APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Mackay of Drumadoon Lord Drummond Young	[2013] HCJAC 68 XJ152/13 and XJ168/13 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in BILLS OF ADVOCATION by BARRY GLANCY and EILEEN MacDONALD Complainers; against PROCURATOR FISCAL, GLASGOW Respondent: _____________

Complainer Glancy: S Collins, solicitor advocate; Paterson Bell, Edinburgh

Complainer MacDonald: S Collins, solicitor advocate; Capital Defence Lawyers, Edinburgh

Respondent: K Stewart QC AD ad hoc

19 April 2013

[1] The two complainers have presented bills of advocation complaining about two decisions of the sheriff at Glasgow dated 7 February 2013. On that date each of the complainers was present at Glasgow Sheriff Court and was ready to proceed to trial. The procurator fiscal depute moved to adjourn the trial diet. This was opposed by the solicitors acting for each of the complainers. The sheriff adjourned the trial diet and fixed a new trial diet for 20 February. The complainers now challenge those decisions. The bills are opposed by the respondent.

[2] Each of the complainers was charged in Glasgow Sheriff Court on a summary complaint with a charge of statutory breach of the peace and in the case of Mr Glancy, the first complainer, with possession of a knife and causing damage to a car. The summary complaint originally called on 11 November 2011, the events being said to have occurred on 11 July 2011. On 11 November the case was continued without plea until 9 December to await the outcome of a debate fixed for that date in respect of a co-accused, Kevin Glancy. The result of the debate was that the complaint against Kevin Glancy was dismissed. Thereupon the two present complainers pled not guilty to the charges against them. A trial was fixed for 2 April 2012.

[3] There have been four trial diets in this case, none of which has proceeded. The first was that on 2 April 2012 which did not proceed because an essential Crown witness, Lynn Piper, was not present. It appears that she had not been properly cited by the Crown. The two subsequent diets fixed for 6 July and 5 October, both 2012, did not proceed on account of a lack of court time. The second complainer, Eileen MacDonald, lodged a bill of advocation in respect of the sheriff's decision of 5 October continuing the case until 24 January 2013. Consequently the diet for 24 January required to be adjourned and the trial was fixed for 7 February 2013.

[4] On 30 January 2013 the bill of advocation was heard and refused. The High Court held that the sheriff, faced with a difficult situation did all that he was obliged to do in the circumstances. Having regard to the circumstances it would have been contrary to the interests of justice to refuse the motion.

[5] When the case called on 7 February the Crown made a motion to adjourn owing to the non-availability of two Crown witnesses, Kevin Clark and Lynne Piper. It was explained to the court that that morning a telephone call had been received from Mr Clark intimating that both he and Miss Piper had contracted a virus and would be unable to attend court. The motion to adjourn was opposed but was granted and a new trial diet was fixed for 20 February.

[6] The present bills of advocation are brought to challenge the decision to adjourn the trial diet on 7 February 2013. A number of submissions were made to the sheriff at the time when he decided to adjourn. These related to the health of the two complainers. It is unnecessary to go into those because it is clear that the sheriff took these submissions into account.

[7] The sheriff who granted the motion to adjourn on 7 February, Sheriff Daniel Scullion, has prepared a very full report. He explained that when the case called for trial on 7 February he adjourned it owing to the absence of the two essential Crown witnesses, Lynne Piper and Kevin Clark.

[8] The procurator fiscal depute had advised the sheriff that the case had been identified by the Crown as the priority trial and in fact another trial had been transferred from the sheriff's list to enable the present case to proceed. Shortly before the case called, however, one of the absent Crown witnesses contacted the procurator fiscal's office to advise that both of the witnesses were unfit to attend court. The sheriff was led to understand that it was thought that the witnesses might be suffering from a gastric virus similar to the Norovirus. The procurator fiscal depute pointed out that both Crown witnesses had attended court for each of the two previous trial diets which had been abandoned owing to lack of court time. Moreover, they had made contact with the Crown that morning to explain why they were not in attendance. We note that medical certificates have now been produced. These refer to the medical conditions of the two witnesses in question referring to a history of gastroenteritis in one case and a 24 hour bug in the other case. The certificates are expressed in historical terms, but that is understandable because it is clear that, by the time the two witnesses saw the doctor who granted the certificates, their symptoms had cleared up.

[9] Submissions were made to the sheriff which he narrates at some length in his report. The sheriff also describes the history of the case in some detail and states that he was able to consider the process in full, including the previous bill of advocation and the decision of the High Court on that bill. He states that he had regard to the age of the case, its procedural history and the information presented about the personal circumstances of each of the complainers. He further took account of the fact that the complainers had been present at every trial diet. He recognized that these were summary proceedings and should be determined within a reasonable time. He thought that the absence of a medical certificate for the non-attendance of the two witnesses on the day fixed for the trial was not entirely surprising. As I have noted, certificates are now available. The sheriff indicated that the charges were relatively serious and, in the case of the first complainer, were aggravated by bail orders. Furthermore, he noted that the two witnesses, Mr Clark and Miss Piper, had attended every trial diet for which they had been cited. There was no basis therefore for holding that these were witnesses who were reluctant to attend court. Moreover, he pointed out that the previous bill of advocation had been refused one week prior to the hearing of 7 February.

[10] The sheriff stated that he had regard to the whole of the foregoing circumstances and attempted to balance the interests of each of the accused and the public interest as well as he could. He concluded that in the interests of justice the Crown motion should be granted. He instructed the sheriff clerk to identify and assign a new trial diet within two weeks but in view of the advanced state of pregnancy of the second complainer he asked her solicitor to take instructions as to whether that was sensible. It was indicated on her behalf that the early date identified was suitable. Nothing was said to suggest the contrary on behalf of the first complainer. Consequently the trial was adjourned until 20 February 2013. The Crown were instructed to obtain evidence about the medical condition of the two absent witnesses.

[11] The law governing an application to adjourn such as confronted the sheriff is stated in Skene v McLaren, 1976 SLT (Notes) 14. In that case the Lord Justice General, Lord Emslie, stated that when a motion is made to adjourn a diet of this nature three questions potentially arise. The first is whether there is any prejudice to the accused and, if so, the probable extent of that prejudice. The second is whether there is prejudice to the prosecutor, and once again the degree of probable prejudice must be estimated. The third issue is a possible prejudice to the public interest which may arise independently of prejudice to the accused or the prosecution.

[12] The sheriff has given a very full explanation of the reasons for his decision in the manner that we have stated. We consider that in the light of the approach stated in Skene v McLaren his decision cannot be faulted. He was faced with a situation where two essential Crown witnesses were unavailable, apparently for medical reasons. He ordered the Crown to obtain evidence about their condition and such evidence has in fact now been obtained. He also fixed a fresh trial diet for a date 13 days after the abortive diet. In our opinion that was a sensible, practical way of dealing with the problem. We recognize that the case has been subject to a considerable number of abortive diets, none of which was the fault of either of the complainers. We also recognize that more than 18 months have now expired since the events which are said to have given rise to the charges. Nevertheless, on 30 January 2013 this court decided that the continuation of the trial diet on 5 October 2012 was properly granted.

[13] For the complainers, it was submitted that the sheriff was in error in taking account of the earlier bill of advocation and its treatment by the court. In our opinion, that is not correct; we consider that the earlier decision was relevant. That decision contained a review of the history of the case and in that history nothing was found that was untoward. It could not be said that any significant change had occurred between the diet on 5 October 2012 and 7 February 2013 beyond the fact that the bill of advocation had proceeded.

[14] The bill of advocation reviewed the history and approved of what the sheriff had done on 5 October. In those circumstances it seems to us that the result of the earlier bill was a matter that was relevant to the decision that confronted the sheriff and that he was right to take it into account.

[15] Since then the discharge of the trial diet on 24 January was of course caused by the pending bill of advocation, and the decision that is now challenged was brought about by the illnesses of two essential witnesses, a matter that was plainly not the responsibility of the Crown.

[16] In our opinion those events do not amount to any material change of circumstances since the earlier decision of this court. We are accordingly of opinion that the sheriff was fully entitled to grant the continuation on 7 February. That conclusion is strongly supported by his attempt to fix a continuation of the trial on 20 February. Had the trial proceeded on that date the effects of the continuation that he granted would have been minimized, and in our view he is to be commended for this attempt to reach a practical solution to the problem that confronted him. For the foregoing reasons the two bills are refused.

JJ