Oppressive for Crown to let complaint fall then try again: sheriff

A sheriff has upheld a plea of oppression to a complaint against two accused, where the Crown had allowed an earlier complaint relating to the same assault charge to fall without being called.

Sheriff Philip Mann at Aberdeen Sheriff Court upheld pleas tabled on behalf of Jason Killman and Oliver Pickering, charged with an assault committed in March 2017, on the basis that the Crown had previously attempted to avoid the risk of the court refusing to allow the prosecution to continue, and it would be unfair to allow it to proceed now.

A trial had originally been set for 13 September 2017, but was adjourned to 28 November on the unopposed motion of the Crown as three essential Crown witnesses had failed to attend. On 28 November 2017 the Crown again had witness difficulties and although defence agents had suggested the trial could be at least part heard, elected not to call the complaint, with the result that the instance fell at midnight. The procurator fiscal was heard to remark that it was feared that if the Crown made motions to discharge the trial diet, which failing for it to be allowed to desert the complaint pro loco et tempore, such motions would, or might, be refused by the court.

It was argued for the accused that the actings of the Crown in deliberately not calling the first complaint for trial and then raising the second complaint amounted to oppression. The Crown had proceeded in bad faith, by preventing both accused from making representations to the court and preventing the court from exercising its supervisory role and making a decision. The accused Pickering would also suffer prejudice as he wanted to apply for entry to the armed forces, which had a policy not to consider individuals who had outstanding criminal cases against them.

The fiscal argued that the Crown had done nothing wrong. It had a duty to prosecute crime and was the master of the instance. It could lawfully decide whether or not a case should be called. There had been no inordinate delay in the re-raising of the proceedings and so no prejudice to either accused could have occurred on that account.

Sheriff Mann accepted that the Crown was entitled to act as it had and that what it did on 28 November “was neither incompetent nor unlawful nor even objectionable”. However he continued: “What I do not accept, in the circumstances of this case, is that the falling of the instance at midnight on 28 November 2017 should... be treated as a desertion of the complaint pro loco et tempore which, in effect, was what the Crown contended for.

The accused, he said, “were entitled to expect that the trial would proceed on that day unless the court sanctioned some other course of action”. They could not have the case called, nor did they have the right to absent themselves, and in these circumstances an impartial observer would think it only fair that “the Crown, if it wished to preserve its right to prosecute, should have sought the sanction of the court to adjourn the trial diet or to desert the complaint pro loco et tempore”.

They would further consider that in so acting to avoid the risk that the prosecution would be brought to an end, there had been “a clear and public renunciation of the Crown's right to prosecute”.

The sheriff concluded: “The charge in this case involves an allegation of a kick to the complainer’s head. It cannot be described as minor. There is prejudice to the second accused arising from any delay in prosecution but, in my view, not such yet as to lead to the result that a trial would be unfair. Nonetheless, in the circumstances of this case I am satisfied that to allow the prosecution on the current complaint to carry on would amount to an affront to justice. A trial on this complaint would not be a fair one. To do other than uphold the defence pleas in this case would contravene the principle that justice must not only be done but must also be seen to be done.”

Click here to view the opinion.