Lord Justice General
Appeal No: C12/99
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
NOTE OF APPEAL
HER MAJESTY'S ADVOCATE
Appellant: Shead; Anderson Shaw & Gilbert, Inverness
Respondent: Bell, Q.C., A.D.; Crown Agent
23 February 1999
The appellant, Ian Garrow, appeared on petition at Tain Sheriff Court on 10 February 1998 charged with an assault which was alleged to have taken place on 6 February 1998. He was also charged with two other offences. In due course the procurator fiscal decided to combine the three charges and to include them on a single indictment. The charge on which he had appeared on petition in February 1998 formed charge 3 on the indictment and, because of the provisions of Section 65(1), the appellant's trial on that charge required to commence within twelve months of 10 February 1998, unless the period was extended by the sheriff under Section 65(3). The case against the appellant was due to be tried as the second case in the jury sitting at Tain Sheriff Court beginning on 18 January 1999. It was therefore set down for trial within the relevant twelve-month period and, if all had gone smoothly, no problem with the time limit would have arisen. In fact, however, all did not go smoothly and on 19 January the procurator fiscal was not in a position to begin the trial. He therefore sought and was granted a four-month extension of the time limit. Having been granted the extension, the procurator fiscal deserted the diet pro loco et tempore. The appellant has appealed against the grant of the extension and, on his behalf, Mr. Shead submitted that the Sheriff ought not to have granted any extension and, in any event, that the extension which he granted was excessive. At the hearing of the appeal we were informed that the procurator fiscal had raised a fresh indictment with a trial diet on 17 March 1999.
The problem giving rise to the application for the extension arose out of the citation of one of the Crown witnesses, Samuel Wilson. The procurator fiscal had given the witness citations to the police for service on 14 December. At the first diet on 5 January he did not apparently anticipate any difficulty with witnesses and indicated that "he was ready to go to trial" at the trial diet. In fact, however, it turns out that - unknown to the procurator fiscal - on that very day Mr. Wilson had left for France. Even though the documents for service had been passed to the police on 14 December, for some reason, the police officers did not actually go to serve his citation on Mr. Wilson until 11 January. On that day a police officer called at his house. Mr. Wilson was, of course, not there, but a friend of his, Mr. Anderson, who stayed in the house, answered the door. Mr. Anderson explained to the police officer that Mr. Wilson was abroad, but that he expected him back and would give the citation to him. On that basis the police officer left the citation with him. At some point the execution of service was returned to the procurator fiscal. It indicated that the citation had been left with Mr. Anderson, an "inmate" of Mr. Wilson's house, who was described as a "friend". There was, of course, nothing on the execution copy to alert the procurator fiscal to the fact that Mr. Wilson was abroad. The first that the procurator fiscal knew of the position was when Mr. Anderson told him on the telephone on 19 January that Mr. Wilson had not come back from France and was therefore was not aware of the citation for the trial that day. Attempts to contact Mr. Wilson in France proved fruitless. The Crown could not proceed without him and so the procurator fiscal sought the extension to allow the trial to proceed at a later sitting.
It was argued in the court below that leaving the citation with Mr. Anderson was not a valid form of service and that nothing other than personal service would do. The sheriff rejected the argument but it was renewed before this court.
The starting point is Section 66(2) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") which provides that, when a sitting of the sheriff court or of the High Court has been appointed to be held for the trial of persons accused on indictment, the relevant official "shall issue a warrant to officers of law to cite the accused, witnesses and jurors". Subsection (7) states that the citation of witnesses may be effected by any officer of law. There is therefore no doubt that witnesses may competently be cited by officers of law, including police officers. Indeed, under the law as it stood before the amendment introduced to Section 69 of the Criminal Procedure (Scotland) Act 1975 by Section 117 of, and paragraph 26(b) and (c) of Schedule 6 to, the Criminal Justice (Scotland) Act 1995, the only competent method of citing witnesses in solemn cases was by officer of law. That amendment, however, introduced a relaxation which is now to be found in Section 66(3) of the 1995 Act:
"A witness may be cited by sending the citation to the witness by ordinary or registered post or by the recorded delivery service and a written execution in the form prescribed by Act of Adjournal or as nearly as may be in such form, purporting to be signed by the person who served such citation together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such citation".
The effect of that relaxation was to permit citation of witnesses by ordinary or registered post or by the recorded delivery service. Mr. Shead submitted that, since Parliament had allowed citation by post, it must have intended procurators fiscal to use that method in preference to the older method of citation by officer of law. The procurator fiscal should therefore have cited Mr. Wilson by post. If he had done so on 14 December, Mr. Wilson would have still been in the country and so service would have been effective. By wrongly choosing to instruct the police to serve the citation on Mr. Wilson, the procurator fiscal had given rise to the situation where Mr. Wilson had left the country before he was cited. The absence of Mr. Wilson could therefore be attributed to the fault of the procurator fiscal in selecting service by police officer rather than service by post.
We reject that contention. By amending the procedure statute to permit citation of witnesses by post in solemn cases, Parliament did nothing to affect the continuing validity of citation by officers of law. Parliament merely added another possible method. It was therefore open to the procurator fiscal in this case to use the traditional method of service by officer of law. Indeed it can be seen from the Annual Report of the Crown Office and Procurator Fiscal Service, covering the period until March 1998, that, up until September 1997 at least, the Crown had used postal citation only in pilot schemes in Ayr and Kilmarnock. Everywhere else the usual method of service by police officer continued. The decision of the procurator fiscal in this case to choose service by officer of law is therefore not open to criticism and it follows that we reject Mr. Shead's argument based on a supposed duty to prefer service by post.
Mr. Shead drew attention to the rules on service which are to be found in the Act of Adjournal (Criminal Procedure Rules) 1996. Rule 2.4 is headed "Citation of witnesses" and Mr. Shead submitted that this rule was intended to define the method of service in the case of witnesses - citation by post, failing which, personal service. For the reasons which we have just given, we reject the contention that service by post is the only competent method in the case of witnesses. In our view, having regard to the underlying provisions of the 1995 Act, we must regard Rules 2.2 and 2.3 as containing the core rules on citation of witnesses. As we have pointed out, witnesses are cited by virtue of Section 66 of the 1995 Act. They are therefore, for the purposes of Rule 2.3(1), persons who are cited "by virtue of the Act of 1995" and so citation is to "be effected in the same manner, with the necessary modifications, as the citation of an accused ... under rule 2.2". Rule 2.2 provides a variety of ways in which an officer of law may serve a citation and all these methods will usually be available to the officer of law who is instructed to cite a witness. The qualification to that general position is to be found in Rule 2.4. It provides that service of a citation on a witness "may, in the first instance, be by post." This is permissive, but where the Crown or defence choose to use that method but service is not effected, then any subsequent service must be personal. The rationale appears to be that, where difficulties in service by post are encountered, personal service must be used since any other method would be likely to run into similar difficulties and not to be effective.
It follows that, since the procurator fiscal in the case had not tried to serve the citation by post, he was fully entitled to instruct the police to serve the citation in the usual way and the police officer would have been entitled to use any of the methods specified in Rule 2.2. Here he in fact left the citation with Mr. Anderson who was living in the house in which the witness usually lived. In our view that was a competent method of citation in terms of Rule 2.2 (b), subject to the necessary modifications envisaged in Rule 2.3(1). We therefore reject Mr. Shead's submission that the witness had not been properly cited.
Mr. Shead submitted that the Sheriff's decision to extend the time-limit had been unsound, even if the method of citation had been competent. On this approach the fault of the procurator fiscal was said to lie in having instructed the police to cite the witnesses in December and in not having checked to see whether the necessary executions of service had been returned by the time of the first diet. Had he done so, it was argued, he would have discovered that Mr. Wilson had not been cited by 5 January and he would not have stated to the court that the Crown was ready to proceed to trial. Moreover, having been alerted to the position, the Crown would then have been in a position to take the necessary steps to ensure that Mr. Wilson was cited, if necessary by citing him at his address in France. It was accepted that, even if cited there, he would not have been obliged to come back for the trial. Mr. Shead argued that the police returned executions of citation to the procurator fiscal so that he would be in a position to know about the state of preparation and hence in a position to provide the necessary information to the court at the first diet in accordance with Section 71(1).
It appears to us that Mr. Shead's argument contains a necessary implication that a procurator fiscal is under a duty to instruct the citation of witnesses before the date of the first diet and indeed in time for him to become aware of whether they have been cited by the time of the first diet. We have no doubt that procurators fiscal will usually cite the witnesses on the Crown list at about the time when they serve the indictment or shortly after. They must also inform themselves sufficiently about what has been done and what remains to be done to be in a position to tell the court at the first diet about the state of preparation of the case in terms of Section 71(1) of the 1995 Act. But the criminal procedure statute specifies no time within which witnesses are to be cited and it is well known that they may be cited right up to the time of the trial and even while the trial is running. Where Parliament has refrained from imposing a duty to instruct the citation of witnesses before the first diet or indeed at any particular time, it is not for this court to impose a distinct duty on the procurator fiscal to instruct service, or on the police to attempt to effect service, or on the procurator fiscal to check the executions of service, before the first diet. In any event the practice of returning executions of service cannot be tied in to the proceedings at the first diet since the practice existed during the period when first diets were abolished. Presumably the main reason for returning executions of service is in order to allow the Crown to check whether service has been effected if a witness fails to attend court and the Crown wishes to seek a warrant to bring the witness to court. For these reasons we reject Mr. Shead's argument that the procurator fiscal was at fault because he had failed to check the executions of service before the first diet. In saying that, we do not by any means exclude the possibility that there may be cases, for example, where some difficulty over the attendance of witnesses is anticipated in which it will be wise for the Crown to take steps to check the position before the first diet; whether an extension should or should not be granted will always depend, however, on the individual facts and circumstances.
We note that the Sheriff described the delay on the part of the police in serving the citation as "unconscionable". We were not told of any information which the sheriff had been given about the reasons for this delay. We ourselves were given no information about the delay. Nor was it suggested that the police had simply neglected the matter. Doubtless, police officers should serve citations reasonably promptly but, in the absence of any information about the other priorities which the police may have had - and especially when the Christmas and New Year holidays intervened - we are not persuaded that it would be right to criticise the police officers for not serving the citations earlier for a trial diet on 18 January. Even were we wrong about that matter and the police were truly at fault, then we are satisfied that any fault is not one for which the Crown can properly be held responsible.
On the other hand, it does appear to us that the procurator fiscal was, at the least, unwise to inform the court at the first diet that he was ready to proceed to trial when he had not checked the witness position, especially when the Christmas and New Year holidays were just over. While the procurator fiscal can therefore be criticised for what he said to the court on 5 January, that statement was in no sense the cause of the difficulties which occurred on 19 January. As we know, Mr. Wilson had left for France on 5 January and it was his perfectly lawful departure for France, from where he could not be forced to return to attend the trial, which meant that the Crown was not in a position to start the appellant's trial on 19 January and had to ask for an extension of the twelve-month time limit.
Having explored the background, we now turn to consider whether the Sheriff was entitled to hold that the Crown should be granted an extension under Section 65(3). The procurator fiscal was in effect seeking an extension because the citation had been competently served, but the witness had remained absent abroad for longer than Mr. Anderson had anticipated and was therefore unaware of his duty to attend court. No information was placed before the sheriff or before us to suggest that there was any reason for the procurator fiscal or the police to anticipate that the witness might go abroad and remain there long enough to cause difficulty in regard to the trial. As we have explained, the procurator fiscal did not learn of the position until 19 January when the trial was due to start. For the reasons which we have given, we take the view that there was no fault on the part of the Crown. In particular, there was nothing on the face of the execution of citation which should have alerted the procurator fiscal to the need to make further enquiries. The absence of Mr. Wilson, an important Crown witness, in these circumstances was a cause why the Sheriff could, in the exercise of his discretion, extend the time limit. In deciding to extend the limit, the Sheriff explicitly recognised the importance of the safeguard of Section 65 for accused persons. He also weighed up the competing interests of the public and of the accused. Subject to what we say below, we can detect no error in his approach to the exercise of the discretion vested in him under Section 65(3) to grant an extension. Mr. Shead did not point to any such error. Nor can we say that his decision to grant the extension is one which no reasonable sheriff could have reached in the circumstances. Again, Mr. Shead did not criticise this aspect of the Sheriff's decision. That being the case, there is no basis upon which we can disturb his decision to grant an extension of the time limit.
The Sheriff granted an extension of four months. Extensions should be for no longer than is reasonably necessary. Particularly in view of the fact that the Crown has been able to indict the appellant for trial on 17 March, it appears to us that the period of four months was excessive. We shall therefore set aside the Sheriff's order and substitute an order extending the period by two months from 10 February.