Scottish High Court of Justiciary Decisons

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Cite as: [2006] HCJAC 65, 2006 SCCR 583, 2006 GWD 28-623, [2006] ScotHC HCJAC_65, 2006 SLT 856, 2007 JC 50

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Abernethy

Lord Johnston

Lord Philip

Lord Penrose

[2006] HCJAC 65

Appeal No: XC717/05

OPINION OF THE LORD JUSTICE CLERK

APPEAL

GERALD PATRICK EARLY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

____

For appellant: Miss Scott, QC, Miss Burns; McClure Collins

For the Crown: Miss Grahame, AD; Crown Agent

30 August 2006

Introduction

[1] The appellant appeals against a decision dated 19 September 2005 of Sheriff Vannet 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 three charges of lewd, indecent and libidinous practices.

[2] The Second Report of the Committee on Criminal Procedure in Scotland (the Thomson Committee) recommended that the prosecution on indictment of an accused person who was not in custody should be subject to a time limit, namely that the trial should be commenced within a period of twelve months from the date of the accused's first appearance on petition in respect of the offence (1975 Cmnd 6218, para 15.09). The Criminal Justice (Scotland) Act 1980 (s 14) implemented that recommendation by an amendment to section 101 of the Criminal Procedure (Scotland) Act 1975 (the 1975 Act). The relevant provision is now section 65 of the 1995 Act. There have been several amendments to the section, but all that matters for the present is that section 65(3), like its predecessor, provides that a sheriff or, in the case of a High Court indictment, a single judge of that court, may "on cause shown" extend the period of 12 months.

[3] This appeal and the appeal of Fleming v HM Adv with which it was heard have been remitted to us to consider by what criteria the court should determine whether the Crown has shown cause in an application of this kind. Until a few years ago, the Crown invoked section 65(3) only rarely. But in recent years applications under section 65(3) have become commonplace. In most of them, the Crown asks the court to relieve it of the consequences of its own errors. The Crown's increasing recourse to section 65(3) is reflected in the number of appeals on the point. There were 13 such appeals in 2003, 15 in 2004 and 19 in 2005.

[4] In these appeals we have had the opportunity to review more than 20 years of case law on this provision. There are more than 60 cases, of which 18 have been reported since 2006. It is now even more apparent that, as Lord Rodger of Earlsferry observed in 2000, not all of the cases are easily reconciled (Ellis v HM Adv, 2001 JC 115, at pp 120I-121A).

The test established in HM Adv v Swift (1984 JC 83)

[5] HM Adv v Swift was the first appellate decision under the former section 101 (as amended) (supra). In that case the court held that the question whether cause for an extension had been shown by the Crown was to be decided by a two-stage test. At the first stage the court had to consider whether the Crown had shown a reason that might be sufficient to justify the extension. If it had, the second stage was for the court to consider whether, in the exercise of its discretion, it should in all the relevant circumstances grant the extension for that reason (ibid, Lord Justice General Emslie, at p 88).

The first stage test in Swift

[6] At the first stage, the court considers whether the reason advanced for the application is one for which the Crown is responsible. Among numerous examples of cases where the Crown is not responsible are cases where, for example, the accused or a vital witness has absconded (cf Watson v HM Adv, 1983 SCCR 115; Main v HM Adv, 1998 SCCR 694); where a citation has failed because of the fault of the police (Coutts v HM Adv, 1992 SCCR 87); where the Crown has been misled as to the domicile of a witness (Black v HM Adv, 1990 SCCR 609; Anderson v HM Adv, 1996 SCCR 487); where there is no judge or court available for the trial (Dobbie v HM Adv, 1986 SCCR 72; McNally v HM Adv, 1999 SCCR 565); where an essential witness is ill (McGinty v HM Adv, 1984 SCCR 176); where the accused is imprisoned outwith the jurisdiction and cannot be brought to trial in time (Shevlin v HM Adv, 1986 SCCR 462); where a postponement is granted on the application of the defence (McDonald v HM Adv, 1988 SCCR 298) or for its benefit (Goldie v HM Adv, 2003 SLT 1078, at paras [17]-[18]); or where the Crown refrains from indicting in reliance on an indication by the defence that the accused will plead guilty (Voudouri v HM Adv, 2003 SCCR 448).

[7] In such cases the court decides the matter on a consideration of the whole circumstances. This may involve a consideration of the interests of parties other than the Crown and the accused. For example, in Ashcroft v HM Adv (1996 SCCR 608) an extension was granted to spare a young girl the ordeal of giving evidence twice about an alleged indecent assault upon her. An important factor is whether the circumstances founded on could have been avoided by the Crown (cf Mejka v HM Adv, 1993 SCCR 978). If they were unavoidable, the court will normally be satisfied that the first stage test is met; but the decision depends in every case on the facts and circumstances.

[8] If the application is necessitated by an error made by the Crown, the court has to consider what the error was and why it occurred. Some cases involve what might be described as positive culpability; for example, where a trial has been deserted in consequence of some wrongful conduct by the prosecutor (Brown v HM Adv, 1998 SCCR 461) or of an incautious question asked by the prosecutor (Ellis v HM Adv, supra) or of an improper comment made in the prosecutor's speech (McCulloch v HM Adv, 2001 JC 100); or where the Crown has, at its own risk, released an essential witness to go on holiday (Ferguson v HM Adv, 1992 SCCR 480) or has failed to obtain vital evidence timeously (Stewart v HM Adv, 1993 SCCR 1010) or has failed properly to organise the business of the court (McGinty v HM Adv, supra; Warnes v HM Adv, 2001 JC 110; Riaviz v HM Adv, 2003 SCCR 444) or has dealt with a procedural problem inefficiently (Palmer v HM Adv, 2002 SCCR 908).

[9] Such cases can be distinguished broadly, if imprecisely, from cases arising from administrative mishaps; for example, a failure to specify the locus in a charge (Stenton v HM Adv, supra); a miscalculation of a statutory timetable by unqualified staff (Lyle v HM Adv, 1991 SCCR 599, at p 604B-D; Bennett v HM Adv, 1998 SCCR 23; HM Adv v Freeman, 2005 SCCR 571); a typing error by which the accused is convened to the wrong court (Fitzpatrick v HM Adv, 2002 SCCR 758), or an accumulation of such errors (Swift v HM Adv, supra; Willoughby v HM Adv, 2000 SCCR 73).

[10] In HM Adv v Swift (supra) a distinction was made between "major" and "minor" errors (ibid, Lord Justice General Emslie at p 89). This distinction was suggested in the course of the debate before the sheriff in that case (HM Adv v Swift, reported on this point in 1984 SCCR 216, at pp 219-222). In numerous cases this terminology has been adopted on the basis that a major error will not be considered excusable at the first stage while a minor error may (eg Ellis v HM Adv, supra; Fitzpatrick v HM Adv, supra; Palmer v HM Adv, supra). The expressions "significant fault" (Rennie v HM Adv, supra, at p 195) and the "nature and degree" of the error (McCulloch v HM Adv, supra, at para [8]; HM Adv v Freeman, 2005 SCCR 571, at para [12]) have also been used in this context. In these cases, therefore, the criterion appears to be the degree of gravity of the error per se.

The second stage test in Swift

[11] Where the first stage test is satisfied, the question at the second stage is one of discretion. It is only at this stage that the nature of the charge (Rennie v HM Adv, supra; Main v HM Adv, supra; Aslam v HM Adv, 2000 SCCR 243; HM Adv v Fitzpatrick, supra), the public interest, the presence or absence of prejudice to the accused (Forrester v HM Adv, 1997 SCCR 9; Rudge v HM Adv, 1989 SCCR 105; Rennie v HM Adv, supra) and the length of the extension sought may properly be taken into account. At this stage one of the foremost considerations is that the accused ought not to be deprived of his important right under section 65(3) unless sufficient reason is shown by the Crown (Mejka v HM Adv, supra, Lord Justice Clerk Ross at pp 985-986).

The decision in Stenton v HM Adv (1998 JC 278)

[12] In Stenton the defence objected to the indictment on the day of the trial on the ground that no locus was specified in the charges. The sheriff held that the indictment was a fundamental nullity. The procurator fiscal then moved for an extension of the 12 months period. He accepted that the Crown was at fault. He ascribed its error to administrative difficulties within the procurator fiscal's office. The appellant's representatives had noticed the Crown's mistake before the first diet, but had not tendered a plea to the competency of the proceedings then or at the continued first diet.

[13] The sheriff held that the administrative difficulties that had led to the error, however sympathetically they were viewed, were the responsibility of the Crown. He did not consider that the appellant had suffered prejudice. He thought that there was room for the view that the appellant was to some extent the author of his own misfortune because his representatives had noticed the mistake and had said nothing about it until it was too late for another indictment to be served in time. He also considered that the extension sought was relatively short. He therefore granted the application.

[14] The appeal court allowed the appeal. Its reasoning on the point was as follows:

"The argument addressed to us in this case was limited and it would not be right to attempt to go into detail in commenting on the test for the grant of an application for an extension of the 12 month period or how it might be applied in different circumstances. It is, however, clear in our view that the decision in Swift tends to point the judge who has to make the decision towards considering whether there is a reason for seeking the extension of a kind which is capable of justifying the departure from the rule, which has been laid down in the public interest, that such prosecutions should be commenced within the 12 month period. It further appears that where all that can be said by way of explanation of the need for the extension is that a mistake has been made by the Crown, then that is not a reason of the kind which may be capable of providing a justification for the extension. In the present case, it seems to us that the appellant in this case is correct in suggesting that the sheriff did not pay sufficient attention to the question of the identification of a reason and that if he had done so he would have been compelled to the conclusion that the whole difficulty arose from an error by the Crown. The sheriff was, in our view, correct in holding that, if that were so, the fact that staffing difficulties or the like had contributed to the Crown's problems was still a matter within the Crown's responsibility. Since the whole difficulty arose from fault of the kind (sic) on the part of the Crown, we conclude that the sheriff misdirected himself in his approach to the question. Considering the matter for ourselves, we are of the view that the Crown have not stated a reason or cause for the seeking of the extension which satisfies the requirements of the statute as it has been interpreted" (at p 282C-G).

The decision in HM Adv v Crawford (2005 SCCR 836)

[15] In this case an indictment libelling a series of offences of lewd, indecent and libidinous practices against children in a children's home fell because of an elementary blunder by which the Crown omitted to include in it the statutorily required words "By Authority of Her Majesty's Advocate" (cf Crawford v HM Adv, 2006 JC 57). When the Crown sought to re-indict, the sheriff refused to grant an extension under section 65(3) on the ground that he could not competently entertain the application.

[16] On appeal, there was no doubt that the court had the power to grant the application. Counsel for the Crown submitted that the error in the indictment, although fatal to it, was excusable. Counsel for the accused submitted that by reason of its fundamental nature, the error was not excusable.

[17] The appeal court agreed that the error was fundamental (HM Adv v Crawford, 2005 SCCR 836); but in its wider review of the circumstances, it had regard to two particular considerations. The first was that the Crown had indicted the accused to a trial diet on 1 November 2003 at which the defence moved for an adjournment, the case was deserted pro loco et tempore and the time limit was extended to 12 June 2004. The Crown thereafter re-indicted the accused. After sundry procedure, it again deserted the case pro loco et tempore on 16 April 2004 and the time limit was further extended to 12 December 2004. I assume that both of these were valid indictments. The accused was again re-indicted to a further diet on 29 June 2004. Thereafter there was sundry procedure involving eleven appearances before the sheriff between 30 June 2004 and 3 May 2005, which was the scheduled trial diet. In the course of that procedure the time limit was extended yet again to 31 May 2005. All but three of the requests for postponement were made by the defence. When the case came before the court on 6 May 2005 the accused raised, for the first time, the objection that the indictment was incompetent.

[18] The appeal court did not accept the defence proposition that a fundamental error was inexcusable. It approached the matter in a different way. It considered that the determining issue was not the nature or gravity of the error per se but whether in all the circumstances it was capable of being excused. Lord Johnston expressed the court's reasoning on the point as follows:

"However fundamental an error may be, the question whether it can be excused depends on the reasons for it being made rather than the intrinsic nature of it or its result. In this case it is perfectly obvious that a mistake was made by the procurator fiscal's office in Greenock, which mistake was noticed neither by prosecution nor defence until very late in the day of what was a very lengthy case in procedural terms. The error could have been remedied if the point had been taken promptly. There was nothing improper about making the application to the court when it was taken in May 2005, but it is not without significance for at least two years before that time the accused and his advisers were well aware of the charges he was facing, and were obviously preparing to meet them. The number of adjournments occurred for different reasons, but none of them related to any deficiencies in the indictment until the point was raised at the trial diet when such was finally achieved" (para [15]).

[19] Having decided that the error was excusable for these reasons, the court then considered the question of discretion. It took into account the serious nature of the charges and the absence of prejudice to the accused and observed that there would have to be "very compelling reasons" before technicalities in procedure, even of a fundamental nature, could be used to avoid a prosecution (ibid, at paras [19]-[20]).