Bill Of Advocation By Peter Walker Against The Procurator Fiscal, Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Lord Justice Clerk |
| Neutral Citation | [2015] HCJAC 119 |
| Court | High Court of Justiciary |
| Date | 18 November 2015 |
| Docket Number | HCA/2015 |
| Published date | 02 December 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 119
HCA/2015/3303/XJ
Lord Justice Clerk
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
BILL OF ADVOCATION
by
PETER WALKER
Appellant;
against
PROCURATOR FISCAL, EDINBURGH
Respondent:
Appellant: S McCall QC; John Pryde & Co (for Levy & McRae, Glasgow)
Respondent: A Edwards AD; the Crown Agent
18 November 2015
[1] This is a Bill of Advocation complaining about the decision of a Justice of the Peace at Edinburgh on 31 August 2015 first refusing to adjourn a trial and then part hearing it, and adjourning it to 28 September 2015. The libel is one of assault by punching an unknown male on 13 October 2013. The appellant, who is a police officer, was arrested and charged on 16 October 2013. No action was apparently taken by the respondent until the appellant was cited to appear on 17 September 2014. There has been, and is as yet, no explanation for that time lapse. The diet was adjourned without plea until 15 October to allow the appellant to carry out investigations. On 15 October it was adjourned again until 12 November, without plea, to allow the appellant to view CCTV images. A trial diet was then fixed for 14 May 2015. That diet was postponed in advance, because a police witness was due to be on holiday. A new trial diet was fixed for 31 August.
[2] At the trial diet, it was understood that the respondent intended to rely on CCTV evidence. This was to be introduced by way of a certificate under section 283 of the Criminal Procedure (Scotland) Act 1995, thus obviating the necessity for the operator of the CCTV to give evidence. In the absence of agreement, that required service of the certificate 14 days in advance of the trial. The case was called with a number of other cases at 10.35am. It was due to call again later that day, once the position with witness attendance had been ascertained. It then came to the attention of the respondent that the certificate had not been served. She therefore commenced another trial pending recovery of the certificate from the police office. This was done, but it was only served in the early afternoon.
[3] At 3.45, the case was recalled. The respondent invited the court to adjourn the trial “ex proprio motu” due to lack of court time. The respondent’s witnesses had been sent away and there were custody cases to be dealt with. The appellant’s agent opposed the motion and it was refused. At 5.00pm, the respondent, having retrieved at least one witness, commenced the trial. The Justice of the Peace almost immediately adjourned the trial until 28 September 2015. In reaching her decisions to refuse the earlier motion to adjourn and later to adjourn, the JP reports that she considered the prejudice to the appellant, to the respondent and to the public interest. She had noted that the appellant was a police officer. She took into account the length of time the case had taken since the alleged offence. She had in mind that the adjourned diet would take place only a few weeks later, thus the degree of prejudice, she said, was limited. There was a public interest element stemming from the appellant’s position as a police officer. The allegation, in that context, was not minor.
[4] The appellant submitted that the JP had erred in the exercise of her discretion to adjourn the trial at 5.00pm. Reference was made to McCowan v Procurator Fiscal, Glasgow [2013] HCJAC 119, citing Paterson v McPherson [2012] HCJAC 61, 2012 GWD 19-384, itself referring to Tudhope v Lawrie 1979 JC 44 and Skeen v McLaren 1976 SLT (notes) 14, and to Donaldson v Kelly 2004 SCCR 153. The argument was, under...
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