Complainer: S Collins, Solicitor Advocate; Capital Defence, Edinburgh (for Caird Vaughan, Dundee)

Respondent: Niven Smith, AD; Crown Agent

19 February 2013

[1] The complainer was charged with assaulting a paramedic, assaulting two police constables, resisting the police in the execution of their duty contrary to section 41(1)(a) of the Police Scotland Act 1967 and assaulting Police Constable Gail Beattie in the exercise of her duty contrary to section 41(1)(a). These are very serious offences, and indeed in the Crown's answers they are described as "unprovoked assaults on members of the emergency services who had attended at the complainer's home to assist him in response to a claim that he had taken an overdose of prescription drugs."

[2] At the trial diet on 8 November 2012, neither of the police constables attended. Police Constable Gail Beattie had been excused for an essential medical operation, and Police Constable Ian Burns failed (unexpectedly) to attend. We understand that the Crown were aware of Police Constable Beattie's medical condition and she had been excused for that purpose. The Crown had elected to proceed with the trial, using the two paramedics as witnesses and one police officer. [3] Having heard submissions, the sheriff granted the Crown's motion for an adjournment in respect that the two police officers were not available. That adjournment is now challenged as an inappropriate exercise of the sheriff's discretion. In the course of discussion today, we were referred to guidance given by Lord Carloway (as he then was) in the case of Scott Patterson v The Procurator Fiscal Airdrie, 28 March 2012, 2012 HCJAC 61. In paragraph 6 of that decision, Lord Carloway emphasises that a decision whether or not it is in the interests of justice to grant an adjournment of a trial diet is one which is very much for the court of first instance to take, having regard to the circumstances of the particular case. As he points out, the local court is much better at identifying whether there have been, or are, any systemic failures in the court or prosecution system such that decisive action must be taken. The first instance court is also best able to identify whether an error can be regarded as excusable or otherwise in the context. The appeal court will only intervene with this type of discretionary decision in the absence of misdirection in law if it can hold that the lower court has reached a decision which no reasonable court of first instance could have reached.

[4] Against that background we accept that Police Constable Burns' failure to attend was completely unforeseeable and that his absence could not be attributed to fault on the part of the Crown. We also accept that Police Constable Beattie's absence was for a very justifiable reason, namely an essential medical operation with a late offered date on the particular day. The only caveat we would add is that it would have been courteous to advise the defence of the situation.

[5] Ultimately weighing up the gravity of the charges, the rights of the complainers, the rights and interests of the defence, and the public interest in the administration of justice, we are not persuaded that the sheriff erred in any way in the exercise of his discretion when he granted the adjournment. We refuse therefore to pass the Bill.

DAW