Appellant: Wallace, Sol Adv; Lavery Smith & Co, Glasgow

Respondent: G Wade, AD; Crown Agent

1^st May 2013

[1] In HMA v Swift 1984 JC 83, Lord Justice General Emslie defined the two stage test as follows:

"If an extension is to be granted under [the precursor of section 65 of the Criminal Procedure (Scotland) Act 1995], the first question for the judge concerned is ..... 'Has a sufficient reason been shown which might justify the grant of an extension?" and 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?'."

[2] Mr Wallace for the appellant was content to focus on the first stage only. The history of the case is clearly set out in the sheriff's report and we will not rehearse it here.

[3] In our view the period which is under scrutiny is that between 15 November 2012 and 4 March 2013 when a sitting began. During that period the Crown relied upon information obtained from the complainer. That information suggested that Crown witness no 2 (who was in the United States of America) would return to Scotland in time for the trial during the sitting. In fact he did not return, and on 15 March 2013 the case called and the sheriff granted a further extension to 10 May 2013. It is that decision which is appealed against today.

[4] We were advised by the advocate depute that Crown witness no 2 in fact returned home to Scotland in early April 2013, and is available for a trial within the next few days.

[5] In all the circumstances we are satisfied that sufficient reason has been shown which might justify the grant of an extension. We find ourselves unable to say that the sheriff erred in his approach to stage one, and the appeal is refused.

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