Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. MICHAEL McGINLAY [1999] ScotHC 189 (21st July, 1999)

This is a note of appeal by the Procurator Fiscal, Glasgow. The respondent Michael McGinlay first appeared on petition on 8 April 1998 on charges of lewd, indecent and libidinous practices and certain other matters and was allowed bail. An indictment was eventually served on him on 26 January 1999. The first diet was set for 15 March and the second diet for 29 March. On 15 March, the first diet was adjourned, on the defence motion, until 22 March. When the case came up on that date the Crown were ready to proceed but the defence enquiries were not complete and the diet was again adjourned until 25 March. On that date, the defence moved to adjourn the diet of trial for a period of one month. That was initially opposed by the Crown but the opposition was later dropped and the motion was granted. The diet on 25 March was continued until later on the same day, in order to allow the Procurator Fiscal Depute to check on the availability of an interpreter who would be required for the trial, but, that having been done, the case was adjourned to a sitting due to commence on 26 April. At that time no motion to extend the twelve month period was made. Consequently the case became time barred on 7 April 1999. The present petition, is dated 29 April and was lodged on that date. By it, the Procurator Fiscal sought an extension of the twelve month period, which would enable the trial to take place within the sitting commencing on 26 April. As we understand the position, it had been intended that the trial should be called during the second week of that sitting, commencing on 3 May. Consequently, if the petition for extension for time had been granted when it first came before the Court on 4 May, the trial could still have taken place within the sitting which had been envisaged when the extension was granted on the defence motion.

The Sheriff, however, refused to grant the extension. He was referred to various authorities as to the circumstances in which extension should and should not be granted. The explanation that was put before him was that the Depute Procurator Fiscal who appeared on 25 March had been at fault by inadvertence, in failing to notice instructions which had been written on the precognition that, if the defence motion to adjourn was successful, then an extension of the twelve month period was required. The Sheriff records that the argument on behalf of the Procurator Fiscal was that the nature and degree of the fault on the part of the Crown was such that the Court would be entitled to exercise its discretion. The indictment had been timeously served. It was not a case of delay on the part of the Crown. The defence could not have opposed any motion made by the Crown to extend the twelve month period had it been made on 25 March and that it had been at the defence insistence that the diet had been postponed. The Sheriff says that he considered these issues of little relevance in an application for a retrospective extension of the twelve month period. He says that the Crown's failure to seek the extension on 25 March constituted a serious error which was compounded by their failure to take any steps to retrieve the situation prior to the time bar coming into operation on 7 April. He points out there was, in his view, a clear duty on the Depute in Court to seek the extension and says that it is a matter of some concern that there appears to have been no system in place for checking whether steps had been taken to extend the period.

In presenting this note of appeal the Advocate Depute submitted that the Sheriff had essentially misdirected himself. The question whether an extension should be granted involves the application of a two stage test as discussed in HMA v Swift 1985 S.L.T. 26 and a variety of later authorities. The first stage of the test requires the Court to identify the cause for seeking the extension of time. It was submitted that, in this case, the cause which made an extension of time necessary was the defence motion to adjourn the trial. The Sheriff had failed to identify that as the cause and consequently had misdirected himself by giving too much emphasis to the element of inadvertence on the part of the Procurator Fiscal Depute in failing to make the motion at the correct time, at which that motion could not have been opposed.

On behalf of the respondent it was submitted that the Sheriff had correctly applied the test. He had had regard to what, it was submitted, were serious errors on the part of the Crown. There had in fact been a succession of errors. There had been the initial failure to move for an extension on the morning of 25 March when the Crown knew that there was a problem. The Crown had had the opportunity to make enquiries and had failed to take account of their duty to identify the date on which the proceedings would be time barred, and then had failed to do anything more until 29 April for which failure no reason was given. The result had been that it was necessary to seek a retrospective extension of the time limit and it was established by cases such as Farrell 1984 S.C.C.R. 701 and Main 1998 S.C.C.R. 694 that a high standard had to be met before such an extension should be granted.

In our view the Crown argument has to succeed. The cause which made the extension necessary was the requirement of the defence that the trial should be adjourned to a date beyond the twelve month period. That, in our view, clearly is a cause of a kind which is capable of justifying a request for an extension. The question then becomes one for the discretion of the Court. Of course, in exercising that discretion, the Court must take account of the fact that the Crown were guilty of error in failing to make the motion at the proper time. However, in addressing the question of discretion all the circumstances of the case have to be considered and considering that the adjournment of the trial was at the defence insistence and that the trial could have taken place within the sitting to which the adjournment was sought, if this application had been granted when it was first presented; and further considering the nature of the errors which were made, it seems to us that the proper way to exercise the discretion is in favour of the Crown and accordingly to grant the application. The period for which the extension is sought is three months. That period was not opposed by the defence today.