APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Sheriff Principal Stephen	[2014] HCJAC 138 HCA/2014/004469/XJ   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   bill of advocation   by   STEPHEN LAMB Appellant;   against   PROCURATOR FISCAL, HAMILTON Respondent:   _____________

Applicant: S Collins, Solicitor Advocate; Capital Defence Lawyers (for Kiernan Law, Uddingston)

Respondent: Scullion QC AD; the Crown Agent

 

17 December 2014

[1]        The appellant is charged on summary complaint at Hamilton Sheriff Court with a failure to provide a breath specimen on 30 June 2011 in Uddingston.  He is also charged with driving with excessive alcohol in his blood (158mg in 100ml), with failing to stop and not displaying an excise licence. 

[2]        The complaint first called on 22 October 2013, when the diet was continued without plea until 19 November.  An “expediency” warrant was granted as the complaint had not been served.  On 6 December 2013, a plea of not guilty was tendered.  An intermediate diet was fixed for 29 May, with the trial set for 23 June 2014.  On 29 May the respondent stated that the case was fully prepared.  At the trial diet, however, he moved to adjourn because certain essential documentation had not been served and two witnesses, namely the police surgeon and the appellant’s father, had not attended.  There was no opposition and the trial was adjourned until 15 August, with an intermediate diet on 17 July. 

[3]        On 17 July, the respondent again stated that the case was ready for trial.  However, at the trial diet he again moved to adjourn it, due to the absence of the same documentation and the same witnesses.  The motion was not opposed and a fresh trial diet was fixed for 9 October 2014.  At that diet, there was yet another motion to adjourn, once more on the basis that the same witnesses had not attended, although the documentation problem appears to have been resolved.  The police surgeon had been cited on 29 August by service on his receptionist.  Due to his failures to attend, a letter had been sent to him warning him of the consequences of failing to attend.  Efforts were made on the day of the trial to telephone the surgery, his home and mobile phone, without response.  Similar efforts were made to trace the appellant’s father, but there was no reply to his phone either.

[4]        In opposing the Crown’s motion to adjourn, the appellant submitted that the Crown had failed to see that their witnesses were in court on three occasions.  The complainer was a self‒employed builder, who had taken time off work on numerous occasions to attend.  The sheriff granted the application to adjourn.  The ground of challenge to that decision, as presented in the Bill of Advocation, was one of oppression.

[5]        The sheriff reports in response to the Bill that the non‒attendance of the witnesses on this occasion had occurred despite what she described as the Crown’s best efforts to avoid it.  There had been personal citation of the appellant’s father and, in due course, a warrant was granted for the arrest of that witness.  In the case of the police surgeon, the sheriff considered that the Crown had done everything possible to try and ensure his attendance although, of course, stated in such absolute terms, that cannot be accurate.  The sheriff had regard to the nature of the charges and concluded that, in all the circumstances, it was in the interests of justice to allow the respondent one final chance to have the witnesses attend for trial. 

[6]        This was a straightforward issue for the sheriff of whether a trial diet should be adjourned.  That was a matter for her discretion, having regard to the various interests involved and, ultimately, the interests of justice.  As the appellant recognised, under reference to Paterson v Procurator Fiscal, Airdrie [2012] HCJAC 61, in order to justify interference with such a discretionary decision, the appellant would require to specify some error which undermined it such as the application of the wrong principle of law or because the decision was one which no first instance court could have arrived at in the circumstances.  In that regard, questions of what weight ought to be attached to a particular factor are, of course, primarily for the court of first instance to determine.  Although it was contended that the sheriff had not taken into account the circumstances of the appellant and any prejudice to him, there is no hint of such a deficiency in the sheriff’s report.  It clearly refers to her having had regard to all the circumstances, thus including the appellant’s position which she had specifically narrated.

[7]        In all these circumstances the court cannot identify any error in the sheriff’s decision.  It will therefore refuse to pass the Bill.