Assault case dropped after sheriff upholds ‘oppression’ complaint against Crown
Two men accused of assault who each took a plea in bar of trial after the Crown decided not to call the complaint against them for trial before raising another complaint in identical terms have had the case against them dropped on the grounds of “oppression”.
A sheriff upheld the defence pleas after ruling that allowing the prosecution to proceed would amount to “an affront to justice”.
Sheriff Philip Mann heard that the accused Jason Killman and Oliver Pickering together faced a single charge of assault, accused of kicking the complainer on the head in an incident which was alleged to have occurred on 10 March 2017.
They each took a plea in bar of trial on the grounds of oppression, which was said to arise from the fact that at a trial diet on 28 November 2017 the Crown had taken a deliberate decision not to call an earlier complaint containing a single charge in identical terms against the same accused, with the result that the instance in respect of that complaint fell at midnight on that date, only to then raise the second complaint.
Aberdeen Sheriff Court was told that the trial diet in the first complaint had been fixed for 13 September 2017, but was adjourned to 28 November 2017 on the unopposed motion of the Crown because three essential prosecution witnesses had failed to attend.
On 28 November 2017 both accused were in attendance and were ready to proceed to trial, but again certain Crown witnesses failed to attend.
The defence agents had expressed the view to the procurator fiscal depute that those witnesses were not essential to the Crown case and that there was nothing to stop the trial proceeding, at least to the point of being part heard.
Nonetheless, the procurator fiscal depute elected simply to not call the complaint because it was feared that if the Crown made motions to discharge the trial diet, which failing for the Crown to be allowed to desert the complaint pro loco et tempore, such motions would, or might, be refused by the court.
Lawyers for the two accused argued that the actings of the Crown in deliberately not calling the first complaint for trial and by then raising the second complaint amounted to oppression.
It was submitted that the Crown had proceeded in “bad faith”, as it had prevented both accused from making representations to the court and had “prevented the court from exercising its supervisory role” and making a decision.
On behalf of the first named accused it was argued that a trial on the second complaint would be “an affront to justice”.
It was also submitted that the second named accused, who intended to apply for entry into the armed forces, which had a policy not to consider individuals who had outstanding criminal cases against them, had suffered “prejudice” as a result and would continue to suffer prejudice if the Crown were allowed to continue to prosecute on the complaint.
For the Crown, it was argued that when the particular facts and circumstances of the case were considered, the prosecution “had done nothing wrong” and there was “no oppression” in this case.
It was submitted that the Crown had a duty to prosecute crime and was the “master of the instance”, and therefore it could lawfully decide whether or not a case should be called.
There had been “no inordinate delay” in the re-raising of the proceedings and so “no prejudice” to either accused could have occurred.
The sheriff accepted that it was for the Crown to decide whether or not a case should be called and that deciding to not call the case on 28 November 2017 was “neither incompetent nor unlawful nor even objectionable”.
However, the sheriff did not agree, in the circumstances of the case, that the falling of the instance at midnight on 28 November 2018 should be treated as a desertion of the complaint pro loco et tempore which, in effect, was what the crown contended for.
‘An affront to justice’
In a written judgment, Sheriff Mann said: “Our system of criminal justice is an adversarial system. Parties join battle under the supervision of the court. The parties had joined battle in this case and the complaint had come to a second trial diet at which, like the first diet, the Crown had witness difficulties which in its view meant that it was not in a position to proceed to trial.
“Meantime, both accused had attended, as they had the first trial diet, and were in a position to proceed to trial. In my view, they were entitled to expect that the trial would proceed on that day unless the court sanctioned some other course of action.
“I am completely satisfied that an impartial observer with knowledge of our criminal justice system would think it only fair that in these circumstances the Crown, if it wished to preserve its right to prosecute, should have sought the sanction of the court to adjourn the trial diet or to desert the complaint pro loco et tempore.”
“Of course,” the sheriff continued, “the Crown was perfectly entitled to not call the case for whatever reason it chose. I cannot criticise it for taking that decision. But, it chose to do so to avoid what it considered to be a risk that the prosecution would be brought to an end by the court refusing any motions that it might seek to make.
“In the circumstances of this case I think that that would have been seen by the impartial observer as a clear and public renunciation of the crown’s right to prosecute. Any accused person is entitled to expect, and he would be supported in this by the impartial observer, that battle will be joined on a level playing field.”
Sheriff Mann concluded: “In the circumstances of this case I am satisfied that to allow the prosecution on the current complaint to carry on would amount to an affront to justice. A trial on this complaint would not be a fair one. To do other than uphold the defence pleas in this case would contravene the principle that justice must not only be done but must also be seen to be done.”
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