Her Majesty’s Advocate v. Ginette Ball [2016] HCJAC 109

Bill of Advocation:- Here the Crown sought recall of a decision by a sheriff at Glasgow Sheriff Court when no further order was made at a deferred sentence when there was no procurator fiscal depute present in court when the indictment called. The circumstances were that on 21 June 2016 the respondent guilty to two charges including inter alia possession of a meat cleaver contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The Crown moved for sentence and a schedule of previous convictions were tendered. The case was adjourned to 19 June 2016 at 9.30am for the purpose of the court obtaining a Criminal Justice Social Work Report. Due to problems with preparing the report sentenced was deferred further to 21 July and then again to 18 August 2016. On 18 August 2016 at 9.30am the respondent and her solicitor were present in court but the procurator fiscal depute was not. The sheriff instructed the sheriff clerk to contact the Procurator Fiscal’s Office by telephone who was advised that the fiscal depute allocated to the court was not yet in the building but was on his way. The fiscal depute was still not in court by 9.40 am when the sheriff instructed the clerk of court to call the case in the absence of the fiscal. In his report to the court the sheriff stated that in the absence of a fiscal depute he was unable to impose a sanction and therefore made no further order and the respondent was allowed to leave. The sheriff also indicated that it was not uncommon for fiscal deputes to attend court late. The Crown sought recall of that decision. On behalf of the Crown it was acknowledged that a fiscal depute ought to have been in court at 9.30am but advised that the fiscal depute concerned had misread the court sheets the previous day and thought that the court was starting at 10am. In relation to the suggestion that fiscal deputes regularly attended court late it was submitted that during the course of the regular meetings which took place between senior members of the fiscal’s office and the sheriffs and sheriff clerks at Glasgow no such issues had ever been raised. It was submitted on behalf of the Crown that on 18 August the sheriff’s obligation was to pass sentence given the motion which had been made by the Crown previously rather than simply making no order. It was further submitted that there were various steps the sheriff could have taken, albeit they may have resulted in some inconvenience, for example, the case could have called later in the day or the case could have called once the depute had arrived from the fiscal’s office which was only across the road. It was submitted that it was competent for the sheriff to instruct that the case be called as an administrative act to ascertain who was present, however, as a matter of law there could be no competent proceedings in the absence of the prosecutor and that the interlocutor pronounced by the sheriff was incompetent. It was accepted on behalf of the respondent that to conduct proceedings in the absence of the procurator fiscal would be incompetent, however, it was submitted the sheriff had in fact done nothing and the proceedings simply fell and the Bill should be refused. Here the court passed the Bill. The court considered that the prosecutor had moved for sentence and the court had adjourned the diet in terms of section 201 of the 1995 Act which section permits an adjournment before sentence. At that time the motion for sentence remained live before the sheriff which diet had been fixed for that purpose and it was the sheriff’s duty to pass sentence at the adjourned diet given the motion before him. The court considered that the the sheriff has a very limited power in the absence of the procurator fiscal. If the sheriff wanted to call the case in the absence of the procurator fiscal the only option competently open to him was to continue it to a point later in the day or to a future date. In the circumstances of the present case given that the sheriff knew that a fiscal depute was on his way over to the court the sheriff could not reasonably have concluded that his absence indicated an intention of abandoning the process. The terms of the court minute indicated that a deliberate step was taken to bring the case to an end in order to discipline the Crown and the court considered that that was incompetent and the Bill was passed and the sheriff’s interlocutor of 18 August 2016 was recalled and the case was remitted back to the sheriff for sentencing.