‘Drink-driving’ accused fails in appeal against sheriff’s decision to delay trial

A motorist accused of drink-driving who claimed that a sheriff’s decision to adjourn his trial due to a key prosecution witness being absent because of ill health was “contrary to law” has had his challenge dismissed.

 

The Sheriff Appeal Court refused the appeal after ruling that, while delay should be avoided, in the circumstances the decision was not one which no reasonable sheriff could have made.

 

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Appeal Sheriff Sean Murphy QC, heard that the complainer Mark Kane was charged with a contravention of section 5(1)(a) of the Road Traffic Act 1988, having allegedly been caught driving in Larkhall with more than four times the legal limit of alcohol in his system - an offence aggravated by the fact he was on bail at the time.

 

 

However, he lodged a bill of advocation challenging the decision of the sheriff in Hamilton to allow the respondent’s motion to adjourn a trial edit on 26 June 2018 due to the absence of a police witness, following previous adjournments on Crown motions because of difficulties in securing the officer’s attendance due to reasons relating to his health.

 

The court was told that that the complaint first called on 22 August 2017 when a trial was fixed for 29 November 2017, but that trial diet was adjourned on a defence motion due to the accused being unwell.

 

A further trial was fixed for 24 January 2018, when another defence motion to adjourn was granted and a trial diet fixed for 8 March 2018.

 

The trial was adjourned until 29 March 2018 due to difficulties with the availability of the Crown witness and then adjourned again until 25 May 2018, at which point there was a further Crown motion to adjourn opposed by the complainer, but the adjournment was granted and a further trial fixed for 26 June 2018 - although the minute stated that the court considered that “this should be the last adjournment if the same witness fails to attend”.  

 

When the complaint called for trial on 26 June 2018 another sheriff presided and the witness was still absent, presumably due to ill health, but the sheriff granted a further adjournment having considered that balancing the rights of prejudice to the complainer and any other parties was “outweighed by the public interest in ensuring that a driver who was charged with driving with more than four times the legal limit of alcohol in his system is brought to trial”.

 

 

Counsel for the complainer argued that the sheriff’s decision to adjourn was “erroneous, oppressive and contrary to law”.  

 

In particular, it was submitted that a great deal of weight should be placed on the view expressed by the sheriff presiding on 25 May 2018 confirmed in the court minute.

 

It was argued that the sheriff presiding on 26 June 2018 had erroneously failed to have regard to the decision of the presiding sheriff at the earlier diet and had failed to exercise her discretion properly when considering and balancing the competing issues of prejudice to the prosecutor, complainer and the public interest generally.

 

In response, the advocate depute submitted that the decision whether or not it is in the interest of justice to grant an adjournment of a trial diet was a discretionary one for the court at first instance.

 

It was argued that the sheriff applied the correct test and therefore the appeal court could only interfere in such a discretionary decision if a sheriff reached a decision which no reasonable sheriff would have reached.

 

 

Declining to pass the bill, the appeal sheriffs said it was clear from the sheriff’s report that she did consider the trio of interests which any court must take into account when considering whether to adjourn a trial in summary proceedings, namely “prejudice to the prosecutor, prejudice to the appellant and the public interest”.

 

Delivering the opinion of the court, Sheriff Principal Stephen said: “The sheriff was advised of the reasons for the adjournment and these related to the availability of the police constable due to health reasons. The witness’s evidence is required to prove the charge in the absence of agreement of that evidence.  

 

“Clearly, the sheriff had regard to the nature of the charge which is a serious one aggravated, of course, by the allegation that the offence was committed whilst the complainer was subject to a bail order granted less than two weeks prior to the day of the alleged offence. 

 

“On 25 May 2018 the sheriff considered that no further adjournments ought to be granted beyond that which he allowed that day. This may well be a factor which the sheriff on 26 June 2018 had to consider but as the sheriff correctly observes she was not bound by her colleague’s decision as regards the finality of the adjournment process. 

 

“It would be improper to suggest that the sheriff was so bound as she required to take into account all relevant factors which pertained at the time she made her decision and exercised her own judgment.

 

“The sheriff is clearly aware of the procedural history. It cannot be argued that the decision to grant the crown adjournment in face of witness difficulties due to ill health was one which no reasonable sheriff would have reached.“

 

However, the court further observed that appeal by bill of advocation in the course of summary proceedings does nothing to assist the summary nature of such proceedings.  

 

Sheriff Principal Stephen added: “We agree that delay should be avoided but, of course, it has to be borne in mind that both parties have contributed overall to the passage of time since the complaint first called. 

 

“Generally speaking advocation should not be used as a mode of common law appeal in summary proceedings other than in exceptional cases where there is likely to be a miscarriage of justice which cannot be remedied by statutory appeal at the conclusion of the case. No such circumstances exist here.”

 

The court said steps should be taken to ensure that the complaint proceeds to trial next month.