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HIGH COURT OF JUSTICIARY

[2006] HCJ02

IN665/05

OPINION OF LORD HARDIE

in the cause

HER MAJESTY'S ADVOCATE

against

DAVID NESBIT WELCH

________________

Act: E. Brown Advocate Depute; N. McFadyen, Crown Agent.

Alt: Gilchrist Advocate, Beaumont & Company, Solicitors

17 January 2006

History of the case.

[1] The accused, David Nesbit Welch, was indicted at the instance of Her Majesty's Advocate in respect of the following charge:

"On 13 August 2004 at Morrison Street, Edinburgh you did assault Alexander Brooks, c/o Lothian and Borders Police, Edinburgh and did repeatedly strike him on the body with a knife, to his severe injury, permanent disfigurement and to the danger of his life and you did attempt to murder him."

[2 ] A hearing was fixed for 28 June 2005. On that date the accused was absent. The minute is in the following terms:

"The diet having been called the accused failed to answer to his name. Counsel for the accused informed the court that she had advised the crown by letter that the accused was now in custody on another matter and would require to be brought to court. She was fully instructed however and prepared to proceed in the absence of the accused if the court so allowed. The court allowed the application to proceed in the absence of the accused on joint motion of the parties.

The court on the unopposed motion of counsel for the accused discharged the preliminary hearing set down for tomorrow and fixed of new the 6 July 2005 as a new diet for preliminary hearing."

[3 ] On 6 July 2005 a preliminary hearing was held under sections 72 and 72A of the Criminal Procedure (Scotland) Act 1995 as amended ("the 1995 Act"). It appears that the Crown had acted upon the information that the accused was in prison because he was present. Having heard the advocate depute and the solicitor for the accused the court continued the preliminary hearing until 1 August 2005 to enable certain matters to be progressed and for a full hearing to take place. Bail had previously been granted and was continued.

[4 ] On 1 August 2005 at the continued preliminary hearing the accused pled not guilty. Counsel for the accused advised the court that all outstanding matters had been resolved and lodged a special defence of incrimination and lists of defence witnesses and productions. The advocate depute advised the court that he would instruct the police to locate the incriminee, which might result in a further section 67 notice being lodged. Both parties confirmed that they were ready to proceed to trial and that 5 days were required. Accordingly the court fixed 21 September 2005 as a fixed diet of trial at Edinburgh High Court.

[5 ] On 21 September 2005 the trial diet was called and the advocate depute advised the court that Bryan Carter (Crown witness no.17), an essential Crown witness, had failed to appear in answer to his witness citation. On the unopposed motion of the advocate depute the court granted a warrant for the apprehension of the said witness and adjourned the trial until the following day at 10am as the Crown was unable to proceed without the said witness.

[6 ] On 22 September the trial diet was called. The advocate depute moved the court to adjourn the trial diet and to fix a fresh diet of trial on the basis that Bryan Carter had not yet been apprehended and he was critical to the case for the Crown. Counsel for the accused opposed the motion. One of the reasons for the opposition was that although the accused was on bail in respect of these proceedings his licence had been recalled by Scottish Ministers pending the determination of these proceedings. Thus the accused would remain in custody pending the conclusion of any trial. The court discharged the trial diet and assigned 11 January 2006 at 10 am as a fixed diet of trial at Edinburgh High Court.

[7 ] Prior to 11 January 2006 representatives of both parties were advised that the trial would not commence before 2pm because of other court business allocated for that morning. Prospective jurors for the trial of the accused were requested to attend at the High Court building at the Lawnmarket, Edinburgh for 2pm. The Crown also arranged for witnesses to attend at that time to enable the trial to commence at the appointed fixed diet.

[8 ] On 11 January 2006 prospective jurors and witnesses attended at court prior to 2pm but the accused was not present. The Crown representatives were reminded that the accused was in custody. The Crown representatives advised the clerk of court that the Crown would simply seek an adjournment of the trial when the diet was called. They were informed that the diet would not be called before 2.30pm because the clerk of court required to speak to the prospective jurors and to ascertain if any of them were unable to serve as jurors in this case. After he had spoken to the prospective jurors, the clerk of court ascertained that the Crown was not in a position to proceed to trial that day and with the agreement of the Crown he discharged the prospective jurors before the trial diet was called. The decision to discharge the jurors was appropriate in the circumstances where the Crown did not intend to commence the trial because it prevented unnecessary inconvenience to the 35 members of the public who had attended for jury service. However the result was that the trial could not proceed because of the absence of jurors as well as the absence of the accused.

[9 ] When the case called at 2.57pm the advocate depute moved for an adjournment of the trial until the following day. Counsel for the accused opposed that motion. In the course of the discussion below I shall refer to the competing submissions. At the conclusion of the debate at 3.53pm I adjourned to consider my decision. The court resumed at 5.11pm and thereafter I refused the motion by the advocate depute. In terms of section 65(3) of the 1995 Act the advocate depute then sought extensions of the statutory time limits of the 11 and 12 month periods by 2 months from their current expiry date of 16 January and 16 February respectively to enable a fresh indictment to be served. That motion was also opposed and I refused it. The proceedings finally concluded at 5.26pm.

Discussion

[10 ] In seeking the adjournment of the case the advocate depute stated that the trial could not proceed due to the non-attendance of the accused because he was in Barlinnie prison. He asserted that the Crown had been unaware of that fact until shortly before 2pm that day. Moreover he asserted that a representative of the Crown Office and Procurator fiscal Service had telephoned the accused's solicitors the previous day to ascertain his status and had been advised that he was at liberty. However in the course of discussion the advocate depute acknowledged that the terms of the Minute of Proceedings dated 22 September 2005 clearly indicated that the accused was in custody at that date because his licence had been recalled. It was also plain that he was to remain in custody until after the conclusion of the present proceedings. On that basis the advocate depute acknowledged that the Crown ought to have known that the accused was in custody and should have arranged for his attendance at the trial diet. Upon seeking clarification of the steps taken by the Crown to secure the attendance of the accused at court once it was appreciated before 2pm that he was in Barlinnie prison, the advocate depute stated that he understood from past experience of the Crown that it was not possible to transfer a prisoner to court at short notice. On that basis it would not have been possible to bring the accused to court in the course of the afternoon to enable the trial to commence. The advocate depute confirmed that no effort had been made to ascertain whether it would be possible to bring the accused to court that afternoon. In particular no attempt had been made immediately upon learning that he was in Barlinnie prison to arrange for his transportation to court. In conclusion the advocate depute submitted that refusal of the motion would result in prejudice to the Crown in not being able to proceed with the indictment of the accused. In all the circumstances I was invited to exercise my discretion and to adjourn the trial in terms of section 75A(2) of the 1995 Act.

[11 ] In reply Mr. Gilchrist, counsel for the accused, opposed the motion. The Crown had known for more than 3 months that the accused was in custody. It was nonsense for the Crown to suggest that it was unaware of that fact or that it could not ascertain where the accused was detained. It was also unacceptable to suggest that the Crown could not make arrangements to bring the accused to court and to seek to blame the accused's solicitors. Following the statement by the advocate depute about the alleged telephone conversation the previous day, inquiries had been made. The accused's solicitors disputed the statement. According to them, a Crown representative named Fiona had spoken to Shelley, an office junior with the solicitors' firm. The purpose of the call was to inquire as to the whereabouts of the accused. The office junior checked the position with the office manager and returned the call to Fiona. She was advised that Fiona was at lunch and she left a message advising Fiona that the accused was in Barlinnie prison. There was a further telephone call from the Crown after lunch seeking confirmation of the position and it was confirmed that the accused was in Barlinnie prison. Shelley's part of the conversations had been heard by an office manager. In any event the motion should be refused. The Crown had simply assumed that it would be granted and had not taken any proper steps to attempt to bring the accused to trial. The statutory test was whether the court considered that it was appropriate to adjourn the trial. The circumstances of this case suggested that it was not appropriate to do so.

[12 ] As I have already indicated I adjourned to consider the submissions. The motion was made under reference to section 75A(2) of the 1995 Act, which was inserted into the Criminal Procedure (Scotland) Act 1995 by section 15 of the Criminal Procedure (Amendment)(Scotland) Act 2004 ("the 2004 Act"). Section 75A(2) applies where any diet has been fixed in any proceedings on indictment (s75A (1)) and is in the following terms:

"The court may, if it considers it appropriate to do so, adjourn the diet".

It confers upon the court discretion to act where the court considers it appropriate to do so. It seems to me that there must be some justification advanced in support of the motion that persuades the court to adjourn a fixed diet. Prior to the 2004 Act adjournments of trials were common and it was not unusual for some trials to be adjourned more than once. The procedural changes introduced by that Act were designed to ensure as far as possible that (a) pleas of guilty were tendered at an early stage; (b) parties were ready for trial before a trial diet was arranged and (c) trials would proceed on the appointed date. It was hoped that the consequence would be a more efficient system avoiding unnecessary adjournments and the unnecessary attendance of jurors and witnesses. There has apparently been a significant measure of success in that regard but the efficiency of the system depends upon the continued commitment of everyone involved in it. There will continue to be cases where adjournments of trial diets are inevitable, for example where essential witnesses are absent through no fault of the prosecutor. An example of such an adjournment occurred in this case on 22 September 2005 when an essential Crown witness failed to attend court in response to his citation. Equally a trial cannot proceed if an accused, who is at liberty, fails to attend for trial. In that situation the inconvenience to witnesses and potential jurors is inevitable. However, while adjournments of trials will continue to be granted in appropriate cases, they should be seen as the exception rather than the rule and will require to be justified.

[13 ] In the present case the first reason advanced in support of the motion to adjourn the case was the absence of the accused. The circumstances of his absence are different from cases where an accused fails to appear in contravention of conditions of bail. It is unclear whether his incarceration prior to 28 June 2005 related to the recall of his licence. There is no doubt that the Crown was aware of his incarceration at that time because they were advised by letter. Moreover they were told in open court on 28 June and would receive a copy of the court minute. Whatever the reason for his incarceration prior to 28 June there was no dispute that the accused has been in custody since prior to 22 September 2005 as a result of the recall of his licence by the Scottish Executive pending the determination of the present proceedings. The Crown must have been aware of that fact for a number of reasons. The first is that the Lord Advocate is a member of the Scottish Executive. The second is that the minute dated 22 September 2005 discloses that the accused was present from which it can be inferred that the Crown authorised his transportation from prison to court on that date, as prison officials normally require such authorisation. The third is that the minute records that the accused was subject to recall of his licence "pending determination of these proceedings". In accordance with current practice the parties each receive a copy of such minutes shortly after the hearing. Thus apart from being aware of the imprisonment of the accused prior to 22 September as evidenced by the Crown arranging for him to be brought to court on that date, and apart from being represented in court when the court was advised of the circumstances of the accused's incarceration, the Crown was provided with a written record of the position shortly after 22 September. I was not advised of the date upon which the accused was recalled to prison by the Scottish Executive but on any view the Crown must have been aware of the position from at least 22 September 2005. Depending upon the reasons for his detention in June, it may be that the Crown was aware from that date of the accused's detention until the conclusion of the present proceedings. In either event it respectfully seems to me that it was incumbent upon the appropriate Crown Office officials to note the altered status of the accused and to arrange for his transportation from prison to court for his trial. A proper system for identifying accused persons who are in custody awaiting trial is essential if the Crown is to fulfil its obligations to witnesses, potential jurors and to the court by securing the attendance of accused persons for trial on the appropriate date. Such a system is essential if the Crown is to be seen as genuinely committed to the reforms introduced by the 2004 Act. Any basic system would take notice of statements made in court about the status of an accused and of written records of court proceedings. If there is no such system in place or if systems are not enforced it is to be hoped that any such failures will be addressed as a matter of urgency. At one stage in his submissions the advocate depute suggested that the failure by the Crown to communicate with the prison service was "because of resource implications". He was unable to elaborate upon that statement. Such a suggestion can only be of any relevance if it is being maintained that there are inadequate resources. If that is the position adopted by the Crown, I fail to understand how a telephone call to a solicitor can be cheaper than a telephone call or e-mail to the appropriate authorities. If there is any substance to the claim of lack of resources in this regard, it is a matter of concern that should also be addressed as a matter of urgency by the Lord Advocate to enable him to ensure the efficient prosecution of crime in the public interest.

[14 ] I did not consider it necessary to resolve the factual dispute about the telephone conversations between Fiona and Shelley. In my opinion, it was incumbent upon the Crown to inquire of the prison authorities or of the Scottish Executive about the status and location of the accused. The latest available information was that the accused was to be detained until after the conclusion of these proceedings. The most reliable source of information about his status and location would be either of these authorities. I would also suggest that e-mail communications are more reliable than telephone conversations and it would be prudent for the Crown to utilise modern technology in that regard. Such a system would leave less room for confusion. The Crown cannot abdicate its responsibility to have in place proper systems by relying upon a telephone conversation with an office junior on the day before a trial. However, if I am wrong about that and even if the Crown's version of the telephone conversation is accurate, the Crown still failed in its duty to the court and to witnesses and prospective jurors. The Crown could have taken steps to transport the accused to court as soon as it was aware of his absence prior to 2pm. Had that occurred the trial would have commenced on the fixed diet long before the proceedings before me finally concluded that day. It was clear from the submissions that no efforts were made in that regard and the Crown acted upon an assumption that the motion to adjourn would be granted. I did not accept the statements about the impossibility of bringing prisoners to court at short notice. In any event they were proved to be wrong by later statements by the advocate depute and the subsequent actions of the Crown. In the course of the debate the advocate depute advised me that if the accused required to attend court for the hearing of the adjournment motion, arrangements would be made for his attendance. By that time the trial could not proceed because of the absence of prospective jurors. I was satisfied that it was competent to hear that motion in the absence of the accused and no such arrangements were made. However, when I adjourned to consider the submissions, the Crown did make arrangements for the transportation of the accused to court in case his attendance was required for the motion to extend the time limits. I was able to dispose of the latter issue before his arrival. Had the Crown acted with due diligence at 2pm it appears to me from these subsequent statements and actions on the part of the Crown that the accused could have been brought to court to enable his trial to commence that day.

[15 ] This case was in a different category from those where there has been an error that may be excused. The Crown failed to have in place and to enforce an appropriate system (a) to identify accused persons who were in custody (b) to note statements to that effect made in open court (c) to read and/or act upon court minutes to that effect (d) to inquire of the appropriate authorities about the status of an accused and (e) to ensure the attendance from prison of an accused for the purpose of his trial. In addition when the Crown became aware of the absence of the accused it took no action to secure his attendance at court for trial. Rather before any efforts in that regard were initiated and before the court convened the Crown agreed to excuse the prospective jurors. The Crown appeared to arrogate to itself the decision that the trial would be adjourned. It seemed to me that it was not appropriate to adjourn the diet simply because of the absence of an accused, where there had been to my mind a dereliction of duty by the Crown. If there had been failures of an equivalent magnitude by an accused or his advisers I would not have acceded to a motion to adjourn a diet. The same standards apply with equal force and to the same effect to the Crown as they do to the defence. The judicial oath requires judges to show no fear or favour and no litigant, including the Crown, is entitled to assume that it will be treated more favourably than others will.

[16 ] The second reason advanced in support of the adjournment was that if it were not granted the Crown could not indict the accused. The consequences of refusing to adjourn a case must be considered in the context of all the circumstances of the case. I do not think that the inability of the Crown to proceed with an indictment necessarily makes it appropriate to adjourn a diet. If it were otherwise, the Crown would be entitled to an adjournment in every case on indictment where the statutory time bar was imminent, however extreme the circumstances of the case and the discretion conferred on the court by section 75 A (2) of the 1995 Act would be meaningless. Nor is the seriousness of the charge sufficient of itself to justify the grant of an adjournment otherwise adjournments in the High Court of Justiciary at the instance of the Crown would be automatic, however incompetently the Crown had conducted itself and whatever the consequences for an accused. I did not consider that this factor, when considered with the whole circumstances of the case, made it appropriate for me to grant the motion. In any event it was inaccurate to maintain that the Crown could not proceed to indict the accused if the motion was refused. There are other procedures available to the Crown that may enable the Crown to continue with the prosecution of the accused but as these were not canvassed before me it is not appropriate that I should discuss them in this opinion. In all the circumstances I did not think it appropriate to adjourn the diet and I refused the motion.

[17 ] When I intimated my decision the advocate depute moved in terms of section 65 (3)(a) of the 1995 Act for an extension of the 11 and 12 month statutory time limits to enable a fresh indictment to be served. Section 65(3)(a) is in the following terms:

"On an application made for the purpose,

(a) 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 either or both of the periods of 11 and 12 months specified in subsection (1) above"

The advocate depute did not seek to support the motion on any grounds other than those canvassed in the earlier motion. He simply referred me to the earlier discussion and invited me to grant the extensions sought. Mr Gilchrist opposed the motion on the basis that the Crown had not shown any cause for the extension. Moreover an extension was not appropriate in view of my earlier decision and stated reasons concerning the Crown's conduct. It seemed to me that the Crown had not shown any cause for such an extension. In any event having regard to the conduct of the Crown mentioned above I did not consider it appropriate to extend the statutory time limits. Furthermore as I have already observed, there are other procedures that may be available. They would not involve the service of a fresh indictment. The extensions sought were unnecessary. Accordingly I refused the motion.