Scottish High Court of Justiciary Decisons

Palmer v. Her Majesty's Advocate [2002] ScotHC 104 (16 August 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord MacLean Lord Kingarth	Appeal No: C635/02 OPINION OF THE COURT delivered by LORD MacLEAN in NOTE OF APPEAL by JASON PALMER Appellant; Against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Drummond Miller

Respondent: Hanretty, Q.C., A.D; Crown Agent

16 August 2002

1. The appellant is Jason Palmer. He appeals against a decision of Sheriff McFarlane, Q.C, made on 2 July 2002, granting an application by the Crown in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995 to extend the 12 month period provided in section 65(1) of the Act by seven days from 25 June 2002 to 2 July 2002.
2. The appellant first appeared on petition on 25 June 2001 at the instance of the procurator fiscal of Glasgow and Strathkelvin. The indictment which was subsequently served upon him narrated a number of charges. At the first diet on 20 May 2002 the procurator fiscal depute, Mr Miller, was erroneously informed by the clerk of the court in which he was appearing, that service of the indictment had not been effected. The clerk conveyed that information to the procurator fiscal depute as a result of a telephone call which he had earlier received from the Sheriff Clerk's Office. Acting in good faith and relying upon the information he had just received, since he did not have the execution service of the indictment in the papers which he had brought to court, the procurator fiscal depute did not call the first diet and the indictment fell. The fact, however, was that service of the indictment had properly been made upon the appellant, and his trial could have proceeded at the trial diet which was set to commence on 4 June 2002.
3. Thereafter the procurator fiscal depute put the case papers into the Crown's collection system within the Sheriff Courthouse for transmission to the procurator fiscal's office nearby at Ballater Street, Glasgow, marking them on the outside that they were to be returned to him as soon as possible. He knew then, on 20 May 2002, that the next scheduled sheriff and jury sitting was on 1 July 2002, and that that was six days after the twelve month period had expired. He also knew that if a fresh indictment were to be served on the appellant a special trial diet would have to be convened. The procurator fiscal depute accepted before the sheriff who considered this application, that he had five days after 20 May 2002 to serve a fresh indictment on the appellant in order to bring him before the court at such a special trial diet. In the event, the case papers took 9 days on their journey from the Sheriff Courthouse to the procurator fiscal depute's desk in the procurator fiscal's office. By that time it was too late to serve a fresh indictment for a trial commencing before 25 June 2002. An indictment was immediately served on the appellant on 31 May 2002 for a trial diet at a sitting commencing on 2 July 2002. On 18 June 2002 when the case called in court, an application was made by the Crown in terms of section 65(3) of the 1995 Act to have the twelve month period extended by seven days. On 2 July 2002, the sheriff granted the extension on the basis that the Crown's errors in failing to rectify the statement of the clerk of court on 20 May 2002 and in failing to serve a new indictment before 25 May 2002, were merely errors of an incidental nature.
4. Mr Shead for the appellant submitted that the procurator fiscal depute in this case made two errors, neither of which was sufficiently excusable to justify the granting of the application. In the first place, he should not have relied on the information given by the clerk of court when he was in court on 20 May 2002. He could and should then have made enquiry of those representing the appellant who were in court. At the very least he should have checked his office files before deciding not to call the case on that day. In the second place, he should not simply have put the case papers into the delivery system operating between the sheriff court and the procurator fiscal's office. In light of the time constraints he faced, it was highly irresponsible for him to do so. He ought to have taken the case papers with him back to his office and immediately undertaken the task of re-serving the indictment.
5. The advocate depute, in reply, denied that either failure was major. The sheriff was correct in his categorisation of the errors. While the Crown accepted that there was a degree of fault on their part with regard to what had happened between 20 May 2002 and 31 May 2002 when a fresh indictment was served on the appellant, the sheriff was correct to characterise the errors as those of an incidental nature. The appeal should be refused.
6. It is well understood that, in considering an application for extension such as the present application, the judge concerned must ask two questions. The first is whether a sufficient reason has been shown which might justify the grant of an extension. The second is whether in the exercise of his or her discretion in all the relevant circumstances of the case the judge ought to grant an extension for that reason (H M Advocate v. Swift 1984 S.C.C.R. 216 per Lord Justice General Emslie at page 226). In deciding the first question in such cases, the court looks to the nature and gravity of the error. If the error is major, that is the end of the matter. So, to serve a purported indictment which discloses no locus for the alleged offence is to serve a fundamentally null indictment, and that constitutes a major error (Stenton v. H M Advocate 1998 S.C.C.R. 594). But where a prosecutor, in company with the trial judge, encourages a reluctant witness to express herself fully in the belief that she was embarrassed to use foul language in open court, and the witness instead reveals something which might be regarded as incriminating about the accused, the actions of the prosecutor may in the particular circumstances be unwise, but they do not amount to a major error (Ellis v. H M Advocate 2001 S.C.C.R. 36).
7. Where the error is properly to be regarded as minor, the court may proceed to exercise its discretion. In HM Advocate v. Fitzpatrick (a decision of this court dated 3 May 2002 but so far unreported) a respondent had served on him an indictment indicting him for trial in Glasgow on 11 March 2002. The accompanying notice, however, called him for trial on that date at Paisley Sheriff Court. A courtesy copy of the indictment was served on the respondent's solicitor, together with a letter notifying him correctly of the date and venue of the trial. This court held that the error, which was that of the typist, was venial and excusable. It also held that the trial judge had misdirected herself. It was satisfied that the court's discretion should be exercised in favour of the Crown because there was no prejudice to the accused; the charge was a serious one; and that, but for the minor error committed by the typist, the Crown had acted correctly in every respect.
8. Applying the two-stage test in Swift to this case, we are satisfied that the sheriff was correct to hold that the Crown were not at fault for what took place in court on 20 May 2002. The procurator fiscal depute was in the circumstances reasonably entitled to rely on the information passed to him by the clerk of court. We do not, however, agree that it was merely an error of an incidental nature for the procurator fiscal depute to put the case papers into the prosecution's delivery system and to do nothing about them until they turned up on his desk 9 days later, for which no explanation was offered. He knew he only had 5 days in which to serve a new indictment. It is said that he might have anticipated that these papers would have been returned to him in two or three, or at most four day's time. It appears, however, to us that the margin of time was so pressing that he ought to have taken the papers with him from court and set to, as soon as possible, to secure the service of a fresh indictment. That he did not do so was in our opinion a major error from which the Crown should not be relieved. The sheriff thus erred in granting the Crown's application and in extending the 12 month period by 7 days. The appeal is therefore allowed. As a result, the appellant will be discharged forthwith from any indictment in respect of the offences which were set out in the latest indictment served upon him.