High Court refuses ‘oppression’ claim in appeal over summary complaint following deserted solemn proceedings

The High Court of Justiciary Appeal Court upheld a decision of the Sheriff Appeal Court, which refused an appeal by Donnie Potts, who challenged a sheriff’s decision to repel his plea in bar of trial that the continued prosecution of him was “oppressive and unfair” and amounted to an “abuse of process” or a violation of his right to a fair trial in terms of Article 6 the European Convention on Human Rights.

The Lord Justice General, Lord Carloway, sitting with Lord Malcolm and Lord Turnbull, heard that the appellant was charged by the Procurator Fiscal at Hamilton on summary complaint alleging that in April that year he broke into a house in Bellshill and stole £50,000 in cash from a 74-year-old man who has been hoarding the money for some time.

The court was told that the accused appeared on petition at Hamilton Sheriff Court on 1 August 2013 and an indictment was served on 29 March 2014, with a trial diet assigned for 19 May 2014.

Following a number of postponements and adjournments the Crown was granted a further motion adjourn the trial to allow steps to be taken to recover certain bank records, which, it was said, would prove that within weeks of the theft some £15,000 cash had been deposited by the appellant at different branches of his bank and that a large number of the notes were out of circulation, thus indicative of them having been part of a hoard.

The sheriff considered that reasonable cause had been shown to allow an extension of time on the basis of an error by the Crown and he therefore extended the time bar to 2 October 2015, but that decision was reversed by the High Court of Justiciary.

The appeal court was critical of the Crown in respect of its administrative system, conduct of the case and preparation for trial and held that the respondent had failed to advance sufficient reason to justify the extension.

Prior to 1996, the decision of the High Court would have brought all criminal proceedings to an end, but an amendment to the law provided instead that the effect of the failure would simply be that the accused would “not at any time be proceeded against on indictment as respects the offence”.

Subsequently, in January 2016 the appellant was served with a summary complaint in identical terms to the charge on the indictment and a sheriff repelled a plea in bar of trial based on contentions of both “oppression” and “abuse of process” on the part of the Crown and a breach of the “reasonable” time requirement in Article 6 ECHR – a decision upheld by the Sheriff Appeal Court (SAC).

However, the appellant submitted that the plea of oppression had been based not only on delay but on the conduct of the Crown “throughout the proceedings”.

The alteration in the legislation to allow the Crown to discontinue solemn proceedings and to proceed summarily outwith the 12-month period was to cure the problem identified in Gardner v Lees 1996 SCCR 168, not to permit summary proceedings where solemn proceedings had been discontinued by the court.

It was argued that the SAC had erred in determining that, as the summary complaint had been served after Crown counsel’s instructions had been obtained, that amounted to an expedition of proceedings and avoided a continuation of any Article 6 violation.

The SAC had also erred, it was submitted, in determining that the effective remedy for the Article 6 breach was a reduction in sentence.

Refusing the appeal, the court observed that the SAC correctly held that the plea of oppression was capable of encompassing a “wide range of factors”.

Delivering the opinion of the court, the Lord Justice General said: “Whether oppression can be established depends upon the particular facts and circumstances, including the Crown’s conduct, the seriousness of the charge and the public interest in ensuring that crime is prosecuted.

“It is important to observe that the decision on a plea of oppression involves a balancing exercise which is primarily one for the judgment of the court at first instance… Its judgment will be accorded not inconsiderable weight.”

Here, having considered the plea of oppression, the sheriff concluded that the “interests of justice required the prosecution” of the crime, and the appeal judges said it was “not possible to fault the sheriff’s conclusion”.

The court also observed that determination of whether the reasonable time requirement in Article 6 had been breached involved a consideration of the “whole timescale” from at least the appearance on petition to the present day, as well as the reasons for the delay.

Lord Carloway added: “In this case, the summary proceedings were instituted in January 2016, within 3 years of the appellant’s appearance on petition. In such circumstances, where it is not argued that the period since then can be criticised, it is highly doubtful whether the timescale does cause concern in Convention, as distinct from domestic law, terms.

“If there is a breach of Article 6, it has been made clear that the remedy of sustaining a plea in bar of trial is only appropriate where the delay is such that a fair trial can no longer take place or there is some other compelling reason such as ‘bad faith, unlawfulness executive manipulation’…It is not possible to fit the case into any of these categories.

“Having failed to prosecute the appellant on indictment, the Crown have elected, as they are entitled to do, to proceed by way of summary complaint. There is no unfairness in this where the appellant has already had the benefit, under domestic law, of not being subjected to the risk of a significant custodial sentence, which he would otherwise undoubtedly have faced, if convicted.”