Scottish High Court of Justiciary Decisons

STEWART McCULLOCH v. HER MAJESTY'S ADVOCATE [2000] ScotHC 98 (25th October, 2000)

[1] The appellant in this note of appeal brings under review a decision by the sheriff at Hamilton to grant an extension of the 12 month period in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995.

[2] The circumstances in which the application came to be made are set out in detail in the report by the sheriff. Briefly stated they are that on 14 August 2000 the appellant went to trial on a charge of assault to severe injury and permanent disfigurement. The appellant had first appeared on petition on 16 August 1999 and was granted bail. The trial therefore began within the requisite 12 month period for the commencement of trial proceedings. Evidence was led before the jury. On 16 August 2000 the last Crown witness was called. This was the appellant's wife. The sheriff advised her that she was a competent but not a compellable witness in the case against her husband. She declined to give evidence and was discharged from the witness box. A motion of no case to answer was thereafter made but repelled. Evidence was then led for the defence. In the course of her address to the jury the procurator fiscal depute made reference to the failure of the appellant's wife to give evidence in a way which the sheriff considered was to transgress the prohibition against doing so contained in section 264 (3) of the Criminal Procedure (Scotland) Act 1995. She was accordingly stopped by the sheriff. The jury then retired. Having heard the submissions for both the Crown and the defence, the sheriff noted that the procurator fiscal depute accepted that she had transgressed but stated that she had done so in ignorance of the statutory prohibition. The sheriff further noted that it was conceded on behalf of the appellant that the depute had erred innocently. However, the sheriff considered that the transgression was one which could not be cured by any direction to the jury, since the statutory provision was mandatory. She therefore deserted the diet pro loco et tempore.

[3] Having done so, the sheriff was then invited by the depute to extend the 12 month period. The sheriff tells us that it was agreed by both parties that such an application could be granted retrospectively. It was also accepted that the Crown had erred innocently. The submission for the Crown was that, even if the Crown was at fault, the Court could still entertain and grant an extension of the 12 month period. Reference was made to the cases of Mallison v. HMA 1987 SCCR 320 and Rennie v. HMA 1998 SCCR 191. In considering the application the sheriff was invited to have regard to other factors, namely, (1) that there was no prejudice to the accused as a result of the extension, (2) that the charge was a serious one and (3) the public interest. For the appellant it was contended that the sheriff's decision to desert the diet pro loco et tempore was correct. Reference was made to McKie v. HMA 1997 SCCR 30. That being so, there was not sufficient reason to justify the grant, standing that it was being sought only because of fault on the part of the Crown. The fault arose, it was said, in two ways. First, the depute had breached the statutory prohibition in her address to the jury and, second, the Crown had elected to start the trial only two days before the expiry of the 12 month period and therefore required to take the inherent risk which could arise from indicting a case at such a late stage. Thus the only reasons for the extension being sought were faults on the part of the Crown. Reference was made to the cases of Stenton v. HMA 1998 SCCR 594 and HMA v. Willoughby 2000 SCCR 73.

[4] The sheriff also noted a submission for the appellant to the effect that a further jury trial would be prejudicial to the appellant given that every witness would be giving evidence for a second time. The appellant's agent however accepted that this was a weak argument. The sheriff went to say that this happened on a number of occasions and that she did not accept that this would result in prejudice to the appellant.

[5] The sheriff then said this:

[6] For the appellant before this court, Miss Scott contended that the sheriff misdirected herself in failing to identify the fault on the part of the Crown as one which was so serious in itself that it could not be excused or overlooked for the purpose of justifying the grant of an extension. She referred us to the cases cited before the sheriff and also to HMA v. Swift 1984 SCCR 216. It was not enough to label the fault as innocent. It arose out of ignorance of a statutory provision of which the procurator fiscal depute should have been aware. In the circumstances, notwithstanding that the sheriff had previously deserted the diet pro loco et tempore, the sheriff had paid insufficient attention to the nature and extent of the fault of the Crown and that no sufficient reason had been shown to justify the application for the extension and hence for its grant in terms of section 65(3) of the 1995 Act. Miss Scott did not dispute that the matters of prejudice to the appellant and the public interest were factors relevant to the exercise of the sheriff's discretion. But, in any event, they were outweighed in the present case by the seriousness of the fault on the part of the Crown which gave rise to the application.

[7] The advocate depute accepted that the procurator fiscal depute ought to have known of the statutory prohibition and that the matter could not have been cured by a direction to the jury. However, he pointed out that on the case law cited before the sheriff, fault on the part of the Crown did not exclude the Crown from seeking an extension of the 12 month period. He accepted that the 12 month period was, as pointed out in the case of Swift, a very important right and hence a valuable safeguard for accused persons. But the matter arose out of an error during the course of a trial and did not constitute fault of the same nature and degree as had, for instance, been present in the cases of Swift or Stenton. The sheriff had exercised her discretion upon a proper recognition of the relevant factors and by a proper balancing of those factors.

[8] We agree with the advocate depute. In terms of section 65(3) of the Act, before the application to the court by the Crown can be granted, the Crown must show cause why the 12 month period should be extended. In the present case it is because the original trial came to be aborted by reason of the procurator fiscal depute's transgression of the statutory prohibition, which led directly to the court's decision to desert the diet pro loco et tempore. No criticism was or could be made of the sheriff's decision in that regard. But the trial had already commenced within the 12 month period upon an unexceptionable indictment. The trial was aborted after the 12 month period had expired and so no time remained for a new trial to begin within that period. Accordingly, no further proceedings could be initiated unless the court was asked to and did exercise the discretion given to it under section 65(3) of the Act. In these circumstances we are satisfied that the Crown had shown cause within the meaning of the section. So far as the exercise of discretion is concerned, it was not suggested that merely because there has been fault on the part of the Crown, such an application fell to be refused. Nor was there any dispute that an application could be entertained after the 12 month period had expired. Regard was to be had to the nature and degree of the fault, as was said in Swift. The present is not fault of the same character as in Willoughby where, but for the fault of the Crown, there remained sufficient time to have proceeded to trial within the extended 12 month period following the falling of the original indictment. The cause giving rise to the application in the present case was one which arose in the course of the last stages of the trial. There was no reason to anticipate the problem. In our opinion, having regard to the manner in which the sheriff approached the task of determining whether or not to grant the application and of weighing the factors relevant to that decision, it cannot be said that she erred in the exercise of her discretion either by failing to take into account some relevant factor or by giving undue weight to any of the factors placed before her. In particular, in our view, her report makes clear that she gave proper consideration to the nature of the fault which gave rise to the need on her part to exercise her discretion and appropriate weight to that fault as a factor in the balancing of the factors relevant to the exercise of that discretion. The appeal is accordingly refused.