, at least in their consequences, particularly serious charges.

[18] It is, in our view, regrettable that the misunderstanding to which we have referred appears to have arisen between the Sheriff and the Procurator Fiscal Depute as to the Sheriff's attitude to a motion to proceed with the trial and then adjourn it part-heard. It led, in our view, to the Sheriff taking a critical view of the Procurator Fiscal Depute's behaviour which she might not have taken if she had realised that a misunderstanding had occurred. We can readily understand why the Sheriff formed the impression that, when he told Christopher Friel not to come to court, when he sent Jacqueline Dalziel away, and when he waited until after 4.00 pm to re-call the case, the Depute was trying to force her to grant the adjournment which she had earlier refused and had simply set his face against the possibility of commencing the trial. Viewing the matter from the other point of view, and assuming that the Depute was genuinely under the impression that the Sheriff had indicated that a motion to part-hear the case would not be granted, his decisions to tell the witnesses not to come or to go away are entirely understandable actions which took a proper approach to avoiding inconveniencing witnesses unnecessarily. However, in considering whether the Sheriff can be said to have failed properly to balance the relevant considerations, it is, in our view, necessary to view the circumstances as they appeared to the Sheriff, and she was in our view entitled to take the Depute's conduct as she perceived it into account as a factor militating against granting the second motion to adjourn.

Result
[19] In all the circumstances, we are of opinion that it has not been shown that the Sheriff erred in refusing to adjourn the diet. We shall accordingly refuse to pass the Bill.