APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Emslie Sheriff Principal Lockhart	[2012] HCJAC 61 XJ116/12 OPINION OF THE COURT delivered by LORD CARLOWAY in BILL OF ADVOCATION by SCOTT PATERSON Appellant; against PROCURATOR FISCAL, AIRDRIE Respondent: _____________

Appellant: I M Paterson, Solicitor Advocate; Paterson Bell (for Gallacher & Co, Kirkintilloch)

Respondent: Gilchrist QC, AD; the Crown Agent

28 March 2012

[1] On 5 November 2010, a search was carried out at the home of the appellant. As a result of what is alleged to have been found, he appeared at Airdrie Sheriff Court on 25 January 2011, charged on a summary complaint with concern in the supply of cocaine, or alternatively possession of that drug, and possession of cannabis. He pled not guilty and a trial diet was fixed for 19 October 2011 and later changed, on joint motion, to 15 December. The reason for the postponement was that parties were awaiting a judgment from the United Kingdom Supreme Court.

[2] There was an intermediate diet on 18 November 2011, when the court was not given any reason to suppose that the parties were not ready for trial. When the trial diet called, it transpired that the respondent had failed to serve the relevant forensic report and associated notice on the appellant and to instruct a further STOP report, relative to the quantity of the drugs, following upon a request by its prospective compilers for further information.

[3] The sheriff granted the adjournment sought by the respondent and which had undoubtedly been prompted by the respondent's own errors. He gave as his reason the following:

"There had been a clear oversight by the Crown in its failure to instruct the report and cite the witness. However, I did not consider that the stage had yet been reached where proceedings should no longer be allowed to continue. There was also a clear public interest in having the charges, which involve serious matters, resolved. Some of the delay occasioned thus far had been at the behest of both the Crown and the defence. The solicitor for the complainer did not suggest that there would be any prejudice to the complainer in the trial proceeding at a later date".

A new trial diet was fixed for 10 April 2012.

[4] The decision of the Sheriff has been advocated and the appellant maintained that the Sheriff had erred in the exercise of what was accepted to be a matter for the exercise of his discretion. It was said that the basis for the decision, albeit not expressly stated, was that the Sheriff had decided that, because the trial diet was the first one which had actually been called, that was of itself a reason to grant the motion adjourn. It was emphasised that there was no coherent explanation given by the respondent for either the failure to instruct the STOP report or to serve the forensic report. Particular focus was placed on the lengthy period of time which had expired between the original pleading diet and the intermediate diet and thereafter. In these circumstances, under reference to the Tudhope v Lawrie 1979 JC 44, Najafian v Donaldson 2010 SCCR 816, Istiak Ali v Procurator Fiscal, Glasgow, unreported, High Court of Justiciary, 20 August 2010 (no XJ555/10) and Paxton v The Procurator Fiscal, Inverness, unreported, summary note of reasons, High Court of Justiciary, 7 April 2010, it was submitted that the court should revisit the question and pass the Bill. It was further submitted that the reasons advanced by the Crown in their answers to the Bill relative to staff shortages were inadequate and indicative of systemic failure.

[5] In response, the advocate depute emphasised the nature of the test stipulated in Tudhope v Lawrie (supra) and that it did not appear to have played an express part in the cases cited by the appellant. Fault on the part of the Crown was not decisive (McNaughton v Procurator Fiscal, Paisley, unreported, High Court of Justiciary, 24 February 1999 (no 299/99)).

[6] A decision on whether or not it is in the interests of justice to grant an adjournment of a trial diet is one which is very much for the court of first instance to take, having regard to the circumstances apparent in the particular case and the trial court generally. Clearly, the local court is much better at identifying whether there have been, or are, any systemic failures in the court or prosecution systems, such that decisive action must be taken. The first instance court is also best able to identify whether an error can be regarded as excusable or otherwise in that context. This court will only intervene with this type of discretionary decision, in the absence of a misdirection in law, if it can hold that the court has reached a decision which no reasonable court of first instance could have reached.

[7] When making a decision in this context it is important for the court to be aware of the precise terms of Lord Cameron's opinion in the locus classicus of Tudhope v Lawrie 1979 JC 44 (at page 49) where he states,

"There can of course be no doubt that it lies within the power of a sheriff to refuse to grant an adjournment of a diet with the consequences, (as in this case), that an instance may fall and a prosecution brought to an end. But at the same time this is a power which, in view of the possible consequences of its exercise to parties and to the public interest, must be exercised only after the most careful consideration, on weighty grounds and with due and accurate regard to the interests which will be affected or prejudiced by that exercise".

Lord Cameron drew attention to Skeen v McLaren 1976 SLT (notes) 14, where the court laid down that, in deciding such a matter, there were three elements which had to be considered: prejudice to the prosecutor, prejudice to the accused and prejudice to the public interest in general.

[8] When the court studies the succinct report of the Sheriff in this case, it can see that the Sheriff has addressed all of these matters and, in particular, the gravity of offence, the prejudice to the complainer and the public interest in general, whilst recognising the existence of inexcusable fault on the part of the Crown. The court is unable to conclude that the Sheriff has reached a decision which he was not entitled to reach in the circumstances. The court will accordingly refuse to pass the Bill. In so doing, it observes that the Tudhope v Lawrie (supra) does not appear to have featured in the reasoning of the other cases cited by the appellant and that the information on the circumstances of these cases, as revealed by the Opinions or Notes of Reasons, is limited.