Andrew Francis Cleary v. Procurator Fiscal, Arbroath [2013] HCJAC 85

Bill of Suspension:- On 25 February 2013, following a four day trial on summary complaint at Arbroath Sheriff Court, the complainer was convicted of a charge of assault to injury following which he was sentenced to carry out a community payback order as an alternative to imprisonment requiring the complainer to undertake 280 hours of unpaid work to be completed within a period of 6 months. Here the complainer sought to suspend his conviction and sentence by way of a Bill of Suspension. The circumstances were that during the course of the trial, in particular during the course of the cross-examination of the complainer by the respondent, the complainer indicated that he had been unable to hear and follow the evidence as he only had one hearing aid. At that stage his agent invited the trial sheriff to desert the trial pro loco et tempore on the basis that the complainer had not been able to fully participate in the trial or indeed to understand the evidence that had been heard by the court. Following upon the hearing of submissions by both parties the trial sheriff adjourned the trial diet to 25th February 2013 for medical evidence to be produced which it was by a Dr Ireland. The sheriff heard further submissions, after which he refused to desert the trial pro loco et tempore. Here on behalf of the complainer it was submitted that the sheriff had been premature in proceeding to determine the motion to desert the diet on 25 February 2013 and, further, that the sheriff had been in error in refusing the motion to desert pro loco et tempore, given the information then before the court to the effect that the complainer suffered from impaired hearing and that he had been unable to properly participate in the trial proceedings. The advocate depute on behalf of the Crown invited the court to refuse the bill on the basis that it appeared the complainer had been able fully to participate in the trial and had been able to give his evidence in chief without any obvious difficulty and no prejudice had been identified. Here the court, in refusing the bill, considered the full circumstances and the manner in which the trial sheriff had dealt with the situation when it arose and could find no criticism of the steps taken by the sheriff to ensure that a fair trial took place, that the complainer had been able to fully participate in the trial and to understand the evidence that had been heard by the court. The court went on to consider the issues surrounding such cases from an Article 6 ECHR perspective and drew comparisons with the situation where an accused person was granted the services of an interpreter for trial and the importance of an accused person being able to have evidence communicated to him through an interpreter. It was noted that the issue was whether an accused had an opportunity to participate effectively in the proceedings and in considering that regard should be had to the whole circumstances, including decisions made by an accused and his legal advisors.