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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Kingarth
Lord Eassie
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[2008] HCJAC 43
Appeal Nos: XC109/08
XC341/08
XC112/08
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEALS
in terms of section 65(8)
of the Criminal Procedure (Scotland) Act 1995
by
(FIRST) FRASER GRAEME
ROBERTSON;
(SECOND) PAULA DEBORAH
ROBERTSON; and
(THIRD) MICHELLE LORRAINE DEASLEY
Appellants;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: (1) A.L. Brown, Advocate; Campbell Boath, Dundee: (2)
Thomson, Advocate; Lawson, Coull &
Duncan, Dundee:
(3) Paterson, Solicitor Advocate;
Bruce Short, Dundee
Alt: Young, A.D.; Crown Agent
25 July 2008
The background
circumstances
[1] Arising out
of incidents which occurred on 7 October 2006 in Dundee, the appellants appeared on petition
in Dundee Sheriff Court in February 2007. It was a matter of agreement that the 12
month period provided for in section 65(1)(b) of the Criminal Procedure (Scotland) Act 1995 expired on 21
February 2008. The appellants were admitted to bail. Subsequently, there was served upon them an
indictment, to which we shall refer as the first indictment, which contained
five charges. Charge (1), brought
against the first and second named appellants alleged an assault on Pamela
Stewart, to her severe injury. Charge
(2), brought against the first named appellant alone alleged an assault on
Christine Dolan, to her severe injury and permanent disfigurement. Charge (3), brought against the second
named appellant alone alleged an assault on Avril Johnston, to her severe
injury, permanent disfigurement and permanent impairment. Charge (4), brought against the third named
appellant alone, alleged an assault on Avril Johnston, to her injury. Charge (5), brought against the first named
appellant alone, alleged that he did, without lawful authority or reasonable
excuse, have with him in a public place an offensive weapon, namely a stone,
contrary to the Criminal Law (Consolidation) (Scotland) Act 1994, section
47(1). All of these charges arose out of
the incidents which occurred on 7 October 2006.
[2] The first
indictment was served for a first diet on 17 September 2007, followed by a trial diet, being a
sitting of the court commencing on 2 October 2007.
When the case was called on 8 October 2007, concerns were raised on behalf of
the second named appellant concerning two matters: first, that witnesses might be expected to
speak about irrelevant matters; and,
second, that video evidence relating to the relevant incidents, might go beyond
the confines of the libel contained in the first indictment. Those representing the second named appellant
had discussions with the procurator fiscal depute regarding the matter. After a period of time for consideration, he
indicated that the first indictment would not be called and that a fresh
indictment would be served. Accordingly,
the first indictment would fall. It was also
indicated to the appellants' advisers by the procurator fiscal depute that
there would be a full review by the Crown of the charges in the first
indictment and their formulation.
[3] Thereafter a
second indictment was served with a first diet to be held on 7 January
2008, with a
trial diet at a sitting commencing on 21 January 2008.
It is important to note the contents of this second indictment. Charge (1), brought against all three
appellants, alleged the commission of a breach of the peace on 7
October 2006. That charge had not appeared in the first
indictment. Charge (2), brought against
the first named appellant, alone, alleged an assault against Christine Dolan,
to her severe injury and permanent disfigurement. That charge was in terms identical with
charge (2) in the first indictment.
Charge (3), brought against the second named appellant alone, alleged an
assault against Christine Dolan, to her injury.
That charge had no counterpart in the first indictment. Charge (4), brought against the third named
appellant alone alleged an assault against Avril Johnston, to her injury. It was in terms identical with those of
charge (4) in the first indictment.
Charge (5), brought against the first named appellant alone alleged that
he did, without lawful authority or reasonable excuse, have with him in a
public place an offensive weapon, namely a stone, contrary to the Criminal Law
(Consolidation)(Scotland) Act 1994, section 47(1). That charge was in terms identical with those
of charge (5) in the first indictment.
Charge (6), brought against the second named appellant alone, alleged an
assault against Christine Dolan. It had
no counterpart in the first indictment.
Charges (1) and (3) in the first indictment did not appear in the
second indictment. The second indictment
had been served following the review of the charges to be brought in this case
conducted by the procurator fiscal depute.
[4] The second
indictment called on 7 January 2008, when no concerns of any kind were
expressed. However, by a letter, dated 10
January 2008,
from a procurator fiscal depute to the solicitors acting for the first named
appellant attention was drawn to a problem.
The terms of that letter were as follows:
"I refer to this case which has been
re-indicted to the sitting of 21 January 2008.
You may have noted that the 'new'
indictment does not feature what was charge (001) on the original indictment,
which was in the following terms:
On 7 October 2006 at Seagate, Dundee you FRASER GRAEME ROBERTSON and
PAULA DEBORAH ROBERTSON did assault Pamela Stewart ... and did push her on the
body, struggle with her, punch her on the head and body, seize her by the hair
and throw her to the ground whereby her head struck the pavement rendering her
unconscious, all to her severe injury.
The reason for this not featuring is purely
due to an oversight. I am going to make
a motion when this case calls for trial to amend the Indictment in terms of
section 96 of the Criminal Procedure (Scotland) Act 1995 to re-instate this
charge to the indictment, which failing to seek an extension to the
time-bar.
I should be most grateful if you
would confirm your position in relation to this matter."
[5] At the trial
diet on 21 January 2008, the procurator fiscal depute said that he wished to
desert the second indictment pro loco et
tempore and to seek an extension of the 12 month time limit in terms of
section 65(3) of the 1995 Act. On that
occasion, it was recognised by the procurator fiscal depute that the allegation
against the second named appellant alone, which had appeared as charge (3) in
the first indictment, had also been omitted from the second indictment.
[6] On 21 January
2008 the procurator fiscal depute gave an explanation to the sheriff concerning
the difficulties which had occurred.
These included the difficulties which had arisen out of the terms of the
first indictment. As a result of those
difficulties it had been decided not to call the first indictment, but to serve
a fresh indictment. It was also
explained that, after the first diet under the second indictment, on 7
January 2008,
the procurator fiscal depute had noted that two of the charges included in the
first indictment had been wrongly deleted from the second indictment. That had not previously been noted when the
second indictment was signed and subsequently served. Against that background it was submitted to
the sheriff that what had occurred was a "clerical" error. In those circumstances, the Crown sought to
desert the second indictment pro loco et
tempore and to obtain an extension of the 12 month time limit provided for
by section 65(1) of the 1995 Act, so that it would expire on 15 March
2008. That would have allowed a trial to take place
during the sheriff and jury sitting fixed at Dundee for the week commencing 3
March 2008. The procurator fiscal depute submitted to the
sheriff that the failure to include the original two charges in the subsequent
indictment was a human error. The
omitted charges affected the first and second named appellants only. They were both aware of the nature of the
allegations contained within those charges and had had an opportunity of
preparing any potential defence against them, since the indictment containing
those charges had been set for a trial to commence in October 2007. It was submitted that the appellants would
not be prejudiced by novel matters being introduced in any subsequent
indictment. The charges that had been
omitted from the second indictment were said to be serious allegations; it was in the public interest that those
matters should be considered by a jury.
A number of authorities were cited to the sheriff. The procurator fiscal depute acknowledged
that there had been a mistake on the part of the Crown, but as soon as that had
come to light, the appellants' agents had been advised and attempts were to be made
to remedy the error as swiftly as possible.
[7] Before the
sheriff, the appellants opposed the motions of the procurator fiscal
depute. The defence representatives
advanced the view that, since this was a major error, there was no reason why
the time limit should be extended in this particular case.
[8] In his Report
to this court the sheriff explains that he took the view that the error in this
case was a "venial and excusable mistake" using the terms employed in Her Majesty's Advocate v Fitzpatrick 2002 S.C.C.R. 758. He states that the appellants had received
fair notice of the terms of all of the charges and had had an opportunity or
preparing their defence. He states that
he balanced the effects that the deprivation of the statutory protection afforded
to the appellants would cause, as against the public interest that serious
charges previously intimated to the appellants should be considered by a
jury. He concluded that it was in the
interests of justice to allow the Crown motion to desert the second indictment pro loco et tempore and to extend the
time limit concerned to 15 March 2008.
[9] All three
appellants have now appealed under section 65(8) of the 1995 Act against the
sheriff's decision. Each appellant has
stated two grounds of appeal: first,
that the sheriff had wrongly held that the Crown had shown a sufficient cause
which might justify the extension sought;
and, second, that he had failed to exercise his discretion in the proper
manner, by exercising it in favour of the Crown. At the outset of the hearing before us, it
was indicated on behalf of all three appellants that they would not be
insisting in their second grounds of appeal, the criticism of the exercise of
the sheriff's discretion.
Submissions of the
first named appellant
[10] Counsel for
the first named appellant submitted that the sheriff had erred in respect that
there was no sufficient cause shown for granting an extension of time. The Crown's explanation of a supposed clerical
error did not amount to such a cause.
The background was important. At
the trial diet on the first indictment the Crown had acknowledged the need for
a review of the charges brought against this appellant and the others and had
undertaken to conduct such a review.
When the second indictment was served upon this appellant, it was
understandably assumed that its terms were the product of the Crown's
review. It was justifiably assumed that
a proper level of care had been taken by the Crown in selecting the charges to
be brought against this appellant in the second indictment. That indictment had been signed by the senior
procurator fiscal depute in Dundee. Even at the first
diet on the second indictment on 7 January 2008 no problems had been
recognised. It was only between that
date and the writing of the letter dated 10 January 2008 that a problem had been
observed. It may have been that there
had indeed been a "clerical error", but, nevertheless there had evidently been
a systemic failure on the part of the Crown to check the contents of the second
indictment which they had served. In
connection with his submissions counsel referred to Early v Her Majesty's
Advocate 2007 JC 50, a decision by a bench of five judges. He relied, in particular, on what was said in
paragraph [27] in that decision. It was
still unclear how the error had come to be made. It had certainly not been properly explained
before the sheriff, to whom a wholly inadequate explanation had been proffered. In all these circumstances the appeal ought
to be allowed.
Submissions of the
second named appellant
[11] Counsel for
the second named appellant adopted the submissions made on behalf of the first named
appellant. All of the charges against
the second named appellant in the second indictment were new. The two charges against her in the first
indictment had not been included in the second indictment. Counsel relied on Stenton v Her Majesty's
Advocate 1998 J.C. 278, particularly at page 282C-E, which had been relied
upon in Early v Her Majesty's Advocate. The
Crown had simply not explained how the error had been made, or indeed its
nature. Thus they could not say that it
was one capable of being excused.
Submissions of the
third named appellant
[12] The solicitor
advocate for the third named appellant pointed out that there had been no
reason why the Crown could not have proceeded against the third named appellant
upon the basis of the terms of the second indictment. The errors that had been made had no bearing
on the position of the third named appellant.
He adopted the submissions made on behalf of the first and second named appellants
and had nothing further to add.
Submissions of the
Crown
[13] The Advocate
depute readily conceded that errors had been made by the Crown. The situation was not a happy one. However, there had been an exceptional set of
circumstances. The errors made were
excusable.
[14] The terms of
the first indictment were the result of preparation of the case based upon the
statements of witnesses to incidents outside a nightclub in Dundee on 7 October
2006 and
also upon a closed circuit television recording of the incident. There had been a technical difficulty in
relation to the latter source of evidence.
The principal video disc containing the recording had been copied by the
police; copies had been provided to the
Crown and to those representing the appellants.
The Crown had framed the first indictment upon the basis of what events
could be seen on the Crown copy of the disc.
However, at the first trial diet on 2 October 2007, the Crown had been approached by
defence representatives with certain concerns as regards the video
recording. In the course of the
succeeding discussions, the procurator fiscal depute then responsible for the
case, looked at the contents of the defence copies of the video disc. What emerged was that they showed more
material than was recorded on the Crown copy of the disc. In particular, certain frames differed as
between the Crown copy and the other copies.
It may have been the case that these differences were the result of
shortcomings in the equipment used in the copying process by the police. It was as a result of this problem, which was
seen as a concern by defence representatives, since there was the possibility
of video evidence being led of crimes not charged, that the trial was not then
called. It had been a matter of
agreement that the whole situation was to be reviewed by the Crown. Steps were taken by the Crown to examine the
original video disc, when it became clear that it showed events which constituted
crimes that were not the subject of charges in the first indictment. It became clear to the Crown that further
charges should be libelled.
[15] Thereafter
what were described as amendments to the first indictment were dictated on a
tape and sent to the procurator fiscal's typing pool. The intention had been that further charges
were to be added to the terms of the first indictment, but there were to be no
deletions. The new charges formulated
appeared as charges (1) and (3) in the second indictment. However, the charges that had been charges
(1) and (3) on the first indictment were omitted from the second indictment, on
account of a misunderstanding which arose between the procurator fiscal depute,
who had dictated the material for the typists, and the typists themselves. Thus, the second indictment came to take the
form that it did. The second element of
error that had entered the situation was in relation to the subsequent checking
process. It was that which the sheriff
summarised in his Report. What had
happened was that the fresh, or second, indictment had been sent back to the
procurator fiscal depute from the typing pool.
He had checked what might be called the new charges, that is to say
charges (1) and (3) of that indictment, but had failed to note the omission
from the second indictment of what had been charges (1) and (3) of the first
indictment. That omission having been
overlooked, there was nothing on the face of the second indictment to suggest
that it was in any way defective. The
error concerned had finally come to light in consequence of the preparation of
a joint minute by the Crown in advance of the trial diet fixed in relation to
the second indictment. The procurator
fiscal depute engaged in that task came to realise that the second indictment possessed
these shortcomings. In consequence of
that realisation, the letter dated 10 January 2008 had been written. That letter had contained a reference to the
possible curing of the problem by amendment, but it was recognised that it was
doubtful whether an amendment of the kind contemplated would have been
competent.
[16] The only
question before the court was whether the error described was excusable. It was submitted by the Advocate depute that
it was. The set of circumstances which
had given rise to it was unusual. The
principal error lay in the defective checking of the terms of the second
indictment, although there had been an error giving rise to the
misunderstanding between the procurator fiscal depute who had dictated the new
charges and the typists responsible for the preparation of the second
indictment.
[17] In reply
counsel for the first named appellant and the solicitor advocate for the third named
appellant observed that the explanation of the errors made by the Crown given
to this court had been much more extensive than the explanation given to the
sheriff, who had simply been informed that a "human error" had given rise to
the difficulty faced by the Crown. Even
so, they maintained their submission that the errors involved were not
excusable. It was a fundamental
requirement that the Crown should ensure that an indictment served by them
contained the charges which they wished to bring to trial. Such a defect as existed here in the second
indictment could not have been cured by amendment in terms of section 96 of the
1995 Act.
The decision
[18] It is clear
that when a court is considering an application by the Crown in terms of
section 65(3) of the 1995 Act, it must apply the two-stage test explained in Swift v Her Majesty's Advocate 1984 J.C. 83 by Lord Justice General Emslie
at page 88. At the time of that
decision, the legislation which was the counterpart of section 65(3) of the
1995 Act was section 101(1) of the Criminal Procedure (Scotland) Act 1975. At page 88, Lord Justice General Emslie said:
"If an extension is to be granted
under proviso (ii) to section 101(1) 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?'
We have only to add that the
provisions of proviso (ii) to section 101(1) are to be contrasted with the provisions
of section 101(3) and (4) (governing the power of the court to extend time
limits prescribed by section 101(2)). In
the case of proviso (ii) an extension may be granted even if there has been
some fault on the part of the prosecutor.
In the case of that proviso 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 extension
to the general rule, and in deciding whether to exercise the discretion in
favour of the Crown."
[19] Although, in
his Report, the sheriff does not refer to Swift
v Her Majesty's Advocate, it is
evident that he was aware of the need to apply the two-stage test just
described. At page 6, he refers to Mallison v Her Majesty's Advocate 1987 S.C.C.R. 820, in which Lord
Justice Clerk Ross refers to that test.
The sheriff also makes reference to Her
Majesty's Advocate v Fitzpatrick
2002 S.C.C.R. 758, in which Lord Justice Clerk Gill also refers to that test.
[20] Although the
sheriff does not clearly separate considerations which might be relevant to the
exercise of the court's discretion from considerations relating to the question
of whether the error was excusable, he goes on at page 7 of the Report to say
that, in his view, the error was a "venial and excusable mistake", using the
language employed by Lord Justice Clerk Gill in Her Majesty's Advocate v Fitzpatrick
in paragraph [13]. However, in so
concluding, the sheriff does not explain in any detail how he came to that
conclusion. In particular, he does not
refer to the approach set forth by Lord Justice Clerk Gill in Early v Her Majesty's Advocate, in paragraphs [26] and [27]. In quoting what the Lord Justice Clerk there
stated, we omit his references to earlier authorities:
"[26] In
the light of an extensive review of the cases on sections 65(3) and its
predecessor, and with the benefit of counsel's submissions, I have come to the
conclusion that it is unhelpful and inappropriate for the court to decide the
question at stage 1 by classifying the Crown error as major or minor. In my view there is no useful yardstick by
which such a distinction can be applied.
It requires the court to make a value judgment of the most uncertain
kind. It leads to the making of fine and
possibly unconvincing distinctions ... and sometimes it leads to surprising
results. For example, a failure by the Crown to specify the locus in a charge has been held to be a
major error (Stenton v HM Advocate), whereas an improper
comment by a prosecutor, made in ignorance of the law, which causes a trial to
be aborted has been held not to be (McCulloch
v HM Advocate).
[27] But
leaving aside these practical difficulties, I consider it wrong in principle
that the question should turn on the single issue of whether the error is major
or minor. In my view, the court should
simply decide the question on a consideration of the whole circumstances, as it
does when the Crown is not at fault. The
degree of gravity of the error is of course a relevant factor, but it is only
one of many: for example, how the error
came to be made; how readily it could
have been avoided; how readily it could
have been detected; the circumstances in
which it came to light; whether the
defence has contributed to the delay in the accused's being brought to trial ...
; whether the defence was aware of the
error and said nothing; whether the
application could have been avoided if the Crown had taken another course ... ,
and so on. In short, the court should take
into account all the circumstances that pertained to the commission of the
error itself and to the subsequent history of the prosecution. On this approach, therefore, the court could
hold that a grave error was excusable or that a lesser error was not."
[21] It is evident
from the sheriff's report that he has not followed this particular approach,
apparently simply concluding that the error was venial, and therefore
excusable. In these circumstances, he
has misdirected himself. To be fair to
him, however, it appears that, perhaps surprisingly the decision in Early v Her Majesty's Advocate was not placed before him by any of the
parties. Moreover, we understand that
the detailed explanation which we have received from the Advocate depute as to
the circumstances of the commission of the Crown's error was simply not put
before him.
[22] Having heard
from the Advocate depute a detailed explanation of how the Crown's problem in
this case came into being and adopting the approach desiderated by Lord Justice
Clerk Gill in Early v Her Majesty's Advocate, we have reached
the conclusion that the reasons advanced by the Crown in seeking to justify the
extension of the relevant time period cannot be regarded as sufficient. We do not consider that those reasons can
justify the grant of an extension. We are
of the view that there were two errors involved in this case. The first was that which led to the
misunderstanding between the procurator fiscal depute, who formulated the new
charges, and the typist, who appeared to conclude that those charges were to be
substituted for certain existing charges in the first indictment, not to be
added to the charges in that indictment.
That is a situation for which we consider that the procurator fiscal
depute involved must be seen as responsible.
However, the consequences of that error could readily have been detected
and cured but for the second and, in our view, more grave error which
thereafter ensued, that is to say, the total failure of the procurator fiscal
depute involved to check the terms of the second indictment effectively. In our view, it is of the greatest importance
that effective steps should be taken by the Crown to ensure that the charges
which appear in an indictment to be served by it do truly reflect the charges
which are to be brought to trial.
Plainly, that did not happen here.
We have also had regard to the issue of how readily this error could
have been avoided. It would not have
been a difficult matter for a proper check to have been carried out on the
terms of the second indictment, to ensure that it contained all the charges
that the Crown wished to bring to trial.
We are particularly surprised that that was not done, having regard to
the background circumstances in this case which led to the conclusion that the
terms of the first indictment were unsatisfactory. We have considered whether, in the
circumstances, those acting for the appellants might have been expected to draw
to the attention of the Crown the error which in fact occurred. We do not think that any real responsibility
can be attached to them in that regard, since, at the earlier stage, they had
been led to believe that the Crown was conducting a full review of the terms of
the indictment. There was nothing in the
situation to suggest to them that the terms of the second indictment did not
reflect properly the outcome of that review.
[23] In all of
these circumstances we shall allow these appeals. Accordingly, we shall recall the interlocutor
of the sheriff, of 21 January 2008, in which he extended the time
limits involved until 15 March 2008.
