Appeal Court condemns adjournments of child's case
"Unacceptable" procedure in the sheriff court which led to repeated adjournments of the trial of a child accused charged with wilful fireraising at a school, has been strongly criticised by the Criminal Appeal Court.
The court, under Lord Justice General Carloway, made its comments in refusing an appeal by BS against a sheriff's decision to grant an extension of the 12 month time bar in his absence. Dated August 2022 but just released, its opinion states that the case "raises a wider question about the use of first diets in solemn procedure".
BS appeared on petition on 16 June 2020 charged with causing the fire at Wester Hailes Education Centre, Edinburgh on 13 March 2020. There were six further first diets, with repeated continuations for a variety of reasons, with a different depute fiscal present each time, and involving five different sheriffs. "This reflects, as will be seen, a lack of ownership of the case by either the prosecution or the court", Lord Carloway observed. "This is particularly disturbing given that the appellant is a child."
The statutory scheme, under which at the first diet, after disposing of any preliminary issues, the court must fix a trial diet, had been "effectively and repeatedly ignored".
Although matters had arisen which were said to require further investigation, Lord Carloway, who sat with Lord Pentland and Lord Matthews, said the requests for adjournment should have been opposed and refused. With the disruption caused by the Covid pandemic, a trial diet would likely have been months if not a year or more in the future, giving ample time to comply with any additional disclosure needed.
"Sheriffs who preside over first diets must ensure that this type of pointless saga does not happen", Lord Carloway stated. Although the court recognised that, at present, defence agents might be experiencing difficulties in lodging the required documents in advance of the first diet, and exceptionally, therefore, it might be appropriate to appoint a continued first diet, "routine continuations" for further time to prepare or similar causes "should be refused in favour of fixing a trial diet for a time which allows any additional preparatory work to be completed and/or granting a time limited order for the provision of whatever relevant information is required".
The first trial diet fixed in this case, in February 2022, was adjourned until June for lack of court time. "It should only be in exceptional circumstances that a trial, which has already been adjourned on the basis of lack of court time, should be adjourned again for the same reason. This is especially so where the accused is, as here, a child", Lord Carloway reiterated. However at the June diet another case was given priority, and BS was excused attendance. For the adjournment hearing the case was moved at a late stage to a different court from that to which it had previously been allocated; BS's solicitor, who was in the building, had not learned of the change and was not present when the adjournment, with time bar extension, was sought and granted.
Failure to communicate effectively with BD's solicitor was a further "substantial irregularity", Lord Carloway emphasised. "Although the court is not prepared to hold that there was any bad faith, it is not surprised that the agent attributed this to the [depute fiscal] given the simplicity of contacting him."
He continued in conclusion: "Notwithstanding the seriousness of the failure, the court requires to be satisfied that, had the appellant’s agent been present, a different decision might have been reached. Such a decision would have been, in effect, to bring an end to this prosecution of a fireraising which took place at an educational centre where some 100 people, mostly children, were present.
"Having regard to the procedural history, which includes considerable delay at least some of which has been attributable to the appellant’s belated amendment to the defence statement and consequent application for an excessive degree of disclosure, that is not a consequence which would be consistent with the interests of justice. For these reasons, the court will affirm the determination to extend the time bar... Needless to say, the court expects this trial to commence on 20 September."