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Summary case not oppressive after solemn adjournment refused: High Court

2 February 2017

The Sheriff Appeal Court was correct to reject of oppression by an accused against whom solemn proceedings for a serious housebreaking charge were begun in 2013 but fell in 2015 when the appeal court ruled that administrative failings by the Crown precluded further adjournments, but against whom summary proceedings were then raised, the High Court of Justiciary has ruled.

Three judges chaired by the Lord Justice General, Lord Carloway, refused an appeal by Donnie Potts, who had lodged a plea in bar of trial and (human rights) compatibility minute against a complaint alleging that in April 2013 he broke into a house in Bellshill and stole £50,000 in cash.

The accused appeared on petition on 1 August 2013 but those proceedings ended in August 2015 when the Appeal Court ruled that the Crown was not entitled to a fourth adjournment, and criticised the Crown in respect of its administrative system, conduct of the case and preparation for trial.

Five months after that decision, and three months after the court's opinion was issued, the accused was served in January 2016 with a summary complaint in identical terms, the case having been referred to Crown counsel. The accused pled oppression, abuse of process on the part of the Crown and a breach of the reasonable time requirement in article 6 of the European Convention on Human Rights.

The sheriff, affirmed by the Sheriff Appeal Court, repelled the plea (click here for report). On further appeal the accused argued that the legislative change that permitted the Crown so to act was to allow the Crown to discontinue solemn proceedings and to proceed summarily outwith the 12 month period, not to permit summary proceedings where solemn proceedings had been discontinued by the court. He had been entitled to have the charge against him determined within a reasonable time; the period ran from his first appearance on petition and the summary proceedings could not be considered in isolation.

Lord Carloway, who sat with Lords Malcolm and Turnbull, said that difficulties had been created by the accused attempting to divide oppression and abuse of process into two distinct pleas. However there was no plea of abuse of process separate from oppression. It was not clear that the Sheriff Appeal Court had considered the factors said to constitute abuse of process when dealing with oppression, but that did not mean the court had erred.

The sheriff's decision, after he had carried out the appropriate balancing exerciuse, had to be accorded weight. "He rightly observed that all that the High Court had decided was that the solemn proceedings should be brought to an end, and not that the appellant should avoid a prosecution altogether."

He had concluded that the interests of justice required the prosecution of this crime, and it was not possible to fault that conclusion. "Whatever the faults of the Crown, the offence here was a serious one. There appears to be evidence implicating the appellant. There is no real contention that the delay which has occurred has prejudiced a fair trial... Prosecuting the appellant in these circumstances cannot be regarded as oppression."

As regards delay, if there had been a breach of article 6, the remedy of sustaining a plea in bar of trial was only appropriate where the delay was such that a fair trial could no longer take place or there was some other compelling reason. "It is not possible to fit the case into any of these categories", Lord Carloway concluded. "Having failed to prosecute the appellant on indictment, the Crown have elected, as they are entitled to do, to proceed by way of summary complaint. There is no unfairness in this where the appellant has already had the benefit, under domestic law, of not being subjected to the risk of a significant custodial sentence, which he would otherwise undoubtedly have faced, if convicted."

Click here to view the opinion of the court.

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