Scottish High Court of Justiciary Decisons

Fitzpatrick, Her Majesty's Advocate v. [2002] ScotHC 60 (03 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C283/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by HER MAJESTY'S ADVOCATE Appellant; against IAN IRWIN FITZPATRICK Respondent: _______

 

Appellant: Turnbull, QC, AD; Crown Agent

Respondent: Renucci; McCusker McElroy

3 May 2002

Introduction

1. This is an appeal by the Crown against a decision of Lady Smith given at Glasgow High Court on 8 March 2002 by which she refused an application by the Crown under section 65(3) of the Criminal Procedure (Scotland) Act 1995 for an extension of the 12-months period within which the respondent might be brought to trial. The charge is one of attempted murder.

The statutory provisions

2. Section 65 of the 1995 Act provides inter alia as follows:

"(1) Subject to subsections (2) and (3) below, an accused shall not be tried on indictment for any offence unless the trial is commenced within a period of 12 months of the first appearance of the accused on petition in respect of the offence; and failing such commencement within that period, the accused

1. shall be discharged forthwith from any indictment as respects the offence; and
2. shall not at any time be proceeded against on indictment as respects the offence ...
1. On an application made for the purpose, the sheriff or, where an indictment has been served on the accused in respect of the High Court, a single judge of that court, may on cause shown extend the said period of 12 months."

Section 66 of the Act, so far as relevant to this appeal, provides as follows:

"(4) The accused shall be served with a copy of the indictment and of the list of the names and addresses of the witnesses to be adduced by the prosecution ...

(6) ... a notice shall be served on the accused with the indictment calling upon him to appear and answer to the indictment -

... (b) at a trial diet (either in the High Court or in the sheriff court) not less than 29 clear days after the service of the indictment and notice."

The facts

3. When this case was marked for prosecution, Crown Office, in accordance with normal practice, notified the procurator fiscal at Paisley, whose case it was, that the case had been allocated to Glasgow High Court for trial on 11 March 2002, and instructed him to serve the indictment and accompanying notice on the respondent. That instruction was carried out. A copy of the indictment was correctly served on the respondent. It indicted him for trial at Glasgow on 11 March 2002. But the accompanying notice called him for trial on that date at Paisley Sheriff Court.
4. It is the practice of the procurator fiscal in cases like this to serve upon the solicitor known to be acting for the accused a courtesy copy of the indictment together with a letter notifying him of the date and venue of the trial. That was done in this case. The procurator fiscal's letter correctly advised the respondent's solicitors that the case would be called for trial at Glasgow High Court on 11 March 2002. The decision appealed against does not mention this point, but we understand from counsel for the respondent that the point was brought to the notice of the judge. This appears to be confirmed by the advocate depute's notes.
5. The giving of the wrong venue in the notice served on the respondent was the result of a simple typing error. The typist had been typing a number of documents that day that related to proceedings in Paisley Sheriff Court.

The decision appealed against

6. The judge held that the error in this case was inexcusable for three reasons: first, it was a major and fundamental error; second, the Crown had made no effort to correct the effect of the error for a period of about four weeks; and third, the Crown had compounded the error by serving the indictment close to the expiry of the 12-months period, thereby taking the risk that some flaw in service of the proceedings might result in a time bar.

Submissions for the parties

7. The advocate depute submitted that the error in this case had been minor and excusable; that the court could therefore properly exercise its discretion in the matter; and that on that question the circumstances favoured the Crown.
8. Counsel for the respondent supported the reasons given for the refusal of the application. The respondent was entitled to disregard the notice. He was not obliged to appear at Glasgow High Court on the date of the trial. It was as if no indictment had been served at all (McAllister v HM Adv, 1985 SCCR 36). The initial error had been magnified by the risk that the Crown had taken in indicting the case so late in the day and by the subsequent delay in the detection of the error and the taking of corrective action. If all that could be said was that an error had been made, that could not justify a departure from the statutory time limit (Stenton v HM Adv, 1998 SCCR 594, at p. 598B-C; McCulloch v HM Adv, 2000 SCCR 1115).

Decision

9. In deciding whether to grant or refuse an application under section 65(3) the court makes its decision in two stages. The first stage is to assess whether the Crown has shown a sufficient cause which might justify the extension sought. If the Crown satisfies that test, the second stage is for the court to decide whether or not to exercise its discretion in favour of the Crown in all the circumstances.
10. Decisions under section 65(3) and its predecessor establish that an extension of time can be granted even when there has been an error on the part of the Crown (Ellis v HM Adv, 2001 SCCR 36). 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. The extension must be refused. If the error is minor, the court may proceed to consider the exercise of its discretion (HM Adv v Swift, 1984 SCCR 216, at p. 226; HM Adv v Willoughby, 2000 SCCR 73, at p. 76B-C; Ellis v HM Adv, supra, at p. 41C-D). On the view that the judge took in this case, the second question did not arise.
11. In our opinion, the judge misdirected herself. Several cases illustrate the kinds of error that the court has regarded as major and inexcusable: for example, a failure by the Crown to serve the indictment on the accused (HM Adv v Swift, supra) or a failure to specify a locus in the charge (Stenton v HM Adv, supra), or the compounding of an initial and perhaps excusable error by further incompetent procedure (HM Adv v Willoughby, supra). In such cases the court has held that the Crown has failed at the outset to show a cause that might justify the extension sought.
12. The judge regarded the error as having fundamental effect because if the respondent had not appeared at Glasgow High Court on the due date, a warrant could not have been granted for his arrest. In our view, the more relevant consideration is that if the respondent had appeared at Glasgow High Court on the due date and answered to the calling of the diet, there was no reason why the trial could not have gone ahead. In that event the proceedings would not have been fundamentally null (HMA v McDonald, 1984 SLT 426, at p. 431; Kirkcudbright Scallop Gear Ltd v Walkingshaw, 1994 SLT 1323).
13. In our opinion, this is a case where there has been only a venial and excusable mistake that did not rule out the possibility that the trial could proceed. The case for the Crown therefore satisfies the first stage of the test that we have to apply.
14. We therefore have to consider whether or not to exercise our discretion in favour of the Crown. We are satisfied that we should do so for the following reasons. First, it is agreed that in the events that occurred there was no prejudice to the respondent. Second, we take into account the serious nature of the charge. Third, we accept that but for the minor error to which we have referred, the Crown acted correctly in every respect.
15. The fact that the error went undetected for a period of about four weeks seems to us to be neither here nor there. It is difficult to see how the error could necessarily have been detected sooner than it was. Once the error became apparent, the Crown acted with reasonable dispatch.
16. We do not agree that because the Crown indicted the case at a late stage in the one-year period, it is to be criticised for having taken a risk. It is entirely a matter for the Crown at what stage in the one-year period it serves an indictment. It may well have had good reasons for indicting the case when it did. In our view, it is unhelpful to look upon that as being in any way an exercise in risk-taking.
17. We shall therefore grant the appeal and extend the 12-months period in terms of the Crown's application.