APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C324/99
OPINION OF THE COURT
delivered by LORD COULSFIELD
CAMERON SKEAD and MARK ANTHONY CUNNINGHAM
HER MAJESTY'S ADVOCATE
Appellants: McCluskey; Hughes Walker: Prentice; McCourts
Respondent: Mulholland, A.D.; Crown Agent
18 June 1999
Both appellants appeal against a decision of the sheriff on 28 May 1999 to extend the 12 month limit provided for by section 65 of the Criminal Procedure (Scotland) Act 1995 by a period of one week.
Both appellants were charged with assault to severe injury, permanent disfigurement and permanent impairment following an incident which took place on 18 December 1997. Both were seen by the police not long after the incident but released. The appellant Skead was arrested on petition and first appeared on 27 May 1998 while Cunningham first appeared on 28 May 1998. The service of an indictment only followed in April 1999. The indictment was served with a first diet on 4 May 1999 and a trial diet for 18 May 1999, which was the first day of a jury sitting in Edinburgh Sheriff Court. From the explanation given to the sheriff, it appears that there had been problems for the Crown in getting witnesses to attend for precognition, one witness in particular not being precognosced until 8 March 1999. That witness was described as a vital witness. The sitting fixed for 18 May was a one week sitting, but in fact, because of a public holiday, it began on the Tuesday of the week. It was explained to us that the ordinary practice in Edinburgh Sheriff Court is to fix alternate sittings for one week and two weeks respectively. Three other cases had been set down for the sitting. The procurator fiscal had intended to start this case on Tuesday 18 May 1999 but did not do so, because of witness problems. The fiscal again intended to start the case on 19 May, after lunch, but a witness who had been present earlier in the day did not return after the lunch interval until after 2.20 p.m. Before his return, the sheriff had insisted that business should proceed and as a result another case had been started, which ran until 21 May. The case of Skead and Cunningham was called on 20 May and adjourned to the next sitting, which began on Monday 24 May. At the same time, the procurator fiscal asked for an extension of the 12 month period until 3 June 1999, the penultimate day of that sitting, but the sheriff refused that motion in hoc statu.
When the sitting of 24 May commenced, there was also another case set down which involved three accused, one of whom was subject to a time limit which was due to expire on 1 June. The procurator fiscal decided to start that case, expecting that it would take 21/2 days and that the present case could start after it, on 26 May. The procurator fiscal, it was explained, also took account of the fact that the other case had been postponed several times already, because of the illness of the reporting officer who only returned to duty on 24 May. In the event, however, the case ran on and the Crown evidence was not complete until the afternoon of 27 May. The Crown case was followed by submissions which ran into the following day, so that when the application for an extension was made in the present case, on 28 May, the other case had still not been completed.
In his report, the sheriff records the submissions made to him by the procurator fiscal and the solicitors representing the accused. In particular, the accuseds' representatives submitted that the Crown had had another option on 19 May because the trial in the present case could have been begun and steps could have been taken to have the witness who had not returned brought to court. That witness was not the witness described as a vital witness and, in any event, he did attend court later in the afternoon. It was submitted that the refusal by the sheriff on 20 May to extend the 12 month period was a signal to the Crown that an extension would not readily be granted in this case. When it came to Monday 24 May, the Crown could have started this case instead of proceeding with the other, which could have been begun at any time before 1 June. In any event, the delay in that case had clearly been caused by a difficulty which was not the fault of the Crown and an extension could, if necessary, have been sought in that case. In any event, the present case, involving the appellants, was not likely to have taken a whole week.
In his report, the sheriff says:
"At the time I stated that the reason for the application, as I understood it, was that the case which had gone to trial on 24 May had lasted longer than was expected. As I understood it, the opposition to the application was principally on the ground that the procurator fiscal had had a choice as to which of the two cases to start and had taken the wrong decision. I said that with the benefit of hindsight it did appear that the wrong decision had been made. Nevertheless, I decided, the unexpectedly long duration of the other trial was the reason for the application and was in my opinion 'cause shown' for the extension. In the exercise of my discretion as to whether or not to grant the extension sought, it seemed to me appropriate to exercise that discretion in favour of the Crown, to enable the present case to start at the conclusion of the other trial".
The sheriff then refers to authorities setting out the questions which require to be considered in a case of this kind. He applies himself first to the question whether a sufficient reason had been shown for the extension and says:
"As it happens, I was the sheriff in the other case which had lasted all week and which the procurator fiscal depute had expected to last no more than 21/2 days. Certainly, it was the sort of case which would not normally expect to last more than a day or two. There were three accused, all on a single charge, not many productions and only eight Crown witnesses listed. So the mistake of the procurator fiscal depute in her estimate of the likely duration of the case was understandable and could not in my judgment be regarded as negligent or blameworthy".
The sheriff goes on to consider and reject a submission to the effect that the procurator fiscal should have asked herself what would happen if her estimate of the duration of the case she had decided to take first was wrong. He rejects that submission and concludes that, since the difficulty was caused by a miscalculation which anyone could have made, sufficient reason had been established. He then continues:
"The question whether the extension ought to have been granted caused me more difficulty. I took into account all that had been said. The offence dated back to December 1997; the case had not been reported until March or April 1998 and the indictment had not been served until 4 May. On the other hand, the delay in reporting the matter seemed to have been caused by the fact that the vital witness did not appear for precognition until March 1998, having failed to appear on two previous occasions. These are difficulties of a kind with which the Crown are frequently faced and it was not clear to me what in this case the Crown could have done to avoid them. Once the precognition had been completed, it seemed, the Crown had proceeded with as much expedition as one could reasonably expect. There was a hint in the procurator fiscal depute's candid statement that the precognition clerk may have got bogged down with the case, possibly as a result of 'pressure of business', but it did not appear to me that the fact that the indictment was served as late as it was had anything to do with that, rather than the problem with a vital witness.
What transpired on 20 May was nothing to do with the 'sufficient reason' which was presented to me. It is, though, part of 'all the circumstances of the case'. Taking it into account in relation to whether I should exercise my discretion in favour of the Crown, I took the view that the Crown could hardly be blamed for the witness not returning for lunch. It is true that the procurator fiscal depute on that day had other options, but I did not think that I was in a position to criticise him for deciding that he could not proceed without that witness. I felt that I could scarcely criticise him for starting another case when he was under pressure from the bench to make progress with the sitting".
The submissions made to us were along the same lines as those made to the sheriff. Stress was laid on the length of time that had elapsed since the incident and the delay in having the case fully precognosced. It was also emphasised that the Crown could have started the present case on 19 May but chose not to because of the absence of a witness who was not described as vital. Again, on 24 May the Crown had chosen to start another case despite the fact that the delays in that case were not the fault of the Crown and despite the fact that the earliest time limit in that case was later than the time limits applicable in this case. The procurator fiscal should have appreciated that a case involving three accused might run on for some time and had taken a risk by starting that case. It was not a risk that the Crown needed to take or should have taken since the present case could easily have been concluded in time to start the other case. In any event, the original decision to indict this case at a four day sitting along with other cases was an example of poor programming and it was significant that the sheriff on 20 May had refused the request for an extension. Reference was made to the cases of Swift v. H.M. Advocate 1984 S.C.C.R. 216 and McGinty v. H.M. Advocate 1984 S.C.C.R. 176 as well as that of Stenton v. H.M. Advocate 1998 S.C.C.R. 594. Finally it was submitted that the request and the reason for it really amounted to a "pressure of business" submission which was not an adequate reason for granting an extension.
We do not think that, for the purposes of this case, we need review the previous authorities. It is well settled that two questions require to be asked. The first question is whether the Crown have put forward a sufficient reason, capable of justifying an extension. In the present case, what the Crown say is that the need for an extension arose because of a miscalculation, but a reasonable miscalculation. The sheriff, who has direct knowledge of the circumstances of the other case as well as having the position in this case before him, has taken the view that the miscalculation was a reasonable one, which anyone could have made. It is quite true that, had it been possible to indict the case earlier, the situation in which the calculation had to be made would not have arisen and therefore there is an element of "pressure of business" involved in the Crown submission. Nevertheless, the issue in the present case focuses on the date when the decision, which turned out to be a miscalculation, was taken. Having regard to the sheriff's knowledge of the circumstances, we do not think that we could interfere with the decision at which he has arrived.
The second question is whether discretion should be exercised to grant the extension. Here again, the sheriff has carefully considered the whole circumstances and has not made any error of law. While we agree with him that this was a case in which the decision was not an easy one, and we think that a real question arose as to whether the extension should or should not be granted, we cannot say that the sheriff erred in law or exercised his discretion unreasonably.
For these reasons, we refused these appeals.