Summary case not oppressive after solemn adjournment refused, court rules
An accused against whom solemn proceedings for a serious housebreaking charge were begun in 2013 but fell in 2015 when the appeal court ruled that administrative failings by the Crown precluded further adjournments, has failed with a plea that summary proceedings then raised were oppressive, an abuse of process and breached his European Convention right to a fair trial within a reasonable time.
The Sheriff Appeal Court gave the decision in an appeal by Donnie Potts against a sheriff's decision to repel a plea in bar of trial and (human rights) compatibility minute against a complaint alleging that in April 2013 he broke into a house in Bellshill and stole £50,000 in cash.
The accused appeared on petition on 1 August 2013 and an indictment was served on 29 March 2014. Trial diets were adjourned three times, the last until June 2015; a fourth adjournment to October 2015 to allow steps to be taken to execute a warrant in respect of bank records was successfully appealed to the High Court, which was critical of the Crown in respect of its administrative system, conduct of the case and preparation for trial.
Five months after that decision, the accused was served in January 2016 with a summary complaint in identical terms.
Before the appeal court he argued that the delay in bringing the charge to trial was of such concern and gravity that the delay alone was sufficient to allow the court to uphold the plea due to oppression, without there being any necessity to show prejudice of the sort that would deny him a fair trial. Regarding his article 6 right, in view of the High Court's criticisms there was no requirement to show prejudice: there had been a breach of the reasonable time requirement and the court should discontinue the proceedings.
Refusing the appeal, Sheriff Principal Mhairi Stephen QC, who sat with Sheriff Principal Marysia Lewis and Sheriff Sean Murphy QC, rejected the argument that there were categories of cases in which oppression might arise from events which did not cause prejudice to the prospects of a fair trial. "The issue in the present case is delay, and the test in such a case is to be found in McFadyen v Annan [1992]", she stated.
The main argument on prejudice had focused on the undisputed fact that the appellant had had the charge hanging over him for three years. "Nevertheless, it became clear that the evidence to be led in order to prove the charge against the appellant would be largely circumstantial and be founded mainly on scientific and other documentary evidence. The appellant was unable to appoint to any material prejudice to the trial and the fairness of the trial...
"Accordingly, in our opinion, the lack of prejudice to the fairness of the trial and the gravity of the charge outweighs the other relevant factors such as the appellant's blameless conduct as regards both the solemn and summary proceedings and the delay in having the charge against him determined."
No separate considerations arose in this case in relation to considering abuse of process.
Regarding the compatibility minute, the court had concerns about the apparent delay between the decision of the appeal court and service of the complaint. Even though the full decision of the appeal court was not issued until 12 October 2015 and it was proper for the Crown to consider the full reasoning, the three month interval thereafter was "pedestrian" given the background even if the case was sent to Crown counsel for advice.
However the complaint had been served within 24 hours of instructions being received to proceed, the procedure since had ben "unremarkable" and the case was ready to proceed to trial in October. "In these circumstances we consider that the sheriff was correct to conclude that the period of unreasonable delay had apparently ended", Sheriff Principal Stephen stated.
"Having regard to all factors it does not appear to us that there is an obvious continuing breach now that the trial has been fixed and the respondent has given assurances to the court that he is prepared for trial. That is, of course, no guarantee that the trial will take place but nevertheless it is incumbent on the respondent to proceed to trial expeditiously. We are satisfied that the appellant can have a fair trial and much attaches to the importance of this matter proceeding to trial on the date fixed in order that the appellant may have the charge against him determined.
"In these circumstances and in the absence of a continuing violation we propose to refuse the appeal in respect of the compatibility minute."