Appellant:  Jones;  Mathew Brown, Irvine

Respondent:  Fairley QC, AD;  Crown Agent

23 April 2014

[1]        The appellant appeared on petition on 13 August 2012 charged with punching Ashley Henderson on the face and striking Neil Henderson, her father, on the body with a knife to his severe injury.  Thereafter, as is set out in the sheriff’s report, the procurator fiscal in Kilmarnock took a decision at local level that there was insufficient evidence to prove the knife assault.  At that stage, the papers had not been sent to Crown office for consideration.  A reduced summary complaint was served, libelling the assault by punching and another assault on another complainer, Vicky Moffat, by throwing a drink over her.  On 23 March 2013 the appellant’s agent contacted the procurator fiscal and asked “If the stabbing matter was closed forever?”  The procurator fiscal replied “No, that could not be said.”  On 23 May 2013 the appellant pled guilty to both assault charges. 

[2]        Subsequently, the papers were sent to Crown Office.  Crown Office reviewed the evidence and concluded there was a sufficiency in relation to the knife assault.  As petition proceedings were time‑barred the matter was raised by way of summary complaint. 

[3]        When the case first called in court on 23 January 2014, the appellant’s solicitor presented a plea in bar of trial.  That was refused by the sheriff.  The appellant now appeals.  The basis of the appeal is oppression, delay and inability to have a fair trial under article 6 of the European Convention on Human Rights.  Mr Jones, for the appellant, recognised that in respect of all of these matters, the court has set a high test.  He referred to Her Majesty’s Advocate v Griffiths 2009 HCJ 1 and to McFadyen v Procurator Fiscal Linlithgow 1992 SCCR 186. 

[4]        The sheriff set out the reasons for the delay in a helpful paragraph at page 15 of her report.  It is there stated:

“It is my view that the Crown have given an explanation for the delay in this matter which is fair.  The Crown had, at local level, taken a decision that there was insufficient evidence.  The papers had not been sent to Crown Office for consideration.  Following contact by members of the public, the case was sent to be reviewed at Crown Office, and a different decision had been taken.  This decision was taken on the basis that it was in the public interest to proceed with matters which involved knife crime.  Mr McLaughlin [the solicitor for the appellant] suggested that there had to be new evidence for the case to be reviewed in this way.  However, following Her Majesty’s Advocate v Griffiths it is clear that it is open to the Crown to review evidence not only on the basis of fresh evidence.  In the instant case following complaints from members of the public, the Crown had reviewed the evidence and had decided that there was in fact sufficient evidence, and proceeded in the only way now open to them.”

[5]        Lord Justice Clerk Ross gave guidance on matters such as these in the case of McFadyen v Procurator Fiscal Linlithgow.  In particular at page 193 he stated the following:

“‘What the court has to ask itself is if the delay, whether caused by the Crown or not, has been such as to prejudice the prospects of fair trial.  The court is not really in a position to determine whether delay which took place before the Crown raised proceedings was justified or not.  The Crown has to determine its priorities and it is, for example, for the Crown and not the court to determine whether, in cases like the present, proceedings should be taken first against the accused civilian or the accused policeman.  On the other hand, if the Crown concede that delay before raising proceedings was due to some failure on the part of the Crown, that would appear to me to be relevant;  it would also be a relevant consideration that delay at that stage was due to fault on the part of the accused.  Further, irrespective of fault, the court is certainly entitled to consider any delay before the Crown raised proceedings, as part of the overall delay which is allegedly prejudicial.  Moreover, where there has been delay after the Crown has raised proceedings, the court can determine whether such delay has been due or undue, and that is a circumstance to which the court is entitled to have regard.  However the real question which the court has to consider in all cases where delay is alleged is whether the delay has prejudiced the prospects of a fair trial.  This involves the court asking itself whether the risk of prejudice from the delay is so grave that no direction by the trial judge could be expected to remove it.  In the case of summary procedure the question must be whether the risk of prejudice from the delay is so grave that the sheriff or justice could not be expected to put that prejudice out of his mind and reach a fair verdict.  I would again stress that cases where such a plea in bar of trial will be upheld will be rare and exceptional cases.”

[6]        This is not such a case.  As Mr Jones himself acknowledged, the evidential matrix has remained unchanged, and indeed the appellant’s agents were made fully aware that the Crown was not giving up the right of prosecution in relation to the stabbing incident.  It was expressly explained to the agents that the matter was not closed.  We should add that there has been no suggestion in this case that witnesses have become unavailable, or that the quality of evidence has been irredeemably prejudiced. 

[7]        In all the circumstances of this case, we are not persuaded that the sheriff erred in any way, and the appeal is refused.