Appellant: J Scott, QC (sol adv); Capital Defence Lawyers (for MTM Defence, Falkirk)

Respondent: Fairley, QC, AD; the Crown Agent

31 October 2012

Background
[1] On 21 September 2011, the appellant appeared on petition at Falkirk Sheriff Court charged with assault to severe injury by throwing a glass at the head of a female at a club in Redding on 6 August 2011. He was also charged with various offences under section 127(1)(a) of the Communications Act 2003. In due course, he was indicted to a trial diet at Alloa Sheriff Court on 25 June 2012. That trial diet, which had been selected at the instance of the Crown, was adjourned on the appellant's motion, because of the recent death of his mother. This had caused the appellant understandable distress and, it was said, he was unfit to stand trial at that time. According to the Sheriff Court minutes, a secondary reason was a lack of funds. The appellant is not eligible for legal aid. It is of importance to note that the Crown was ready to go to trial on the selected date and had unsuccessfully opposed the appellant's motion for an adjournment.

[2] A new diet of trial was fixed for a sitting commencing on Monday, 17 September 2012. This was still within the relevant twelve month period, although, for some unexplained reason, the minutes record an extension of time being granted until Friday, 21 September, that being the expiry date of the original period. On Thursday, 20 September 2012, the Crown applied for a discharge of the trial diet and a necessary consequent extension of the twelve month time limit in terms of section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Crown explained that the appellant's trial had been the "back-up" for the sitting. The trial, which had taken precedence, was one which had originally been indicted for trial in February 2012, and its time bar had been extended in March, May and July 2012. The appellant opposed the Crown motion to extend the time period, and hence to discharge the diet, having regard to the two-stage test in HM Advocate v Swift 1984 JC 83. The appellant made a general complaint to the sheriff about cases from the Falkirk and Stirling areas being regularly indicted into Alloa Sheriff Court for trial when they were approaching the expiry of the twelve month time limit. The contention was that the Crown had failed to show sufficient reason why this diet ought to be discharged and the time bar extended. The failure to prioritise business was not a valid reason for doing so.

[3] The sheriff, who presided over the sitting generally, including the trial which took precedence, reached the view that there had been no "fault" on the part of the Crown, in the sense of any procedural error, mistake or oversight. He considered that the Crown had validly prioritised the trials for the sitting. He accepted that the Crown had had a reasonable expectation that the trial, which had taken precedence, would have finished in time to commence the appellant's trial within the time limit. As it transpired, according to the sheriff, the first case had taken longer than anticipated and that was no longer possible. He determined, applying the second stage of the Swift test, to exercise his discretion in favour of the Crown, given that this was the first application for an extension and the trial had previously been adjourned on the motion of the appellant at a time when the Crown had been ready to proceed. There was also the public interest in allowing the charges to be determined. This was not a situation in which the trial had been indicted "up to the wire".

[4] In his note, the sheriff explains, rather unusually, that, having re- considered the matter and consulted certain judicial dicta, he now thought that he had been in error when applying the first stage of the test in Swift. In particular, he considered that this was a situation which had arisen due to "mere pressure of business" and this could not constitute "cause" in terms of the section (see McGinty v HM Advocate 1984 SCCR 176). There had been no sudden or unforeseen event. Cases did sometimes take longer than anticipated; that was a well-known phenomenon and pressure of business within a sitting did not provide sufficient reason to extend an important statutory limit (Warnes v HM Advocate 2001 JC 110).

Submissions
[5] It was submitted for the appellant, first, that the sheriff had been correct in his re-consideration of the decision. It was accepted, as it was bound to be, that, if the Crown had reasonably anticipated that the trial could have been accommodated in the sitting, sufficient cause would have been shown to pass the first stage of the test in Swift. This would have enabled the sheriff to go on to consider all the circumstances in deciding whether, in the exercise of his discretion, the diet should be discharged and the time limit extended. However, it was contended that what had in fact happened was that, on the Friday before the sitting, the appellant's agent had telephoned the procurator fiscal depute and advised her of his opinion that the trial would take 7 days to complete. Accordingly, this was not a situation in which it could not have been anticipated that difficulties might arise. In this regard, the case was similar to Riaviz v HM Advocate 2003 SCCR 444 (see LJG (Gill) at para [11] following Warnes v HM Advocate (supra)). Skead v HM Advocate 1999 SLT 1357 could be distinguished. It was explained that there had originally been some 5 trials scheduled for the Alloa sitting and the others had also required to be discharged and have time limits extended.

[6] In response, the advocate depute founded upon the fact that the sheriff had been aware of all the circumstances relating to the trial which had been given precedence. Although it was correct to say that the appellant's agent had advised the procurator fiscal depute of his time estimate, the depute had subsequently spoken personally to defence counsel and provided her with her own estimate that the case ought to finish within 4 days. She had asked counsel to state what her (counsel's) estimate might be. Counsel was reported to have unhelpfully stated that she did not know when the case might come to an end. The depute had accordingly proceeded on the basis of her own estimate. She considered that she still had some leeway in that, even if the case had spilled into a fifth day, there would still have been time to call the appellant's case on the Friday and start the trial.

[7] The court required to take into account all the circumstances, even when applying the first-stage test in Swift (Kenmuir v HM Advocate 2012 HCJAC 37). This was clear from Early v HM Advocate 2007 JC 50 (LJC (Gill) at para [7]). The sheriff had been in error in revising his original opinion and holding that this was a discharge sought because of "mere pressure of business". Following, for example, Dobbie v HM Advocate 1986 SCCR 72 (LJG (Emslie) at 76), the procedural history of a case and, in particular, whether there had been any defence motions to adjourn or discharge diets, was highly relevant in determining whether it was appropriate to extend a time limit.

Decision
[8] The court notes immediately that many of the cases determined in this area of concern are fact sensitive. Much depends on the particular circumstances. The court recognises that the starting point is HM Advocate v Swift 1984 JC 83, in which it was said (LJG (Emslie) at 88) that there was a two-stage test to be applied. The court required to ascertain, first, whether a sufficient reason ("cause") had been shown for an extension and, secondly, whether, in all the circumstances, the court should exercise its discretion in favour of the Crown. In Early v HM Advocate 2007 JC 50, it was made clear (LJC (Gill) at para [7]) that, even at the first stage, it was important to take into account all the circumstances. In determining whether the court considers that the reason advanced is sufficient, it can take into account, for example, previous adjournments at the instance of the defence (see ibid at para [6]).

[9] It is of particular significance to note at the outset that the reason why the time bar required to be extended, if the trial diet were to be discharged, was not mere pressure of business. The Crown had indicted the appellant's case for trial in June 2012 and, but for the successful motion from the appellant to adjourn that diet, the trial would have been accommodated easily within the twelve month period. It is important to note also that that motion for an adjournment had been opposed by the Crown, who were ready to proceed at that time. In this respect, the case is distinguishable from those where pressure of business is given as the only reason for an extension.

[10] The term "mere pressure of business" appears in obiter remarks of the Lord Justice General (Emslie), delivering the Opinion of the Court, in McGinty v HM Advocate 1984 SCCR 176. The words should not be read out of their context, which was that:

"Of course it will not do for the Crown to say that there has not been time to serve an indictment to permit a trial to commence within twelve months as the result of mere pressure of business...".

It can be seen immediately that the concern was with the situation where the Crown has not served an indictment in time for a trial to commence within the twelve month time limit. It is a quite different situation when the Crown has, as here, properly indicted the case for trial within the twelve months and the court has, at the instance of the defence, postponed the trial diet to another date (see Kenmuir v HM Advocate [2012] HCJAC 37, Lady Paton, delivering the Opinion of the Court, at para [1]).

[11] At present, the decision, on which alternative sitting of the sheriff court can accommodate an adjourned trial, remains primarily in the hands of the Crown, even if that issue may be capable of judicial supervision, at least if an obvious problem is apparent. In this state of affairs, the court may not be inclined to grant an extension of time if the Crown elect to call the trial at a sitting which, it might have been anticipated, cannot reasonably accommodate it (see the cautionary remarks in Riaviz v HM Advocate 2003 SLT 1110, LJC (Gill) at para [11]). However, in the interests of efficiency, the Crown and the court are entitled to make reasonable predictions on whether a trial can be so accommodated. This inevitably involves the potential for some degree of "double booking". It was, quite correctly, not contended for the appellant that an extension could not be granted where the Crown had acted reasonably in predicting that a trial would be called within the twelve month time limit but circumstances, which could not reasonably have been anticipated, had prevented this from happening. It is plain that such events can provide "cause" for an extension and the sheriff presiding over the sitting is best placed to assess the reasonableness of the Crown's actions (Skead v HM Advocate 1999 SLT 1357, Lord Coulsfield, delivering the Opinion of the Court, at 1359).

[12] The court must normally proceed on the basis of the information provided by the sheriff. He, after all, presided over the trial which had called first. In his report the sheriff states, specifically, that:

"I also accepted that the Crown had a reasonable expectation that the trial which had commenced would finish in time to start the present case - the duration of it having been canvassed with the Crown and defence earlier in the week".

The court takes from that, that the Crown's expectations, in concluding the first case, were entirely reasonable. In these circumstances, the Crown cannot be criticised for scheduling the present case in the manner in which they did, even although, as it transpired, things turned out to be different than anticipated.

[13] The court accordingly considers that the sheriff did err in his re-consideration of the application of the first-stage test in Swift and failed to notice that this was not a case of mere pressure of business. In short, his original decision on the point was correct. The court cannot fault the sheriff's reasoning in determining, in all the circumstances, including the nature of the charges, that an extension was appropriate in the exercise of his discretion at the second stage. Accordingly, this appeal is refused.

DL