Justice erred in refusing London witness warrant: Sheriff Appeal Court

A justice of the peace erred in refusing a Crown motion for a warrant to bring to trial a witness who had moved to London and declined to return, where one of his reasons was that it was not cost effective to do so, the Sheriff Appeal Court has held.

Sheriff Principal Mhairi Stephen QC, Sheriff Principal Duncan Murray and Sheriff Kenneth Maciver allowed a Crown appeal in the case of Amreek Shaan, charged by the procurator fiscal at Paisley with assault to injury on 13 March 2015 by repeated punching to the head and body and striking on the head with an unlnown object.

At the trial diet on 11 February 2016 the corroborating Crown witness did not attend. Enquiries after the intermediate diet disclosed that he had moved to London and did not intend to return to give evidence. Refusing to grant an adjournment and a witness warrant, the justice said the offence was almost a year old, there had been no reference at intermediate diet to any difficulty, he did not consider it cost effective to bring the witness from London in custody and doubted whether he would reappear, and summary justice should be dealt with expeditiously.

In a bill of advocation the Crown argued that the justice had misdirected himself in law by failing to consider adequately the prejudice to the prosecutor and the lack of prejudice to the accused. The accused argued that the justice had had regard to the relevant factors and the weight to be given to each was for his discretion.

Sheriff Principal Stephen, delivering the opinion of the court, said that the justice required to balance 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, we are of the opinion that the justice of the peace failed to weigh up these considerations properly", she continued. "Had he done so he ought to have recognised that this is a serious charge especially in the justice’s jurisdiction; it is in the public interest that the complainer be afforded the opportunity of bringing evidence to prove the charge."

The Crown was not at fault and the justice had misdirected himself in his assessment of the extent of the prejudice to the Crown, which had been prevented from proceeding with the prosecution. "The justice erred in ignoring or discounting the public interest that those charged with violent conduct are brought to justice", she stated. "In the circumstances which faced the justice in this case, the legitimate aim of speedy justice yields to these other considerations."

The case had proceeded to trial without delay; further, the justice had misdirected himself "by placing weight on an irrelevant factor, namely the cost effectiveness of bringing the witness from London, which is essentially a matter for the prosecutor not the court".

Passing the bill, the court remitted to the lower court for further diets to be set.

Click here to view the opinion.