Crown wins appeal against JP’s decision to refuse motion to adjourn trial and for witness warrant

Prosecutors have successfully challenged a decision by a justice of the peace to refuse a motion to adjourn an assault trial and for a warrant to arrest a corroborating witness who had moved to London and was avoiding service.

The Sheriff Appeal Court ruled that the justice of the peace “misdirected” himself in his assessment of the extent of the resulting “prejudice” to the Crown, as the decision lead to the complaint against the accused being deserted simpliciter.

Sheriff Principal Mhairi Stephen QC, Sheriff Principal Duncan Murray and Sheriff Kenneth Maciver heard the Crown Bill of Advocation arising out of the summary complaint against Amreek Shaan, who was charged by the Procurator Fiscal at Paisley with assault to injury on 13 March 2015 by repeatedly punching Gurthag Singh to the head and body and striking on the head with an unknown object.

At the trial diet on 11 February 2016 the complainer in the charge attended, but the witness necessary for corroboration of the charge did not.

Enquiries made after the intermediate diet disclosed that the witness had moved to London and that he did not intend to return to Paisley give evidence.

The complainer’s depute made a motion for adjournment of the trial and for a witness warrant, which was opposed by the respondent’s solicitor on the basis that nearly a year had passed since the incident.

Refusing to grant the motion a witness warrant, the justice said the offence was “almost one year old” and that there had been “no reference” at the intermediate diet to any difficulty in citing witnesses.

He explained that he did not consider it “cost effective” to bring the witness from London in custody and doubted whether he would reappear given his previous reluctance to do so.

The justice added that he also took into account the “public interest” in having summary justice dealt with “expeditiously”.

However, the Bill complained that the decision of the JP to refuse the Crown motion was “unjust, erroneous and contrary to law”.

The Crown argued that the justice had “misdirected himself in law” in refusing the motion by failing to consider adequately the prejudice to the prosecutor and the lack of prejudice to the accused, and by taking into account an “improper and irrelevant consideration” namely, the cost effectiveness of bringing the reluctant witness from London to Paisley.

Counsel for the respondent argued that the justice had referred correctly to the various prejudices which he had to give consideration to and that a failure to give a particular factor a greater or lesser amount of weight was not in itself a ground for the successful review of his discretionary decision.

Passing the Bill, the appeal sheriffs observed 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.

Delivering the opinion of the court, Sheriff Principal Stephen said: “In this case, we are of the opinion that the justice of the peace failed to weigh up these considerations properly. 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 decision of the justice brought this prosecution to an end. There is no fault, error or carelessness which can be attributed to the complainer in his preparation for trial. The witness was a reluctant witness and had failed to co-operate with the prosecutor.

“The justice appears to have misdirected himself in his assessment of the extent of the prejudice to the complainer who by the decision of the justice is prevented from proceeding with the prosecution of this case. The justice erred in ignoring or discounting the public interest that those charged with violent conduct are brought to justice. In the circumstances which faced the justice in this case, the legitimate aim of speedy justice yields to these other considerations.”

She added: “Finally, in refusing the complainer’s motion for a witness warrant the justice 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. In so doing the justice fell into error.

“In refusing the Crown adjournment in the absence of any real prejudice to the accused and in the face of significant prejudice to the prosecutor the justice reached a decision which no reasonable justice could have reached.

“The justice also erred in refusing the Crown motion for a witness warrant as he took into account an irrelevant consideration relating to the cost of bringing the witness to court.”

The appeal sheriffs remitted the case to the Justice in Paisley for diets to be set.

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