Act: Brown; Paterson Bell

Alt: P. Ferguson, Q.C. A.D.; Crown Agent

4 June 2009

The background circumstances

[1] The complainer in this Bill of Suspension has been charged on a summary complaint at the instance of the respondent with indecent assault. The date of the alleged offence is 5 July 2007. The procedural history is that the complainer originally appeared from custody on a petition on 3 September 2007. He was committed for further examination and admitted to bail. However, the charge was later reduced to one under summary procedure, following which the complainer appeared on a summary complaint at a diet on 3 December 2007, when he pled not guilty. A trial diet was fixed for 25 March 2008.

[2] At the intermediate diet on 12 March 2008 the respondent's representative stated that the relevant disclosure statements and copy productions would be made available to the complainer prior to the trial diet. However, the relevant statements were not disclosed to the complainer until 25 March 2008, the date of the trial diet itself. Copy productions were not then available. In these circumstances, a motion by the complainer to adjourn the trial diet was granted and a fresh trial diet fixed for 3 June 2008, with an intermediate diet on 21 May 2008.

[3] By letters, dated 4 April 2008 and 21 May 2008, the respondent was asked to disclose relevant necessary material to the complainer. This material included details of previous convictions of the respondent's witnesses and information regarding an offence alleged to have been committed by the complainer. At the intermediate diet on 21 May 2008, the respondent stated that disclosure would be made in advance of the trial diet and the case was continued. On 3 June 2008, the date of the trial diet itself, disclosure not having been made, the complainer was again required to move the Court to adjourn the trial. It was explained to the Court then that the complainer was unable properly to draft an application in terms of Section 275 of the Criminal Procedure (Scotland) Act 1995, in the absence of full disclosure. In these circumstances, the trial diet was adjourned to 7 October 2008, with an intermediate diet on 19 September 2008.

[4] Further letters were sent to the respondent on 30 July and 16 September 2008, on behalf of the complainer, again requesting that the material sought should be made available. At the intermediate diet on 19 September 2008, the respondent advised the complainer that the material would be produced. A further letter was sent on behalf of the complainer in connection with the same matter on 22 September 2008. At a continued intermediate diet, which called on 1 October 2008, the relevant material had still not been produced to the complainer. An application under Section 275 of the 1995 Act was drafted in the absence of the relevant material. On 6 October 2008 the Court granted that application, which was not opposed by the respondent.

[5] On 6 October 2008, the respondent became aware that his minutes recorded that the trial diet was to take place on 10 October 2008; however, the Court minutes recorded the date as 7 October 2008. The complainer's advisers had themselves minuted the trial diet as taking place on 7 October 2008. Against that background, on 7 October 2008, the respondent's representative moved the Court to adjourn the trial diet in consequence of the problems created by the error in the recording by the respondent of the date for the trial diet. That motion, which was opposed on behalf of the complainer, was granted by the Court.

[6] In this Bill of Suspension the complainer avers that he is under necessity of applying to this Court for the suspension of what is described as a pretended interlocutor pronounced at Falkirk Sheriff Court on 7 October 2008, granting the Crown motion to adjourn the trial diet, which interlocutor is said to be unjust, erroneous and contrary to law. The complainer seeks that the Court should suspend the interlocutor simpliciter.

A preliminary issue

[7] At the outset, counsel for the complainer acknowledged that the selection of a Bill of Suspension in the circumstances of the present case had been inappropriate. A Bill of Suspension would only be appropriate if what was sought to be suspended was a warrant or a decree or final determination. The mechanism which ought to have been adopted in this case was that of a Bill of Advocation. He invited the Court to treat the present Bill as such.

[8] In the light of counsel's position, we invited the Advocate depute to comment on the proposal made. He emphasised that the Crown had not challenged the competency of the Bill of Suspension. He drew our attention to Durant v Lockhart 1985 S.C.C.R. 72. In that case the distinction between a Bill of Suspension and a Bill of Advocation was discussed. A Bill of Advocation was competent only in very special circumstances in the course of trial proceedings in the lower courts, as appeared from what was said at page 74 by Lord Jauncey, delivering the Opinion the Court. The Advocate depute contended that the circumstances here did not admit of the use of a Bill of Advocation because they were not very special in the sense mentioned. It might be that it was difficult to consider the competence of the proceedings separately from the merits.

[9] In reply, counsel for the complainer commented that Durant v Lockhart was a case of its time. Since it had been decided, the use of Bills of Advocation by accused persons had become relatively common. In this connection he referred to Simpson v Thompson 2007 S.C.C.R. 503. That was a case in which, in a Bill of Advocation at the instance of an accused person, an issue of delay in the context of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms had been brought before the Court, arising out of a decision on an adjournment. The Bill had been refused, but no adverse comment upon its selection as a mechanism in the circumstances of that case had been made.

[10] In the light of the foregoing contentions, we concluded that it was appropriate to hear submissions on the merits of the Bill.

The submissions of the complainer

[11] Counsel for the complainer began by explaining the history of these proceedings already described. He recognised that, if this Bill were granted, the effect would be that the proceedings against the complainer would be held to have come to an end on 7 October 2008, since no trial took place on that date. In that connection he referred to Donaldson v Kelly 2004 S.C.C.R. 153. In that case the Crown had brought a Bill of Advocation following upon the refusal of a Sheriff to grant an adjournment of a trial in circumstances where that was sought because of the absence for a second time of witnesses owing to the failure of the Crown to cite them. The Court had held that each motion to adjourn had to be considered on its own individual merits, but that the problem described by the Sheriff was a matter of serious concern. It was appropriate for the Sheriff to take into account the fact that the respondents and their witnesses had for a second time been put to the inconvenience of taking time off work to attend an abortive trial diet. While proper weight had to be given to the public interest in securing that those who were accused of having committed serious crimes were prosecuted, the weight of that consideration was a matter of degree. In these circumstances the Bill was refused. Thus the fact that, if the Court were to grant the present Bill, that would have the effect of bringing the criminal proceedings against the complainer to an end was not a conclusive factor. Counsel went on to draw our attention to the terms of the Sheriff's report to this Court in the present case. The Sheriff had described the situation that developed on 6 October 2008. There had been a series of failures on the part the Crown. Against that background, the adjournment sought ought not to have been granted. What had occurred on that date might be described as the last straw. It was acknowledged that the Sheriff had to exercise a discretion in relation to the matter of adjournment, which involved a balancing exercise of the public interest against the interests of the complainer. The decision reached by the Sheriff had been perverse.

The submissions of the respondent

[12] The Advocate depute moved the Court to refuse to pass the Bill. He relied upon Simpson v Thompson, particularly what was said in paragraph [9] of the Opinion of the Court, delivered by Lord Osborne. In that case none of the traditional bases upon which the exercise of a discretion could be criticised had been identified. That was also the position here. Examination of the Sheriff's report to this Court showed the adoption of a correct approach to the exercise of his discretion. No flaw in it could be identified.

[13] The Advocate depute went on to rely on Tudhope v Laurie 1979 J.C. 44, particularly the observations of Lord Cameron at page 49. He there acknowledged that there was no doubt that it lay within the power of a Sheriff to refuse to grant an adjournment of a diet, with the consequence that an instance might fall and a prosecution be brought to an end. However, that was a power which, in view of the possible consequences of its exercise to parties and to the public interest, had to be exercised only after the most careful consideration. The Sheriff's decision in the present case had been reached as a result of a balancing exercise. One of the factors that had to be taken into account was the serious nature of the offence with which the complainer had been charged. It had to be borne in mind that, if this Bill were granted, the prosecution against the complainer would be brought to an end. In all the circumstances the Bill should not be passed.

The decision

[14] There can be no doubt that the making of a decision by a Sheriff as to whether or not an adjournment of a trial diet should be granted is a matter of discretion. That was recognised at page 49 in the Opinion of the Court in Tudhope v Laurie, in Donaldson v Kelly, and in Simpson v Thompson in paragraphs [8] and [9] of the Opinion of the Court. In these circumstances, the question for us must be whether there have been identified in this case any of the recognised grounds upon which the Sheriff's exercise of discretion can be attacked. It was not suggested in this case that the Sheriff took into account some irrelevant factor in reaching his decision, nor was it suggested that he had ignored some relevant factor. There was no suggestion of any misapprehension of the facts, or of any error in law. That being so the only remaining question is whether the Sheriff's decision can be said to be one which no reasonable Sheriff could have reached in all the circumstances of the case. Looking at the Sheriff's reasoning at pages 19 and 20 of the Bill, disclosed in his report to this Court, we cannot conclude that the Sheriff's decision was unreasonable in that sense, or perverse. In these circumstances we can see no basis upon which we could properly interfere with that decision. Therefore we shall decline to pass the Bill.

[15] In view of the conclusion which we have reached on the merits of the matter, we find it unnecessary to resolve the issue which was raised initially by counsel. It may be sufficient to say that, in current practice, the use of a Bill of Advocation by an accused person to raise an issue such as that raised here is not unusual. Indeed that was the mechanism adopted in Simpson v Thompson.