Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 119

HCA/2015/3303/XJ

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

BILL OF ADVOCATION

by

PETER WALKER

Appellant;

against

PROCURATOR FISCAL, EDINBURGH

Respondent:

Appellant: S McCall QC; John Pryde & Co (for Levy & McRae, Glasgow)

Respondent: A Edwards AD; the Crown Agent

 

18 November 2015

[1]        This is a Bill of Advocation complaining about the decision of a Justice of the Peace at Edinburgh on 31 August 2015 first refusing to adjourn a trial and then part hearing it, and adjourning it to 28 September 2015.   The libel is one of assault by punching an unknown male on 13 October 2013.  The appellant, who is a police officer, was arrested and charged on 16 October 2013.  No action was apparently taken by the respondent until the appellant was cited to appear on 17 September 2014.  There has been, and is as yet, no explanation for that time lapse.  The diet was adjourned without plea until 15 October to allow the appellant to carry out investigations.  On 15 October it was adjourned again until 12 November, without plea, to allow the appellant to view CCTV images.  A trial diet was then fixed for 14 May 2015.  That diet was postponed in advance, because a police witness was due to be on holiday.  A new trial diet was fixed for 31 August.

[2]        At the trial diet, it was understood that the respondent intended to rely on CCTV evidence.  This was to be introduced by way of a certificate under section 283 of the Criminal Procedure (Scotland) Act 1995, thus obviating the necessity for the operator of the CCTV to give evidence.  In the absence of agreement, that required service of the certificate 14 days in advance of the trial.  The case was called with a number of other cases at 10.35am.   It was due to call again later that day, once the position with witness attendance had been ascertained.  It then came to the attention of the respondent that the certificate had not been served.  She therefore commenced another trial pending recovery of the certificate from the police office.  This was done, but it was only served in the early afternoon.

[3]        At 3.45, the case was recalled.  The respondent invited the court to adjourn the trial “ex proprio motu” due to lack of court time.  The respondent’s witnesses had been sent away and there were custody cases to be dealt with.  The appellant’s agent opposed the motion and it was refused.   At 5.00pm, the respondent, having retrieved at least one witness, commenced the trial.  The Justice of the Peace almost immediately adjourned the trial until 28 September 2015.    In reaching her decisions to refuse the earlier motion to adjourn and later to adjourn, the JP reports that she considered the prejudice to the appellant, to the respondent and to the public interest.  She had noted that the appellant was a police officer.  She took into account the length of time the case had taken since the alleged offence.  She had in mind that the adjourned diet would take place only a few weeks later, thus the degree of prejudice, she said, was limited.  There was a public interest element stemming from the appellant’s position as a police officer.  The allegation, in that context, was not minor.

[4]        The appellant submitted that the JP had erred in the exercise of her discretion to adjourn the trial at 5.00pm.  Reference was made to McCowan v Procurator Fiscal, Glasgow [2013] HCJAC 119, citing Paterson v McPherson [2012] HCJAC 61, 2012 GWD 19-384, itself referring to Tudhope v Lawrie 1979 JC 44 and Skeen v McLaren 1976 SLT (notes) 14, and to Donaldson v Kelly 2004 SCCR 153.  The argument was, under reference to the Bill, that the JP had failed to give sufficient weight to a number of factors, notably: the procedural history of the case; the impact of the proceedings on the appellant; the relatively minor nature of the charge; and the failure by the respondent properly to prepare the case relative to the certificate.  In adjourning the case, the JP had effectively allowed the respondent to cure what would have been a fatal flaw.  The decision to permit the trial to commence and then to adjourn it as part-heard, had been, it was said at the hearing, a decision which no reasonable JP could have reached.  It was also said that in so doing, the JP had failed to apply herself to the test which she had enunciated relative to the earlier adjournment decision.

[5]        In Paterson v McPherson [2012] HCJAC 61, 2012 GWD 19-384, it was made very clear (at para [6]) that a decision on whether a trial diet should be adjourned is primarily one for the court of first instance, having regard to the circumstances of the particular case and the trial court in general.  This court will only intervene with such a discretionary decision 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.  The test for unreasonableness is a high one.  It must be stressed in that respect that a failure to give a particular relevant factor a greater or lesser amount of weight is not, of itself, a ground for the successful review of a discretionary decision.  For an appeal to succeed, the court would have to be shown to have left the factor out of account entirely (see Berry, Petnr 1985 SCCR 106, LJG (Emslie) at 113).  It is of note that the matters complained of, as averred in the Bill, are solely matters to which, it is said, the JP gave insufficient weight.  There is no averment of general unreasonableness or why the decision should be categorised in that manner.  The averments are essentially irrelevant.

[6]        In Paterson, the court referred to Lord Cameron’s dictum in Tudhope v Lawrie 1979 JC 44 at 49 about the care which must be taken before refusing a prosecutor’s motion to adjourn, when that decision could bring the prosecution to an end.  Regard should be had to the three elements of prejudice to the prosecutor, the accused and the public interest (Skeen v McLaren 1976 SLT (notes) 14).  These are the very matters which the JP addressed.  The court has no reason to suppose that the JP had suddenly forgotten these factors between her two decisions.  It is clear, by the reference to the proposed new trial diet, that she had not.

[7]        Paterson has been repeatedly followed, for example, in Christensen v Harvie [2015] HCJAC 39, 2015 GWD 18-298; and Bowden v Harvie 2015 SCCR 113.  In these circumstances there is no basis for the contention that the JP erred in the exercise of her discretion.  The court will accordingly refuse to pass the Bill.

[8]        Finally, it should be stressed that Hunter v Cottam 2011 SCCR 130, which was referred to in argument, was decided on the basis that the court had failed to enunciate the test which it had applied when granting an adjournment.  It was conceded that it was therefore for the High Court to address the issue anew.  It is accordingly of limited relevance when assessing the exercise of a discretion by a court of first instance which has, as in this case, set out, and applied, the correct test.