Hm Advocate v Khan
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1996 |
| Date | 22 November 1996 |
| Docket Number | No. 10. |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lords Coulsfield and Marnoch
Procedure—Solemn procedure—Appeal—One of 12 jurors unable to serve after six month trial—Whether sheriff erred in refusing Crown's motion to adjourn—Whether competent to appeal by way of bill of advocation—Criminal Procedure (Scotland) Act 1995 (cap 46) sec 131(1)
Procedure—Solemn procedure—Trial—Adjournment—One of 12 jurors unable to serve after six month trial—Whether competent for court to grant Crown's motion to adjourn—Whether sheriff erred in deserting pro loco et tempore—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 90(1)
Section 90(1) of the Criminal Procedure (Scotland) Act 1995 enables the court, where a juror becomes unfit to serve during the course of a trial, to direct that the trial shall proceed before the remaining jurors, but only if they are not fewer than 12 in number.
The respondents were tried on indictment for fraud in the sheriff court, the trial starting in May 1996. The jury went down to 12 in number. One of that 12 become ill and the trial suffered several adjournments.
On 18 November 1996 the Crown moved the court to adjourn the diet until 25 November 1996 in order to enable his general practitioner to review the juror's condition and to determine his ability to continue to act as a juror. The Crown moved alternatively that, as it would follow that there were insufficient jurors present for the trial to continue, a motion to desert the diet pro loco et tempore and to grant the Crown an extension of the 12-month time limit to bring the cause to trial should be granted. The defence argued that the juror should at that stage be deemed unfit to continue as a juror and, implicitly, that the Crown's motion to adjourn should be refused. The sheriff discharged the juror, deserted the diet pro loco et tempore, discharged the remaining jurors, excused the jurors from further jury service for a period of five years and granted the Crown an extension of four months in terms of sec 65(3) of the Criminal Procedure (Scotland) Act 1995. The Crown thereafter appealed by way of bill of advocation. The pannels objected to the competency of such an appeal.
Held (1) that advocation could be used to review the decision of “any court of solemn jurisdiction” under sec 131(1) of the 1995 Act but that in any event, as the appeal was one from solemn proceedings in the sheriff court, advocation would always have been competent in an appropriate case to review a decision in such proceedings and the real question was whether it was competent to review the kind of decision taken by the sheriff; (2) that there was no doubt that a bill of advocation was a competent method of bringing the decision to refuse the Crown's motion to adjourn the diet under review and it would certainly be unfortunate if the court did not have the power to review the steps taken by the sheriff as the immediate consequence of his refusal to adjourn the proceedings since, if the court allowed the Crown's appeal against the refusal of the adjournment, that decision would be robbed of much of its practical effect; (3) that although there was no case where the court had previously reviewed the decision to discharge a jury, the length of the proceedings in the case made them exceptional and any remedy which did not at least open up the possibility of the trial being resumed would be of limited value; (4) that, although the provisions of sec 131(2) showed that the usual remedy would be for the Crown to obtain the right to bring fresh proceedings, by the passing of a bill of advocation in exceptional cases such as the present the court could grant a remedy which would leave the door open to the trial continuing; (5) that the sheriff did not only have to decide whether to desert the diet but also whether to adjourn it until 25 November 1996 and to consider the question of the juror's fitness to continue as a juror in light of the fuller information which might be available at that date, so that the sheriff was bound to apply his mind to the distinct issue of whether to grant an adjournment and the factors which would be relevant to that decision would be different from those which would be relevant in deciding whether the juror would be able to continue to serve, for in deciding whether to adjourn the diet the sheriff would require to consider the prejudice to the prosecutor, the prejudice to the pannel and the prejudice to the public interest in general; (6) that in that connection both the fact that the trial had lasted for six months and the consequences of any decision to refuse an adjournment, which was irrelevant to the final decision as to the juror's fitness, were not only relevant but extremely important in that the consequences would include the fact that months of court time and the time of the jurors would be wasted; that a fresh trial might last for months and the matter would be hanging over the respondents all that time; and the fact that were the Crown to start again, this could be damaging to the public interest in having allegations of criminal conduct determined by the appropriate forum; (7) that the sheriff had not applied his mind to those factors when deciding to refuse the Crown's motion so that the matter was open for the appeal court to decide; and (8) that, having regard to the various factors, the appropriate thing was to adjourn the diet until 25 November 1996; and bill passed.
Observed that should any practical problems arise such as the impossibility of reassembling the jury due to some of them being on holiday or the destruction of their notes making it impossible for them to follow and assess the evidence as they had been doing, those matters and their consequences could and should be dealt with by the sheriff if and when they actually arose.
The Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, brought a bill of advocation against a decision of the sheriff (A Pollock) in proceedings on indictment at the instance of the complainer against Perwaiz Akhtar Khan, Arif Anwar Khan and Tariq Muzhar Khan whereby the sheriff refused a motion by the complainer to adjourn the diet, discharge the jury, desert the diet pro loco et tempore and excuse the jurors from further jury service for five years. The statement of facts in the bill were in the following terms: “1. That the respondents were indicted at the instance of the complainer with a contravention of sec 72(1) of the Value Added Tax Act 1994. 2. That a first diet in respect of said indictment was held on 25 April 1996 when the respondents pled not guilty. The trial commenced on 8 May 1996 when 15 jurors were empanelled. 3. That on 9 May 1996 a juror was discharged on the basis it was inappropriate for him to continue as he held unsuitable views. On 22 August 1996 and 18 September 1996 two further jurors were discharged due to illness and medical reports were produced to the court in respect of this. 4. That evidence was led for the Crown continuously from 8 May 1996 to 1 November 1996 with the exception of two...
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