The Procurator Fiscal, Aberdeen V. Sean Pirie
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Reed,Lord Mackay of Drumadoon |
| Judgment Date | 28 April 2011 |
| Neutral Citation | [2011] HCJAC 43 |
| Docket Number | XJ34/11 |
| Published date | 28 April 2011 |
| Court | High Court of Justiciary |
| Date | 28 April 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Mackay of Drumadoon Lord Bonomy Lady Cosgrove | [2011] HCJAC 43 Appeal No: XJ34/11 OPINION OF THE COURT delivered by LORD BONOMY in CROWN APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by PROCURATOR FISCAL, ABERDEEN Appellant; against SEAN DOUGLAS PIRIE Respondent: _______ |
Appellant: Brodie QC AD; Crown Agent
Respondent: Shead; Drummond Miller (for Graeme Murray & Co, Aberdeen)
28 April 2011
[1] The respondent was charged at the instance of the appellant with careless or inconsiderate driving contrary to section 3 of the Road Traffic Act 1988 and was prosecuted in Aberdeen Justice of the Peace Court. The charge was brought following a report to the police by a Justice of the Peace who sits regularly in that court. He is to be one of the principal Crown witnesses. In light of that, special arrangements were made for the trial, which was scheduled to take place on 10 November 2010. A Justice who normally sits in Banff agreed to travel to Aberdeen to hear the trial and it was arranged that a legal adviser who normally works in Inverness would fulfil that role during the trial.
[2] The trial did not proceed on the day set, but instead the respondent's agent moved to be allowed to lodge a devolution minute late. That motion was granted and the devolution minute was debated and determined on 15 December 2010. The court minute recording the determination is in these terms:
"The Court, having heard the Crown and the agent for the accused on the foregoing Devolution Minute, Upheld said Minute and the accused was accordingly acquitted of the charge. The Crown sought leave to Appeal said decision, which was Granted, on charge 1."
There is only one charge on the complaint.
[3] The devolution minute made reference to Articles 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms, but specified a challenge confined to Article 6 only as follows:
"That the Crown in full knowledge that the principal witness for the Crown presides as a Justice of the Peace on a regular basis within the Justice of the Peace Court in Aberdeen, chose to prosecute this case in the Justice of the Peace Court in Aberdeen. The representations were made to the Crown on behalf of the Minuter that this matter should be deserted and re-raised in the Sheriff Court as a more appropriate forum. The Crown delayed or refused to consider this proposal and have insisted that the matter proceed in the Justice of the Peace Court in Aberdeen therefore the action of the Crown, in attempting to prosecute this matter in the Justice of the Peace Court in Aberdeen infringes the Minuter's right to a fair Trial."
The minute contained no more specification of the basis for that proposition.
[4] In his report to this court the presiding Justice sets out his analysis of the situation as follows:
"Having heard the two sides I retired to consider the arguments presented and the cases cited. I also took the advice of Mr Lorimer that the cases cited, whilst useful in illustrating the circumstances in which a perception of bias might and might not arise, they could not give the comfort of definitive guidance because each case must be decided on its own facts. He drew my attention to a paragraph in the judgement of Lord Justice-Clerk Ross in the case of Bradford v MacLeod at page 382, quoting with approval this dictum;
"...he must bring to the discharge of that duty an unbiased and impartial mind. If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty. Nay, more (so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculate to create in the mind of a reasonable man a suspicion...
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