Connachan v Douglas
| Jurisdiction | Scotland |
| Judgment Date | 10 January 1990 |
| Neutral Citation | 1990 SCCR 101 |
| Date | 10 January 1990 |
| Docket Number | No. 37. |
| Court | High Court of Justiciary |
JC
Lord Cowie, Lords Prosser, Brand.
Procedure — Summary procedure — Complaint — Competency — Mora — Police officer cautioned and charged with assault 14 months after alleged incident — No prior warning that criminal proceedings under consideration — Matters delayed in order to await conclusion of trial of complainer's associated matter — Police officer giving evidence at that trial and evidence being disbelieved — Whether undue delay — Whether officer suffered gross or grave prejudice such as to affect conduct of his own trial — Whether complaint competent.
A police officer was charged with an assault allegedly perpetrated in June 1988. In July 1988 an inspector informed him that a complaint had been made charging him with this assault and that a report was in preparation. The officer was not informed that criminal proceedings might be taken against him. In November 1988 the officer was interviewed under caution by that inspector; again, there was no suggestion of criminal proceedings against him being effected. In January 1989, the complainer was acquitted of assaulting the officer but gave evidence which implicated the officer in an offence. The officer gave evidence at this trial but that evidence was disbelieved and the complainer was acquitted of the charge she had faced. Fourteen months after the alleged assault that the officer had perpetrated on the complainer, in August 1989, he was formally cautioned and charged with the crime. A complaint charging him therewith was served upon the officer in September 1989 and, at the pleading diet, he tendered a plea to the competency of the complaint. At a hearing on that preliminary plea, the defence argued that there had been undue delay. The sheriff (Presslie) held that there had been undue delay but that that delay had not caused prejudice so gross as to render the proceedings incompetent, albeit that there had been "significant prejudice" caused by the delay. The factors taken by the sheriff to amount to "significant prejudice" were: (a) that the passing of time and the officer's involvement in similar intervening incidents would have materially impaired his memory of the events in question; (b) that the memories of other witnesses, who might have been present, would similarly have been impaired; and (c) that the fact that the officer had continued to serve as a police officer from the date of the alleged incident until being cautioned and charged would have exacerbated the position by inducing in him a belief that no suspicion attached to him, thus adversely affecting the quality of any defence that he might subsequently present. The officer thereafter appealed by way of note of appeal to the High Court of Justiciary.
Held, (1) (applyingTudhope v. McCarthySC1985 J.C. 48) that, the court had to ask itself in testing the competency of the complaint on the question of delay: (a) whether there had been undue delay; and (b) did it result in gross or grave prejudice?; (2) that, the sheriff having accepted that there had been undue delay, the court had to look to see whether there had been grave or gross prejudice which might affect the conduct of the officer's trial; (3) that, the fact that the officer's evidence had been disbelieved at the earlier trial could be prejudicial at any trial of his in that it might be put to him that he had told a different story on a different occasion, which, taken with the "significant prejudice" found by the sheriff to have occurred, amounted to grave or gross prejudice to the officer; and appeal allowed and complaint dismissed as being incompetent.
Peter James Connachan was charged on a summary complaint in the sheriffdom of Lothian and Borders at Haddington at the instance of Ian D. Douglas, procurator-fiscal there, the libel of which set forth that:— "[O]n 11th June 1988, in Whitecraig Avenue, Whitecraig, East Lothian, you did assault Audrey Ross or Cowan, … seize her by the hair and drag her on the ground, all to her injury." The first calling of that complaint was on 14th September 1989 at which the accused tendered a plea to the competency thereof. The cause was continued for a hearing on the preliminary plea to 27th October 1989 and evidence was heard from various police witnesses on 3rd November 1989. Eo die, the diet was adjourned until 17th November 1989 on which day the sheriff (G. W. S. Presslie) repelled the preliminary plea. The appellant thereafter appealed to the High Court of Justiciary against this decision by way of note of appeal.
In his report for their Lordships' consideration, the sheriff stated,inter alia: "At the hearing on 27th October 1989 the appellant's agent summarised events in relation to the complaint so far as was within the appellant's knowledge, and submitted shortly that events disclosed both undue delay in the complaint and gross or grave prejudice to the appellant. In support of these contentions he referred to passages from the opinion of the court delivered by Lord Justice-Clerk Wheatley in Tudhope v. McCarthySC 1985 J.C. 48 and to the opinion of Lord Hunter in H.M. Advocate v. LeslieUNK (unreported, 31st January 1984), passages from the opinion of Sheriff Jardine in Tudhope v. ClementUNK 1985 S.C.C.R. 252 (Sh. Ct.), passages from the opinion of Lord Kincraig inH.M. Advocate v. StewartSC 1980 J.C. 84 and to the opinion of Sheriff Mowat and the subsequent opinion of the court delivered by Lord Justice-General Emslie in McFarlane v. JessopUNK 1988 S.L.T. 597. In answer, the procurator-fiscal depute narrated a full and detailed history of events connected with the complaint against the appellant, which events are included in those set forth below. The procurator-fiscal depute sought to establish support for the Crown position where a police officer is the subject of complaint and there is a contemporaneous substantive complaint against a civilian, that the Crown waits for the substantive complaint to be disposed of before proceeding against the police officer. The practice was referred to in Tudhope v. McCarthy [at p. 50]. He sought to distinguish the circumstances of the present complaint from those in Tudhope v. McCarthy. He contended that the delays in the present complaint were materially less. In referring toTudhope v. Clement he submitted that the three elements of delay, viz., the delay in the making of the complaint by the complainer (McKinnon) against the police officers, the delay in disposing of the substantive complaint against McKinnon, and the delay associated with Crown proceedings against the police officers were all absent from the present process. In referring to the judgment of Sheriff Mowat in McFarlane v. Jessop the procurator-fiscal depute sought to find support for comparable delay in the instant case by the recognition that where a complaint is being taken against a police officer, unusually for a summary complaint, there has to be...
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