Scottish High Court of Justiciary Decisons

Cunningham v. Her Majesty's Advocate [2002] ScotHC 23 (07 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord MacLean Lord Sutherland	Appeal No: C71/02 OPINION OF THE COURT delivered by LORD MacLEAN in NOTE OF APPEAL by ROBERT JOHN CUNNINGHAM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Livingstone, solicitor advocate; Drummond Miller

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

22 February 2002

1. The appellant, Robert John Cunningham, first appeared on petition on 19 October 2001 when he was committed for further examination and remanded in custody. He was fully committed on 26 October 2001 and again remanded in custody. If he remained in custody, his trial had to be commenced by 12 February 2002 if, in terms of section 65(4)(b) of the Criminal Procedure (Scotland) Act 1995 (hereinafter referred to as "the Act"), he were not to be liberated forthwith and thereafter forever be free from all question or process for the offence in relation to which he had been committed to custody. On or about 10 January 2002 an indictment was sent to Barlinnie Prison where the appellant was incarcerated, with a view to its being served on the appellant so that he might be indicted for a trial diet at a sitting of the High Court at Glasgow commencing on 11 February 2002. Unfortunately, when the indictment was served upon him by those within the prison who were authorised to do so in terms of the Act, the notice of compearance was not served, as it required to be. Instead, it was returned to the Procurator Fiscal's High Court Unit in Glasgow. It was accepted that this was the fault of the prison authorities.
2. While it is not clear exactly when the prosecutor discovered that the indictment had not properly been served upon the appellant, there was lodged on 16 January 2002 an application to the court by the Lord Advocate, seeking to extend the 110 day period provided for in section 65(4)(b) of the Act on the narrative that the Crown intended calling the case for trial at the sitting of the High Court at Paisley commencing on 18 February 2002. The application was made in terms of section 65(7) of the Act and was presented to the High Court of Justiciary sitting at Edinburgh on 24 January 2002, on which date it was heard by Lord Carloway. In the prayer of the application the Crown sought an extension of the period of 110 days so that it expired on 1 March 2002, which was the anticipated end of the Paisley High Court sitting.
3. When the application came before Lord Carloway he was informed by the Crown that no new indictment and notice had been served. As a result, it was too late to indict for the Paisley sitting, but, instead, the Crown intended to serve an indictment for the sitting of the High Court in Glasgow commencing on 25 February 2002. The Crown, however, made the same request for an extension of the 110 day period to 1 March, as they had in the application in relation to the Paisley sitting. Lord Carloway granted the prayer of the application and extended the period to 1 March, as sought by the Crown, being of opinion that the delay had been caused only by the prison officers in their failure to serve the notice of compearance on or after 10 January 2002. He considered that it was not unreasonable of the Crown to await the outcome of the court's decision on the extension of the period before serving the indictment.
4. His understanding on that last matter was in error, as both the advocate depute and Mr. Livingstone, solicitor advocate, who appeared for the appellant before us, were agreed. The fact is that the Crown overlooked the need to serve a fresh indictment on the appellant in time for the commencement of the Paisley sitting of the High Court. As it happened, there was a Glasgow sitting due to commence a week later for appearance on which an indictment could conveniently be served on the appellant.
5. Mr. Livingstone submitted that while the application itself had been competently made initially in terms of section 65(7) of the Act, because the cause for extension of the 110 day period was attributable not to any fault on the part of the prosecutor but to fault on the part of the prison officers, it became incompetent for the court to grant the extension it did, because the requirement for the extension granted was as a result of fault on the part of the Crown in failing to serve a fresh indictment timeously for the Paisley sitting. He maintained that a single judge, when presented with the application in relation to the Paisley sitting, would have extended the 110 day period to a few days after its commencement on 18 February. That being so, the period between that extension and 1 March was due entirely to fault on the part of the prosecutor. The trial not having been commenced within the few days after 18 February, the appellant should be liberated forthwith and should, in terms of section 65(4)(b) of the Act, be forever free from all questions or process for that offence. He referred us to Farrell v. H.M. Advocate an unreported decision of this court, dated 6 July 2001, in which Lord Hamilton, giving the principal judgment, reserved his opinion on the interpretation of section 65(7) of the Act where successive factors gave rise to the delay, one of which involved fault on the part of the prosecutor. He found it unnecessary to address that question because in the circumstances of that case the Crown had applied for an extension which included a final period of six weeks, the major portion of which was plainly avoidable and due to the fault of the prosecutor. That is a wholly different situation from the present case, and we do not find the case of any assistance.
6. Contrary to Mr. Livingstone's submission, we are of opinion that if the application had been made and the appellant had been re-indicted in time for the Paisley sitting commencing on 18 February, the court would have extended the 110 day period, not to a date shortly after 18 February, but to the end of that sitting on 1 March. If that is so, what the Crown actually sought and was granted in light of the indictment served on the appellant for the Glasgow sitting for 25 February 2002, was no different from what it would have been granted originally. The application in terms of section 65(7) of the Act was competent and remained competent, notwithstanding the Crown's failure to re-indict in time for the Paisley sitting. Although for slightly different reasons, we consider that the 110 day period was correctly extended by the single judge, Lord Carloway, to 1 March, and we will refuse this appeal.