Summary complaint following deserted solemn proceedings not unfair, Sheriff Appeal Court rules

A man accused on summary complaint of housebreaking against whom solemn proceedings over the same incident were dropped following an appeal has failed in a plea to have the case against him deserted.

The Sheriff Appeal Court refused an appeal by Donnie Potts, who challenged a sheriff’s decision to repel his plea in bar of trial that the continued prosecution of him was “oppressive and unfair” and amounted to an “abuse of process”, and a decision to refuse a compatibility minute that the continued prosecution of him breached his right to a fair trial in terms of the European Convention on Human Rights.

Sheriff Principal Mhairi Stephen QC (pictured), Sheriff Principal Marysia Lewis and Sheriff Sean Murphy QC heard that appellant was charged by the Procurator Fiscal at Hamilton on summary complaint alleging that in April 2013 he broke into a house in Bellshill and stole £50,000 in cash.

The accused appeared on petition at Hamilton Sheriff Court on 1 August 2013 and an indictment was served on 29 March 2014, with a trial diet assigned for 19 May 2014.

Following a number of adjournments the Crown was granted a further motion adjourn the trial to 21 September 2015 to allow steps to be taken to execute a warrant in respect of the appellant’s bank records and the sheriff extended the time bar to 2 October 2015, but that decision was successfully appealed to the High Court of Justiciary.

The appeal court was critical of the Crown in respect of its administrative system, conduct of the case and preparation for trial and held that the respondent had failed to advance sufficient reason to justify the extension.

Subsequently however, in January 2016 the appellant was served with a summary complaint in identical terms to the charge on the indictment.

Before the appeal court it was 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 for the appellant to show prejudice of the sort that would deny him a fair trial.

It was also submitted that the actings of the respondent in prosecuting the appellant were “unlawful” and in breach of his article 6 right to have the charge against him determined within a reasonable time.

The “only proper remedy” was the discontinuation of proceedings, the appellant argued.

Refusing the appeal, the appeal sheriffs 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, and that the appellant’s was one such case.

“The issue in the present case is delay, and the test in such a case is to be found in McFadyen v Annan ”, Sheriff Principal Stephen said.

“In our opinion, when considering a plea in bar of trial where oppression is alleged due to delay, the court must consider that delay and the cause of that delay as relevant factors when addressing the real test whether the risk of prejudice from the delay is so grave that the sheriff could not be expected to put that prejudice out of his mind and reach a fair verdict on the evidence,” she added.

The main argument on prejudice had focused on the undisputed fact that the appellant had had the charge hanging over him for three years, but the evidence to be led in order to prove the charge against the appellant was “largely circumstantial” and was to founded mainly on scientific and other documentary evidence.

The appeal sheriffs observed that the appellant was “unable to appoint to any material prejudice to the trial and the fairness of the trial”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “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.”

The court also held that the plea of abuse of process was “neither separate nor distinct from the plea of oppression”.

In relation to the compatibility point, the court expressed “concerns” about the “apparent delay” between the decision of the appeal court in August last year and service of the complaint in January this year.

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 before they reached a view on what was described as the “highly unusual and exceptional step” of bringing summary proceedings after an indictment had fallen, the three-month interval thereafter was “pedestrian”.

However, the court noted that the complaint had been served within 24 hours of instructions being received to proceed, the procedure since had been “unremarkable” and the case was ready to proceed to trial in October.

In these circumstances, the court considered that “the sheriff was correct to conclude that the period of unreasonable delay had apparently ended”.

Sheriff Principal Stephen added: “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.”

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