WILLIAM THOMAS CHRISTENSEN AGAINST PROCURATOR FISCAL, PAISLEY
APPEAL COURT, HIGH COURT OF JUSTICIARY
2015 HCJAC 39
HCA/2015-000405-XJ
Lord Brodie
Lady Clark of Calton
Sheriff Principal M M Stephen QC
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL M M STEPHEN QC
in
BILL OF ADVOCATION
By
WILLIAM THOMAS CHRISTENSEN
Complainer;
against
PROCURATOR FISCAL, PAISLEY
Respondent:
Appellant: A Ogg, Solicitor Advocate; Paterson Bell Solicitors (for Tod & Mitchell, Paisley)
Respondent: J Bain AD; Crown Agent
5 May 2015
[1] The complainer is charged on summary complaint with a number of contraventions of the Road Traffic Act 1988.
- Driving having consumed alcohol the proportion being 117 mg of alcohol in 100 ml of breath, (the prescribed limit at that time being 35 mg of alcohol in 100 ml of breath) contrary to the Road Traffic Act 1988 section 5(1)(a).
- Driving a motor vehicle when licence revoked contrary to section 94A(1) of the Road Traffic Act 1988.
- Driving without third party insurance contrary to section 143(1) and (2) as amended.
- Failing to give information as to the identity of the driver of the vehicle SOO2 LDA (in respect of the alleged contravention of section 5) when required to do so by a police constable contrary to section 172(2)(b) and (3) as amended.
The road traffic offences are alleged to have been committed on 8 July 2013 at Lochwinnoch.
[2] The complainer appeared the following day before the sheriff at Paisley when he pleaded not guilty to all charges, was released on bail with intermediate and trial diets set for 27 August 2013 and 9 September 2013 respectively. The sheriff granted the Crown motion to seize the vehicle registration number SOO2 LDA referred to in each of the four charges on the complaint.
[3] The court minutes then disclose a litany of adjournments of intermediate and trial diets until 26 January 2015 when once more the sheriff adjourned the trial ex proprio motu due to lack of court time. In so doing the sheriff refused the complainer's motion to desert simpliciter. Instead the sheriff adjourned the trial until the following month (27 February 2015). By way of bill of advocation, the complainer seeks to have the sheriff's decision on that date recalled as unjust, oppressive and contrary to law. The complainer founds on the passage of time since the offences are alleged to have taken place, the procedural history of the case and the number of adjournments due to pressure of business in court or lack of court time.
[4] The history of this case discloses that the complainer has been at liberty and subject to a bail order since his first appearance on 9 July 2013. The complainer is not subject to any interim disqualification. The initial trial diet was adjourned on defence motion on 5 September 2013. Another trial diet was fixed for 6 December 2013. At a continued intermediate diet on 3 December 2013 a defence motion to adjourn the trial was refused by the court. However the trial on 6 December required to be adjourned ex proprio motu due to lack of court time in any event. Subsequent trial diets on 27 March 2014; 11 July 2014; and 17 October 2014 were adjourned due to lack of court time. The decision to adjourn each of these diets was made ex proprio motu by the court on all occasions apart from the trial diet on 27 March 2014 which appears to have been adjourned on joint motion also in respect of lack of court time. Intermediate diets on 27 August 2013 and 21 November 2013 were adjourned on defence motion. The complainer's attendance at the intermediate diets of 5 September and 3 December was excused by the courts and no further intermediate diet was required after that.
[5] The complainer accepts that the decision of the sheriff which is the subject of challenge was an exercise of judicial discretion. The complainer submits that the sheriff erred having regard to the fact that five “lack of court time” adjournments resulted through no fault of the complainer and that the procedure and delay since the incident giving rise to the charges is incompatible with summary procedure. The skilled witness cited by the complainer, Dr Paul Skett, a forensic pharmacologist, was inconvenienced as he was on stand-by on each of the trial dates. The Crown had also erred in their approach to the prioritisation of the trials calling in court and had decided to call a complaint with a shorter procedural history in another summary trials court on 26 January 2015.
[6] In her submission, the solicitor advocate for the complainer, maintained that the sheriff had erred in failing to recognise the systemic failure by the court to schedule business in such a way as to ensure that there were no lack of court time adjournments which failing to ensure that the case assumed priority at a subsequent trial diet. The court failed to manage the court business by allowing the sheriff to adjourn a part-heard trial into an already busy trials court without ensuring that additional resources were provided to hear the part-heard trial. The respondent had erred by failing to give the case suitable priority after the initial adjournment and had also failed to provided an additional depute to cope with the scheduled trials court whilst the part-heard trial ran concurrently. The sheriff had failed to follow the guidance of this court in Tudhope v Lawrie 1979 JC 44. The sheriff was wrong to ignore or give insufficient weight to the number of adjourned trial diets and to the delay which was wholly incompatible with summary procedure. This court should intervene by passing the bill, reversing the decision of the sheriff and deserting the complaint. In support of these submissions we were referred to McCowan v PF Glasgow [2013] HCJAC 119 and Middleton and Another v PF Livingston [2013] HCJAC 49.
[7] In response, the advocate depute referred to the procedural history and the fact that the sheriff on 26 January 2015 was hearing a part-heard trial involving charges which included domestic abuse allegations and which continued all day. The sheriff had followed the test set out in Tudhope (supra). There was no fault on the part of the Crown. The charges involved serious road traffic matters. The sheriff had not misdirected himself. He had regard to the interests of both parties and the public interest and relative prejudice. We were referred to Scott Paterson v PF Airdrie [2012] HCJAC 61 and the recent decision in Jay Bowden v PF Glasgow [2015] HCJAC 11.
[8] The sheriff reports his reasons for refusal of the complainer's motion to desert and his decision to adjourn the trial to the following month. That report discloses that the sheriff was not privy to the Crown's priorities as he did not require to discuss that with the depute in his court no doubt in view of the part heard trial which he had been engaged to hear continuing all day. It required to be adjourned further into February. In this regard it is worthy of note that the sheriff is a retired sheriff who required to preside over the part-heard trial which had commenced before him on 21 January 2015. In the event the trial did not conclude on 26 January and had to be continued until the following week. The sheriff had regard to the relative interests of the parties; the public interest and the interests of justice. The sheriff was entitled to have regard to the fact that the charges are for serious contraventions of the road traffic law. The sheriff is careful to identify any prejudice and inconvenience to the complainer and indeed, the Crown witnesses.
[9] The unfortunate procedural history of this case underlines the considerable pressures which exist in the summary criminal courts. The sheriff records the steps that are being taken to address these pressures by engaging additional court staff and using part-time or retired sheriffs as additional judicial resources to deal with the volume of summary complaints calling for trial. The second trials court was an additional court.
[10] It is clear from the opinion of Lord Carloway in Paterson v Procurator Fiscal, Airdrie (supra) that a decision whether or not it is in the interests of justice to adjourn or postpone a trial diet is one which is very much for the court of first instance to take, having regard to the circumstances of the particular case. The local court, as Lord Carloway points out, is much better placed to identify whether there had been, or are, what may be called systemic failures either on the part of the court or the prosecution such as a particular response is called for. When a decision is challenged by way of bill of advocation it is necessary to consider whether the sheriff at first instance reached a decision which no reasonable court or sheriff could have reached. Absent any misdirection in law it is necessary to view the sheriff's decision through this prism. Lord Cameron in Tudhope v Lawrie 1979 JC 44 at page 49 when referring to Skeen v McLaren 1976 SLT (Notes) 14 points out that there requires 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. In this case the sheriff had regard to the serious nature of the charges libelled and the significant public interest in having these charges properly determined. He was entitled to have regard to these matters. He identified that the only prejudice to the complainer mentioned in submission was the inconvenience caused by repeated appearances in court. Of course, mention has been made in the bill of the inconvenience to the expert witness. We notice that the witness was on stand-by and did not require to attend court. The complainer's attendance at intermediate diets was excused by the court and the court took steps to refrain from fixing any further intermediate diets in 2014 and 2015.
[11] We find this to be a very difficult case where those responsible for administering the courts have been unable to secure the progress of this case to trial within a proper timescale. However, the question for this court is whether the sheriff has exercised his discretion in a manner or reached a decision which no reasonable sheriff could have reached.
[12] It is clear that the sheriff has addressed all of the material matters and in particular, the gravity of the offences, the prejudice to the complainer, which amounts to inconvenience and delay, and the public interest in general. The respondent is prepared for trial and Crown witnesses have attended or been available for each trial diet. The sheriff identifies no systemic failures on the part of the respondent. The sheriff does not shrink from the protracted procedure and the series of adjournments. The sheriff’s report sets out the steps being taken to deal with the workload of pending summary business. Therefore this court, whilst concerned that this summary prosecution has required multiple diets, is unable to conclude that the sheriff reached a decision which he was not entitled to reach in the circumstances. The bill is accordingly refused.
[13] This case discloses significant problems in the scheduling of summary criminal trials which require to be addressed by those involved in the administration of the sheriff courts. It is also evident that the prioritisation of complaints calling for trial in the sheriff court is at the discretion of the Crown Office and Procurator Fiscal Service and is primarily their responsibility. It appears to us that the procurator fiscal requires to actively review these priorities in close consultation with the sheriff clerk to ensure the cases which merit priority, such as those adjourned due to lack of court time or indeed for other substantial reasons, are identified and accorded that ranking at the trial diet which follows. It hardly needs saying that this case deserves the highest priority at the next trial diet.