First Appellant: Collins, Sol Ad; Capital Defence, Edinburgh

Second Appellant: Gilfedder, Sol Ad; Paterson Bell, Edinburgh

Respondent: Prentice Sol Ad QC AD; Crown Agent

3 October 2013

[1] In this case, the sheriff granted an extension of time for the prosecution of the appellants on indictment in respect of charges of having committed an assault to the severe injury and permanent impairment of the complainer.

[2] The assault was alleged to have been committed on 26 May 2012. The appellants first appeared on petition on 28 May 2012. They were fully committed on 4 June 2012. A first diet was fixed for 18 March 2013 and a trial diet fixed for 25 March 2013. That trial diet was adjourned on an unopposed Crown motion, to the assize commencing on 13 May 2013. However, the trial diet was adjourned again on 29 April, on the motion of the first accused, also unopposed, to the assize commencing on 23 July 2013. On that date, the 12 month time bar was extended to 2 August 2013.

[3] At the start of that assize in July, an assize which was already curtailed by one day by reason of there being a Monday public holiday, the Crown were further hampered by (a) a trial from the previous assize overrunning and (b) not being able to empanel jurors for a trial in the case of George Kerr, programmed to commence on the second day of that assize. That was due to many potential jurors having to be excused because as it transpired that they knew the accused. The Crown could not have foreseen that difficulty. A fresh batch of jurors was cited and the Kerr trial started on day 3 of the assize, Thursday 25 July. Had it been able to start on 24 July 2013 the sheriff's assessment of what would have been the outcome of events during the assize was that the trial in the present case would have been able to commence.

[4] 2 August was the final day of the assize. The Crown moved to adjourn the trial diet and extend the 12 month time bar to 30 August. That motion was granted by the sheriff. He explains his reasons for doing so at pages 3 to 4 of his report. In particular, he had regard to the position of the appellants and their interests in relation to the statutory protection against delay in trials. He had regard to the fact that there had been no defence opposition to the two early adjournments. He had regard to the fact that the Crown could not have foreseen the difficulty that arose with the Kerr trial. He had regard to the fact that the Crown were proposing to put this trial into the sitting commencing on 19 August; the delay that would then ensue would, accordingly, not be a significant one. He also had regard to the seriousness of the charge. All these were, plainly, relevant factors.

[5] Before us today, for the first appellant, Mr Gilfedder submitted that, given that the overrun trial and the Kerr trial had time bar problems there had, put shortly, been inappropriate management of this sitting by the Crown. Whilst he accepted that, when the first adjournment was granted unopposed, the first appellant must have appreciated that his prospects of trial within the relevant 12 month period had all but disappeared, when it got to the July sitting the Crown were to be criticised for not having managed matters so as to start this trial during it. The indictment should have been called earlier in the sitting. There were problems with Crown witnesses who were, he said, in fact not available on 2 August. He did however accept that the sheriff was not told anything about any problem with Crown witnesses. Overall the Crown had not shown cause for an extension. If they had done the sheriff had erred in granting it, particularly given this was the second extension of the time bar.

[6] For the second appellant, Mr Collins pointed to this being a nine day assize. The overrunning trial had concluded on the first day. The Kerr trial could not start because of the jury problem but it started on the Thursday. It ran to 29 July. A case called Brown had started on 30^th July and concluded on the following day. A case called Boyle began on 1 August. Two days had been lost during the assize but it was difficult to see that, contrary to what was suggested by the sheriff, if the Kerr case had proceeded without the jury difficulty, this trial could have commenced within the sitting. The sheriff had erred in referring, as he does at page 3 of his report, to the appellants having a statutory protection against undue delay. It was not a matter of undue delay, it was simply a matter of them being entitled to the statutory protection provided in section 65 of the 1995 Act. The sheriff had misdirected himself as to the appropriate test. If matters were looked at afresh then the Crown's problem with witnesses ought also to be taken into account and the outcome ought to be that the extension should not be granted.

[7] For the Crown, the advocate depute submitted that the appellant's argument would have more force if the Crown had indicted this case late, but that is not what happened. The Crown had offered to proceed to trial on 13 May 2013 but a motion was made on that date on behalf of the first appellant to adjourn. The Crown had accordingly found itself in the invidious position whereby three trials had to be started in the assize which began on 23 July. The Crown had no choice in the matter. The cases in the July sitting included the Kerr case with which there was the jury problem. It also included the Boyle case referred to; it had had child witness difficulties in respect that three of them had initially failed to appear. There was also the case of Brown and the present case. However, the cases due to proceed in the assize were all short ones. The overall management of it was reasonable. There would not have been difficulties if the problems with the Kerr jurors and the child witness problems had not arisen. The sheriff had required to be satisfied cause had been shown for granting the extension. He had been shown cause. He took account of the relevant factors and his decision was not unreasonable. The advocate depute referred to the case of Skedd & Cunningham v HM Advocate 1999 SCCT 669. In the present case, the sheriff was aware of the particular difficulties that had arisen and it could not be said he was not entitled to reach the decision that he did.

[8] Any submissions made relating to Crown witness problems should be disregarded. They were not matters that were before the sheriff. In response to a subsequent defence inquiry, the Crown had answered fully and frankly regarding the matter. However, there were other considerations that were relevant, such as that the key witnesses were friends of the accused and there were always going to be some difficulties in relation to them.

[9] We have given careful consideration to the submissions made but in all the circumstances we are not satisfied that any criticism can be made of the sheriff's decision here. In the case of Paterson v Procurator Fiscal Airdrie 2012 HCJAC 61, the court observed that decisions on whether or not it is in the interests of justice to grant an adjournment of a trial diet are ones which are very much for the court of first instance having regard to all the circumstances, including those that pertain to the particular court. The same goes, we consider, for a sheriff's assessment of whether cause has been shown for the granting of an extension of the time bar: Criminal Procedure (Scotland) Act 1995 Sec 65. Here, as could be expected, the local court made its assessment on the basis of its local knowledge of whether there had been an inexcusable failure on the part of the Crown or some systemic failure in deciding whether cause had been shown. The sheriff did not misdirect himself in law; we do not accept that his reference to protection against undue delay can be read as him having misunderstood the nature of the appellants' interests. Then, when exercising his discretion, he had regard to relevant factors and did not have regard to irrelevant ones. He did not reach a decision which no reasonable sheriff of first instance could have reached; indeed, his decision was entirely understandable given the circumstances which had arisen. It is plainly not open to this court to interfere with his decision and the appeal is accordingly refused.

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