Sheriff who refused to grant adjournment in part-heard assault trial failed to properly consider prejudice to Crown, Appeal Court rules

The Sheriff Appeal Court passed a Bill of Advocation taken by the Procurator Fiscal at Aberdeen in respect of the sheriff’s decision to refuse to grant a further adjournment in the continued trial of Muhhamed Tariq.

Sheriff Principal Craig Scott QC, sitting with Sheriff John Beckett QC and Sheriff Principal Brian Lockhart, heard that the respondent was charged with assaulting his wife and behaving in a “threatening or abusive manner” towards his wife, in contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

On 20 May 2015 at Aberdeen Sheriff Court, the respondent made his first appearance from custody, when pleas of not guilty were tendered on his behalf and bail was granted, with a trial diet assigned for June 25.

The court minute for June 25 disclosed that the trial was adjourned on a defence motion due to “lack of court time” and a fresh trial diet was assigned for August 3.

On that date the case duly proceeded to trial before a part-time sheriff, where the respondent’s wife, the complainer in respect of charges 1 and 2 on the complaint, gave evidence, after which the trial was adjourned until September 7.

However, for “unexplained reasons” the part-time sheriff who presided at the first trial diet was not in attendance at Aberdeen Sheriff Court when the case called and therefore the trial was adjourned until October 14.

But again for unexplained reasons other than the fact that he was “elsewhere”, the part-time sheriff was not in attendance when the case called on October 14 and another part-time sheriff refused to grant a further adjournment, thus giving rise to the Bill of Advocation by the procurator fiscal.

The advocate-depute submitted that the wife of the respondent had completed her testimony on the date when the trial began, namely 3 August 2015, stressing that the witness had spoken to the libel, and therefore her evidence had been “wholly incriminatory” in nature.

He argued that in the circumstances facing the court on October 14, the prejudice to the Crown and the public interest “far outweighed” the prejudice to the respondent.

It was submitted that while the sheriff had identified the correct test, she had erred because she applied it “incorrectly”.

Passing the Bill, the appeal sheriffs held that while they had “some sympathy” for the sheriff given the situation, they were are “unable to agree with her decision or with the basis upon which she arrived at that decision”.

Delivering the opinion of the court, Sheriff Principal Scott said: “It would appear that, when it came to the ‘cardinal questions’ to be addressed by the court, the sheriff’s approach was somewhat confused. In our view, it was not, as the sheriff put it, ‘…a question of fairness and balancing the interests of the respondent against the public interest in prosecuting the case to its conclusion’.”

The judges observed that the three clear elements to be considered by the court, highlighted by the 2012 case of Paterson v Procurator Fiscal, Airdrie, were prejudice to the prosecutor, prejudice to the accused and prejudice to the public interest.

“Accordingly,” the sheriff principal continued, “we are not satisfied that the sheriff, in arriving at her decision, had proper and accurate regard to the particular interests involved.

“In any event, we consider that the sheriff either misdirected herself ‘as to the extent or consequences of the prejudice to be suffered’ or erred when balancing the prejudice likely to arrive from her decision to refuse an adjournment.”

The appeal sheriffs noted that there were “certain important factors which the sheriff failed to give consideration to”.

Sheriff Principal Scott explained: “It was, in our opinion, very significant that the first Crown witness having given evidence had implicated the respondent when it came to each of the charges.

“A refusal to adjourn meant that the Crown were materially prejudiced in that they were denied the potential for using the wife’s testimony along with other evidence in the case to ensure that, at the very least, the respondent had a case to answer upon the conclusion of the Crown evidence.”

He added: “Accordingly, whilst this was, indeed, a discretionary decision by the sheriff, we regard ourselves as entitled to interfere with that decision. We are satisfied that the sheriff misdirected herself as to the nature of the interests to be considered where determining such a motion.

“Therefore, the balancing exercise carried out by the sheriff was flawed. The circumstances facing the court when called upon to consider the motion for an adjournment comfortably suggested that the prejudice to be suffered by the Crown and by the public interest far outweighed any prejudice affecting the respondent.

“In the whole circumstances, therefore, we have passed the Bill of Advocation. The matter has been remitted back to the trial sheriff at Aberdeen Sheriff Court with the request that he proceed as accords all with a view to achieving an expeditious conclusion to the trial.”