APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal Nos: C239/99
OPINION OF THE COURT
delivered by LORD COULSFIELD
NOTES OF APPEAL
under section 65(8) of the Criminal Procedure (Scotland) Act 19995
HER MAJESTY'S ADVOCATE
SCOTT McNALLY and DENIS DUFFY
Appellant: Doherty, Q.C., A.D.; Crown Agent
Respondents: Anthony; Drummond Miller
25 May 1999
These are notes of appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995 against the refusal by a temporary judge on 7 April 1999 to extend the 12 month time limit applicable to the two respondents.
The respondent McNally appeared on petition in the Sheriff Court at Airdrie on 17 March 1998, charged with the attempted murder of John Elliot. He was committed for further examination and released on bail on that date. The respondent Duffy appeared on the same charge on petition on 23 March 1998. He was also committed for further examination and released on bail on that date. A third person, Michael Foy, appeared on petition on the same charge on 8 April 1998 and was also released on bail. An indictment containing the charge of attempted murder was served on McNally and Duffy to stand trial at the High Court at Glasgow on 5 January 1999. On 14 January 1999, however, the Crown applied for an extension of the 12 month period, which was granted of consent, the period being extended to 7 April 1999. The indictment which had been served was deserted pro loco et tempore. It appears that the purpose of the desertion and extension of the 12 month period was to permit the respondents and Foy to be indicted together. An indictment was in due course served on the three accused to stand trial at Glasgow on 29 March 1999. The indictment was not called until 7 April 1999 and on that date the motion was made to adjourn the trial to a sitting at Paisley on 27 April 1999 and for extension of the 12 month period to 7 May 1999. The motion was not opposed on behalf of Foy and the temporary judge who heard the motion granted it in his case but refused it in the cases of the two respondents.
In his report, the temporary judge records the submissions which were made to him on behalf of the respondents and on behalf of the Crown. The principal points made on behalf of the respondents were that when the extension had been granted on 20 January 1999, the Crown should have been in a position to indict all three accused but in fact had not done so until the sitting commencing on 29 March. The Crown must have known that Easter fell in the middle of that sitting, with the result that two court days, Good Friday and Easter Monday, would be lost. The case had in fact been called into court on Thursday 1 April but the Crown had waited until the last day of the extended time limit actually to have it called in court. Any difficulty in deciding what priority should be given to the case arose because the Crown had waited so long. On behalf of the Crown, some explanation was given in regard to the position in other cases which had been set down for the sitting and in which there were also time limit problems: it is not necessary to repeat the details of these submissions. The Crown, however, drew attention in particular to the fact that there had been insufficient jurors to start a trial on 29 March. It was also submitted that the Crown had expected that all cases set down could be completed within the sitting, that priority had to be given to murder and rape cases, which could not be tried before a temporary judge, and that there were two such judges in the sitting, neither of whom was available on 8 and 9 April. The temporary judge was informed that it had been intended to begin the present case on 7 April but that the case could not have been completed in one day and that attempts to obtain the services of another judge who could have begun and completed it had not been successful.
In giving his reasons for his decision, the temporary judge first draws attention to the fact that he was given no explanation of why the case had not been put out for trial at an earlier sitting. He continues:
"Secondly, the Crown chose to set the case down for a sitting which they knew was curtailed by the Easter holiday. Moreover, that sitting included two temporary judges who were unable to try cases of murder or rape. The names of the judges presiding at the sitting must, surely, have been known to the Crown well in advance of the sitting. That being the case, I consider that it was foreseeable that there might well be problems with time bar. It was therefore incumbent on the Crown to take steps to ensure that this case could call on some date before the last date of the time limit".
The temporary judge then makes it clear that, so far as his own position was concerned, he had informed the Justiciary Office that he would not be available on 8 and 9 April and that this arrangement had been accepted several weeks before the beginning of the sitting. The temporary judge also criticises the way in which cases were called before him during the sitting. One case, Quinn, which proceeded to trial on 31 March was subject to the 110 day limit. It in fact turned out to be very short and was finished at lunch time on 1 April but no attempt was made to start another trial on that date. Another case, Niven, which was called on 6 April, was expected to go to trial, but did not do so. The temporary judge points out that if Niven had gone to trial there would have been no possibility of starting this case before the expiry of the time bar unless another judge had been made available, as should have been apparent to the Crown. The judge continues:
"I was informed that attempts had been made to obtain the services of another judge. These were unsuccessful. This is not surprising given that the sitting was taking place during the Easter vacation, a fact which must have been within the Crown's contemplation.
I am forced to the conclusion that the Crown deliberately took two grave and unjustified risks with this case: first, they set it down for this sitting rather than an earlier one; and, secondly, they failed to have it called until the last day of the time bar. The prioritisation of cases is a matter for the Crown. In my opinion, it is incumbent on the Crown to leave some room for manoeuvre with cases whose time limits are nearing their end. In this case they singularly failed to do so. On the information available to me, nothing unexpected was sprung on the Crown. They were therefore at fault, and thus failed to show sufficient cause to grant an extension of the time limit".
The judge then refers to the case of Mejka v. H.M. Advocate 1993 S.L.T. 1321. He adds that because of the view he had taken he did not have to consider whether he should exercise his discretion in the Crown's favour but says that, had he had to do so, he would almost certainly have been prepared to grant the extension. The factors favouring that view were the lack of prejudice to the accused and the gravity of the crime charged.
In the note of appeal, some further details of the position in the sitting are given. It is stated that 28 cases were indicted for the sitting commencing on 29 March 1999. Four courts were originally assigned for the business, and two permanent judges and two temporary judges were assigned to them. Because of the intervention of the Easter period, there would be a loss of eight days out of a potential 40 judicial days in the sitting. In the second week of the sitting, both of the temporary judges were unavailable for business on Thursday 8 April and Friday 9 April, a fact which only came to the attention of the Crown in the week before the sitting commenced. The Justiciary Office were only able to provide one further permanent judge to deal with business during the first week of the sitting: a murder trial was conducted before that judge and ran into the second week of the sitting before it was concluded. It is further stated that the Justiciary Office had failed to cite a sufficient number of jurors to constitute the assize for the first day of the sitting on 29 March 1999 and, as a result, only two courts could ballot juries and start trials in the first week, rather than the three courts originally anticipated. In the course of submissions by the advocate depute, it began to appear that there was some uncertainty about what exactly had been intended for the first day of the sitting, and what had been arranged with the Justiciary Office, but the advocate depute maintained the position that, if the normal number of jurors had been available, three courts could have sat. In the note of appeal, it is further stated that it became apparent to the Crown only on 29 March that there would be a substantial loss of judicial time in the sitting and that immediate requests were made for the provision of judges who could sit for the whole of the second week, but that Justiciary Office was unable to comply with these requests. A total of nine cases were adjourned from the sitting, including three murder trials and one rape trial.
The advocate depute referred to the decisions in H.M. Advocate v. Swift 1984 S.C.C.R. 216 and Mallison v. H.M. Advocate 1987 S.C.C.R. 320 and submitted that the temporary judge had fallen into error, in particular in taking the view that there had been nothing unexpected sprung on the Crown. There had been a concatenation of events which had led to the loss of judicial time and that concatenation had included the failure by the Justiciary Office to see that sufficient jurors were available on the first day of the sitting and the fact that it was only immediately before the commencement of the sitting that the Crown became aware of the limited availability of the temporary judges. The Crown were not under any statutory duty to bring a case to trial a significant period before the expiry of the 12 month limitation period and the decision whether or not to include a case in the list for a particular sitting must depend upon a number of factors including other cases which might require to go to trial. The judge had therefore been wrong in taking into account as a material consideration the fact that this case had not been indicted at an earlier sitting. So far as the situation at this sitting was concerned, the Crown had been criticised for their failure to take some steps as soon as the difficulty arose but there were also other cases in the sitting, including murder and rape cases, which required to be given appropriate priority. The judge had not correctly applied the two stage test indicated in Swift supra. Even if there were some fault on the part of the Crown, that was not fatal to the application.
Counsel for McNally referred to the list of cases set down for the circuit and pointed out that this case was cited to court No. 5 of the sitting as case No. 5, with two murders set down in the list ahead of it, both of which were subject to time bars which were later than the time bar in this case. This case had not in fact stayed in court 5 but had been shifted to that of the temporary judge. The case of Quinn, which was a short case, had been finished on 1 April and no other case had been started. Quinn had been taken first, even though the time bar in that case was 9 April. Counsel had been instructed in the present case and the accused had been available and the case had been ready to start from the first day of the sitting. The temporary judge had correctly applied a two stage test, as indicated in Swift supra and had not been satisfied on the first stage. The advocate depute had not explained to the court what wider picture might have to be taken into account in considering what pressures there were on the Crown, apart from the immediate circumstances of this case. The Crown had been aware of the Easter break and of the number of cases set down for the sitting and of the time bars applicable. They chose, notwithstanding that, to run the case of Quinn. The judge had been given no explanation as to why the Crown had proceeded in this way, even though they knew the sitting was to be curtailed. Counsel had been present on 1 April and this case had been called in on that day but counsel were told that they were not required and that they would be informed later when they would be required.
Counsel for Duffy adopted the submissions made by counsel for McNally and submitted that there had been a material fault on the part of the Crown in this case since the problem which arose could have been avoided by earlier action on their part. As a result, questions of the exercise of discretion did not arise. The Crown had brought the problem on themselves by leaving the case to the last minute, in other words by brinkmanship. It was for the Crown to show sufficient cause for the extension and, if there would have been problems in indicting the present case at an earlier sitting, it was for the Crown to produce the relevant information. They had not done so, either before the temporary judge or before this court.
As was decided in Swift supra and repeated in Mallison supra and Stenton v. H.M. Advocate 1998 S.C.C.R. 594, a two-stage test has to be applied in deciding whether an extension of the 12 month period should be granted. The first stage is to consider whether there is a reason which is capable of justifying the request for an extension: the second stage is to consider whether, as a matter of discretion, the request should in all the circumstances be granted. In the present case, the judge does appear to have applied a two-stage test but, in our view, he fell into error in holding that because the Crown were at fault, they failed to show sufficient cause for an extension. As we shall later explain, we do not think that the Crown were blameless in the situation which arose in this case. It does, however, appear to us that circumstances which were unknown to the Crown until the commencement of the sitting substantially contributed to the difficulties which arose. These circumstances were, in the first place, that sufficient jurors were not available to start the number of trials which had been envisaged at the very beginning of the circuit and that the availability of the temporary judges was limited. As to the first of these circumstances, the advocate depute was not in a position to give a complete explanation as to what the Crown's plans had been and how far those plans were communicated to the Justiciary Office so as to ensure that a requisite number of jurors would be available. The advocate depute maintained, however, that had the normal number of jurors been available, three trials could have been started on the first day of the sitting and that would have made a substantial contribution towards resolving the problems which arose. We should say that, had the non-availability of jurors been the only matter on which the Crown founded, we might have thought it necessary to require a fuller explanation both from the Crown and from the Justiciary Office. As regards the non-availability of the temporary judges for the last two days of the sitting, however, it appears to be clear that this was a circumstance of which the Crown were unaware until the start of the sitting. The judge makes it clear, so far as he himself was concerned, that his availability had been fully explained to the Justiciary Office but it seems to be equally clear that it was not communicated to the Crown. The position was, therefore, that at the start of a sitting to which 27 cases had been cited the Crown found that there was a distinct and unexpected limitation on the availability of judicial time. It is perhaps possible that, as counsel for the respondents in this case suggested, a different approach might have been taken to calling some of the cases but the only specific criticism made related to the calling of the case of Quinn in priority to the present case and, bearing in mind that Quinn was a murder trial, we do not think that it would be reasonable to criticise the Crown for the decision to call that case, even after the problem had emerged. In all the circumstances, therefore, we are satisfied that the problem which arose was to a substantial extent the result of factors for which the Crown were not responsible and accordingly that a reason capable of justifying the demand for the extension has been established. The judge says that had he reached the stage of exercising a discretion he would almost certainly have exercised it in the Crown's favour. We agree with his approach in that respect and for that reason we granted the extension.
We should not, however, part with the case without saying that it does appear to us that the Crown shared the responsibility for the problem which arose. As the judge observed, it must have been obvious to the Crown that time at the sitting would be limited, considering that it spanned the Easter holiday weekend. It was also, in our view, eminently foreseeable that at that time of year it might prove extremely difficult, or even as it transpired impossible, to provide additional judges to deal with the business at short notice. Indeed even leaving aside the special circumstances of this sitting, it should be borne in mind that, in view of the amount of time that judges already spend on criminal business, it cannot be assumed that steps can always be taken at short notice to provide additional judges.
Looking at the position more broadly, it is well known that both the Crown and the court face great difficulties in coping with the amount of criminal business that has to be dealt with. It is, for example, well known that more cases are listed for every Glasgow sitting than could possibly be heard if every case went to trial. This court is not in a position to review the requirements of the Crown for judicial time, and for that reason we have refrained from considering whether the Crown might be open to criticism for not listing this case for an earlier sitting. The responsibility for considering what sittings are required and how business at those sittings can be organised lies with the Crown, who alone have the information on which to make a proper judgment. The court has a statutory obligation to hold such sittings as the Lord Advocate may require for the disposal of criminal business. There are however practical considerations to be borne in mind even in considering how that obligation can be performed. It may be added that there are many occasions when judges are available but for one reason or another there is no business which can proceed. The reasons may often be good, and we do not underestimate the difficulties involved in planning and organising sittings, particularly in Glasgow where the amount of business is so great. It is, for example, not uncommon to find that the timing of cases is planned to suit the availability of particular counsel: there is nothing wrong in that in itself, and there are circumstances in which it is desirable or even necessary. We do however want to emphasise that the practicalities which have to be considered include the practical effects of any arrangements which may be made on the court and on the use of judicial time. Nothing in this decision should be taken to indicate that failure to take proper account either of the effects of any particular course of action on the court or of the practical possibilities of making court time available, may not be taken as a consideration adverse to the granting of a request to extend a time limit.