APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Nimmo Smith
Appeal No: C146/99
OPINION OF THE COURT
delivered by LORD NIMMO SMITH
NOTE OF APPEAL
under Section 65(8) of the Criminal Procedure (Scotland) Act 1995
HER MAJESTY'S ADVOCATE
ROBERT GILMOUR CAULFIELD
Appellant: Brodie, Q.C., A.D.; Crown Agent
Respondent: Scott; Beveridge Herd & Sandilands
10 May 1999
This note of appeal has been presented by the appellant in terms of section 65(8) of the Criminal Procedure (Scotland) Act 1995. The respondent appeared on petition at Kirkcaldy Sheriff Court on 18 February 1998 on a charge of contravening section 5 of the Sexual Offences (Scotland) Act 1976. He was committed for further examination and released on bail on that date. On 3 February 1999 an application on behalf of the appellant was presented to the sheriff under section 65(3) of the 1995 Act for extension of the 12 month time period provided for by section 65(1). The application was heard by the sheriff on 16 and 17 February 1999 and was refused by him. The Crown now appeals against that refusal.
Section 65(1) of the 1995 Act provides inter alia that, subject to subsection (3), an accused shall not be tried on indictment for any offence unless the trial is commenced within a period of 12 months of the first appearance of the accused on petition in respect of the offence. Subsection (3) provides inter alia that on an application made for the purpose, the sheriff or, where an indictment has been served on the accused in respect of the High Court, a single judge of that court, may on cause shown extend the said period of 12 months. When the application under section 65(3) was made in the present case no indictment was in existence. The sheriff refused the application because, as he explains in his report, he considered that without an indictment in existence the application was incompetent. The Advocate depute submitted that the sheriff had misdirected himself in this regard, and this was conceded by Miss Scott, who appeared for the respondent. It is therefore sufficient for us to say that we agree that the sheriff misdirected himself in holding that an indictment requires to be in existence before an application can be made under section 65(3). Section 65 contains no such requirement where the application is made to the sheriff. Subsection (3) envisages that, if a High Court judge is to hear the application, an indictment in respect of that Court will have been served; but there is no corresponding provision where the application is to be heard by the sheriff. No doubt in many cases an indictment will be in existence at the time of the application, but equally there will be cases, such as the present, where the Crown does not consider itself yet to be in a position even to prepare an indictment. Whether or not an indictment is in existence may be a factor of which it is appropriate to take account in the consideration of an application to the sheriff under section 65(3), but it is not a prerequisite to the making of such an application.
Notwithstanding his refusal of the application as incompetent, the sheriff has explained in his report that since he had also heard parties on the merits he considered that it would be helpful to express his views on them. The information upon which the sheriff based his views was as follows. The procurator fiscal depute informed him that the Crown case had been prepared by the end of September 1998 but it was decided not to indict the respondent while the progress of the complainer was assessed. In December 1998 the Crown had received information about her condition. She had received treatment from a psychiatrist and a psychologist and had been prescribed antidepressants. She suffered from anxiety symptoms and had an impulse to self-harm. She did not feel able to give evidence because of her mental state. The Crown instructed a report from the psychologist. This report, dated 13 January 1999, stated that the complainer was distressed and highly apprehensive of testifying against the respondent. The psychological work involved her confronting her experiences and this appeared to have helped, but a court appearance might be more rather than less traumatic for her. There was a long term hope that she would improve but the situation was unlikely to alter in the foreseeable future. In light of this, the procurator fiscal depute submitted to the sheriff that the extension should be granted, in the hope that there would be improvement during the next six months. On behalf of the respondent it was submitted that the offence was of some antiquity and that to extend the time limit would be very oppressive, especially in light of the complainer's condition, which was unlikely to alter in the near future. There was nothing in the reports to indicate that she was ever going to be able to give evidence and indeed it appeared to be the situation that the existence of proceedings was holding up her improvement. The report by the psychologist was to the effect that the complainer did not wish to testify and there was nothing in it to indicate when she was going to be able to do so.
The sheriff accepted that on the information he had been given there was sufficient reason to justify the granting of the application. In considering how he might exercise his discretion, however, he took into account that the complainer had been unfit to give evidence on a charge which was serious. He also considered the up-to-date position which was that the prospect of a court appearance appeared to be holding back her progress, she did not wish to testify, she said that the complaint had been instigated by her mother, and it was suggested that her feelings in this matter be respected. The psychologist had seen no change of mind over the months of contact and did not expect such a change. This situation was unlikely to alter in the foreseeable future. The sheriff also took into account the respondent's position relative to preparation of a defence. In effect he was no further forward than he had been at the time of his committal. It appeared that his position might not be improved with the further passage of time. The sheriff concluded that it would not be in the interests of justice at large and might be to the prejudice of both the complainer and the respondent to grant the crave of the application. In such circumstances, had he not ruled it as incompetent, he would have refused the application on the merits.
Before us the Advocate depute, who, as we understood it, was in possession of up-to-date information about the mental condition of the complainer, said that he could not give an assurance that she would be able to give evidence, and that the balance was against her recovering to a sufficient extent. The Advocate depute referred to the possibility of the Crown's being able to rely on section 259 of the 1995 Act. We note that, as recorded in the sheriff's report, before the sheriff the procurator fiscal depute submitted that it was not desirable to proceed in terms of section 259 since in that event the defence would not have the opportunity to cross-examine the complainer.
Under section 65(3) the sheriff required to exercise a discretion whether or not to grant the extension of time sought by the Crown. In deciding that the application was incompetent the sheriff, strictly speaking, ruled out the exercise of a discretion; but, in circumstances where he heard full argument on the merits and expressed the view which he would have taken had he regarded it as open to him to do so, we regard this as no more than a technical difficulty and we would not be disposed to reach a different view unless it could be demonstrated that there was scope for interference with the sheriff's discretion as he would have exercised it had he felt free to do so. Having regard to the information placed before him by the procurator fiscal depute, we are not persuaded that it can properly be said that he came to the wrong view as to how he should exercise his discretion. Before him, the position of the Crown was that the Crown case depended on the availability of the complainer to give evidence in court. There was good reason to regard her as being unable to do so for the time being. The problem for the Crown was that there was no basis upon which it could be said that this was likely to change in the foreseeable future. The granting of an extension will often be appropriate where the inability of a crucial witness to give evidence is likely to be no more than temporary; but on the information presented to the sheriff no improvement in the complainer's condition is likely. In these circumstances we cannot say that the sheriff erred in the manner in which he would have exercised his discretion.
In any event, if it were open to us to consider the matter on its merits, we would have come to the same view as that of the sheriff. The sheriff had the advantage of being made aware of the contents of a report by the psychologist, the terms of which were not before us. But proceeding on the basis of what can be taken about it from the sheriff's report, supplemented by the information provided to us by the Advocate depute, it seems clear to us that there is no realistic prospect that the complainer will be able to give evidence in the foreseeable future. In this situation, taking account of the various interests as the sheriff did, we would have reached the same conclusion as he did. We accordingly refuse the appeal.