Scottish High Court of Justiciary Decisons

Complainer:  Gilfedder, Solicitor Advocate; Paterson Bell Ltd, Edinburgh for FFM Solicitors, Glasgow

Respondent:  Erroch, AD; Crown Agent

28 January 2015

[1]        The complainer is charged, along with his co-accused, on complaint with having in his possession a Class A controlled drug commonly known as Ecstasy at the Arches Nightclub in Glasgow on 23 December 2013 with intent to supply it to another or others in contravention of section 5(3) of the Misuse of Drugs Act 1971.  The charge is subject to a bail aggravation. 

[2]        The complaint called before the sheriff at an intermediate diet on 12 November 2014.  A trial diet had been fixed for 15 December 2014.  The Crown moved to postpone the trial because forensic analysis of certain items recovered by the police on 23 December 2013 had not been carried out.  The sheriff granted the Crown motion with the result that an alternative trial diet was fixed for 14 May 2015.  By way of bill of advocation, the complainer seeks to have the sheriff’s decision recalled as oppressive, erroneous and contrary to law and postponement of the trial diet refused. 

[3]        The complainer founds in particular on the repeated failure by the Crown to instruct such forensic analysis as was necessary to substantiate the Crown case.

[4]        The history of the case is that the complainer was apprehended on 23 December 2013 and thereafter released from police custody.  He has not subsequently been remanded in custody or admitted to bail.  A summary complaint was served on him citing him to appear at a pleading diet on 3 April 2014.  His plea of not guilty was tendered by letter.  An intermediate diet was assigned for 24 September 2014 with a trial diet on 22 October 2014.  At the intermediate diet the respondent’s depute moved to postpone the trial diet given that forensic analysis of items recovered by the police on 23 December 2013 had not been instructed.  The respondent admits that the procedure prescribed by the respondent is to instruct forensic analysis once a plea of not guilty is intimated.  In the present case, due to an oversight by a member of the respondent’s administration staff that was not done. Immediately prior to the intermediate diet on 24 September 2014 a member of the respondent’s staff realised that the request for analysis had not been submitted to the forensic laboratory.  The member of staff made a note on the case papers on 24 September 2014 that a request (otherwise a Standard Forensic Instruction or SFI) should immediately be submitted.  No SFI was, however, submitted. 

[5]        The trial diet was postponed on the Crown’s application on 24 September 2014.  An intermediate diet was assigned for 12 November 2014 with a trial diet on 15 December 2014.

[6]        At the intermediate diet on 12 November 2014 no report on forensic analysis was available because no SFI had been submitted.  The complainer objected to further postponement of the trial diet.  Nevertheless, the sheriff granted the respondent’s motion thereby postponing the trial to 14 May 2015.

[7]        The complainer submits that the sheriff erred.  This was a case of systematic failure on the part of the respondent.  There had been repeated failures to submit an SFI.  There was no justification for the sheriff granting the respondent’s motion, given the history of the respondent’s conduct in the matter.  This charge had been hanging over the complainer for 17 months.  It was open to the sheriff to refuse to postpone the trial diet fixed for 15 December 2014 thereby putting pressure on the Crown to prioritise the case.

[8]        The sheriff reports that it was with considerable hesitation that he concluded that it was in the interests of justice to grant the respondent’s motion.  Given what he had been led to understand about the pressures on the forensic laboratory, he was content to allow the trial to take place on 14 May 2015 on the understanding that there could be no excuse if the Crown was not ready to proceed at that date.  He had regard to the guidance provided by the decision in HM Advocate v Lee 1996 SCCR 205.  The allegation against the complainer was relatively serious.  The Crown’s position was that 23 Ecstasy tablets were involved.  The allegation against the complainer was aggravated by him having been on bail at the relevant time.  It was the sheriff’s assessment that the interests of justice pointed to the respondent’s motion being granted. 

[9]        The decision of the sheriff which is subject to challenge by way of this bill was an exercise of discretion.  As appears from the opinion of Lord Carloway in Patterson v Procurator Fiscal, Airdrie [2012] HCJAC 61, a decision whether or not it is in the interests of justice to adjourn or postpone 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 Lord Carloway points out, the local court is much better placed to identify whether there have been, or are, any systematic failures either on the part of the court or the prosecution authorities such that a particular response is called for.  The appeal court will accordingly only intervene in the absence of misdirection in law if it can be satisfied that the court of first instance has reached a decision which no reasonable court of first instance could have reached. 

[10]      In this case the sheriff described the performance of the respondent’s administrative staff as inept.  No issue can be taken with that.  The complainer is entitled to have the charge against him disposed of within a timescale consistent with summary proceedings.  This matter should have gone to trial in October 2014.  However, no more particular inconvenience appears to have occurred.  The complainer had only been present in court once, on 24 September 2014.  The sheriff was entitled to have regard to the fact that albeit the matter is being dealt with on complaint, the charge is a relatively serious one.  As was explained by Lord Cameron in Tudhope v Lawrie 1979 JC 44 at 49 under reference to Skeen v McLaren 1976 SLT (Notes) 14 there requires to be a balancing of the various interests involved, these being prejudice to the prosecutor, prejudice to the accused and prejudice to the public interest in general.  Here the sheriff gave consideration to, but rejected, the possibility of retaining or fixing a trial diet earlier than 15 May 2015.  In our opinion it cannot be said that the sheriff has reached a decision which he was not entitled to reach.  The Bill is accordingly refused.