Scottish High Court of Justiciary Decisons

Act: Stevenson, Solicitor Advocate; Paterson Bell Ltd (for Finlaysons, Kilwinning)

Alt: Wade QC AD; the Crown Agent

31 January 2014

[1] This is an application for an extension of time in which to lodge a Bill of Suspension. Apart from the question of lateness, it raises an issue concerning whether a judge can adjudicate upon parallel civil and criminal proceedings involving the same parties.

[2] On 15 March 2013, at Kilmarnock Sheriff Court, the applicant pled not guilty to a summary complaint charging him with a contravention of section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010 by repeatedly shouting, swearing, uttering threats and banging a door at an address in Kilwinning on 14 March 2012. The trial commenced on 20 September 2013 when a witness, namely SC, gave evidence.

[3] On 30 September, SC and her daughter swore affidavits complaining about the behaviour of the applicant for the purposes of civil proceedings which then followed. On 16 October the sheriff granted certain interim orders including interdict against the applicant, and attached a power of arrest. He continued the civil proceedings to await the outcome of the trial. On 8 November, at a continued diet of trial, the sheriff found the applicant guilty of the charge. On 23 December, having obtained a CJSWR, he deferred sentence for a year and ordained the applicant to find caution of £600 in respect of his future behaviour.

[4] The applicant had instructed different law agents in respect of the civil and criminal proceedings. The agent dealing with the civil proceedings, although aware of the criminal case, did not know that it was the same sheriff who was dealing with the trial. He became aware of that sometime between 8 November and 23 December, when he advised the applicant to tell the agent instructed in the criminal proceedings of the position. There is no suggestion that the criminal lawyer was not aware of the parallel civil proceedings. What is clear is that the applicant would know that he was being dealt with by the same sheriff in respect of both processes.

[5] There was no complaint at any stage in the criminal process about the same sheriff dealing with the two cases. There was no application to the sheriff to decline jurisdiction at any stage. There was, of course, no Bill presented shortly after conviction. There was no appeal taken in respect of the conviction by application for a stated case following upon the decision to defer sentence (Criminal Procedure (Scotland) Act 1995, ss 176(1) and 194(3)). On reconsulting the civil agent, this time in respect of his criminal conviction, because of that agent's illness and related matters, no Bill of Suspension was instructed until early January 2014, by which time the limit of 3 weeks from 8 November (1995 Act, s 191A) had long since passed.

[6] No adequate explanation has been put forward to justify the Bill being presented late. The conviction occurred on 8 November, and the applicant was free to attempt to complain about the sheriff's continued involvement then or by a subsequent Bill or to apply for a stated case on the point, within a week of 23 December (ibid s 176(1)). He did none of these. A change of agent does not, of itself, justify an extension of statutory time limits. The fact that a convicted person has found a new agent who disagrees with an earlier one concerning the prospects of an appeal does not automatically result in further time being allocated to permit a process of appeal.

[7] More importantly no arguable case has been presented in the Bill. There was no objection to the sheriff dealing with the criminal case, notwithstanding the civil proceedings, and the court can see no reason why two parallel proceedings of this nature cannot continue to be dealt with by the same sheriff. The test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that a sheriff, who has heard a civil application, involving the applicant, would be biased when considering whether to convict or acquit the applicant in parallel criminal proceedings (see HM Advocate v Sinclair HCJAC, 6 September 2013, unreported, LJC (Carloway) at paras [18] and [19] citing O'Neill v HM Advocate 2013 SCCR 401 and Stewart v Nisbet 2013 SCCR 264, LJC (Carloway) at para [31]). Although the judicial oath does not provide a complete answer, the fictitious observer is aware of its significance and of a sheriff's many years of professional training and experience, designed to strengthen his powers of objective reasoning so that he can make decisions based on the evidence in the particular case and not upon or influenced by external influences or past or current involvement in other or parallel litigations involving the same accused or witness. In the type of situation involved here, there is no real possibility of perceived bias. In these circumstances the court will refuse the application for an extension of time.