Sheriff’s decision to postpone trial was not oppressive, appeal court rules

It was argued that the sheriff’s decision was “oppressive, erroneous and contrary to law”, but the Criminal Appeal Court ruled that it was a decision the sheriff was “entitled to reach” in the circumstances of the case.

Lord Brodie, Lord Drummond Young and Sheriff Principal Stephen QC heard that the complainer Jay Bowden had been charged on complaint – along with his co-accused – with having Ecstasy in his possession with intent to supply it to another or others at the Arches Nightclub in Glasgow on 23 December 2013, in contravention of section 5(3) of the Misuse of Drugs Act 1971.

The complaint called before the sheriff at an intermediate diet on 12 November 2014 and a trial diet had been fixed for 15 December 2014, but the Crown moved to postpone the trial because forensic analysis of certain items recovered by the police on 23 December 2013 had not been carried out.

The sheriff granted the Crown motion with the result that an alternative trial diet was fixed for 14 May 2015.

By way of bill of advocation, the complainer submitted that the sheriff erred and sought to have the decision recalled, founding on the repeated failure by the Crown to instruct such forensic analysis as was necessary to substantiate the prosecution case.

The complainer argued that this was a case of “systematic failure” on the part of the Crown, as there had been repeated failures to submit a standard forensic instruction (SFI) and there was “no justification” for the sheriff granting the respondent’s motion, given the history of the respondent’s conduct in the matter.

The charge had been hanging over the complainer for 17 months and it was open to the sheriff to refuse to postpone the trial diet fixed for 15 December 2014, thereby putting pressure on the Crown to prioritise the case.

The sheriff reported that it was with “considerable hesitation” that he concluded that it was in the “interests of justice” to grant the respondent’s motion. Given what he had been led to understand about the pressures on the forensic laboratory, he was content to allow the trial to take place on 14 May 2015 on the understanding that there could be no excuse if the Crown was not ready to proceed at that date. He had regard to the guidance provided by the 1996 decision in HM Advocate v Lee.

The sheriff also noted that the allegation against the complainer was “relatively serious”. The Crown’s position was that 23 Ecstasy tablets were involved and the allegation against the complainer was aggravated by him having been on bail at the relevant time.

Refusing the bill, the judges remarked that a decision whether or not it is in the interests of justice to adjourn or postpone a trial diet is 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, Lord Brodie said: “In this case the sheriff described the performance of the respondent’s administrative staff as inept. No issue can be taken with that. The complainer is entitled to have the charge against him disposed of within a timescale consistent with summary proceedings. This matter should have gone to trial in October 2014.

“However, no more particular inconvenience appears to have occurred. The complainer had only been present in court once, on 24 September 2014. The sheriff was entitled to have regard to the fact that albeit the matter is being dealt with on complaint, the charge is a relatively serious one.”

The judges added that there required to be a “balancing of the various interests” involved, these being prejudice to the prosecutor, prejudice to the accused and prejudice to the public interest in general.

“Here the sheriff gave consideration to, but rejected, the possibility of retaining or fixing a trial diet earlier than 15 May 2015. In our opinion it cannot be said that the sheriff has reached a decision which he was not entitled to reach,” Lord Brodie said.