Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. ANDREW SANDS [2001] ScotHC 65 (26th July, 2001)

[1] This is an appeal by the Crown under Section 65(8) of the Criminal Procedure (Scotland) Act 1995 against the decision of the presiding judge dated 30 May 2001 refusing the Crown's application in terms of Section 65(7) to extend, from 26 to 30 May 2001, the period of 110 days within which the trial of the respondent, Andrew Sands, required to be commenced.

[2] On 1 December 2000 the respondent appeared in the Sheriff Court at Glasgow on a petition at the instance of the procurator fiscal containing a charge of the attempted murder of Peter Giblan. He was committed for further examination. On 5 December he appeared on a second petition containing a charge of the attempted murder of Andrew Peter Ralphs. He was committed for further examination. On 8 December he appeared on a new petition bearing the same number as the petition on which he had appeared on 1 December. On this occasion he was committed until liberated in due course of law on both the substitute petition and the petition dated 5 December. The charge in the substitute petition corresponds to the first charge on the present indictment, while the charge on the second petition corresponds to the second charge on this indictment. Had the 110-day period run its usual course from the respondent's full committal on 8 December, it would have expired in the case of both petitions on 27 March 2001.

[3] On 12 December 2000, the procurator fiscal received a telephone call from the sheriff clerk indicating that the second petition had not in fact called on 8 December. Although the procurator fiscal present in court had minuted that the respondent had been fully committed on both petitions, steps were taken to obtain a fresh petition warrant. So, on 21 December the respondent was again fully committed in respect of charge 2. Nevertheless, in fact the respondent remained in custody, after full committal on both charges, from 8 December 2000 until the presiding judge refused the Crown application on 30 May.

[4] The respondent was indicted for trial on the present charges to a sitting of the High Court at Glasgow on 28 March 2001. At some point before that sitting Mr. Ewing, the solicitor advocate appearing for the respondent, had become aware that the respondent had been sentenced to four months imprisonment on 17 January and that he had become eligible for release on that matter, after two months in custody, on 16 March. Accordingly, when the Advocate Depute indicated that the Crown intended to adjourn the case to the sitting which was to start on 21 May, Mr. Ewing told him that there would be no need for the Crown to apply for an extension of the 110-day period. The case was therefore called on 28 March and adjourned. Although Mr. Ewing told the Advocate Depute about the four-month sentence he did not go further and give details of the relevant dates when the sentence had been imposed and served.

[5] At some point, however, definitely after 16 March 2001 and presumably after 28 March, an official in Crown Office checked the position with the prison authorities at Her Majesty's Prison Barlinnie and was told that the respondent had been in custody on the sentence warrant from 1 December 2000 until 16 March 2001. The Crown therefore proceeded on the assumption that the 110-day period for the respondent had not begun running until 17 March, the day after the expiry of the sentence. On that basis the Crown Office calculated that the 110-day period would expire on 3 July.

[6] We note at this point that the information supplied by the Barlinnie official was not easily to be reconciled with the information which Mr. Ewing had given the Advocate Depute since a period in custody from 1 December until 16 March did not correspond in any way to a typical period of custody under a four-month sentence. It may be that the depute dealing with the case in the High Court Unit in Crown Office realised this since we were shown an undated note from the relevant file in these terms:

There is, at the very least, some hint of doubt in the note.

[7] The Advocate Depute confirmed to us that, despite what was said in the note, nothing was done to check the position with the respondent's agents. Instead, on 16 May, those agents spontaneously drew the Crown's attention to the matter. On the second page of a letter to the procurator fiscal dealing with a number of points, they wrote:

As the presiding judge remarks, in sending this letter to the Crown the respondent's agents acted in a commendably responsible manner. Unfortunately, the Crown response was not equally commendable. The presiding judge was informed that because of "extreme pressure of business", despite receiving this letter, the procurator fiscal was not able to make any direct enquiry with Barlinnie until 29 May. Before us the Advocate Depute was able to give us further information. What appears to have happened is that, when the letter arrived at the procurator fiscal's office on 16 May, it was sent on to the High Court Unit in Glasgow where, according to the date stamp, it was received on 21 May. The procurator fiscal depute dealing with the case did not notice the part of the letter relating to time-bar on 21 May and only became aware of it the next day. She asked the staff to check the information previously supplied by Barlinnie. All that appears to have been done, however, was to look at the note on the relevant Crown file which, as we have seen, showed that the respondent had been in custody from 1 December until 16 March.

[8] The time-bar expired on 26 May.

[9] On 29 May Mr. Ewing contacted the Crown and asked that the 110-day period should be checked again. The High Court procurator fiscal depute accordingly telephoned the Barlinnie records office. They said, again, that the respondent had been imprisoned on the sentence warrant from 1 December to 16 March. When this was conveyed to Mr. Ewing, he insisted that the Barlinnie official was wrong and so the procurator fiscal depute contacted Barlinnie once more. On this occasion the depute insisted that the matter should be carefully checked. This time, Barlinnie confirmed that the respondent's sentence had not begun until 17 January 2001. The error had arisen because the period of imprisonment from 1 December in respect of the petitions leading to the present indictment had been wrongly attributed to the sentence on the separate matter which had not in fact been imposed until 17 January 2001 and which had not been backdated.

[10] Having discovered the true position, the procurator fiscal depute recalculated the 110-day period in respect of the first charge and concluded that it had expired on 26 May. The depute thought that the 110-period for the second charge still had some time to run on the basis that the respondent had been fully committed on that matter on 21 December. But, once the problem with charge 1 came to light, the respondent's agent checked the position as to the petition relating to the second charge and it was then discovered that, in fact and contrary to what the sheriff clerk had told the Crown, the respondent had been fully committed on that matter on 8 December too, so that the time-limit for that charge had expired on 26 May also.

[11] In that situation the Crown immediately took the necessary steps to apply for an extension of the 110-day period in respect of both charges until 8 June, or at least, until 30 May. It appears that, in fact, there were witness problems and that the trial could not have begun on 30 May in any event. The intention of the Crown was that, if the extension were granted, the respondent would be released and indicted to a later sitting of the High Court. On 30 May the application came before Lady Cosgrove who refused it. It is against the refusal of this application that the Crown have appealed.

[12] Section 65(4) of the 1995 Act provides inter alia:

Section 65(7) provides:

[13] In presenting the appeal the Advocate Depute did not make any distinction between the two charges. He invited us to allow the appeal in respect of both of them. Similarly, in replying, Mr. Ewing did not differentiate between them and submitted that the appeal should be refused in respect of both. We have proceeded on the basis that both charges should be treated in the same way.

[14] The submission on behalf of the Crown was that the presiding judge had erred in that she had failed to realise that the delay in the commencement of the trial in this case was due, not to any fault on the part of the Crown, but to a mistake or fault on the part of the officials responsible for keeping the relevant records at Barlinnie. The passage in her Ladyship's opinion which was said to be erroneous occurs after she has explained that the Crown must first have received the erroneous information from Barlinnie at some time after 28 March. She goes on:

The suggestion was that the presiding judge had failed to realise that, even if the procurator fiscal depute had acted more promptly on receiving the agents' letter on 16 May and had checked the matter with Barlinnie, the officials there would still have given the same wrong information. The Crown would have been in no better position. So, even if there had been some delay in checking the position, that could not be counted as operative fault: the real fault was on the part of the Barlinnie officials.

[15] We reject this criticism of the presiding judge's reasoning. As we have already noted, the information coming from Barlinnie was inherently difficult to reconcile with the suggestion that the appellant had been imprisoned for the period in question on a sentence of four months imprisonment. That is a factor to be kept in mind in considering the actions of the Crown. When the respondent's agents faxed their letter on 16 May alerting the procurator fiscal's office to the true position and suggesting that the procurator fiscal might wish to check it, not only did the letter take some five days to wend its way to the High Court Unit but when it reached there the relevant procurator fiscal depute did not notice or act on the warning until the following day. From what we were told, the only step taken on 22 May was to check the pre-existing Crown Office record which, inevitably, showed the (inaccurate) position on which the Crown had been acting. Nothing was done at that stage to check with Barlinnie. In our view, in the circumstances, given that the agents were going out of their way to draw very specific attention to this critical matter, the response of the Crown was simply not adequate.

[16] It is true, as the Advocate Depute argued, that if the High Court Unit had checked with Barlinnie on 16 May or even on 22 May they would have received the same inaccurate information. But, had they reported back to the respondent's agents that Barlinnie were maintaining that position, then it must equally be assumed that the agents would have insisted that the Barlinnie records were wrong. And we see no reason to doubt that, faced with this insistence, the procurator fiscal depute would have done what was done on 29 May and would have insisted on Barlinnie checking the matter. At which point, no doubt, the true position would have come to light - in time for the Crown to take steps to avoid the respondent being detained for more than 110 days before his trial started. The Crown could either have started his trial within the 110-day period or could have released him, as they would have done on 30 May if the presiding judge had granted the extension which they sought. The failure of the Crown to respond either promptly or sufficiently vigorously was a significant factor in bringing about the situation giving rise to the application.

[17] In these circumstances we agree with the presiding judge that it could not be said that the delay in the commencement of the respondent's trial was due to a cause which "was not attributable to any fault on the part of the prosecutor". That being so, the Crown's application for the extension of the 110-day limit did not fall within the scope of Section 65(7)(c) and was not relevant. The presiding judge was, accordingly, correct to reject it.

[18] For these reasons the appeal must be refused.