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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Abernethy
Lord McEwan
Sheriff Principal
C.G.B. Nicholson
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[2006] HCJAC 6
Appeal No: XJ1231/05
OPINION OF THE COURT
delivered by LORD
ABERNETHY
in
BILL OF ADVOCATION
by
PROCURATOR FISCAL, Paisley
Complainer;
against
ELIZABETH MACKENZIE
Respondent:
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Appellant: A. Stewart, Q.C., A.D.; Crown Agent
Respondent: C. Shead; Gordon Ritchie & Co., Paisley
25 January 2006
[1] On
5 August 2005 the
respondent in this Bill of Advocation appeared at Paisley
Sheriff Court for trial on a charge of having
contravened section 7 of the Road Traffic Act 1988 on 19 March 2005.
In the absence of an essential Crown witness on the morning of the trial
the complainer moved the Sheriff to adjourn the trial or, alternatively, to
part hear it. The Sheriff refused those
motions and deserted the proceedings simpliciter. This Bill seeks to challenge those decisions
by the Sheriff.
[2] The
factual circumstances and the reasons for the Sheriff's decision are set out by
him in his Report to this court in the following terms:
"The
Minutes show that this case first called at Paisley
Sheriff Court on 31st March 2005 when the
Respondent pled not guilty. An Intermediate
Diet was assigned for 21st
July 2005 and a Trial Diet was assigned for 5th August 2005 and the
Respondent was ordained to appear at both diets.
On 21st July 2005 at the
Intermediate Diet the Respondent maintained her plea of not guilty and the case
was continued to the Trial Diet.
On 5th
August there were a number of cases calling for trial before me. My notes for that day indicate that the Court
commenced sitting at 10.05 a.m. and the
Court was asked to adjourn briefly at 10.25 a.m.
The Court
resumed at 10.50 a.m. and the
present case called at 11.08 a.m.,
immediately after I had granted a warrant in an unrelated case.
Mr Ritchie
appeared for the Respondent and confirmed that she was adhering to her plea of
not guilty and that he was ready to proceed to trial.
The
Procurator Fiscal Depute moved to adjourn the Trial due to the absence of one
of two witnesses properly cited by the Crown.
I was advised that the absent witness was essential and that the
witness, a Police Officer, was on standby awaiting a call from the Complainer's
Depute to confirm that his attendance at Court was indeed required. I understood that the absent witness was
attending a driving training course at a location within a short driving distance
of the Court, that he had a mobile but that his mobile was not responding to
calls from the Procurator Fiscal Depute's Office.
Mr Ritchie
for the Respondent was instructed to oppose said motion which he did. He indicated that he had initially been told
that neither of the Crown witnesses were present but
that in any event the absent witness was well aware that he (the witness) was
on standby and might be expected to attend Court at short notice. He argued that the onus was on the witness to
make sure that he was contactable. He
further advised me that his client, the Respondent, was suffering from stress
and stress related illness and had been so suffering since being charged on 19th March 2005.
He went on
to argue that his position might have been different had the Crown moved for a
warrant in respect of the absent witness.
At 11.15 a.m. I decided to adjourn the trial and
the Court until later that morning and indicated that I would allow the Crown a
further 30 minutes to locate and make contact with the absent witness.
The case
called before me again at 11.50 a.m. at which
time I was advised by the Complainer's Depute that despite further efforts the
absent witness could still not be contacted.
The college at which the training course was being effected
had been contacted but advised that the car in which the absent witness was
being trained had no car radio. The
motion to adjourn the trial was renewed.
Mr Ritchie
for the Respondent renewed his opposition to that motion.
The
Complainer then made a motion to have the trial part heard. This motion was also opposed by the
Respondent's agent on the basis that the motion had not been made at the
outset.
The
Complainer's Depute then made a further motion to adjourn the trial. My notes do not indicate that the motion was
made on the basis of an adjournment until later in the day but that the motion
was to adjourn the trial 'at this stage', which I took to mean until a later
date.
I refused
that motion and asked if there was any further motion on behalf of the
Crown. There was none.
Accordingly
I decided to desert the case simpliciter.
This I did at 11.58 a.m.
It appeared
to me that the absent witness had been properly cited and there was nothing to
indicate any problem regarding his attendance when the case called at the
Intermediate Diet stage.
The
arrangements whereby that witness was to be contacted on his mobile to secure
his attendance at Court, were this trial to proceed that morning, were entirely
a matter of convenience to that witness and certainly not to the Court or to
the Respondent.
The onus to
ensure his attendance at Court lay entirely with the witness. It was obvious that although he was to be
contactable via his mobile telephone he could not be so contacted.
The case
had not called before me until 11.08 a.m. that
morning. The citation was for the
attendance of the witness at Court at 10.00 a.m. that
morning.
I had
allowed the Crown a further 30 minutes (from 11.15 a.m.) during the course of the morning to make contact
with the witness. The Crown was
unsuccessful although the whereabouts of the witness was known to the extent at
least that he was attending a driving training course at a nearby college.
In reaching
my decision and in exercising my discretion I took account of the nature of the
offence, the history of the case and the effect of a further delay on the
Respondent who was I was told suffering from stress and stress related illness
as a consequence of being charged with the alleged offence earlier in the year,
and accorded each of said factors such weight as seemed appropriate to me."
[3] Before
us the learned Advocate-Depute submitted that in refusing the Crown motions and
deserting the proceedings simpliciter
in the purported exercise of his discretion the Sheriff had erred in law. He had not applied the proper test and had
reached a decision which no reasonable sheriff applying that test would have
reached. The effect of deserting the
proceedings simpliciter was that the
case was brought to an end completely:
it was incompetent for the prosecutor to raise a fresh libel (Criminal
Procedure (Scotland) Act 1995, section 152).
Such a decision must be justified in the interests of justice. Here the proceedings had been conducted
expeditiously. The alleged offence was
committed on 19 March
2005, there had been no delays and the trial diet was to take
place on 5 August. This was the first
time that there had been any difficulty in what had hitherto been the smooth
progress of the case. It was the first trial
diet and the first time an adjournment had been sought. The Sheriff's decision had been taken just
before midday and there
was, according to the Advocate-Depute, no other business for the court that
day. It was therefore wholly
unreasonable for the Sheriff not to have adjourned at least until early
afternoon to see if the witness could be made available. The Advocate-Depute referred to the case of Tudhope v Lawrie 1979 J.C. 44 and, in particular, to that part of the Opinion
of the Court delivered by Lord Cameron at pages 49-50. In that passage reference was also made to
the judgment of Lord Justice General Emslie in the earlier case of Skeen v McLaren 1976 S.L.T. (N) 14.
Those cases set out the proper approach to be taken by the court in
exercising its discretion in a case such as this. The Advocate-Depute also referred to Renton
& Brown's Criminal Procedure, 6th
edition, para. 21-09.
He submitted that the Sheriff had not followed the proper
approach. He had not addressed his mind
to any prejudice which would or might be suffered respectively by the accused,
the Crown and the public as a result of his decision. In any event, he had seriously erred in his
balancing of that prejudice. In all the
circumstances the Bill should be passed.
[4] Mr.
Shead, counsel for the respondent, submitted that before the Court could pass
the Bill it had to be satisfied that no reasonable sheriff could have exercised
his discretion in the way that the Sheriff did here. That was a high test. In the last paragraph of his Report (which we
have quoted above) the Sheriff had shown that he understood and had addressed
his mind to the issues. That was a
difficulty for the Crown which had not been overcome. The Court should refuse to pass the Bill.
[5] It
was common ground that the decision on a matter of this kind is one for the Sheriff's
discretion. However, in order properly
to exercise that discretion he must address his mind to three questions. First, he must consider whether the granting
or refusal of the motion will be prejudicial to the accused, the respondent in
this case, and if so what is the probable extent of that
prejudice. Secondly, he must
consider whether the granting or refusal of the motion will be prejudicial to
the prosecutor, the complainer in this case, and if so what is
the probable extent of that prejudice.
Thirdly, he must consider whether the granting or refusal of the motion will
be prejudicial to the public interest independently of any prejudice to the
accused or the prosecution in the particular case, and if so what is the probable extent of that prejudice. Moreover, the Sheriff must give proper weight
and balance to any prejudicial consequences that would or might follow from his
decision. Authority for these
propositions is to be found in the cases of Skeen
v McLaren and Tudhope v Lawrie referred to above.
[6] In
his Report the Sheriff says that in reaching his decision and in exercising his
discretion he took account of the nature of the offence, the history of the
case and the effect of a further delay on the respondent who was, he was told,
suffering from stress and stress related illness as a consequence of being
charged with the alleged offence earlier in the year, and accorded each of
these factors such weight as seemed appropriate to him.
[7] We
have come to the conclusion, however, that the Sheriff's decision cannot
stand. Even if it could be said that the
Sheriff had addressed his mind to the three questions mentioned above, about
which we have considerable doubt, we are quite satisfied that he has materially
erred in the relative weight to be given to, and the balance to be struck
between, the prejudicial consequences that would follow from his decision.
[8] This
was the first trial diet in this case and, accordingly, it was the first time
an adjournment of the trial had been sought.
Until then the proceedings had run smoothly and without delay. There was a number
of cases due to call for trial that day before the Sheriff. No one would know with any precision how long
each case would take. It was therefore
only sensible that the witness, a police officer who was on duty nearby, should
be put on standby. It would have been an
unnecessary waste for him to have come to court at the beginning of the day and
perhaps stayed there all day. It was
obviously preferable that he should attend to his normal police duties and only
come to court when required to do so.
For that to work, of course, it was necessary that he should be
contactable. What appears to have
happened, however, was that at the critical moment he had been sent out for
driving training in a car which did not have a radio. That was certainly unfortunate and should not
have happened. It was, however, not yet midday and there was apparently no
remaining court business that day. In
these circumstances was the failure of the witness to attend so serious as to
justify the Sheriff refusing the motion to adjourn, either until later that day
or to another day, or to have the trial part heard and then going on to desert the
proceedings simpliciter?
[9] The
Sheriff was of the view that an adjournment would cause stress to the
respondent. He was told that she had
been suffering from stress and stress related illness as a consequence of being
charged with the alleged offence. However,
he was not told, nor were we, what the nature and degree of that stress and
stress related illness were. It is not
surprising that the respondent, like many people charged with criminal
offences, should find the proceedings stressful. That is perfectly understandable. The consequence of refusing the Crown motions
and deserting the proceedings simpliciter,
however, was that the prosecution would be brought to an end for good. The prosecutor would not be able to raise a
fresh libel. Moreover, the offence with
which the respondent was charged, a contravention of the Road Traffic Act 1988
section 7, was certainly not trivial and it is not in the public interest for
such charges not to be proceeded with in the absence of good reason. The consequences of refusing the motion to
adjourn were therefore in our opinion seriously prejudicial both to the
complainer and to the public interest. Having
regard to all the circumstances and balancing these considerations, we are
quite satisfied on the information available that any additional stress which
the respondent was likely to suffer by granting the motion either to adjourn or
to part hear the trial did not, and could not reasonably be said to, outweigh
the prejudice to the complainer and the public interest caused by refusing to
adjourn or to part hear the trial and deserting the proceedings simpliciter.
[10] We shall therefore sustain the plea in law for the complainer,
repel the pleas in law for the respondent, pass the Bill, recall the Sheriff's
interlocutor of 5 August
2005 and remit the case to the Sheriff to proceed as accords.
