Appellant: McKenzie; Beaumont & Co

Respondent: Niven Smith; Crown Agent

4 December 2012

[1] The complainer in this bill of advocation, Graeme Robertson, faces a charge on a summary complaint in the sheriff court at Livingston that on 5 April 2012 at an address in Livingston he assaulted his female partner and did seize her by the body and by the neck, seize her by the hair, pin her to the floor, repeatedly punch her on the head and body and repeatedly bite her on the head and body, all to her injury. The alleged offence occurred, as is apparent from that charge, on 5 April 2012 and, after sundry procedure, a trial diet was fixed for 7 June 2012. We are told that the complainer and five witnesses for the defence attended at that diet but that that diet was adjourned for lack of court time. A second trial diet was fixed for 5 July 2012; again the complainer and his witnesses were present and again the diet was adjourned for lack of court time. A third trial diet was fixed for 13 September 2012 and again that diet was adjourned for lack of court time. Once again the complainer and his five witnesses for the defence were present on that occasion. We were told that the complainer had been employed with the Royal Air Force until shortly after these proceedings were initiated but that a pending criminal trial resulted inevitably in the loss of the necessary security clearance for him to perform his job and accordingly his employment with the RAF had been lost. We have been told that he is presently at college. This was described as "filling in time" and, depending on the result of the criminal proceedings, he may be permitted to reapply for his job and there may or may not be a job for him to apply for at that time.

[2] The circumstances of this case are not greatly dissimilar to the circumstances which were considered by this court in a bill of advocation by Jacob Hendry v PF Livingston which was heard by this court on 16 October 2012 under reference [2012] XJ619/12. In that case the court expressed considerable concern about the history of the case and recognised that there had been prejudice, including financial prejudice, to the complainer in that bill who, along with his witnesses, attended fruitlessly on a date for trial for the third occasion on which a trial had been appointed to proceed but did not take place through no fault of the complainer or his solicitor. In that case it was not suggested in the bill that the Crown was at fault.

[3] In this case Miss McKenzie, who also appeared for the complainer in the bill of advocation by Jacob Hendry, asserted that there had been a lack of dialogue between the Crown and the sheriff clerk regarding allocation of trial diets, particularly the last trial diet on 13 September. There was no suggestion at intermediate diet stage that there would be a problem and, if such an indication had been given, it might have been possible to have set up another court to deal with this trial.

[4] On 13 September the sheriff granted an adjournment of the trial, despite opposition from the agent acting for the complainer. He states that in deciding to adjourn the trial he assumed, as far as he can recollect, that the adjourned diet would be assigned for a date in December 2012, applying the normal delay period under current conditions. It transpired however that one of the witnesses was pregnant; there were dates available in December 2012 but that date was too close to the birth date. Domestic abuse cases have to be dealt with on a Thursday and the first available Thursday, giving a reasonable period for her recovery, was 28 February 2013. Accordingly the sheriff adjourned the trial diet to that date.

[5] In setting out the background for us in his report, the sheriff makes the following observations:

"I note that the bill highlights the number of times a trial has been adjourned and the fact that the delay between events libelled and trial diet will amount to ten months. The definition of 'summary justice' under current conditions in Livingston Sheriff Court includes an understanding that trials are likely to be adjourned for lack of court time on a number of occasions and the delay between events and trial will often exceed six months. I took this into account in my weighing of the various factors."

[6] It was urged on us today that the sheriff had erred in law because it did not appear that he had treated the loss of the complainer's job with the RAF as one of the factors which he required to balance and Miss McKenzie argued that that was a factor of critical importance.

[7] We are not persuaded that this was a factor which was overlooked by the sheriff. The sheriff narrates, at paragraph 2, that "he had been in the RAF before the prosecution began and had now lost his security clearance" and he states that he took the view that in this particular case, taking into account all the circumstances, the public interest should prevail.

[8] It is evident to us that the sheriff was faced with a difficult situation, a situation very similar to the situation which faced the sheriff in the case of Jacob Hendry. He appears to us to have had regard to the respective prejudice to the complainer, to the Crown and to the general public interest. We therefore do not consider that his decision can be said to be vitiated by any error. We have also had regard to the observations of this court in the case of Scott Paterson v The Procurator Fiscal, Airdrie [2012] HCJAC61 and in particular the terms of Lord Carloway's observations at paragraph 6 of that case which conclude with the statement that this court will only intervene with this type of discretionary decision in the absence of a misdirection in law if it can hold that the court has reached a decision which no reasonable court of first instance could have reached.

[9] As we have indicated, we are not persuaded that there has been any misdirection in law, nor can we say that the sheriff reached a decision which no reasonable court of first instance could have reached, facing the difficult situation which presented itself to the sheriff. Accordingly we shall refuse to pass the bill of advocation.

[10] However, as this court did in Hendry, we would observe that having regard to the history and to the prejudice being suffered, we consider that every step must be taken in Livingston to ensure that this case is accorded the priority which it now requires and that it is duly heard at the next trial diet on 28 February 2013.

KAC