Ruxton v Borland
| Jurisdiction | Scotland |
| Judgment Date | 07 April 2000 |
| Docket Number | No 58 |
| Date | 07 April 2000 |
| Court | High Court of Justiciary |
Full Bench
LJ-G Rodger, Lord Prosser, Lord Osborne, Lord Reed and Lord Wheatley
Procedure—Summary procedure—Trial—Commencement of trial—Whether trial commences when first Crown evidence tendered
A pannel was charged on a summary complaint with assault. After sundry procedure pleas of not guilty were tendered and intermediate and trial diets were fixed but as the pannel failed to appear at the trial diet, further intermediate and trial diets were fixed. At the new trial diet on 5 March 1999, without evidence having been led, the court adjourned the trial diet to a further date. The minutes of proceedings recorded that after being asked to confirm the pleas previously tendered, the pannel pled not guilty to both charges. After further procedure, the case called at an intermediate diet at which the pannel sought leave to state a plea to competency and the case was continued to a further intermediate diet for debate on the plea. When the case called for debate, the sheriff refused to allow a defence motion to be raised before him because he considered that the trial had commenced on 5 March 1999, when the pannel had tendered not guilty pleas, and therefore only the sheriff who presided at the diet on that occasion could deal with the pannel's motion. The procurator fiscal advocated the sheriff's decision to the High Court of Justiciary.
Held (1) (the respondent not opposing) that whether or not any prior stages of a summary prosecution were to be regarded as part of the trial, there was no reason why those prior stages should not be dealt with by one sheriff with another sheriff dealing with the trial from and after the point when evidence began (p 477F–G); and (2) that the crucial moment for the commencement of a summary trial was when the first Crown evidence was tendered, usually but not invariably with the swearing of the first witness (pp 483I–484A); and billpassed.
Handley v PirieSC 1976 JC 65 and Mitchell v Vannet 1999 SLT 934 overruled.
Linda Margaret Ruxton, procurator fiscal, Linlithgow brought a bill of advocation against Jamie Graham Borland praying the High Court of Justiciary to recall the pretended decision of Sheriff G R Fleming, QC dated 1 December 1999 whereby he declined to postpone a trial diet and assign fresh trial and intermediate diets and ordered that the debate on the respondent's plea to the competency of the proceedings proceed before Sheriff Hector Maclean.
Cases referred to:
Barr v Ingram 1977 SLT 173
Handley v PirieSC 1976 JC 65
Mitchell v Vannet 1999 SLT 934
Starrs v Ruxton; Ruxton v StarrsSC2000 JC 208
Textbook referred to:
Hume, Crimes (3rd ed), vol ii, p 263
The bill called before the High Court of Justiciary comprising the Lord Justice-General (Rodger), Lord Sutherland and Lord Penrose for a hearing on 24 February 2000. Eo die the court remitted the bill to be heard by a court of five Lords Commissioners of Justiciary.
The bill called again before the High Court of Justiciary comprising the Lord Justice-General (Rodger), Lord Prosser, Lord Osborne, Lord Reed and Lord Wheatley for a hearing on 20 March 2000.
At advising, on 7 April 2000, the opinion of the court was delivered by Lord Prosser.
Opinion of the Court—[1] On 23 June 1998, a complaint against the respondent Jamie Borland, containing two charges of assault, called in the sheriff court in Linlithgow. After a number of adjournments, pleas of not guilty were tendered on 25 August, and the case was adjourned for trial on 30 November, with an intermediate diet on 16 November. The respondent failed to appear on 30 November, and subsequently the court adjourned the diet for trial until 5 March 1999. After an intermediate diet on 10 February, the respondent appeared at the trial diet of 5 March, before Sheriff Maclean. According to the minute of proceedings, on being asked to confirm the plea previously tendered, he pled not guilty to each charge. Thereafter, without any evidence having been led, the court adjourned the trial diet until 4 June 1999. After further procedure, the details of which are not now material, the case called for an intermediate diet on 15 November 1999, before Sheriff Fleming. The respondent's solicitor sought leave to state a plea to competency (related to the fact that the case had on occasion been called before a temporary sheriff) and the case was continued to a further intermediate diet and diet of debate on 1 December 1999. On that date, Sheriff Fleming refused to allow a defence motion to be raised before him, on the basis that the trial had commenced before Sheriff Maclean on 5 March 1999 when the accused had tendered a plea of not guilty to the two charges; and that as a result, the respondent's motion and any other matters could only be dealt with by Sheriff Maclean.
[2] The present bill seeks recall of Sheriff Fleming's decision, and a remit of the case to him or another sheriff, to proceed with the trial. The matter came before a court of three judges, who considered it appropriate to have the case put out before five judges.
[3] Before we come to consider the issues upon which we were addressed, it is important to note what Sheriff Fleming considered the issues to be, and the parties' positions in relation to those issues when the matter was before him. The fundamental question which faced Sheriff Fleming, and which gave him concern, was whether, at the stage which the case had reached, it was competent for him to deal with the motions made at the intermediate diet. If the position was that the respondent's trial had not yet commenced, there would be no problem: Sheriff Fleming could deal with the matters before him. But in the light of Mitchell v Vannet and Handley v Pirie, Sheriff Fleming raised the question of whether the trial had perhaps commenced before Sheriff Maclean on 5 March 1999, by virtue of the fact that at the trial diet on that date the accused had pled not guilty. The question of whether the trial had thus commenced at a prior date was clearly seen by Sheriff Fleming as crucial to the question of whether he could deal with the matters before him, because he could see no basis upon which, in the course of a trial which had commenced, one sheriff could be replaced by another.
[4] When Sheriff Fleming raised these issues, the position of the Crown was apparently that the trial had indeed commenced on 5 March, but that this did not determine the question of whether Sheriff Fleming could deal with matters at the intermediate diet: that depended not upon whether there had been a formal commencement of the trial on 5 March, but upon whether the leading of evidence had begun, which was described as the “de facto” commencement of the trial. The situation could thus be distinguished from that which had arisen in Starrs v Ruxton; Ruxton v Starrs,where a second sheriff became involved in proceedings after the hearing of evidence was under way. Neither the Crown's concession as to the formal commencement date, nor their contention as to the competency of Sheriff Fleming dealing with matters since no evidence had been led, was argued or contradicted by the respondent's solicitor, who contented himself with saying that he was happy for Sheriff Fleming to deal with matters.
[5] When the bill came before the three judge court, wider ranging arguments were presented. But before this court, there was a live issue between the parties as to when the trial had commenced: the Lord Advocate submitted that it commenced only when the first witness was sworn, whereas senior counsel for the respondent submitted that Sheriff Fleming was right in holding that the trial had commenced on 5 March. On the other hand, there was no live issue between the parties as to the competency of a sheriff other than Sheriff...
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