Procurator Fiscal, Paisley v. Elizabeth MacKenzie [2006] HCJAC 6

On 5 August 2005 the respondent in this Bill of Advocation appeared at Paisley Sheriff Court for trial on a charge of having contravened section 7 of the Road Traffic Act 1988 on 19 March 2005. Albeit there had been an intermediate diet on the 21 July 2005 (at which there was no indication of Crown witness difficulties) the 5 August 2005 was the first time the case had called for trial. The Crown required two police witnesses, one of whom was present, one of whom was at a course but was on "Stand-By". However, the witness could not be contacted as the officer's phone was switched off. In the absence of the essential Crown witness the fiscal depute moved the Sheriff to adjourn the trial or, alternatively, to part hear it. The Sheriff refused both motions and deserted the proceedings simpliciter. The appeal looked at whether the Sheriff erred in so doing by failing to properly weigh up three factors:- (1) whether the granting or refusal of the motion would be prejudicial to the accused (the now respondent)and if so the probable extent of that prejudice (2) whether the granting or refusal of the motion would be prejudicial to the prosecutor and if so what the probable extent of that prejudice and (3) whether the granting or refusal of the motion would be prejudicial to the public interest independently of any prejudice to the accused or the prosecution in the particular case, and if so the probable extent of that prejudice.