Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ELGIN

Judgement

of

Sheriff Philip Mann

in causa

Procurator Fiscal, Elgin

v

Euan Patrick Masterson

Elgin 19.12.2013

1. Introduction

1.1 This case concerns three charges raised against the accused Euan Patrick Masterson by way of summary complaint (hereafter referred to as "the current complaint"). They are two charges of contravening section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, said to have been committed on 11 and 12 November 2012, respectively, and one charge of acting in a racially aggravated manner contrary to section 50A(1)(b) and (5) of the Criminal Law Consolidation (Scotland) Act 1995, said to have been committed on 12 November 2012.

1.2 The accused originally appeared from custody at Elgin Sheriff Court on 13 November 2012 and pled not guilty to these charges on complaint ("the original complaint"). The usual intermediate and trial diets were set. On the date set down for the intermediate diet, namely 15 March 2013, the Crown did not call the case and the instance on the original complaint fell. It was re-raised as the current complaint

and served on the accused on 3 July 2013.

1.3 Meanwhile, the accused had appeared again from custody at Elgin Sheriff Court on 14 November 2012. He faced a complaint ("the further complaint") which charged further and separate offences alleged to have been committed at the same address on 14 November 2012. The usual intermediate and trials diets were set. The further complaint called for intermediate diet on 20 November 2012 and was continued to a trial diet of 19 December 2012. On 19 December 2012 the complaint did not call for trial. As I understand it, this was because the accused had caused a disturbance within the custody suite at court that day and had also uttered offensive remarks to the sheriff and sheriff clerk. The instance on the further complaint accordingly fell and the accused was detained in custody.

1.4 The accused then appeared on petition at Inverness Sheriff Court on 20 December 2012. The petition contained, inter alia, the charges referred to in the further complaint and a further charge of contravening section 38(1) of the Criminal justice and Licensing (Scotland) Act 2010 relating to the offensive remarks made to the sheriff and sheriff clerk on the previous day.

1.5 In due course an indictment was served on the accused in respect of the petition matters. At a continued first diet on 15 April 2013 the accused pled guilty to two of the charges contained in the indictment, his pleas of not guilty to the remaining charges on the indictment having been accepted. He was sentenced to imprisonment in respect of these charges on 26 April 2013. This was backdated to the date when he

was taken into custody and resulted in his immediate release.

1.6 After several continuations without plea of the current complaint the accused lodged a preliminary minute complaining that he would be unable to receive a fair trial due to oppression caused by delay.

1.7 At the same time the accused lodged a devolution minute referring to the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights and Fundamental Freedoms. It also referred to the right to respect for private and family life guaranteed by article 8 of the convention.

1.8 The preliminary minute and devolution minute were argued before me on 6 December 2013. The accused was represented by Mr Mathers, solicitor and the crown was represented by the depute procurator fiscal, Mr Corrins.

2. The Debate

2.1 Mr Mathers did not address any argument relative to article 8. However, he submitted that the accused's article 6 right had been breached because there was now no opportunity for a fair trial of the accused on the original complaint within a reasonable time. When I pointed out that the devolution minute did not raise the issue of reasonable time Mr Mathers sought leave to argue that point. I did not understand that to have been objected to by Mr Corrins and I granted leave.

2.2 Mr Mathers submitted that a trial might not now take place until April 2014 and that such a delay required an explanation from the Crown. There was a nexus in terms of time and place between the charges on the original complaint and those on the further complaint. He submitted that there was no intelligible reason why the charges on the original complaint could not have been included with the later

charges which were dealt with on petition and indictment. Mr Mathers specifically conceded that he could not say that the accused could not get a fair trial on the current complaint. His point was that that was not possible within a reasonable time measured from the date of the alleged offences.

2.3 Mr Mathers then dealt with the preliminary minute and argued that the accused would suffer oppression at common law if the court did not exercise its inherent power, confirmed at paragraph 9.21 of Renton & Brown's Criminal Procedure, to prevent the case going to trial. He referred to Renton & Brown at paragraph 9.15 and the indication therein that the crown would be personally barred from insisting on a prosecution where there had been conduct on the part of the Crown which would make it unfair to allow them to proceed. He also referred to paragraph 9.52 of Renton & Brown where, under reference to the case of Johnston v HMA 1996 S.C.C.R. 808, it was said that:-

"an appeal court will usually take the view that it is in the public interest that analogous matters should be tried together where possible";

and where, under reference to the case of HMA v Bickerstaff 1926 J.C. 65, it was said:-

"On the one hand it is the duty of the court to avoid the risk of prejudice to accused persons, but, on the other hand, there may exist between the charges a connection of time or of circumstances or of character which makes it fair and legitimate to put them all in one indictment and to lead evidence in respect of them all together"

2.4 Finally, Mr Mathers referred to the unreported judgement of Sheriff Wyllie Robertson in the case of Procurator Fiscal, Stirling v John Ross dated 21 June 2012. There, Sheriff Robertson had suggested that in a case of this kind there were three matters which required to be addressed. These were the conduct of the accused and whether that contributed to the delay; the complexity of the case; and the conduct of the crown. He submitted that no conduct on the part of the accused had contributed to the situation that had arisen. The case was not complex. The real problem for the crown was that they had decided in advance not to call the original complaint on the date set for the intermediate diet. They had arranged that the accused be not brought to court from custody that day. That, and the fact that the charges which featured on the original complaint had not been included on the indictment, had given rise to a legitimate expectation on the part of the accused that the prosecution of the charges on the original complaint had been abandoned. It was unfair and prejudicial to the accused to proceed with the prosecution, given that legitimate expectation and the fact that he was now suffering the anxiety associated with successive trials. I confess that I have no note of it but I have a recollection that Mr Mathers referred at this point to Hume's Commentaries on the Law of Scotland Respecting Crimes , ii, 172 where he deals with the question of the cumulation of several similar charges within a single indictment. Having confirmed that that is permissible Hume goes on to say that it is

"not only for the sake of doing justice as expeditiously, and with as little expense and trouble as may be to the public, but also (provided it is kept within certain bounds) for the advantage of the pannel; that he may be relieved of the long confinement, and of the anxiety and distress, which would attend a series of successive trials".

2.5 Mr Corrins maintained that it was necessary to distinguish between the charges on the petition and the charges on the original complaint. There was a connection in terms of time and a very loose connection in terms of place. The solemn proceedings were initiated because of the seriousness of the charges relating to court staff. The matters which had featured on the further complaint had been combined into the solemn proceedings because it was during or in connection with a diet relating to that complaint that the matters giving rise to the petition occurred. These matters were distinct from the charges on the original complaint.

2.6 Mr Corrins explained that there was a note with his papers for the original complaint which indicated that a decision had been taken not to call that complaint on 15 March 2013 because of the accused's behaviour at court on 19 December 2012 and because of the indictment matter which had already been served against the accused by that time. Mr Corrins was not in a position to elaborate on this since he had not been the depute dealing with the matter on 15 March 2013. However, he was able to advise that the question whether it was still in the public interest to prosecute the charges on the original complaint had been sent for review by a senior procurator. A decision had been taken by that senior procurator on 7 June 2013 to re-raise the matters by way of the current complaint. There was a further note from that time indicating that it was necessary to check whether or not the accused was still in custody or was at large.

2.7 Mr Corrins submitted that in regard to the question of delay the period of time which it was relevant to consider was from November 2012, the time of the alleged offences, until June 2013. He pointed out that the statutory time limit within which a prosecution had to be brought was 12 months. On any view, a gap of seven months could not be described as lengthy, unreasonable or oppressive. It could hardly be argued that such period of time represented a delay which breached the accused's article 6 rights.

2.8 Mr Corrins pointed out that at no time had the accused been advised that the crown would not proceed with a prosecution of the matters contained in the original complaint. Accordingly, there was no issue of personal bar such as was referred to in Renton & Brown. He maintained that in the circumstances of this case there was no question of oppression in the sense that it was now impossible for there to be a fair trial on the matters before the court. The test for oppression was set out in the case of McFadyen v Annan 1992 J.C. 53 as being whether there was such prejudice to the prospects of a fair trial that it would be oppressive to require the accused to face trial. That was a case involving delay but it was stated that the test of oppression was the same in every case.

2.9 Mr Corrins referred to the case of Justice v HMA 1995 S.L.T.1011 for the proposition that any perceived prejudice to the accused could be remedied at the point of sentence in the event of a finding of guilt.

2.10 Finally, Mr Corrins pointed out that the charges presently before the court involved one elderly and some mature members of the public. There was a public interest in maintaining the present prosecution.

2.11 In a brief response Mr Mathers suggested that the reason advanced by the crown for not calling the original complaint on 15 March 2013 was not a good one. The accused would have known that he had been ordered to be brought from custody and that this had been countermanded. The crown could have proceeded with that prosecution at that time notwithstanding the separate solemn proceedings. Had it been appreciated that the matters in the original complaint might yet be prosecuted the negotiation of the pleas on the charges contained in the indictment might well have been approached differently. Mr Mathers suggested that the current situation smacked of the crown being unhappy with the sentence imposed on the indictment matters. The plain fact of the matter was that the original trial date was 10 April 2013 and it was now likely that the trial would not proceed until at least April 2014.

3. Discussion and Decision

3.1 In my view, the fact, on its own, that the crown allowed the instance on the original complaint to fall does not lead to the result that the crown is personally barred from proceeding with this prosecution or that it has renounced the right to prosecute. They did not give the accused any indication or undertaking that the prosecution was at an end and I consider that it is unrealistic for the accused to maintain that he was entitled to assume that that was the case. Not calling the case at the intermediate diet was equivalent to deserting the complaint pro loco et tempore. Had the accused been brought to the intermediate diet and had the crown sought to desert pro loco et tempore at that point I am inclined to think that no lawyer then representing the accused would have objected to such a course of action. It was at all times open to the accused to take legal advice on the effect of the case not having been called at the intermediate diet if, indeed, it was the case that he was unsure of his position.

3.2 In my view, there has been no delay such as amounts, on its own, to oppression at common law in the sense that a fair trial is not now possible. That was conceded by Mr Mathers. The statutory time limit within which a prosecution must be brought has not yet expired. Therefore, I cannot accept, either, that there has been a breach of the accused's article 6 rights.

3.3 In my view, the fact that the crown elected not to include all outstanding charges on the one indictment does not, on its own, amount to oppression, despite the writings of Hume to which Mr Mathers referred. It could, indeed, be argued that to have done so could have been to the disadvantage of the accused. It seems to me that the cases of Johnston and Bickerstaff and the commentaries thereon in Renton & Brown, relied upon by Mr Mathers, tend to suggest that generally it is to the prejudice of an accused to include all matters in a single complaint or indictment and that it is the counterbalance of the public interest that makes it legitimate and fair to do so. There is undoubtedly a public interest in the crown maintaining the prosecution complained of.

3.4 The only question remaining is whether the combination of all three of the foregoing factors amounts to oppression such that there is no prospect of a fair trial and that the court must intervene to put an end to the prosecution. I am not persuaded that that there is any such oppression. In any event, just as it was suggested in Justice that the situation that had arisen in that case could be taken into account at the point of sentence so too can that be done in this case should the presiding sheriff think it to be appropriate. That was the course of action which the court found to be appropriate in the case of Speirs v Ruddy, 2008 SLT 39, a case dealing with delay and interference with an accused's convention rights.

3.5 Accordingly, I shall repel both the preliminary minute and the devolution minute argued on behalf of the accused. It follows that the accused will now have to plead to the complaint.

Sheriff Philip Mann