Charles Swan v. Procurator Fiscal, Falkirk [2013] HCJAC 37

Bill of Suspension:- On 18 April 2012 the complainer pled guilty to four charges of various contraventions of the Animal Health and Welfare (Scotland) Act 2006 relating to activities at a pet shop. On 24 January 2012 a diet was assigned in terms of section 139 of the 1995 Act of 20 February 2012. A copy of the complaint was sent to the police for service on the complainer. That copy was lost and was not served. Subsequently, a fresh copy of the complaint was served on the complainer on 20 February 2012 prior to the calling of the diet. As such, there had not been the 48 hour induciae required by section 140(2) of the 1995 Act. The fiscal moved the Sheriff to exercise his discretion in terms of section 300A in relation to the failure to comply with section 140(2). The sheriff excused the failure to serve the complaint with an induciae of 48 hours prior to the assigned diet, him being satisfied that the circumstances disclosed an excusable reason for the failure, and that it would be in the interests of justice to excuse it. After further procedure the complainer pled guilty to the charges. He thereafter sought to have the convictions suspended on the ground that he was  not given an opportunity to be heard on 20 February 2012 in terms of section 300A (3). Here the court considered whether it should excuse the procedural irregularity that occurred when the sheriff determined the section 300A application without giving the complainer the opportunity to be heard in terms of section 300A(3).