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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Eassie
Lady Paton
C.G.B.
Nicholson, CBE, QC,
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[2008] HCJAC 74
Appeal No: XJ 820/08
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
(sitting as a Temporary
Judge)
in
APPEAL BY BILL OF
SUSPENSION
in causa
PAUL BECKLEY
Complainer;
against
PROCURATOR FISCAL, GREENOCK
Respondent:
_______
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Complainer: M.C.MacKenzie; Drummond
Miller (for Stirling & Mair, Paisley)
Respondent: D.Young, A.D.; Crown Agent
9 December 2008
General background
[1] In
this Bill of Suspension the complainer invites us to suspend a conviction which
ensued at the conclusion of a summary trial at Greenock
Sheriff Court on 20 May 2008. For reasons which we shall examine in detail
later the complainer was obliged to represent himself throughout that trial. The general background to that is as follows.
[2] On
27 November 2007 a summary
complaint was served on the complainer at the instance of the respondent. That complaint contained three charges, one of
breach of the peace and two alleging contraventions of the Police (Scotland)
Act 1967, section 41(1)(a). After sundry
preliminary procedures the complaint called for an intermediate diet on 19 February 2008. On that date no legal aid was in place, and
there was a defence motion for an adjournment which was not opposed by the
Crown. The case ultimately called for
trial on 28 March
2008 but, in the absence of essential Crown witnesses, the
procurator fiscal depute moved for an adjournment which was not opposed on
behalf of the complainer, and which was granted by the sheriff with a new trial
diet being fixed for 2 May 2008. On that date the complainer was present along
with his legal representative. However,
it transpired that two defence witnesses, who had been present on previous
occasions, were absent, apparently because they had not been cited for the new
trial diet. What happened thereafter is
examined in more detail later in this Opinion. Suffice it to say for the present that, in the
course of the day, the complainer withdrew his instructions from his legal
representative. At around 3 pm, the trial commenced with the
complainer being required by the sheriff to represent himself. By 4 pm the Crown
evidence (from two police officers) had been concluded. The procurator fiscal depute then sought, and
was granted, leave to make an amendment to charge 1 on the complaint, and at
the same time she indicated that the complainer's plea of not guilty in respect
of charge 2 would be accepted. Due to
the lateness of the hour the sheriff then adjourned the trial to 20 May 2008.
[3] On
that date the defence witnesses who had not been present on 2 May were
available, and they gave evidence. At
the conclusion of the defence evidence the sheriff found the complainer guilty
of the charges as amended, and the case was continued for the preparation of a
social enquiry report. On 11 June 2008 the sheriff deferred
sentence until 10 September for the complainer to be of good behaviour. By that date the present Bill had been lodged,
and accordingly the sheriff simply deferred sentence again in order to await
the outcome of the appeal. In the Bill
the complainer seeks suspension of his conviction, principally on the ground
that it was a miscarriage of justice for him to have been required to conduct
the trial without the benefit of legal representation.
Circumstances surrounding the
withdrawal of instructions from the complainer's solicitor
[4] The
relevant facts in this case are set out by the complainer in the Statement of
Facts contained within his Bill. They
are also set out in the sheriff's report to this Court, and in Answers which
were lodged on behalf of the Crown shortly before the date which had been
assigned for the hearing of this appeal. Unfortunately, there are some striking
differences between the accounts given in these three sources, and it is
therefore necessary to examine each of them in some detail.
[5] The
account given by the complainer in his Bill is to the following effect. Having
described the earlier history of the case, he goes on, in Statement of Fact 2,
to begin to describe what took place at the trial diet on 2 May 2008. He says:
"On that
date the complainer appeared for trial. The
complainer was legally represented. At
the call over the complainer's legal representative commenced making
submissions on behalf of the complainer, advising the Sheriff that two
essential defence witnesses were not present. The defence witnesses had been present at both
previous trial diets and were cited, although copies of the citations were not
available at the time. The complainer's
legal representative was not allowed to complete his submissions to the court, before
the Sheriff indicated that the case would call later for trial. The case was adjourned to later in the day."
[6] The
Statement of Facts then continues:
"3. The case recalled at 3.00 p.m. The complainer due to what had occurred
earlier withdrew his instructions from his legal representative. He was thus appearing in court, for a trial,
without legal representation. The
complainer made a motion to the Sheriff to allow him to instruct another
solicitor. The complainer advised the
Sheriff that there were essential witnesses not present. The complainer advised the Sheriff that he did
not wish to conduct the trial without legal representation. The Crown made a motion to adjourn the trial
to allow the complainer an opportunity to instruct another solicitor. That motion was disallowed. The Sheriff indicated to the complainer that
the trial would proceed and that the complainer would be expected to conduct
his defence personally. The complainer
was not in a position to conduct his own defence. He was not qualified to do so. The charges that the appellant was called upon
to answer were serious, involving police officers.
4. At the conclusion of the Crown case,
legal submissions were made by the Crown amending the charges on the Summary
Complaint. The complainer was not in a
position to make legal submissions on this matter. He was not qualified to do so and did not have
sight of any papers during the course of proceedings.
5. Thereafter the Sheriff adjourned the
trial to 20 May
2008 due to a lack of time. He added that this would allow the complainer
an opportunity to present his defence case and to cite and call his defence
witnesses. On 20 May 2008 the trial recommenced. Although not formerly [sic] cited the
defence witnesses attended and were examined by the complainer. The complainer was convicted."
[7] The
sheriff begins the relevant part of his report to this Court by saying that "on
several aspects, the Statement of Facts is factually incorrect". He then goes on to say:
"When the
case called before me on 2 May 2008, the
complainer's solicitor indicated that his client was maintaining his pleas of
not guilty. He thereafter moved that the
trial be adjourned as the complainer had three defence witnesses who had failed
to appear at the Court. This would have
been the third occasion on which this trial would require to have been
adjourned. I asked the agent for the
complainer whether the three defence witnesses had been cited. I was advised that they had not been cited for
the trial diet of 2 May 2008, but had
been previously cited for a previous trial diet, although he could not produce
the citations. I categorically deny as
stated in Statement of Fact 2, that 'the complainer's legal representative was
not allowed to complete his submissions'. I indicated to the agent for the complainer
that as the defence witnesses had not been cited, the matter would proceed to
trial later in the day."
The sheriff then narrates the
nature of the business which occupied him thereafter, and continues:
"The trial
against the present complainer called at approximately 3.00 pm. The agent for the complainer advised me that
his client was adhering to his pleas of not guilty, but that his client had
withdrawn instructions from him and that he was now no longer appearing for the
complainer. This came as a considerable
surprise to me, as I have had numerous dealings with this complainer during the
years I have sat in Greenock Sheriff Court (as
evidenced by his lengthy schedule of previous convictions) and he has always
been represented by the same agent. I
asked the complainer specifically whether it was correct that he had withdrawn
his instructions from his agent. He stated that he had. I pointed out to him that by doing so, this
did not mean that the trial would then be adjourned. I pointed out that there were witnesses
present in connection with the trial. I
advised him that if he wished to renew the motion to adjourn the trial at the
conclusion of the Crown evidence, I would consider the same. The complainer, however, stated that he did
not want the case adjourned."
[8] The
sheriff describes how he gave certain assistance to the complainer during the
giving of evidence by the Crown witnesses, and he notes that he put it to both
police officers that the complainer denied anything of what they had described
had actually happened, and pointed out that, as far as the complainer was
concerned, their evidence was a tissue of lies. This is followed by a narrative of the motions
advanced by the procurator fiscal depute at the conclusion of the Crown
evidence when, as noted above, she sought an amendment of charge 1 on the
complaint and indicated that she would not be seeking a conviction in respect
of charge 2. The sheriff notes that the
Crown motion was "quite correctly made" in the light of the evidence; and he
suggests that the complainer, having been given an explanation, was "in
agreement with the motions proposed by the Crown".
[9] In
the next part of his report the sheriff states that, since it was by then, nearly
4.00 pm, he advised the complainer that he would be adjourning the trial due to
lack of Court time. He continues:
"The
complainer did not make a motion for the trial to be adjourned as earlier
suggested by me. I considered, however,
in fairness to the complainer that this was an appropriate course of action, to
enable the complainer to consider his whole position and arrange for the
attendance of his defence witnesses."
In passing, we note that, taken as
a whole, this part of the sheriff's report appears to make it clear that the
primary reason for this adjournment was lack of court time and not a desire to
enable the complainer to consider his position. The latter was a possible consequence of the
decision to adjourn, but not the main reason for it.
[10] The sheriff then continues his
report by saying:
"With
reference to Statement of Fact 3 in the Bill of Suspension, it is incorrect
that the Crown made a motion to adjourn the trial to allow the complainer an
opportunity to instruct another solicitor. While I was considering whether it would be
appropriate to adjourn the trial on the motion of the agent for the complainer,
the Crown intimated to me that they would not object to any such adjournment. They did not, however, make any formal
motion."
The sheriff then considers the
averment in Statement of Fact 4 to the effect that the complainer did not have
any of the case papers. In that regard he says:
"I would
have expected a solicitor whose services had been dispensed with on the
instructions of a client to have passed any relevant papers to that client,
particularly when it was obvious that a trial was to proceed."
Finally, it is to be noted that the
sheriff narrates that the solicitor who had been representing the complainer
remained in court, on the public benches, during the course of the proceedings
on the afternoon of 2 May 2008.
[11] As can be seen, there are several significant differences
between the account of events set out in the Bill of Suspension and the account
contained in the sheriff's report. There
is a difference as to whether or not, at the stage of the call over of cases
first thing in the morning, the complainer's solicitor was prevented from
completing his submissions in respect of the absence of two defence witnesses. That difference may not be of great
significance since the sheriff does seem to have been aware at that stage that
the defence witnesses were missing. Of
greater significance is the conflict as to what was said by the complainer when
he came to address the sheriff in person when the case called for trial at 3 pm. As noted above, the complainer maintains that
he made a motion to be allowed to instruct another solicitor, and that he
advised the sheriff that he did not wish to conduct the trial without legal
representation. The sheriff, for his
part, makes no mention of any motion having been made by the complainer, but he
does say that the complainer stated that he did not want the case adjourned. Equally significant is the conflict regarding
a motion to adjourn at the instance of the Crown. The complainer says in his Bill that, at the
calling of the case at 3 pm, the Crown
made a motion to adjourn the trial to allow the complainer an opportunity to
instruct another solicitor, but that that motion was 'disallowed'. The sheriff, by contrast, says that this is
incorrect. Somewhat curiously, however,
he goes on to say that, while he was considering whether it would be
appropriate to adjourn the trial on the motion of the agent for the complainer,
the Crown intimated that they would not object to any such adjournment. There is no mention elsewhere of a motion to
that effect having been made by the complainer's solicitor, and it would, in
our view, be strange, if not indeed inappropriate, that he should have sought
to present such a motion at 3 pm by which stage his instructions had been
withdrawn. It may be that what the
sheriff is referring to is a motion made by the complainer's solicitor at the
stage when he was addressing the sheriff in the course of the call over in the
morning; but it is clear that what the complainer is referring to in his Bill
is a motion made by him in the absence of his solicitor, and a comparable
motion made by the Crown, at around 3 pm in the afternoon.
[12] Against that background it is now necessary to look at what is
said on behalf of the Crown in their Answers to the Bill. Of significance is what is said in response to
the third paragraph of the Statement of Facts in that Bill. Answer 3 for the Crown is as follows:
"3. Admitted the case recalled at 3.00 pm. Admitted that the complainer withdrew his
instructions from his legal representative. Admitted that the complainer was appearing in
court, for a trial, without legal representation. Admitted that the complainer
advised the Sheriff that there were essential witnesses not present. Admitted that the Crown made a motion to
adjourn the trial to allow the complainer an opportunity to instruct another
solicitor. Admitted that the Sheriff
indicated to the complainer that the trial would proceed and that the
complainer would be expected to conduct his defence personally. Admitted the charges the appellant was called
upon to answer were serious, involving police officers. Not known and not admitted that the complainer
made a motion to the Sheriff to allow him to instruct another solicitor. Quoad ultra denied. Explained and averred that the Crown asked the
Sheriff whether he would consider a motion to allow the complainer to instruct
fresh representation to which the Sheriff replied in the negative. Explained
and averred that the complainer stated to the Sheriff that he did not want the
case to go ahead and that he did not know what questions to ask."
[13] On one view, there is something of an inconsistency between the
clear admission, near the beginning of the above Answer, that the Crown made a
motion to adjourn the trial to allow the complainer an opportunity to instruct
another solicitor and, on the other hand, the later explanation that the Crown
'asked the Sheriff whether he would consider' such a motion. We suspect, however, that this may simply be a
distinction without a difference. What
is clear is that, contrary to what is said by the sheriff in his report, the
Crown supports the complainer's position that, by whatever means, such a motion
was indeed advanced by the Crown at the stage when the complainer was no longer
represented. The sheriff, of course, did
not have the Crown's Answers available to him at the stage when he was drafting
his report. However, in the course of
the hearing before this Court, the advocate depute advised us that, being aware
of the conflict with what had been said by the sheriff, he had expressly
checked the position with the procurator fiscal depute who had conducted the
trial, and had received an assurance that what is contained in the Answers is
correct. We also note that the last
sentence of the Answer quoted above is at odds with that part of the sheriff's
report where he asserts that the complainer stated that he did not want the
case adjourned.
[14] Some further light was shed on the foregoing inconsistencies in
the course of the submissions which were advanced at the appeal hearing, and we
now turn to consider those submissions.
Submissions for the complainer
[15] Miss MacKenzie began her submissions on behalf of the
complainer by addressing some of the factual issues to which we have just
referred. She dealt first with the
matter of the complainer not having any papers after he had withdrawn his
instructions from his solicitor. She
advised us that this would indeed be the case since, as she understood the
position, there is a Law Society rule in place which prohibits a solicitor
whose services have been dispensed with from handing over his papers to the lay
client. Moreover, there is also a Crown
Office rule whereby any Crown statements or precognitions which are made
available to a defence solicitor or counsel under disclosure procedures must be
returned to Crown Office if instructions are withdrawn from that solicitor or
counsel. The advocate depute confirmed
the existence of that Crown Office rule though neither he nor Miss MacKenzie
was able to confirm the existence of the Law Society rule. For present purposes, however, we are prepared
to proceed on the basis that the complainer's former solicitor was entitled,
even if not bound, to retain all of the case papers after his instructions had
been withdrawn with the consequence that the complainer, not having any sight
of those papers, might well have suffered prejudice on being required to conduct
the trial on his own. It is clear,
therefore, that on this matter the sheriff was mistaken when, as noted above,
he said that he would have expected relevant papers to have been passed to the
former client.
[16] Miss MacKenzie then went on to deal with what actually occurred
from the point, at around 3 pm on 2 May 2008, when the complainer began
to represent himself. In that connection
she advised us that, as reported by the sheriff, the complainer's former
solicitor took a seat in the public benches during the rest of the afternoon's
proceedings. She also advised us that,
in the course of those proceedings, he took a note of what occurred, as nearly
as possible verbatim. Miss
MacKenzie read to us what the solicitor had noted, and the gist of that is that
the complainer said to the sheriff that he wanted to instruct another lawyer
but was told by the sheriff that the trial 'will proceed to-day'. The note then went on to say that the Crown,
on two occasions, invited the sheriff to adjourn the trial to allow another
solicitor to be appointed but were told that that was not going to happen. According to the solicitor's note, the sheriff
said that it is a common situation for a solicitor to come out and for a person
to have to represent himself, and he went on to say to the complainer: "You
have no choice. You have dispensed with
the services of Mr Kerr, so you have to do the trial yourself".
[17] Before turning to her main submissions Miss MacKenzie also
dealt with a point which we raised with her. That was whether the complainer had taken any
steps to challenge what had happened during the period of three weeks or so
between 2 and 20 May when the part-heard trial was adjourned. She advised us that the complainer had indeed
sought legal advice during that period but had been advised by (an unnamed)
counsel that, since the trial had started, nothing could be done by way of
suspension or otherwise until after the trial had concluded. We make no comment regarding the soundness of
that advice. For present purposes it is
sufficient that the complainer sought, and obtained, advice during the period
in question and was therefore not guilty of any sort of acquiescence in
allowing the trial to continue.
[18] Against the foregoing background Miss MacKenzie submitted that
the proceedings in this case, taken as a whole, made the complainer's
conviction unsound. She noted that the
sheriff founds on the fact that the complainer is not unfamiliar with court
proceedings but, she submitted, that is nothing to the point in the present
case. The complainer, on his own, had no
means of being prepared to conduct his defence and, as a result, the defence
case may well not have been properly put to the Crown witnesses. Miss Mackenzie acknowledged that the sheriff
had attempted to assist the complainer to a certain extent but, as she pointed
out, the sheriff, for obvious reasons, could not have known what the defence
case was to be and, as a result, was not in a position to put relevant, and
potentially significant, matters to the Crown witnesses. In those circumstances, therefore, the sheriff
should have given favourable consideration to the motions seeking an
adjournment to enable the complainer to obtain the services of a new solicitor;
and his failure to do so amounted to a miscarriage of justice.
[19] In support of the foregoing submissions Miss Mackenzie referred
to a number of authorities. The first of
these is Venters v. HM Advocate 1999 SLT 1345. That was a case in which the appellant was
tried on indictment for attempted murder and assault. Special defences of alibi and incrimination
had been lodged and, on that basis, the Crown witnesses led on the first day of
the trial were cross examined to the effect that the appellant was not present
and that their evidence identifying the appellant was either false or mistaken.
On the second day of the trial the
appellant changed his defence to one of self defence, and that occasioned the
withdrawal of his counsel and instructing solicitors. There was then some discussion between the
appellant and the trial judge as to how the case should proceed, in the course
of which the appellant indicated that he would like to have another counsel. The trial judge then asked if the appellant
was happy to go ahead and represent himself to which the appellant replied in
the affirmative. In due course he was
convicted. On appeal, it was held, by a
majority, that justice had not been seen to be done. In that connection the Lord Justice Clerk
(Cullen), in the penultimate paragraph of his Opinion, said that he had come to
the conclusion that, when passages in the discussion between the trial judge
and the appellant were looked at as a whole "there was a failure on the part of
the trial judge to ensure that justice was seen to be done". The Lord Justice Clerk went on to express some
sympathy for the trial judge, not least having regard to the fact that there
had been a number of previous adjournments at the instance of the defence, and
to the fact that the position ultimately adopted by the appellant represented a
radical change of direction. Nonetheless,
the Lord Justice Clerk concluded that justice was not seen to be done.
[20] The next case referred to by Miss MacKenzie is Bullock v. H
M Advocate 1999 JC 260. This is a
somewhat unusual case in that, initially, the appellant voluntarily undertook
to represent himself at a trial on indictment before a sheriff and jury on charges
of thefts by housebreaking and breaking into property, and one charge of theft
of a motor vehicle. It appears that, as
the trial progressed, the sheriff became concerned about what he saw as the
inept way in which the appellant was conducting his defence. However, matters seem to have come to a head
when, on the one hand, the procurator fiscal began to lead evidence on matters
which did not form part of the charges on the indictment and, on the other
hand, the appellant brought out his own previous convictions. At that stage, apparently, the appellant
sought an adjournment in order to obtain legal representation, but that motion
was refused. In due course the appellant
was convicted, and he thereafter appealed against that conviction. Even in the somewhat unusual, and arguably
unpromising, circumstances of this case, this Court took the view that the
sheriff's refusal of an adjournment amounted to a miscarriage of justice, and
the appeal was allowed.
[21] Reference was also made by Miss MacKenzie to Mason &
McDougall v. H M Advocate 2008 SLT 656. That was a case in which two accused persons
were convicted of committing a series of concerted assaults and robberies
within a short period of time. The first
appellant submitted that justice had not been seen to be done in his case when
regard was had in particular to the fact that he had been left without legal representation
after his agent withdrew following his failure to sign a mandate clarifying
instructions, and a request for an adjournment to seek new legal representation
was refused by the trial judge on the basis that the case had already been
adjourned to later sittings of the court on two occasions. In delivering the Opinion of the Court, which
allowed the appeal, the Lord Justice General (Hamilton) said (at para. [36]):
"What we
have said should not be taken as discouraging judges from taking all reasonable
steps to expedite the progress of trials - including in appropriate
circumstances encouraging accused persons to remain with their existing counsel
and solicitors. Where, however, that is
not achieved, an accused must generally be given a proper opportunity of
applying for an adjournment to obtain fresh representation, which application
will fall to be decided on its merits."
[22] By reference to the foregoing authorities Miss MacKenzie
submitted that there was nothing in the present case to suggest that the
complainer was being deliberately obstructive, or that he was simply trying to
delay his trial. Moreover, any
inconvenience to the Crown arising from the grant of an adjournment would be
minimal since the only witnesses for the Crown were two local police officers. That, it was submitted, was in marked contrast
to the position in Mason & McDougall where one of the Crown
witnesses had travelled from abroad and where there were two interpreters
present in court.
[23] Miss MacKenzie also submitted that the course taken by the
sheriff in the present case was oppressive, with reference being made in that
regard to Fraser and Another v. MacKinnon 1981 SCCR 91. Three questions are posed in the Opinion of
the Court in that case (at page 95), and Miss Mackenzie suggested that, with
any necessary modification, the same questions might be asked in the present
case. The first question is: Was it
necessary in the public interest for this particular trial to proceed when it
did on the order of the sheriff? The
second question is: Was it necessary to avoid prejudice to the prosecutor to
require this particular trial to proceed? And the third question is: Was there or was
there not likely to be prejudice to the complainer if he was required to go on
trial on that day without the assistance of a solicitor? In Fraser and Another the Court
answered the first two questions in the negative; and in respect of the third
question its answer was that there was obviously likely to be prejudice to the
complainers in the taking of the decision which the sheriff took. Miss MacKenzie submitted that, in the present
case, the foregoing questions might appropriately be asked and, in that event,
they should be answered in the same manner. On the whole matter Miss Mackenzie's submission
was that the sheriff in the present case had been wrong to refuse the motion
for adjournment. Indeed, she went
further and submitted that, in the light of the authorities referred to, he
ought properly to have adjourned the trial ex proprio motu.
Submissions for the Crown
[24] The advocate depute's response was quite brief. He submitted that an accused person has no
absolute right to representation at a trial, and that the test must be whether
a refusal of an adjournment in order to allow such a person to secure
representation can properly be regarded as amounting to an injustice. In the present case, it was submitted, there
was no injustice as a result of the decision taken by the sheriff. The case involved a single accused; the
charges were simple; the trial was taking place at summary level; there were
only two Crown witnesses; and no complex legal propositions were involved. The advocate depute also founded on the need
to process court business efficiently. He
did, however, concede that his submissions might be seen as lacking force in
light of the fact that, as accepted by the Crown, the procurator fiscal depute
at the trial had herself made a motion in favour of an adjournment of the
trial.
Discussion
[25] Given, as we have noted above, that there are some significant
factual conflicts as between, on the one hand, the account of events on 2 May
2008 set out by, and on behalf of, the complainer, and largely supported by the
Crown, and, on the other hand, the account set out by the sheriff in his note,
we consider that the first matter for us is to see if those conflicts can be
reconciled and, if not, to decide which version to prefer for the purposes of
this appeal. In approaching that task we
readily recognise that, in a busy sheriff court, where many cases have to be
dealt with in the course of a day, it may not be possible for a sheriff to
recall some time later precisely what was said in the course of discussions
relating to a particular case. We also
recognise that, in respect of summary proceedings, there is no official record
of exchanges which have taken place between an accused person, or his
solicitor, and the presiding sheriff. On
the other hand, the complainer's version of events in the present case is
supported not only by the procurator fiscal depute who conducted the trial
(with her recollection having been expressly confirmed by the advocate depute
shortly before the appeal hearing) but also by the nearly verbatim notes
which were made by the complainer's former solicitor who had remained in the
public benches during the period in question. In the whole circumstances we have come to the
conclusion that the factual conflicts which arise from the sheriff's note
cannot be reconciled with the narrative of events which comes from other
sources: and, having regard to the nature of this appeal, we consider that we
should proceed on the basis that the account contained in the complainer's Bill
is substantially accurate.
[26] That being so, we must next consider whether, on those facts,
the sheriff's refusal to adjourn the trial amounted to a miscarriage of
justice. In that regard, we should begin
by making it clear that we do not consider that the sheriff is open to
criticism for declining to adjourn the trial at the stage of the early morning
call over when he was addressed by the complainer's then solicitor and was
advised of the fact that two essential defence witnesses were not in court. By deciding that the case would call for trial
later in the day the sheriff was arguably doing no more than to cater for the
possibility that the missing witnesses might simply arrive late. Moreover, it is possible that at that stage he
had in mind that, if the case was called for trial later in the day, it might
not, as in fact happened, be concluded because of lack of time in which event
there would, of course, be another opportunity for the missing witnesses to
turn up at an adjourned diet. Bearing in
mind that, at the stage of the call over, the complainer was still represented
by his solicitor, there could be no unfairness or prejudice if the trial were
to be started later that day with a continued diet being fixed for a later
date. That would, instead, represent a
sensible use of court resources.
[27] However, by 3 pm in the afternoon of 2 May circumstances had
changed significantly in that the complainer no longer had the services of his
solicitor; and in that situation the primary question for the sheriff should no
longer have been whether the trial might be adjourned part-heard so as to allow
a further opportunity for the defence witnesses to attend. The primary question by then should have been
whether the trial as a whole should be adjourned so as to give the complainer
an opportunity to seek alternative representation.
[28] Looking at the sheriff's report as a whole, we are not
satisfied that he gave that question the attention which it required. It is clear from the cases referred to by
Miss MacKenzie in the course of her careful submissions that, if an
accused person finds himself without representation either just before the
commencement of a trial or indeed in the course of a trial, the presiding judge
or sheriff must give careful consideration to whether that accused person may
be exposed to prejudice and injustice if not given an opportunity to instruct a
new representative. As has been seen in
the cases referred to, the need for such consideration arises even where the
accused person indicates a willingness to proceed on his or her own; and, in
our opinion, that need will be all the more compelling when the accused person
expressly asks for an adjournment, as happened in the present case if, as we
consider must be the case, the complainer's account of events is accepted as
being substantially accurate.
[29] We recognise, of course, that a decision as to whether or not
to adjourn is ultimately one for the discretion of the presiding judge or
sheriff. However, there will always be a
number of matters and considerations which will require to be taken into
account when that discretion is being exercised, though, of course, the nature
of such matters and considerations, and the weight to be attached to them, may
well vary from case to case. What, then,
were the 'matters and considerations' which ought to have been taken into
account in the present case, and what weight ought to have been given to them?
[30] The first consideration must, we think, be whether an accused
person is likely to be prejudiced if required to conduct a trial without legal
representation. The sheriff appears to
have been influenced to some extent in respect of that by the fact that, to his
knowledge, this complainer was no stranger to the criminal courts and was
therefore "well aware of trial procedure". On this matter, however, we agree with Miss
MacKenzie that the complainer's previous experiences in the criminal courts are
nothing to the point since what was in issue was not whether he was familiar
with trial procedure but whether he had the skills to conduct his own defence,
including the cross examination of Crown witnesses, in a competent manner. Indeed, we have some doubts as to the
appropriateness of the sheriff taking any account at all of the complainer's
record in determining this matter.
[31] The charges which the complainer faced were far from being the
most serious known to the criminal law. Nonetheless,
they were not trivial and, on a finding of guilt, might well have resulted in a
custodial sentence. Accordingly, it was,
we think, important to consider carefully whether the complainer could be expected
to conduct his own defence in a competent manner. In that connection, Miss MacKenzie advised us
that there was in fact a substantive defence to the charges which would require
to be put to the Crown witnesses, but we are unable to say whether the
complainer was aware of the details of that defence, particularly since, as has
been noted, he did not have the papers which his solicitor had prepared for the
case. More to the point, the sheriff
would certainly have been unaware of any substantive defence which might have
been advanced on behalf of the complainer: and in that situation any assistance
which he might have felt able to offer to an unrepresented accused would have
been severely limited. The potential
prejudice accruing to an unrepresented accused in such circumstances is, we
think, self-evident.
[32] The next consideration must be (to echo one of the questions
set out in the case of Fraser and Another, referred to above) whether it
was necessary in the public interest for this trial to proceed when it did. In that connection the sheriff seems to have
been to some extent influenced by the fact that this trial had previously been
adjourned: but we note that on the previous occasion when that happened the
adjournment was granted on a Crown motion arising from the non-availability of
the Crown witnesses. Moreover, this was
in any event a trial which involved only two Crown witnesses both of whom were
local police officers. No doubt it is
always desirable to try to reduce the drain on police manpower which inevitably
occurs when officers have to spend time in the precincts of a courthouse. However, given that an adjournment has been
held to be necessary even where the consequences for witnesses and others were
much more serious (Mason & McDougall v. H M Advocate), we do not
consider that it can be said that it was necessary in the public interest that
the two Crown witnesses in the present case should not be required to attend
court again on a future occasion. Nor is
this a case where it can be said that the complainer was trying to be
deliberately obstructive. There is
nothing to suggest conduct of that kind in any of the accounts of what took
place on 2 May, and, consequently, we do not consider that it can be said that
the public interest would be prejudiced if the trial did not proceed on that
date. Finally, in this connection, there
is the position of the Crown. Quite
properly, the Crown is always alive to the need to safeguard the public
interest where possible in the course of criminal proceedings: but, in the
present case, as has been seen, the Crown were not only content for there to be
an adjournment but in fact made a motion for that to be allowed. That, in our opinion, is eloquent of the fact
that the Crown did not see any potential prejudice to the public interest were
an adjournment to be granted
Decision
[33] Taking all of the foregoing considerations into account, we are
of opinion that the sheriff erred in declining to allow an adjournment of this
case on the afternoon of 2 May 2008 in order to allow the complainer an
opportunity to instruct another solicitor. The consequence of that error was that the
complainer did not have a fair trial: and that constitutes a miscarriage of
justice. We shall therefore pass this
Bill and suspend the conviction complained of.
A Devolution Minute
[34] There is one further matter which we must mention before
concluding this Opinion. That is that,
only a very few days before the hearing of this appeal, a document purporting
to be a Devolution Minute was lodged on behalf of the complainer. It had not been prepared by Miss MacKenzie but
by a different counsel who had drafted the Bill of Suspension and who, it
appears, had been acting on behalf of the complainer thereafter, though, at the
end of the day, he did not appear on behalf of the complainer at the appeal
hearing. In that Minute it is averred
that, by lodging Answers to the Bill of Suspension, the Crown had acted in a
way which was incompatible with the right to a fair trial as guaranteed by
Article 6 of the ECHR.
[35] We have very considerable doubts about the relevancy of a
Devolution Minute which bears to proceed on such grounds. However, in the course of the appeal hearing,
Miss MacKenzie very properly recognised that the Devolution Minute could simply
be ignored if, at the end of the day, we were to decide the appeal in the
complainer's favour. Since that is what
has now happened, we need say no more about this document.
