HIGH COURT OF JUSTICIARY   [2006] HCJ 10
	OPINION OF LORD HARDIE   in the cause   HER MAJESTY'S ADVOCATE   Pursuer;   against   G.B.   Defender:     ­­­­­­­­­­­­­­­­­________________

 

 

For the crown: Brown, Advocate Depute instructed by the Crown Agent

For the accused: McBride QC; Graham, Advocate instructed by Raymond McIlwham & Co., Solicitors, Glasgow

 

9 November 2006

Procedural history

(1) On 17 May 2004 the accused appeared on Petition at Glasgow Sheriff Court charged with murder and the case was continued for further inquiries and the accused remanded in custody. On 25 May 2004 he was admitted to bail. He was indicted for trial at Glasgow High Court in the sitting commencing 29 November 2004. After several adjournments the trial was fixed for 2 March 2005 when the accused failed to appear and a warrant was issued for his arrest. On 21 April 2006 he again appeared on Petition at Glasgow Sheriff Court and was remanded in custody. On 31 July 2006 he appeared at a Preliminary Hearing at Glasgow High Court in respect of an indictment containing three charges, namely, assault to severe injury and permanent disfigurement, murder and a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). At that hearing counsel for the accused advised the court that there was an outstanding matter of disclosure but after discussions between agents for the accused, the procurator fiscal, defence counsel and the advocate depute the process of disclosure would be implemented that day. The advocate depute confirmed that disclosure would be made that day and agreed to the suggestion of defence counsel that a period of seven days should be allowed to enable the accused's solicitors to lodge any special defence and list of witnesses. In these circumstances and having regard to problems associated with the Crown failing to disclose relevant material to representatives of accused persons in other cases the court pronounced an interlocutor, the relevant parts of which are as follows:

"The Court ordains the Crown to disclose any additional information outstanding no later than 4pm on 1 August, allows the defence seven days thereafter to decide whether a special defence and list of witnesses is required and to intimate to the Crown any Crown witnesses which are required, appointed 16 October 2006 at 10am within the High Court of Justiciary at Glasgow as a diet of trial..."

(2) On 16 October the accused appeared for trial, pled not guilty adhered to special defences of alibi and incrimination and referred to a list of witnesses all of which had been lodged within the period specified in the interlocutor dated 31 July. The trial proceeded until 19 October and in the circumstances outlined in my opinion dated 24 October it was deserted pro loco et tempore. The Principal Advocate Depute intimated that a fresh indictment would be served that day with a preliminary hearing fixed for 2 November. Accordingly he sought an extension of the 110 and 140 day time limits specified in section 65 of the 1995 Act as amended. In the event that an extension of the time limits was not granted the Principal Advocate Depute invited me to impose additional bail conditions, including the surrender of the accused's passport, a requirement that he attend once or twice weekly at his local police station and his giving an undertaking not to apply for a passport. Senior counsel for the accused moved for bail and confirmed the willingness of the accused to accept the conditions proposed by the Crown as well as electronic monitoring, if that was available.

(3) I considered the competing submissions in which the Principal Advocate Depute conceded that the only basis for refusing bail was the accused's previous failure to appear. It seemed to me that the issue was finely balanced. Although the accused had previously failed to appear, section 65 of the 1995 Act as amended was designed to prevent delays in trials. More significantly it was intended to prevent the incarceration of an accused beyond the statutory time limits, except on cause shown. I was not satisfied that electronic monitoring would be available and with considerable reluctance agreed to extend both time limits to the date of the preliminary hearing. Such a decision had the effect of enabling the Crown to serve the fresh indictment but also ensured that the issue could be addressed more fully at the preliminary hearing on 2 November.

(4) On 2 November the Advocate Depute invited me to fix a trial diet and thereafter to extend the 140-day time limit to a date beyond the date fixed for the trial. Mr. Graham for the accused satisfied me that electronic monitoring was in principle available in such cases but that I required a report about the suitability of the bail address. The accused did not possess a passport and was willing to report daily at his local police station. He had requested family members to provide caution for his future attendance at court. Mr. Graham invited me to continue the hearing until 9 November to enable me to obtain the necessary monitoring report and agreed to an extension of the 140-day time limit until that date. In doing so he emphasised that he should not be taken to be conceding that a further extension would be appropriate. An extension until 9 November would enable the necessary inquiries to be made so that the court could take an informed decision about the question of admitting the accused to bail. In these circumstances I continued the diet to 9 November and I extended the 140-day time limit to that date. I also requested a report about the suitability of the proposed bail address for electronic monitoring.

(5) On 9 November I again heard submissions in support of the respective positions of each party. The Advocate Depute relied upon the previous failure to appear for trial whereas counsel for the accused relied upon the favourable report about the suitability of electronic monitoring. He also confirmed the accused's willingness to submit to a daily curfew between the hours of 8pm and 8am and to report daily to his local police station as well as offering caution in the sum of £5,000. The accused did not have a passport and undertook not to apply for one before the conclusion of his trial.

 

Decision

Background to statutory provisions

(6) For centuries successive legislatures have imposed restrictions on the imprisonment of persons awaiting trial in Scotland. Although the terms of such restrictions have been modified on occasions the principle that has remained constant is that there is an obligation upon the Crown to ensure that accused persons are brought to trial within a specified period. This is a practical recognition by our law, as enacted by Parliament, that the liberty of the individual is an important safeguard in our democratic society. The current statutory regulation of the restriction on imprisonment of untried prisoners is contained in section 65 of the 1995 Act as amended by the Criminal Procedure (Amendment) (Scotland) Act 2004 ("the 2004 Act"). Before considering that section I observe that the origins of this important safeguard of the liberty of the individual can be traced back to the Act Anent Wrongeous Imprisonment of 1701 and statutory protections akin to those now in section 65 have been in place since then. Thus it will be immediately apparent that this recognition of the right to liberty is not a modern concept and although the liberty of the individual is reflected in the European Convention of Human Rights, Scots law has protected such rights for centuries before that Convention. Moreover the importance of this particular protection for the individual within our law is highlighted by the sanctions imposed for failure to comply with the statutory provisions. Until 1980 failure to conclude a trial within 110 days of committal for trial resulted in the acquittal of the accused. In that year the Criminal Justice (Scotland) Act 1980 amended the requirement from concluding the trial to commencing it within the statutory time of 110 days. The sanction for failure to do so remained the acquittal of the accused. That remained the position until 2004 and is reflected in section 65 of the 1995 Act, the relevant provisions of which were as follows:

"(4)...an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than-

...

(b) 110 days, unless the trial of the case is commenced within that period, which failing he shall be liberated forthwith and thereafter he shall be for ever free from all question or process for that offence."

Subsection (7) permitted a single judge of the High Court to extend the period in subsection (4)(b)

"where he is satisfied that delay in the commencement of the trial is due to-

(a)               the illness of the accused or the judge;

(b)               the absence or illness of any necessary witness;

(c)                any other sufficient cause which is not attributable to any fault on the part of the prosecutor."

 

Existing statutory provisions

(7) In 2004 the terms of section 65 of the 1995 Act were considered by the Scottish Parliament in the context of procedural reforms introduced by the 2004 Act and that section was amended. The relevant provisions for the purposes of this case are:

"(4)...an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than-

...

(aa) where an indictment has been served on the accused in respect of the High Court-

...

(ii) 140 days, unless the trial of the case is commenced within that period, which failing he shall be entitled to be admitted to bail."

The provisions for extending the statutory time limit are contained in subsection (5), which is in the following terms:

"On an application made for the purpose-

(a)               in a case where, at the time the application is made, an indictment has not been served on the accused, a single judge of the High court; or

(b)               in any other case, the court specified in the notice under section 66(6) of this Act,

may, on cause shown, extend any period mentioned in subsection (4) above."

Thus it is apparent that although it made significant changes to the legislation the Scottish Parliament recognised that the historical protection for the liberty of the individual should be maintained. That recognition is important when one considers the argument advanced on 2 November by the Advocate Depute in support of an extension of the 140-day period based upon the public interest and the interests of justice. While it is undoubtedly desirable that the trial of an accused should proceed, the interests of justice and the public interest are not confined to that single issue. If it were otherwise the statutory protection recently reaffirmed by the Scottish Parliament would have no meaning. It seems to me that it was the clear intention of the legislature that the Crown should justify any proposed extension of the time limit by showing cause why it should be granted. If I am correct in that interpretation of section 65(5)(b) of the 1995 Act as amended, the Crown has the burden of satisfying the court that the circumstances of any particular case merit the deprivation of the liberty of an individual beyond the strict limits imposed by Parliament. In other words it will not suffice for the Crown simply to refer to the public interest and to confuse that with the narrow issue of bringing the accused to trial. If that were the test the statutory protection of the individual against unlawful detention would be meaningless. In other words the approach adopted by the Advocate Depute on 2 November would result in removing the protection of the liberty of the individual that has been in place in Scotland for centuries and was ratified by the Scottish Parliament as recently as 2004. I am of the view that the proper approach to such an application by the Crown is to consider the whole circumstances, including the reasons why the application is necessary and the effect of granting or refusing the application.

 

Circumstances of this case

(8) In my previous opinion dated 24 October I outlined the circumstances that gave rise to the desertion of the earlier trial. It is unnecessary to repeat these but it is sufficient to note that the cause of the desertion was the abdication by the Crown of its responsibilities in the public interest to ensure that an accused receives a fair trial. It has long been recognised that the Crown must be impartial and has an obligation to disclose any relevant material to the representatives of the accused. In this case the Crown failed to act in the public interest and in the interests of justice by failing to have in place basic management systems designed to ensure that all relevant material was disclosed to enable the accused to receive a fair trial. If the test to be applied by the court was that which applied prior to 2004, there can be no doubt that the Crown would fail. How could the Crown satisfy the court that delay in the commencement of the trial was due to any other sufficient cause not attributable to any fault on the part of the prosecutor when the sole cause was such fault? While fault on the part of the prosecutor is not a bar to the grant of an extension of the 140-day time limit, nevertheless it seems to me that it is still a relevant consideration for the court.

(9) What is the justification advanced for the extension sought on this occasion? The Advocate Depute relied upon the nature of the crime with which the accused was charged, namely murder. If that alone were cause for detaining an accused indefinitely, it would make a mockery of the presumption of innocence. Such a submission also ignores the plain language used by the legislature when it refers in section 65(4) to an accused committed for any offence (my emphasis) until liberated in due course of law. There is no exception to the statutory protection. Nor should there be any exception if the liberty of the individual is to have any significance. Moreover in 2004 the Scottish Parliament clearly contemplated the release on bail of those charged with murder and rape. Section 24A of the 1995 Act as amended was inserted into the legislation by section 17 of the 2004 Act. Section 24A(2) envisages the grant of bail to a person charged with murder or rape and the remaining provisions of that section consider situations where there is a restriction of movement condition of any such bail order. Thus the mere fact that an accused is charged with murder does not appear to me to be just cause for extending the period of his incarceration before trial.

(10) The Advocate Depute also relied upon the desirability of bringing persons to trial and invoked the public interest and the interests of justice in that regard. As I have already observed the public interest and the interests of justice are much wider than the narrow focus of the submission before me. Mere lip service to such important principles is insufficient to merit what would otherwise be an unlawful detention in the absence of the sanction of the court.

(11) The final consideration advanced by the Advocate Depute was the previous failure of the accused to appear at a trial diet. That is obviously a factor to be considered. However it seems to me that it cannot alone amount to sufficient cause for an extension of the period of detention before trial. That is particularly so where the reason for the failure to comply with the statutory provisions is due to serious deficiencies in the practices and procedures of the Crown Office and Procurator Fiscal Service. Even when the previous failure to appear is taken along with the other considerations I am not convinced that the Crown has shown cause why the statutory time limits should be extended and I shall refuse that motion.

(12) What are the consequences for the accused? In terms of section 65(4)(aa)(ii) he is entitled to be admitted to bail. In admitting any accused to bail the court recognises that no system of bail can be sufficiently robust as to guarantee the attendance of an accused for trial but efforts are made by the imposition of appropriate conditions to secure that objective. Having regard to the previous failure to appear the conditions of any bail order should be more stringent than might otherwise be appropriate. Apart from the standard conditions of bail relating to attendance at future diets, the obligations not to commit future offences, or to interfere with witnesses or otherwise obstruct the course of justice it seems to me that the following additional conditions are appropriate:

(i)                  that the accused undertakes not to take any steps himself or through the agency of others to obtain a passport until after the conclusion of his trial;

(ii)                that the accused will be subject to restriction of movement and shall remain within his bail address at 56 Drygrange Road, Craigend Glasgow daily between the hours of 8pm and 8am;

(iii)               that the accused will be subject to remote monitoring of his movements and will comply with the installation of the necessary equipment and the maintenance in place of such equipment to enable effective monitoring to be carried out;

(iv)              that the accused will attend daily at London Road Police Station between the hours of 1pm and 1.30pm;

(v)                that in advance of his release from custody the accused will lodge with the Sheriff Clerk, Glasgow the sum of £5,000 as caution for his attendance at all future diets.

The reason for these additional conditions is to meet the concerns expressed by the Crown about the previous failure to attend and to secure so far as possible the attendance of the accused at all future diets in this case.