Peter Walker v. Procurator Fiscal, Edinburgh [2015] HCJAC 119

Bill of advocation:- On 31 August 2015, at Edinburgh District Court, the Justice of the Peace initially refused to adjourn the trial diet and then part heard the trial and adjourned it until 28 September 2015. Here the appellant appealed against that decision. The circumstances were that the appellant, who was a serving police officer, was charged on summary complaint with a charge of assault alleged to have been committed on 13 October 2013. He was charged on 16 October 2013, however, the pleading diet was not until 17 September 2014. The case was continued without plea until 15 October 2014 and then again to 12 November 2014 to enable the appellant to view CCTV footage of the incident. A trial was fixed for 14 May 2015 which was adjourned on Crown motion to 31 August 2015. The Crown relied on the CCTV evidence to prove their case and, as at 31 August 2015, a section 283 certificate had not been obtained by the Crown. The procurator fiscal depute sought to have the certificate produced from the police during the course of 31 August and, whilst waiting for it to arrive at court, the depute commenced another trial. During the course of the afternoon the certificate was produced by the police and served on the appellant. At 3.45pm the case was recalled and the respondent invited the court to adjourn the trial ex proprio motu on the basis of lack of court time as there were custody cases to be dealt with. In addition, the respondent’s witnesses had been sent away. The appellant’s solicitor opposed the motion and it was refused and at 5.00pm, after the respondent produced a witness, the trial was started only for the JP to almost immediately adjourn the trial until 28 September 2015. The JP stated that she had regard to the prejudice to the appellant, to the respondent and to the public interest. She observed that the appellant was a police officer and that there was a public interest element in relation to that and the allegation could not be described as minor. The JP also took into consideration the procedural history of the case and the adjournment being short and the prejudice was limited. It was submitted on behalf of the appellant that the JP had erred in the exercise of her discretion to adjourn the trial after previously refusing the respondent’s invitation to adjourn. It was submitted that insufficient weight had been attached to a number of factors including the procedural history of the case, the conduct of the respondent in not having the section 283 certificate available sooner, the impact of the proceedings on the appellant and the relatively minor charge the appellant faced. Here the court refused the appeal. The court reiterated what was said in Paterson v McPherson [2012] HCJAC 61, namely, that a decision on whether a trial diet should be adjourned is primarily one for the local court having regard to the circumstances of the particular case. The court considered that the averments in the Bill were irrelevant in that there was no averment that the JP’s decision was unreasonable. The court noted that it is not enough for general averments regarding a failure to give a particular factor a greater or lesser amount of weight to be a ground for the successful review of a discretionary decision. The court considered that it could not be said that the JP erred in the exercise of her discretion and it was clear that the JP addressed the three elements of prejudice to the prosecutor, the accused and the public interest in her initial decision to refuse the adjournment at 3.45pm and then to adjourn at 5.00pm.