Appellant: G Wade, AD; Crown Agent

Respondent: C Fyffe, solicitor advocate; Paterson Bell, Edinburgh

21^st November 2012

[1] The advocate depute in this case frankly conceded that there had been unreasonable delay. The appellant was charged in September 2010 with two charges of lewd, and libidinous practices involving 15 year old girls. The trial diet eventually took place on 20 August 2012, almost 2 years later. Mr Fyffe pointed out that the offence in the first charge occurred when the complainer was aged 15. That complainer is now aged 22. We note this, as we wish to acknowledge that time has certainly passed in this case. The only issue, therefore, is what the remedy should be.

[2] The appropriate test is set out in Speirs v Ruddy 2008 SCCR 131, Lord Bingham at paras 15, 16 and 17. The sheriff is to be commended for drawing this leading authority to the attention of the lawyers addressing her, as they had not in fact mentioned it.

[3] We were also referred to the dicta of Lord Hamilton in Transco Plc v HM Advocate 2005 SCCR 44, and to guidance contained in the Attorney General's Reference No 2, [2004] 2 AC 72, at page 90.

[4] Against the background of these authorities, while accepting that the matter was one for the sheriff's discretion, we have been persuaded that there were aspects of the sheriff's approach which can be criticised, such that it is our view that she erred in the exercise of her discretion.

[5] First, only in rare and isolated cases should the remedy of a stay of proceedings be resorted to. As Lord Hamilton observed in Transco Plc v HM Advocate, cit sup,

"Only if the appellant can demonstrate that this is one of those rare and isolated cases in which it can be said at this stage that proceeding to jury trial will inevitably result in an infringement of the appellant's right to a fair trial can this court be justified in sustaining the appellant's objection to that course".

[6] Secondly, in our view the sheriff has not applied her mind to the question of any prejudice to the respondent, and whether a direction could remedy matters. At paragraph 25 of her report, the sheriff notes:

"In this case the complainer in charge one, who was 15 at the time of the alleged incident, is now 22. In addition, the complainer in the second charge was also 15 at the time of the alleged offence, and is now 17. The intervening years were obviously important years in the development of both complainers in terms of the growing up process. A delay of almost 2 years, caused by the Crown, would, in my view compromise the ability of any jury to assess the complainers and would therefore jeopardise a fair trial".

The sheriff gave no specification of how, why, and in what respect the fairness of the trial would be jeopardised. To that extent her reasoning is, in our opinion, flawed.

[7] Thirdly, in relation to the sheriff's next sentence in paragraph 25, we consider that a "complete absence of any sense of urgency in dealing with an offence" is not what Lord Bingham had in mind when he referred to a "compelling reason". As was made clear in the case of Attorney General's Reference No. 2, Lord Bingham had in mind cases involving inter alia bad faith, unlawfulness and executive manipulation.

[8] Fourthly, while we agree with the sheriff that the complainers have been growing up since the offences, and that the intervening years were important in their development such that the delay may compromise the ability of the jury to assess their evidence, the sheriff did not address the relevant issue of whether any risk of the trial being jeopardised could be met by a direction (such as is frequently appropriate in historic sexual abuse cases).

[9] Fifthly, in paragraph 26 of her report, the sheriff indicates that she considers that the only remedy available to her would be a discount in sentence, but then seems to reject that option on the ground of possible complications arising from the notification requirements under the Sexual Offences Act 2003. In our view the sheriff would be entitled to restrict any sentence imposed to reflect the delay which has occurred.

[10] In all the circumstances, for the reasons we have given, the appeal is allowed and we remit to the sheriff to proceed as accords.

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