Alleged drink-driver fails in bid to have case thrown out over court delays

The Criminal Appeal Court upheld a sheriff’s decision to refuse the complainer’s motion to desert the trial.

Lord Brodie, Lady Clark of Calton and Sheriff Principal Stephen QC heard that the complainer William Christensen was charged on summary complaint with: driving having consumed alcohol the proportion being 117 mg of alcohol in 100 ml of breath - the prescribed limit at that time being 35 mg of alcohol in 100 ml of breath; driving a motor vehicle when licence revoked; driving without third party insurance; and failing to give information as to the identity of the driver of the vehicle when required to do so by a police constable.

The offences were alleged to have been committed on 8 July 2013 at Lochwinnoch and the complainer appeared the following day before the sheriff at Paisley, when he pleaded not guilty to all charges, was released on bail with intermediate and trial diets set for August 2013 and September 2013 respectively.

The court minutes then disclosed a litany of adjournments of intermediate and trial diets until January 2015 when once more the sheriff adjourned the trial due to lack of court time.

In so doing the sheriff refused the complainer’s motion to desert simpliciter and trial until the end of February 2015 instead.

By way of bill of advocation, the complainer sought to have the sheriff’s decision on that date recalled as “unjust, oppressive and contrary to law”.

The complainer founded on the “passage of time” since the offences were alleged to have taken place, the procedural history of the case and the number of adjournments due to “pressure of business” in court or “lack of court time”.

In her submission, the solicitor advocate for the complainer maintained that the sheriff had erred in failing to recognise the “systemic failure” by the court to schedule business in such a way as to ensure that there were no lack of court time adjournments which failing to ensure that the case assumed priority at a subsequent trial diet.

It was argued that the sheriff gave “insufficient weight” to the number of adjourned trial diets and to the delay which was “wholly incompatible” with summary procedure.

The appeal court should intervene by passing the bill, reversing the decision of the sheriff and deserting the complaint, it was submitted.

In response, the advocate depute submitted that he sheriff had followed and applied the correct the test and had not misdirected himself.

It was said that there was “no fault” on the part of the Crown and that the sheriff “had regard to the interests of both parties and the public interest and relative prejudice”.

Refusing the bill, the appeal judges observed that a decision whether or not it was in the interests of justice to adjourn or postpone a trial diet was one which was “very much for the court of first instance to take”, having regard to the circumstances of the particular case.

Delivering the opinion of the court, Sheriff Principal Stephen said: “We find this to be a very difficult case where those responsible for administering the courts have been unable to secure the progress of this case to trial within a proper timescale. However, the question for this court is whether the sheriff has exercised his discretion in a manner or reached a decision which no reasonable sheriff could have reached.

“It is clear that the sheriff has addressed all of the material matters and in particular, the gravity of the offences, the prejudice to the complainer, which amounts to inconvenience and delay, and the public interest in general.

“Therefore this court, whilst concerned that this summary prosecution has required multiple diets, is unable to conclude that the sheriff reached a decision which he was not entitled to reach in the circumstances. The bill is accordingly refused.”

She added: “This case discloses significant problems in the scheduling of summary criminal trials which require to be addressed by those involved in the administration of the sheriff courts. It is also evident that the prioritisation of complaints calling for trial in the sheriff court is at the discretion of the Crown Office and Procurator Fiscal Service and is primarily their responsibility.

“It appears to us that the procurator fiscal requires to actively review these priorities in close consultation with the sheriff clerk to ensure the cases which merit priority, such as those adjourned due to lack of court time or indeed for other substantial reasons, are identified and accorded that ranking at the trial diet which follows. It hardly needs saying that this case deserves the highest priority at the next trial diet.”