Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Scott Ewen+William Smart+John Ferrier v. Her Majesty's Advocate [2005] ScotHC HCJAC_76 (05 July 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_76.html
Cite as: [2005] HCJAC 76, [2005] ScotHC HCJAC_76

[New search] [Help]

Scott Ewen+William Smart+John Ferrier v. Her Majesty's Advocate [2005] ScotCS HCJAC_76 (05 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Abernethy

Lord Kingarth

[2005HCJAC76]

Appeal Nos: XC271/05

XC287/05

XC289/05

XC288/05

OPINION OF THE COURT

delivered by LORD ABERNETHY

APPEAL

under section 65 of the Criminal Procedure (Scotland) Act 1995

COLIN EWEN, SCOTT EWEN, WILLIAM SMART and JOHN FERRIER

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Wilson Terris (Lynn Herbert & Co., Leven): McCluskey; Jackson & Co., Leven: Shead; Drummond Miller (Jas. S. Grosset, Leven): Paterson, Solicitor Advocate; Purdie & Co. (Paterson Bell, Kirkcaldy)

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

5 July 2005

[1] These are appeals against a decision by the Sheriff of Tayside, Central and Fife at Cupar to grant an application by the Crown under section 65(3) of the Criminal Procedure (Scotland) Act 1995 for extension of the 12 month period provided by section 65(1) of that Act.

[2] In his Report the Sheriff sets out the history of the matter so far as relevant. It is as follows. On 1 March 2004 the four appellants (together with a fifth person for whom there is a warrant outstanding for non-appearance) appeared on petition at the Sheriff Court of Tayside, Central and Fife at Kirkcaldy charged with serious assault. The case was continued for further enquiry and the appellants were released on bail. An indictment was later served on them to stand trial at the Sheriff Court at Cupar on 13 December 2004 with a first diet on 2 December.

[3] At that diet on 2 December 2004 the Sheriff was informed by the appellants' agents that for various reasons they were not yet ready to proceed to trial. There was a motion for adjournment of the trial, which was not opposed by the procurator fiscal and which the Sheriff granted. He fixed a second first diet for 6 January 2005 with a trial diet for 17 January.

[4] When the case called before the Sheriff on 6 January 2005, the defence agents complained that they were no further forward. Transcripts of tape-recorded police interviews and the album of photographs listed as a production were not yet available. A further adjournment was sought, again with no objection by the procurator fiscal. The procurator fiscal informed the Sheriff that the transcripts were in course of preparation. He also said that if the trial were to proceed, the case would require to go to the Sheriff Court at Kirkcaldy as it would take longer than the three days which were available at Cupar. The Sheriff granted the motion for adjournment and fixed a third first diet for 27 January 2005 with a trial diet for 7 February.

[5] When the case called before the Sheriff on 27 January the fourth named accused on the indictment was absent and a warrant was issued for his apprehension. The defence agents for the four appellants again stated that they were not fully prepared for trial, the main problem continuing to be the absence of the transcripts of the police interviews. They moved for a further adjournment of the trial, which they all understood would be at the Sheriff Court at Kirkcaldy. The procurator fiscal told the Sheriff that the tapes of the interviews were still in the process of being transcribed. He said that if the Sheriff granted an adjournment, he would require a 3 month extension to the 12 month period provided by section 65(1). The defence agents expressed concern at a delay of that length. The Sheriff granted an adjournment and extended the 12 month period by 2 months from 1 March 2005. He fixed a fourth first diet for 31 March 2005 with a trial diet for 11 April 2005.

[6] When the case called before the Sheriff on 31 March 2005 the agents for the first, second and third appellants said that they were read to proceed to trial on 11 April. The transcripts were now available. The agent for the fourth appellant said he was still not fully prepared for trial. The procurator fiscal then moved the Sheriff to adjourn the trial yet again. He said that at no time did the Crown expect the trial to proceed in Cupar Sheriff Court due to the constraints in the court timetable about accommodating trials beyond three days, this trial being expected to last substantially beyond that. He had only just ascertained by telephone that it would not be possible to accommodate the trial at Kirkcaldy Sheriff Court. There were already nine cases set down for the jury sitting there on 4 April 2005 and it would not be possible to accommodate this trial there on 11 April 2005. The next sitting at Kirkcaldy Sheriff Court had ten indictments calling there. He had also contacted Dunfermline Sheriff Court only to find that they had accommodation problems on 11 April 2005 due to a sitting there of the High Court. Against that background, he invited the Sheriff to adjourn the case to the next sitting at Cupar Sheriff Court in either May or June. That would require a further extension of the 12 month time limit for a further 2 months. The problem had arisen because the number of indictments, in both Dunfermline and Kirkcaldy, had increased dramatically and unexpectedly and it was not presently possible to accommodate this particular trial in either location.

[7] The procurator fiscal's motion was opposed by the agents for all the appellants, given the history of the case. The problem of accommodating the trial in Cupar Sheriff Court had been highlighted at least as early as 6 January 2005 and more should have been done about it before 31 March rather than the procurator fiscal having to phone around on the day of the first diet. Kirkcaldy Sheriff Court could have identified available diets before 31 March. Even at this stage it was not impossible for Cupar Sheriff Court to rearrange its business. It was "completely unacceptable that people should be running around Fife trying to get a court date".

[8] The Sheriff decided to grant the procurator fiscal's motion. The trial was adjourned to the sitting starting on 9 May 2005 in Cupar Sheriff Court and the 12 month period was extended for a further 2 months to 1 July 2005. In explaining the rationale for his decision the Sheriff acknowledged that it is now widely recognised that pressure of business does not of itself amount to cause shown under section 65(3) of the 1995 Act for the court to extend the important safeguard of a trial within 12 months of the first appearance on petition provided by section 65(1) of that Act. He referred to two reported cases, Warnes v. H.M. Advocate 2000 SCCR 1127 and Riaviz v. H.M. Advocate 2003 SCCR 444. He noted that Warnes (at page 1130F) allowed for "particular short-term pressures" to count as cause shown and Riaviz stressed the necessity to look at the position at the time when the application for an extension is made, irrespective of the past history of the case (see the commentary at page 447B-C). While the conduct of the Crown in the past preparation of this case was far from satisfactory, had there been an available diet in either Kirkcaldy or Dunfermline for 11 April 2005, the trial would then have proceeded to everyone's satisfaction. The Crown found themselves, however, subject to the unforeseen short-term pressures of there being so many other cases in both Kirkcaldy and Dunfermline that the instant case could not be accommodated on that date. In those circumstances the Sheriff took the view that that amounted to cause shown.

[9] Before us it was submitted by Mr. Shead, who appeared for the first and third appellants, that the Sheriff had erred. The point was a relatively short one. The Crown had made no adequate arrangements to allow the trial to proceed within the time limit. The Sheriff in his Report had not analysed why the case could not have proceeded in Dunfermline or Kirkcaldy. It was accepted that pressure of business could not be a reason for extension but pressure of business was what it came down to. The Crown was aware of the difficulty with accommodation at Cupar months beforehand. Reference was made to Stenton v. H.M. Advocate 1998 SCCR 594, per Lord Coulsfield at page 598B. In any event, said Mr. Shead, at the hearing on 31 March the procurator fiscal had told the Sheriff that he could start the trial at Cupar on 11 April 2005. That was destructive of the whole Crown position. On no view could the extension of the time-bar be justified in light of that.

[10] For the second appellant Mr. McCluskey stated that his position was identical to Mr. Shead's and he merely adopted his submissions. For the fourth appellant Mr. Paterson referred to a letter from the Crown dated 15 December 2004 in which it had been said that the trial could not take place in Cupar. It would have to be transferred, because it was expected to last more than three days. He further stated that although, as at 31 March 2005, his client was not ready to proceed to trial on 11 April because not all the necessary information was available, it was anticipated that that would be resolved and he had opposed the extension of the time-bar on the basis that he would have been ready by then.

[11] In reply the Advocate depute started by making it clear that he took no point in relation to whether the fourth appellant would have been ready to go to trial on 11 April. He accepted that the letter of 15 December 2004 was in the terms stated by Mr. Paterson. The letter had been sent to all four appellants. It reflected the Crown position at the time. The intention was that the trial would be in Kirkcaldy but that the case would stay in Cupar until the trial diet was fixed, when it would be transferred to Kirkcaldy. When the case called before the Sheriff on 27 January 2005 and he fixed a first hearing for 31 March with the trial diet in Cupar on 11 April, that was done on the clear understanding that there would be a motion to transfer the trial to Kirkcaldy. That was the position until 31 March. But then there was a short term difficulty in Kirkcaldy, which meant that the trial could not be accommodated there. That difficulty had been caused by the knock-on effect of a High Court trial in Dunfermline having had to be stopped and, after re-indictment, started again on 23 March. There had earlier been doubt as to whether it would re-start. It was only on 16 March, one week before it did re-start, that it became clear that it would do so. When it did re-start, it was thought that it might last 8 weeks. So other solemn business which was due to be dealt with in Dunfermline had to be-allocated to Kirkcaldy. That was the unforeseen situation to which the Sheriff had referred in his Report. The procurator fiscal at Cupar did not know about the knock-on effect from Dunfermline and the resultant difficulties at Kirkcaldy until 31 March. On that date he telephoned the procurator fiscal at Kirkcaldy and was told of the difficulties. What the procurator fiscal at Cupar had said about his readiness to start the trial on 11 April at Cupar was, as the Advocate depute put it, his plan B. It was to take place only if the Sheriff repelled his primary motion for adjournment and extension of the time-bar. The Advocate depute submitted that (as explained on page 5 of his Report) the Sheriff in effect had applied the two-stage test in H.M. Advocate v. Swift 1984 JC 83, 1984 SCCR 216. It was a matter within his discretion and his decision should stand.

[12] Section 65 of the Criminal Procedure (Scotland) Act 1995 provides as follows:-

"(1) Subject to subsection ... (3) below, an accused shall not be tried on indictment for any offence unless ...

(b) ... the trial is commenced within a period of 12 months of the first

appearance of the accused on petition in respect of the offence.

(1A) If ... the trial is not so commenced, the accused

(a) shall be discharged forthwith from any indictment as respects the

offence; and

(b) shall not at any time be proceeded against on indictment as respects

the offence. ...

(3) On an application made for the purpose, ...

(b) ... the sheriff ... may on cause shown, extend the said period of

12 months specified in [subsection (1) above]."

[13] The appellants first appeared on petition on 1 March 2004. The 12 month period was therefore due to expire on 1 March 2005. However, on 27 January 2005 it was extended by 2 months to 1 May 2005. Then on 31 March 2005 it was extended by a further 2 months to 1 July 2005. It is that last decision which is the subject of this appeal.

[14] The provisions of section 65(3) of the 1995 Act require the court to consider, first, whether cause has been shown which is sufficient to justify extension and, secondly, if it has, whether it should exercise its discretion to grant the extension (H.M. Advocate v. Swift 1984 JC 83, 1984 SCCR 216).

[15] Swift was a decision under section 101(1) of the Criminal Procedure (Scotland) Act 1975, the predecessor of section 65(3) of the 1995 Act. In delivering the Opinion of the Court the Lord Justice General (Emslie) said this about that provision (at page 226):-

"The right conferred upon accused persons by the general rule laid down in that subsection is clearly a very important right and the general rule is only to be departed from if the appropriate judge is prepared, on cause being shown, to exercise his discretion in favour of granting an extension of the time-limit prescribed by the general rule. ... If an extension is to be granted ... the first question for the judge concerned is, accordingly: 'Has a sufficient reason been shown which might justify the grant of an extension?' The second question is: 'Ought I, in the exercise of my discretion in all the relevant circumstances of the case, to grant the extension for that reason?' ... an extension may be granted even if there has been some fault on the part of the prosecutor. ... any particular fault on the part of the prosecutor and its nature and degree will, however, be relevant considerations in deciding whether sufficient reason has been shown for allowing an exception to the general rule, and in deciding whether to exercise the discretion in favour of the Crown."

[16] In our opinion sufficient cause has not been shown in this case to extend the 12 month period beyond 1 May 2005. The history of the matter shows that the Crown were well aware for a period of months that the appellants' trial was likely to last longer than three days. That made it more convenient for the trial to take place in Kirkcaldy rather than Cupar but if, for any reason, it could not take place in Kirkcaldy, then arrangements could have been made to accommodate it elsewhere. Indeed, when on 31 March 2005 the procurator fiscal in Cupar was informed that it was not going to be possible for the trial to be accommodated in Kirkcaldy and started there on 11 April as had been planned, he stated that in fact the trial could start in Cupar on that date. That was plan B, as the Advocate depute described it to us.

[17] Accordingly, even if the unsatisfactory conduct of the Crown in the past preparation of the case, to which the Sheriff referred in his Report, did not amount overall to the kind of major error which would exclude an extension, a point which it is not necessary to decide, it is in our opinion clear that the extension was unnecessary. The Crown accepted that the trial could have started in Cupar on 11 April. Even if that was their plan B, it was capable of being implemented. (There was no information before us that if the trial had lasted more than three days, alternative arrangements for other business in the Sheriff Court there could not have been made.) In that situation we are of the opinion that there was no justification for departure from what was described in Swift as the very important right conferred upon accused persons by the general rule laid down in section 65(1) and therefore no justification for the extension of the 12 month period granted by the Sheriff on 31 March.

[18] For these reasons the appeals are allowed.