Tudhope v Lawrie
| Jurisdiction | Scotland |
| Judgment Date | 04 October 1978 |
| Date | 04 October 1978 |
| Docket Number | No. 8. |
| Court | High Court of Justiciary |
JC
Lords Cameron, Ross, Allanbridge.
Justiciary—Summary procedure—Conduct of trial—Adjournment—Prejudice to accused—Adjournment on previous occasion—Procurator-fiscal sought to proceed with trial—Refusal of Sheriff to adjourn trial diet—Refusal of Sheriff to hear evidence owing to lateness of hour—Whether unjust or oppressive—Bill of Advocation.
An accused person was charged on summary complaint with contravention of the Building Operations (Scotland) Regulations 1975 and the Building (Scotland) Act 1959. The complaint first called on 1st December 1977 when, there being no appearance by or on behalf of the accused, the diet was adjourned without plea until 15th December 1977. On that date the accused pled not guilty and the diet was adjourned for trial until 3rd February 1978. On 3rd February 1978 the Procurator-fiscal depute moved for an adjournment of the trial diet owing to pressure of business. No objection was made by the accused and the Court adjourned the trial diet until 13th March 1978. On that date there were eight summary trials set down in the Court. At 2p.m. the Procurator-fiscal depute was of the opinion that there would not be sufficient time that day to start any of the four remaining cases, including that of the accused, and moved the Court to adjourn them. The motion in respect of the accused's case was refused. The trial which was then in progress was concluded at 5p.m. The Procurator-fiscal depute then moved for an adjournment of the remaining cases, including that of the accused's, owing to the lateness of the hour. In opposing the motion the accused's solicitor stated that his client had attended court on an earlier occasion for trial which had been adjourned on a Crown motion; the accused's business had suffered by his attendance at Court; and that since the accused was not legally aided he would require to pay for all attendances at Court of his solicitor. The Sheriff refused the motion to adjourn. The Procurator-fiscal depute then proposed to lead evidence in the trial but the Sheriff refused to hear evidence at that late hour. No evidence was heard, no fresh diet fixed and no further order was made. The instances therefore fell at midnight on 13th March 1978. The Crown presented a Bill of Advocation pleading that the Sheriff's interlocutor of 13th March 1978, refusing to adjourn the case to a fresh diet, was unjust and oppressive and should be recalled.
Held (1) that the responsibility for fixing diets and putting cases out for trial is on the Court and not on the Crown; (2) that the power of the Sheriff to refuse a motion for adjournment must be exercised only after careful consideration of the consequences to the parties and the public interest and the Sheriff must give proper weight to the prejudicial consequences which would follow; (3) that the offence libelled was not one which could be lightly regarded having regard to the continuing and prolonged risk of injury and damage; (4) that the Sheriff had failed to give due weight to the circumstances libelled in the complaint and had misdirected himself as to the true quality of the prejudice to the public interest; (5) that accordingly the refusal of the adjournment was oppressive; and interlocutor of Sheriffrecalled.
Skeen v. M'Laren 1976 S.L.T. (Notes) 14followed.
Henry Lawrie was charged in the Sheriff Court at Hamilton on summary complaint at the instance of James Mackenzie Tudhope. The complaint set forth inter alia that, between 17th May 1976 and 27th July 1977 both dates inclusive, at 96 West Main Street, Harthill, District of Motherwell, he, being a person carrying on building operations, did fail to secure that the partly demolished building at 96 West Main Street aforesaid was, so far as reasonably practicable, properly secured or closed against entry at all times when the building operations thereon were not in progress: Contrary to regulation 6 of the Building Operations (Scotland) Regulations 1975 and sction 5 of the Building (Scotland) Act 1959, and that said contravention had continued to the date of the said summary complaint.
The procedure in relation to the complaint is set forth in the Bill of Advocation raised by the Crown seeking recall of an interlocutor of the Sheriff (Forbes) refusing an adjournment of the trial diet in the circumstances which arose.
The Bill of Advocation set forth, inter alia:—"That on 13th March 1978 a pretended interlocutor was pronounced by Sheriff John Stuart Forbes sitting at Hamilton upon a Summary Complaint at the instance of the Complainer charging the Respondent with having contravened Regulation 6 of the Building Operations (Scotland) Regulations 1975 and Section 5 of the Building (Scotland) Act 1959; and that following upon said pretended interlocutor, said Sheriff refused to allow the Complainer's Depute to lead evidence on said date. On 15th December 1977 the Respondent pled not guilty to the said charge and the case was adjourned for trial until 3rd February 1978. On 3rd February 1978 upon a motion by the Complainer this diet was discharged and a fresh diet of trial was fixed, namely 13th March 1978...
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