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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Abernethy
Lord Johnston
Lord Philip
Lord Penrose
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[2006] HCJAC 64
Appeal No: XC642/05
OPINION OF THE LORD
JUSTICE CLERK
in
APPEAL
by
DOUGLAS COLIN FLEMING
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
____
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For appellant: Shead,
Richardson; Russel & Aitken, Denny
For the Crown: Miss Grahame
AD; Crown Agent
30 August 2006
Introduction
[1] The appellant appeals against a decision dated 9 August 2005
of Temporary Judge Hugh Matthews QC to grant the Crown an extension under
section 65(3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) of
the period of twelve months within which to prosecute him on certain charges of
drug trafficking. We heard this appeal
along with the appeal in Early v HM Adv. In the Opinions delivered in that case the
court has set out what it considers to be the correct approach to cases under
section 65(3).
The history
[2] The
appellant appeared on petition at Glasgow
Sheriff Court on 1 October 2002. On 8 October 2002 he was fully committed and
remanded in custody. Thereafter he was
indicted to a sitting of the High Court at Glasgow commencing
on 3 February 2003. On 15 January 2003 applications to extend the 80 and
110 days periods were refused. On 20 January 2003 the trial
was adjourned to a sitting commencing on 10 March 2003 and on 21 January 2003 Crown
counsel instructed that the appellant should be released from custody.
[3] On
6 March 2003 there was a hearing on a minute under section 80 of the
1995 Act lodged on behalf of a former co-accused and the case against the
appellant was postponed to 25 August 2003.
On 4 July
2003 there was a preliminary hearing under section 72 of the
1995 Act. The trial was postponed on the
motion of the appellant to a sitting commencing on 6 October 2003. The time bar was extended until 17 October 2003. On 25 September 2003 the case was adjourned to a
sitting on 17 November
2003 and the time bar was extended to 31 January 2004.
[4] On
26 November 2003 the case
was adjourned on joint motion to 26 January
2004 and the time bar was extended to 6 February 2004. On 5 February 2004 the trial was adjourned to a
sitting on 9 February
2004 and the time bar was extended to 13 February 2004.
[5] On
11 February 2004, on the
opposed motion of the Crown, the indictment was deserted pro loco et tempore and the time bar was extended to 14 May 2004.
[6] The
appellant was indicted for trial at a sitting commencing on 4 May 2004. On 30 April 2004 there was a hearing on a minute by
a former co-accused for a postponement. The
case was then postponed to a sitting of 9 August 2004 and the time bar in respect of the
appellant was extended to 11 August
2004.
[7] On 3 August 2004 the case against
the appellant was adjourned on the motion of the Crown to 6 September 2004 because of the
unavailability of witnesses from Belgium. That motion was not opposed. The time bar was extended to 10 September 2004. The Temporary Judge notes in his report that
the latter date should be 13 September
2004.
[8] The
trial commenced on 13 September
2004 but came to an end on 28 September 2004 when it was deserted simpliciter by the presiding judge. Thereafter the Crown presented a Bill of
Advocation on the plea that the diet should have been deserted pro loco et tempore only. On 24 March 2005 this court passed the Bill. The history of the trial, the reason why it
was deserted simpliciter by the trial
judge and the court's views on the degree of culpability on the part of the
Crown in respect of that reason are set out in detail in our decision dated 24
March 2005 (HM Adv v Fleming, 2005 SCCR 324). Our decision had the effect that the Crown
became entitled to serve a further indictment.
That necessitated its application under section 65(3) and resulted in
the decision appealed against.
The decision appealed against
[9] The
Temporary Judge decided that the use of the remote viewing room (RVR) which had
caused the trial to be deserted was not the result of a "major error" by the
Crown. He considered that the fault of
the Crown was more akin to that in Ellis
v HM Adv (2001 JC 115). Being of that view, he considered that
sufficient reason had been advanced for the granting of the extension
sought. At the second stage of his
decision, he considered that the history of repeated extensions was of limited
relevance and did not weigh heavily in the balance. The extension sought was of almost a
year; but the time that had elapsed
between the original desertion and the decision of the appeal court accounted
for more than half of that period.
During that time, in his view, the Crown could not realistically have
applied for the extension.
Submissions for the parties
[10] Counsel for the appellant took a preliminary point that was not
taken before the Temporary Judge to the competency of the proceedings. This point turned on the meaning and effect
of the transitional provisions relating to the procedural reforms introduced by
the Criminal Procedure (Amendment) (Scotland) Act 2004
and the subordinate legislation which brought them into force. Counsel's submissions on this point are set
out in the Opinion of Lord Penrose.
[11] On the substantive point under section 65(3) of the 1995 Act
counsel submitted that the court should apply the test laid down in HM Adv v Swift (1984 JC 83) and decide
the appeal on the basis that the Crown had committed a major error in allowing
the RVR to be used. The error was
initiated by the manageress of the office of the procurator fiscal and
continued in consequence of the culpability of the advocate depute in failing
to intervene. The error was so serious
that it necessitated the desertion of the trial. There was an appearance of unfairness in the
trial.
[12] The advocate depute submitted that on the issue under section
65(3) the court should stand by its earlier assessment that the responsibility
of the Crown was not a powerful consideration (HM Adv v Fleming, supra,
at para [40]).
Conclusions
[13] I have read Lord Penrose's Opinion in draft. I agree entirely with his conclusions on the
appellant's preliminary point and have nothing to add.
[14] On the substantive question under section 65(3), I agree with
the decision of the Temporary Judge, but not for exactly the same reasons. For the reasons that I have given in Early v HM Adv, I consider that the
approach of the Temporary Judge in considering whether or not the Crown's error
was major, though it was amply justified by authority, was not
appropriate. It is sufficient, in my
view, to say that in all the circumstances the Crown's error was plainly
excusable. The fact that access to the
RVR was given during the trial to a police officer who had completed his
evidence, to a Crown precognition officer and to other officers connected with
the trial was an obvious procedural irregularity that justified the trial judge
in deserting the diet. But the decision
to allow access to the RVR was taken by the procurator fiscal's office
manageress without reference to her superiors and, in the circumstances that are
set out in the decision of this court on the Bill of Advocation (HM Adv v Fleming, supra, at para [40]), the failure of the advocate depute to
intervene was understandable and, in my view, excusable.
[15] These, I think, are the main reasons for which the Temporary
Judge concluded that the Crown had not made a major error. In my view, it would have been sufficient for
him to say that the Crown error was excusable in all the circumstances.
[16] There are however two further reasons that confirm me in that
view, namely that it has not been shown that the RVR was used by anyone who
would not have been entitled to watch the trial from the public gallery (HM Adv v Fleming, supra, at paras [35]-[36]) and that there was no evidence that the
confidentiality of any defence conversation had been breached (ibid, at para [36]). In short, there is no evidence to suggest
that the mishap in any way prejudiced the integrity of the trial.
[17] If I am right in these conclusions, the question in this appeal
becomes one of discretion. In my view,
the Temporary Judge was entitled to exercise his discretion as he did. Even on the different approach that I have
taken to the assessment of the stage 1 question, I consider that the discretion
of the court is plainly to be exercised in favour of the Crown. This is a drugs prosecution of the greatest
gravity. The appellant's main complaint
is that he has been prejudiced by the delay in the resolution of it. I do not accept that the delay is a
significant factor in the decision that we have to make since the appellant has
been at liberty since January 2003 and since part at least of the period of
delay is attributable to a postponement applied for by the appellant and to certain
further postponements in which he appears to have acquiesced.
Decision
[18] For these reasons, and for the reasons given by Lord Penrose, I
propose to your Lordships that we should refuse the appeal.
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APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Abernethy
Lord Johnston
Lord Philip
Lord Penrose
|
[2006] HCJAC 64
Appeal No: XC642/05
OPINION OF LORD ABERNETHY
in
APPEAL
by
DOUGLAS COLIN FLEMING
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
____
|
For appellant: Shead,
Richardson; Russel & Aitken, Denny
For the Crown: Miss Grahame
AD; Crown Agent
30 August 2006
[19] I agree that
the appeal should be refused for the reasons given by your Lordship in the
chair and by Lord Penrose and I have nothing to add.
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APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Abernethy
Lord Johnston
Lord Philip
Lord Penrose
|
[2006] HCJAC 64
Appeal No: XC642/05
OPINION OF LORD JOHNSTON
in
APPEAL
by
DOUGLAS COLIN FLEMING
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
____
|
For appellant: Shead,
Richardson; Russel & Aitken, Denny
For the Crown: Miss Grahame
AD; Crown Agent
30 August 2006
[20] I have read
the Opinion of your Lordship in the chair and I am in complete agreement. There is nothing I can usefully add. I have read the Opinion of Lord Penrose, with
which I concur.
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APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Abernethy
Lord Johnston
Lord Philip
Lord Penrose
|
[2006] HCJAC 64
Appeal No: XC642/05
OPINION OF LORD PHILIP
in
APPEAL
by
DOUGLAS COLIN FLEMING
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
____
|
For appellant: Shead,
Richardson; Russel & Aitken, Denny
For the Crown: Miss Grahame
AD; Crown Agent
30 August 2006
[21] I agree with your Lordship in the Chair and with Lord Penrose
that this appeal should be refused.
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APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Abernethy
Lord Johnston
Lord Philip
Lord Penrose
|
[2006] HCJAC 64
Appeal No: XC642/05
OPINION OF LORD PENROSE
in
APPEAL
by
DOUGLAS COLIN FLEMING
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
____
|
For appellant: Shead,
Richardson; Russel & Aitken, Denny
For the Crown: Miss Grahame
AD; Crown Agent
30 August 2006
[22] I agree with
the Opinion of your Lordship in the chair on the substantive point and I agree
that the appeal should be refused.
[23] Mr Shead
argued that the procedures adopted by the Crown in serving the indictment on 12 July
2005 were
incompetent, that indictment was a nullity, that the application to the single
judge was inept, and that in combination these factors amounted to major fault
on the part of the Crown. That fault was
inexcusable, in his submission, and for that reason the extension of time
sought by the Crown should not be granted.
This argument was not advanced before Temporary Judge Matthews. But it was advanced before Lord Brodie, whose
Opinion dated 7 September 2005 sets out the factors relied on and
the argument developed by Mr Shead then, and repeated in substance before this
court. In essence that argument was that
the indictment served on 12 July 2005 was a "new procedure" indictment; it
should have been an "old procedure" indictment, and it and all that had
followed on it was inept.
[24] The argument
depended on the interpretation of the Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement,
Transitional Provisions and Savings) Order 2004, SSI 2004 No 405. That order brought into force provisions of
the Criminal Procedure (Amendment) (Scotland) Act 2004 on various dates and in
specified circumstances, and made transitional provisions and savings.
[25] Section 65 (1)
of the Criminal Procedure (Scotland) Act 1995 was amended by the 2004 Act, in
terms of Schedule 1 to the Order, from 1 February 2005. As from that date, and subject to the
transitional provisions, it was provided, so far as material:
"(1) subject to subsection ... (3) below, an
accused shall not be tried on indictment for any offence unless
(a) where an indictment has been served on
the accused in respect of the
High
Court, a preliminary hearing is commenced within the period of 11 months; and
(b) in any case, the trial is commenced
within the period of 12 months,
of
the first appearance of the accused on petition in respect of the offence."
[26] That provision
depended, for its practical effect, on the amended provisions for preliminary
hearings in High Court proceedings, as set out in section 72 of the amended
1995 Act, and associated provisions, being in force. Article 3 of the Order provided:
"(1) No preliminary hearing shall take place
before 1st April 2005.
(2) The provisions of the 2004 Act which
come into force on 1st February 2005 shall apply for the purposes of a first diet,
preliminary hearing or trial diet that commences after 31st
March 2005."
Together, these provisions gave rise to a need to regulate
the application of the new procedural rules to cases that had commenced before
and were live at 31 March 2005.
Articles 3 and 4 of the order addressed the issues that required
regulation.
[27] The mechanism
that was adopted by article 3(3) was to dis-apply the commencement provisions,
in a limited number of cases. Those
cases were cases where, and only where:
"(a) the accused is cited on or before 1st
March 2005 to a diet in the
High
Court
... which commences before 1st April 2005; or
(b) the period mentioned in subsections (1)
or (4) of section 65 of the
1995
Act as so commenced (taking into account any extension under subsections (3),
(5) or (7)) expires before 1st April 2005."
[28] The purpose of
this transitional provision was clearly to ensure that a person could be
brought to trial on indictment, notwithstanding the amendment of section 65 for
general purposes, where, in the first place, he was subject to citation to a
diet of the High Court commencing before 1 April 2005.
Article 3(5)(a) and (b) made it clear that that provision applied
whether the diet in question was an original diet, or a further, adjourned,
postponed or altered diet. In each case
the cut-off point for the transitional provisions was 31 March 2005. If, in any particular current case, the
operative diet commenced on or after 1 April 2005 the amended provisions applied, and
in particular section 65 as amended applied.
It is provided that where there is re-indictment, the new procedures are
excluded only where the diet on the fresh indictment commences before 1
April 2005. Similarly, paragraph (b) of article 3(3)
restricted the operation of the transitional saving of the un-amended section
65 to cases in which the twelve month period, original or extended, expired
before 1 April 2005.
[29] These
provisions dealt with current prosecutions in respect of which the application
of the amended provisions would have created procedural complications. For example, trial diets to which accused
persons had been cited on indictments served in February and March 2005 would
have become problematical if the amendments of section 65 had been applicable. In cases in which the relevant diet for the purposes
of article 3(3)(a) was not a trial diet but, for example, a preliminary hearing
under section 72 of the un-amended provisions, it might be that the trial diet
could commence after 1 April 2005 without engaging the amended
provisions. Similarly, a trial diet
fixed for a date before 1 April might not take place. Article 4 made provision for that situation
by dis-applying the eleven months period where the court appointed a further
trial on or after 1 April. The
explanatory note to the Order is inconsistent with the terms of article 4(4). But, on its terms, article 4 reinforces the
view that the dis-application of the amended procedural provisions is concerned
with prosecutions that are live during the transitional period.
[30] The previous
indictment on which the appellant came to trial fell on 28
September 2004. The substitution of desertion pro loco et tempore for the trial
judge's order deserting the indictment simpliciter
did not resurrect the indictment: it left any further procedure that might
occur at large for the Lord Advocate to initiate, subject to the court's authority. When the fresh indictment was served on 12
July 2005,
the Lord Advocate had no option but to instruct proceedings under the new rules. The critical submission for the appellant was
that because the twelve month period, as it had stood at the time, expired on 13
September 2004, article 3(3)(b) applied, and the transitional provisions dis-applied
the amendments of the 1995 Act. It is
clear from article 3(5)(b) that the transitional provisions do not apply in
that way. The re-indictment of a case
generally falls within the scope of the transitional provisions if and only if
the initial diet on the fresh indictment (whatever the nature of that diet)
commences before 1 April 2005. If a case
is re-indicted after 1 April 2005 that condition cannot be satisfied
and the new procedural rules, including the eleven month period, apply.
[31] In any event,
the submission that the un-amended section 65 applies in this case implies that
the transitional provisions apply in a case in which there is no live indictment
throughout the transitional period. Section
65 is concerned with bringing accused persons to trial on indictment. Sub-section (3) deals with the extension of
the periods within which a person can legitimately be brought to trial on
indictment. A live indictment, or at
least an indictment that the prosecutor contends is alive, is a pre-requisite
of the principal provisions having any meaning.
The transitional provisions are ancillary to the principal Act. They regulate how the Act applies in certain
circumstances, but go no further than that.
In my opinion, Mr Shead's preliminary point is without substance.
