Summary sheriff failed to properly consider prejudice to accused in granting motion to adjourn trial

The Sheriff Appeal Court deserted the complaint simpliciter after ruling that the sheriff failed to “balance the prejudice” to the accused with the interests of the prosecutor and the public interest when he adjourned the third trial diet.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Marysia Lewis and Sheriff Peter Braid heard that the complainer John Archer was charged by the Procurator Fiscal at Glasgow on summary complaint, with three charges of behaving in manner which was likely to cause a reasonable person to suffer “fear or alarm” by threatening staff at the ‘Yes’ bar in Glasgow’s Drury Street in February 2015, failing to provide his name and address to police, and struggling violently with officers – all while on bail.

The court was told that two trial diets in August 2015 and January 2016 had been adjourned on Crown motion due to “witness difficulties”.

The second trial was adjourned because one of the civilian witnesses failed to attend despite the court having granted an apprehension warrant when the same witness failed to attend the first trial diet, and an invitation having been extended by the Crown which the witness failed to accept.

The third trial diet on 25 May 2016 was adjourned by the sheriff on Crown motion, which was opposed by the complainer’s solicitor, due to lack of court time on account of the lateness of the hour, the case having called sometime after 4pm.

That decision prompted the complainer to present a Bill of Advocation, claiming that the summary sheriff’s decision was “erroneous and oppressive” as he had “failed to apply the principles of summary justice” when considering the motion.

It was accepted that the decision was primarily for the court of first instance, but due to the passage of time “no reasonable court” would have exercised its discretion to grant the adjournment.

It was submitted that the sheriff had failed to “balance the prejudice to the complainer with the prejudice to the prosecutor and the public interest”.

It was also argued that the Crown was at fault because of its approach to the third trial, as prosecutors had prioritised another trial with a domestic component, where the offence was alleged to have been committed in July 2015.

Passing the Bill, the appeal sheriffs observed that decision whether a trial diet should be adjourned was primarily one for the court of first instance having regard to the circumstances of the particular case, and that the appeal court will only intervene if it can be shown that the court at first instance has either “misdirected itself in law or reached a decision which no reasonable court could have reached”.

In the 2012 case of Paterson v McPherson, the court reiterated the need to have regard to the interests “affected or prejudiced” by the exercise of discretion – the three elements of prejudice being to the prosecutor, the accused and the public interest.

“The question in this case is whether the complainer has met the high test for successful review of the summary sheriff’s discretionary decision. In other words did the summary sheriff misdirect himself in law with regard to the test to be applied when he considered whether to grant or refuse the motion to adjourn the trial and did he then apply that test?,” Sheriff Principal Stephen said.

The summary sheriff’s report stated that the case was “not particularly old”, when more than 15 months had elapsed since the date of the alleged offending and adjournment would cause a further six-month delay, but it “failed to enunciate the test” he applied when considering the motion.

The sheriff also referred to the courts being “overloaded” resulting in delay, but the appeal sheriffs said an “efficient system of summary justice requires the parties to be prepared and ready to proceed to trial”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “Unfortunately the report by the summary sheriff gives scant information as to his approach to the test which he must apply when considering whether to grant or refuse an adjournment… Accordingly, we have little confidence that the sheriff addressed the correct test and had regard to the three elements of prejudice to which we have referred.

“We have to consider whether the adjournment was necessary in the interest of justice. Such a motion has to be considered on its merits having regard to the relevant circumstances; the prejudice which will arise for the parties and the public interest and where the balance of prejudice lies.

“The prejudice to the Crown that refusal may lead to the instance falling and the prosecution coming to an end is not of itself a conclusive consideration. The Crown has contributed to the difficulties in the procedural history of this case by choosing not to execute the warrant which had been granted by the court when the witnesses failed to attend at the first trial diet. On 25 May 2016 the procurator fiscal elected to proceed with another trial and failed to accord this case the priority one would expect of a complaint calling for trial for the third time.

“It is only proper to acknowledge that decisions as to convening witnesses to court and prioritising trials are for the respondent to make. Nevertheless, the respondent must accept the risks to the continued prosecution of a complaint if the attendance of witnesses is not secured and in failing to accord priority to cases which are of some age and have a history of adjournment.

“As the charges are not the most serious we conclude that the consequences for the respondent of not being able to proceed with this complaint lose some significance in the balancing exercise. In these circumstances we are minded to pass the Bill and allow the appeal.”