A sheriff acted incompetently when he had an adjourned sentencing diet called in the absence of the Crown, the fiscal being late, and then made no order in then case, the High Court has ruled.

Lord Brodie, Lady Clark of Calton and Lord Turnbull passed a Crown bill of advocation in the case of Ginette Ball, who had pled guilty on indictment to charges of threatening or abusive behaviour and having a meat cleaver in a public place without reasonable excuse.

At the sentencing diet the sheriff had the case called when the fiscal was 10 minutes late, though he knew him to be on his way, and then made no further oder so that the accused was allowed to leave.

The sheriff reported to the High Court that it was "not uncommon" for the Crown to be late, andf that this caused delays to other business. He wished to "[bring] home to the complainer the requirement for his deputes to attend court timeously".

The Crown submitted that as a matter of law there could be no competent proceedings in the absence of the prosecutor and that the interlocutor pronounced by the sheriff was incompetent. The respondent submitted that the sheriff had acted competently since, properly understood, he had in fact done nothing. He had made a deliberate decision to take no step in the proceedings as a legitimate exercise of his discretion in light of the circumstances which had transpired.

Giving the opinion of the court, Lord Turnbull said that the motion for sentence made at the previous diet was still live and it was the sheriff’s duty to pass sentence at the adjourned diet in light of the motion before him.

It could not be said that no proceedings in the case occurred. "It is plain from what the sheriff himself tells us that he took a deliberate decision to constitute the court knowing that the procurator fiscal was not represented, that he then chose to take a step which he considered would bring the proceedings to an end and that he did each of these things for a particular purpose. That purpose was to discipline the procurator fiscal as to the importance of timekeeping and efficient court management."

After referring to the authorities Lord Turnbull continued: "In the present case the sheriff did not desert the diet but pronounced an interlocutor which had the effect of bringing the indictment proceedings to an end without passing sentence. If competent, this was an interlocutor which prevented the Crown from bringing fresh proceedings...

"In our view it is clear from what is said in Hume, and the other cases to which we have referred, that the sheriff has only a very limited power available to him in the absence of the procurator fiscal. We are satisfied that the sheriff’s duty was to pass sentence at the adjourned diet. Given he knew that the procurator fiscal depute was on his way to his court to appear in those very proceedings, the sheriff could not reasonably have concluded that his absence indicated an intention of abandoning the process. In the absence of an explanation he had no reason to conclude that the late attendance was wilful or without excuse.

"If the sheriff wished to call the case in the absence of the procurator fiscal the only step which was competently open to him was to continue it to a later point in the day, or to a further day. As is clear from the terms of the minute, proceedings did take place in the absence of the procurator fiscal. A deliberate step was taken to bring the case to an end in order to discipline the Crown and to bring home to them the importance of timeous appearance. For the reasons which we have given we are satisfied that the step taken by the sheriff was one which was not competent and we shall pass the bill".

Click here to view the opinion of the court.