HMA v Mark Kane

Mr Kane appealed against a Sheriff’s decision to adjourn his Trial Diet due to a key prosecution witness being absent. Mr Kane lodged a bill of advocation in order to challenge this decision.

The appellant argued the decision was “contrary to law” but the appeal has been dismissed. The Appeal Court stated that decision was not one which no reasonable sheriff could have made, although stated delay in any event should always be avoided. The appellant was charged with drink driving, being 4 times the legal limit.

Mr Kane’s Trial was due to take place at Hamilton Sheriff Court as he was maintaining his plea of not guilty. The Trial was due to take place on the 26th of June 2018 but a crown witness was ill. The witness in question was a police witness and the Trial diet was previously adjourned on the basis that this witness was ill.

However, at the first Trial Diet in November 2018 the appellant was ill and therefore there was a Defence motion to adjourn which was granted. There was a further Defence motion to adjourn in January 2018. The issue complained of primarily by the appellant was at the Trial Diet on the 25th of May the Sheriff made comment that “this should be the last adjournment if the same witness fails to attend”. On the date in question of the 26th of June 2018 when the Trial Diet called again another Sheriff presided over the matter.

This Sheriff decided to grant this crown motion to adjourn for the 4th time. The appellant’s defence team argued this decision was “erroneous, oppressive and contrary to law”. However, the Crown argued the test was one of the interests of Justice and was discretionary on the Sheriff presiding.

The Sheriff Appeal Court refused to pass the bill. Sheriff Principal Stephen concluded: “Generally speaking advocation should not be used as a mode of common law appeal in summary proceedings other than in exceptional cases where there is likely to be a miscarriage of justice which cannot be remedied by statutory appeal at the conclusion of the case.

No such circumstances exist here.” It was held that there was no error on the part of the Trial Sheriff as the decision was discretionary but the Court should ensure the Trial is held within the next month at Hamilton.