Complainer: S Collins, (Sol Adv); Capital Defence Lawyers (for Bridge Litigation UK Ltd)

Respondent: T Niven Smith, AD; Crown Agent

11 September 2013

[1] The complainer, aged 42, is charged with being concerned in the supplying of heroin on 22 February 2012.

[2] On 12 June 2013 the sheriff granted the Crown's motion to adjourn the fifth trial diet - on that particular occasion due to lack of court time. The complainer has presented a bill of advocation contending that the decision was wrongous and oppressive.

[3] The sequence of events was as follows: 22 February 2012, the alleged offence; 23 February 2012, a plea of not guilty; 30 May 2012, the intermediate diet; 15 June 2012, the first trial diet. This trial diet was postponed on Crown motion because two essential witnesses (addicts said to have purchased heroin from the complainer) were not in attendance at court. On 30 July 2012, the second trial diet took place. This trial diet was postponed on Crown motion because those same two witnesses had not been cited as a result of what was said to be "administrative oversight": the fiscal taking the case had not appreciated the difficulty relating to these two witnesses. On 14 September 2012, the third trial diet took place. This diet was adjourned on joint motion. What occurred that day was that the Crown changed their approach to the case. Because the two drug addicts could not be produced, resort was to be had to CCTV evidence showing their approaches to the complainer. The CCTV evidence was only disclosed to the defence that morning. So, to that extent, the adjournment was attributable to the Crown's change of approach. On 18 January 2013, the fourth trial diet took place. On that particular occasion, one of the police witnesses had to attend a funeral, and the trial was adjourned on Crown motion which was not opposed. Finally, on 12 June 2013, a fresh fifth trial diet called at 1640pm. Court business was such that it had not been called earlier. Again, the trial was adjourned to 7 October 2013 for the reasons given by the sheriff in his report.

[4] We accept that it is usually very much for the local court to decide whether an adjournment should be granted. Lord Carloway's guidance in paragraph 6 of Paterson v Procurator Fiscal, Airdrie, 28 March 2012 [XJ116/12] is the authoritative ruling on this matter. However, in the present case we cannot ignore certain factors to which, in our opinion, the sheriff should have given greater weight. It is the passage of time in this case, taken with the number of trial diets, which seems to us worthy of mention. The sheriff refers to the fact that the offence was only 16 months earlier. However, we note that this is summary procedure, and it seems unfortunate that a time lapse of that nature is regarded as compatible with summary procedure. The offence is now in fact some 19 months old. Furthermore, we note that the first trial diet was in June 2012. The fifth trial diet was a year later, in June 2013. Again that factor seems to run counter to the notion of summary procedure. The time element alone, in our view, brings this case into the category of exceptions mentioned by Lord Carloway in the case of Paterson. But in addition, it appears that trial diets were postponed because of the conduct of the case by the Crown. In particular we have in mind the second and third trial diets. Further it was drawn to our attention today by Mr Collins that the complainer is said to suffer from mental health difficulties.

[5] In all the circumstances, we have formed the view that this is an exceptional case where the Appeal Court should intervene. We shall pass the bill, allow the appeal and accordingly order that the case be deserted simpliciter.

Aud