Sheriff’s decision not to sentence accused after fiscal failed to appear was ‘incompetent’

The High Court of Justiciary Appeal Court passed a Bill of Advocation after ruling that the procedure adopted by the sheriff was “incompetent” and that he had a “duty” to pass sentence.

Lord Brodie , Lady Clark of Calton and Lord Turnbull heard that the respondent Ginette Ball had pled guilty to behaving in a “threatening or abusive manner” and a further charge of having a meat cleaver in a public place “without reasonable excuse or lawful authority”.

The procurator fiscal depute moved for sentence and tendered a schedule of previous convictions which showed that the respondent had been convicted on four occasions in England.

Having heard the narrative of the events and a plea in mitigation on the respondent’s behalf the sheriff adjourned the diet for sentence until 19 June 2016 for the purpose of obtaining a criminal justice social work report, but owing to difficulties in preparing the report the case required to be further adjourned until 21 July 2016 and then further adjourned again until 18 August 2016 at 9.30am.

However, when the case called on the morning of 18 August 2016 the sheriff was advised that the respondent and her solicitor were both present in court but that the procurator fiscal depute was not.

He instructed the sheriff clerk to phone the fiscal’s office and was told that the depute fiscal allocated to the court was not yet in the building but was on his way.

At about 9.40am the sheriff instructed the clerk of court to call the case in the absence of the procurator fiscal, and having done so he was unable to impose a sanction in the procurator fiscal’s absence and therefore made no further order, with the consequence that the respondent was allowed to leave.

The sheriff explained that the failure of the procurator fiscal to attend timeously was “not uncommon” and that the failure to call cases promptly “caused delays”, as two other sheriffs had deferred sentences which were due to call in the same court at 9.30 and the sheriff himself was due to preside over a domestic abuse court at 10am.

At the hearing on the bill the advocate depute explained that the person who had been allocated to that court had mis-read the court sheet the previous evening, which was a “regrettable mistake” but was not indicative of dilatory attendance or wilful non-attendance.

The advocate depute accepted that it was competent for the sheriff to instruct that the case be called as an administrative act to ascertain who was present, but submitted that the sheriff’s “duty” was to pass sentence and that as a matter of law though there could be “no competent proceedings” in the absence of the prosecutor.

The respondent could not contradict the proposition that to conduct proceedings in the absence of the procurator fiscal would be incompetent, but it was submitted that the sheriff had acted competently since, properly understood, he had in fact “done nothing”.

He had made a deliberate decision to take no step in the proceedings as a legitimate exercise of his discretion in light of the circumstances which had transpired and the consequence of the case calling and no proceedings following thereon was that the diet fell, it was argued.

However, the appeal judges observed that “mistakes can be made from time to time” and the sheriff could have arranged for the case to call later in the day, which would have enabled him to comply with his duty to pass sentence.

Delivering the opinion of the court, Lord Brodie said: “In our view it is clear from what is said in Hume, and the other cases to which we have referred, that the sheriff has only a very limited power available to him in the absence of the procurator fiscal. We are satisfied that the sheriff’s duty was to pass sentence at the adjourned diet.

“Given he knew that the procurator fiscal depute was on his way to his court to appear in those very proceedings, the sheriff could not reasonably have concluded that his absence indicated an intention of abandoning the process. In the absence of an explanation he had no reason to conclude that the late attendance was wilful or without excuse.

“If the sheriff wished to call the case in the absence of the procurator fiscal the only step which was competently open to him was to continue it to a later point in the day, or to a further day.

“A deliberate step was taken to bring the case to an end in order to discipline the Crown and to bring home to them the importance of timeous appearance.

“For the reasons which we have given we are satisfied that the step taken by the sheriff was one which was not competent and we shall pass the Bill, recall the sheriff’s interlocutor of 18 August 2016 and remit the case back to him to impose a sentence.”