APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Brodie	[2012] HCJAC 136 XJ621/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in BILL OF ADVOCATION by VIKKI DONALDSON Appellant; against PROCURATOR FISCAL, ELGIN Respondent: _____________

Appellant: S Collins, Solicitor Advocate; Capital Defence (for James McKay, Elgin)

Respondent: Scullion, A.D.; the Crown Agent

11 October 2012

[1] The appellant is charged at the Sheriff Court in Elgin with a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995, section 50A(1)(b) and (5), by acting in a racially aggravated manner on 7 July 2011, at an address in Buckie, by shouting racial abuse at a female, swearing at her, challenging her to fight and threatening her with violence.

[2] When the matter first called on 15 September 2011, a trial diet was fixed for 15 February 2012, with an intermediate diet on 27 October 2011. When the intermediate diet called, it was adjourned on the motion of the defence, initially until 20 January and then until 3 February 2012, with the trial diet remaining as originally fixed. On 15 February 2012, the appellant was not present. According to the minutes, on her motion, the trial diet was adjourned until 6 June 2012, with an intermediate diet on 9 May. The reason given for this in the minutes is that the defence had had inadequate time to prepare, but it is contended that the real reason was because of the appellant's illness. On 9 May, the appellant was again absent, but no order was made and the trial diet, which had been fixed for 6 June, remained. The court is concerned with what happened thereafter.

[3] On 28 May an e-mail was sent from the sheriff clerk to the local Faculty of Procurators, advising them that the courts of 6 and 8 June would be presided over by an Honorary Sheriff. The e-mail then states as follows:

"The business on both these dates consists of trials and intermediate diets and all the cases will still call and any pleas, motions for adjournments and the like can still be dealt with, but no trials will proceed and anyone who has witnesses cited for either of these dates can countermand them in advance".

It was understood that the reason for this was that the permanent sheriff was on annual leave on these dates and it was thought that there was insufficient time to engage another sheriff to preside. The appellant's agents wrote, in response to the email, that they were content, in certain cases, to have these adjourned, but, in respect of the appellant's trial, they had concerns because:

"this case has been causing an enormous amount of anxiety to our client. We have a defence witness cited and the case is due to call for a second trial diet on 6 June 2012 and we would be keen that this particular trial proceed".

[4] At the trial diet, on 6 June, the Honorary Sheriff did indeed preside and adjourned the trial diet. He confirms in his report that the reason for his attendance was because of the absence of a permanent sheriff. He had been advised that this trial had been fixed prior to intimation of the sheriff's annual leave. It had been determined that, in the absence of any urgent business, trials ought to be adjourned. The Honorary Sheriff reports, as is indeed the case, that he is not, in the modern era, expected to conduct trials, but is in place to deal, primarily, with matters of administration or emergency (cf Sheriff Courts (Scotland) Act 1907 section 17). He explains that he granted the adjournment ex proprio motu in order to preserve the instance. Put another way, had he not adjourned the case, it could not have proceeded.

[5] The submission is that the decision to adjourn this trial had effectively been made in advance and what occurred was that the appellant was presented with a fait accompli, intimated by the sheriff clerk in advance of any decision by a sheriff.

[6] In reply, the advocate depute emphasised that normally a decision as to whether to adjourn a trial diet consists of a balancing exercise and, in this case, the Crown had not been in any way at fault. On that basis, the court should not interfere with what had happened, even if the way in which it had happened might not be seen as appropriate.

[7] The question of whether a trial should proceed on a date fixed by the court is one for judicial determination at the appropriate time. That determination has to be made by balancing various factors, including any presented in favour of the trial proceeding as scheduled. In carrying out its judicial duty to act impartially, the court cannot have its discretion to grant or refuse an adjournment fettered in advance by administrative action, particularly in a case where the parties are not agreed that the trial diet should be postponed.

[8] The Honorary Sheriff reports that part-time sheriffs are a finite resource, and no doubt that is true. Nevertheless, limitations of that sort cannot be seen to interfere with the proper administration of justice. Effectively, the Honorary Sheriff could not make a decision other than to adjourn this trial diet. The decision had already been made, since the trial could not take place. In these circumstances, this court has no alternative but to pass the Bill as justice has not been seen to be done. There could be no proper consideration of the appellant's objections. In the absence of it being demonstrated that it was not possible to engage cover for the permanent sheriff, there was no reason why this trial should not have proceeded on the due date.

DL