Appellant: CM Mitchell; McCusker, McElroy & Gallanagh, Paisley

Respondent: A Brown QC AD; the Crown Agent

28 February 2014

Procedure
[1] The appellant appeared on petition on 10 September 2012, when he was committed for further examination and released on bail. He was indicted, to a first diet on 25 June 2013 and a trial diet on 8 July 2013, on a charge which libelled that:

"on 7 September 2012 at Causeyside Street, Paisley, you ... did assault [MF] ... and did repeatedly kick and punch him on the head and body, seize hold of him and repeatedly stab him on the head and body with a pair of scissors or similar implement, all to his severe injury, permanent disfigurement and to the danger of his life."

At the first diet a special defence of self-defence was tendered by the appellant and notices of cross-incrimination seem to have been lodged. A continued first diet was fixed for 3 July, when all parties seemed to have addressed the court on the basis that the case was ready to proceed to trial on the date assigned.

[2] At the end of the trial sitting, on 22 July 2013, the respondent moved to adjourn the diet because of the absence of an essential Crown witness. The complainer had departed abroad on a pre-arranged holiday without informing the Crown. This was not noticed until the sitting. There was no objection to this application.

[3] This court was advised that it is the practice in Paisley Sheriff Court to set down about 34 cases for a single two week jury sitting before a single judge. This is partly because of an unusually low rate of guilty pleas at first diets in that court. The next sittings were scheduled for August and September, but they already had respectively 33 and 34 cases allocated to them. For that reason, the trial was adjourned to a sitting commencing 1 October 2013, with a first diet on 18 September. There is no suggestion that, when this case was allocated to the October sitting, this sitting was excessively busy, such that a trial in this case could not have been accommodated. Although the adjournment was to delay the trial by three months or thereby, the time bar, which was due to expire in September, was only extended to the end October 2013.

[4] At the first diet on 18 September 2013, it was considered that the trial was likely to proceed on the date assigned. Again, there is no suggestion that, as at that time, there were concerns that a trial could not be accommodated in the October sitting. This is apparently so, albeit that a total of 34 cases were ultimately allocated to it. Exactly when the cases were allocated is not known. Some, of course, would have been re-scheduled by the court at first diets but some would have been fixed at the stage of serving new indictments. By the start of the sitting (which comprised only 9 days because of a public holiday), about 21 cases still required to be resolved. 7 of these cases were "custodies", in which the 110 day time bar (or an extension thereof) fell during the course of the month. 1 of these went to trial and 2 were resolved by pleas. The remaining 4 were all adjourned into a subsequent January sitting with each accused being granted bail. 3 of these adjournments were said to have been because of "evidential" or "witness" difficulties. This left 14 bail cases, 9 of which (including that of the appellant) were time barred in October and 2 more in each of November and December. 2 cases proceeded to trial, 2 were resolved on pleas and 1 after an "evidential hearing".

[5] Of the 2 trials which took place, 1 overran its estimated time significantly. It had been thought that it would take a week but, since it involved historic sexual abuse allegations and deaf witnesses requiring interpretation, it had taken 2 weeks, thus spilling beyond the scheduled end of the sitting. In relation to the remaining October time barred cases, 1 was deserted following a refusal to grant a motion to adjourn. 1 was adjourned into a sitting at Greenock in October and 1 each into the later October and the November Paisley sittings. There were other procedural steps taken in the cases not time barred in November, leaving this case for consideration when it called, along with the many others which had not been finally resolved, on the last day of the sitting (18 October 2013).

[6] The respondent moved to adjourn the trial again, this time until 20 January 2014 "due to pressure of business". The appellant opposed this application on the basis that pressure of business was not, of itself, a good ground for an extension of time bar (McGinty v HM Advocate 1984 SCCR 176 and Warnes v HM Advocate 2001 JC 110). The application to adjourn, it was argued, had simply been a consequence of "twelve months churning by the Crown at Paisley Sheriff Court and that it was a matter for the Executive (sic) to provide resources". The respondent explained that the problem had arisen because the complainer had gone on holiday and the trial had not proceeded, as it could have done, in July.

[7] In granting the respondent's motion, the sheriff noted that this was one of a number of cases in which adjournments were sought. In each case he had regard to the dicta in HM Advocate v Swift 1984 JC 83 and Early v HM Advocate 2007 JC 50. There had undoubtedly been pressure of business which had affected matters, but he did not consider that this was a case in which that pressure alone was the cause of an extension. Rather, the Crown had been thwarted by the complainer not being available at the July sitting. In the circumstances, he considered that there was an explanation offered by the Crown, which was sufficient to justify an extension. He then went on to consider whether he should use his discretion to grant that extension. He did so, having regard to the serious nature of the charge. He also noted that there was a particular reason why the trial could not proceed at the sitting because of the historic sexual abuse trial, which had taken up more time than expected.

Submissions
[8] The submissions broadly reflected those that had been made before the sheriff. The essential contention for the appellant was that there had been no reasonable likelihood that the Crown would have been able to start a trial in this case. The Crown ought to have been able to ascertain the level of business set down for the sitting and taken steps to accommodate the trials accordingly by requesting another court within Paisley Sheriff Court or by transferring cases to another court in the North Strathclyde sheriffdom. The level of business, being beyond the capacity of the sitting, would certainly have been known by the start of that sitting. Pressure of business did not provide a basis for extending the time-limit, since to do so would be to erode the right itself to be brought to trial within 12 months (Warnes v HM Advocate (supra), Lord Philip at para [9]; Riaviz v HM Advocate 2003 SCCR 444). This was not a case in which there was some other reason for an extension beyond pressure of business (cf Mitchell v HM Advocate [2013] HCJAC 30). The obligation remained upon the Crown to ensure that there was space for this particular trial since the defence had no ability to do so or even to find out in advance what space there was. There had clearly been prejudice to the appellant in extending the time limit, thus enabling adjournment of the trial.

[9] The respondent contended that the appellant's assertion before the sheriff that this case had been "churned" was not borne out by the facts. The court had to look at all the various factors "in the round" and, in particular, the need for active case management to ensure the efficient disposal of business. In that exercise there were "certain unknowns". The best person placed to assess the situation was the sheriff (Mitchell v HM Advocate (supra), LJC (Carloway) at para [11]). This had not been a case which had been indicted "up to the wire" nor had it been allocated by the court to an overloaded sitting. The anticipation had been that it would proceed at that sitting.

Decision
[10] It is important to put the various cases on extension of time into an historical context. Many come from an era in which there was substantial concern amongst some judges about the organisation of business by the Crown and Procurator Fiscal Service; in particular about the excessive numbers of cases which were being indicted into a single sitting. Warnes v HM Advocate 2001 JC 110 is an example of this phenomenon, emanating from what was perceived as the overbooking of trials at Edinburgh Sheriff Court. The court rejected this practice as providing an adequate explanation in terms of the first stage of the test in HM Advocate v Swift 1984 JC 83. Lord Philip, delivering the opinion of the court (which included a former Lord Advocate, LJG (Rodger)), emphasised (para [9]) that "pressure of business" was not an adequate basis for permitting an extension. There was some stress put upon the European jurisprudence that "... the Convention places a duty on the Contracting States to organise their legal systems so as to allow the courts to comply with the requirements of Article 6.1, including that of a trial within a 'reasonable time'" (Buchholz v Germany (1981) 3 EHRR 597, at para 51).

[11] Neither in that case nor in this has it been suggested that the Article 6.1 right has been infringed. Nevertheless, by using that analogy, the court in Warnes (supra) stated (para [10]) that there was "an obligation on the Scottish Executive to organise our legal system so as to allow the courts and all the other components in the system to bring cases to trial within the time-limit set down by Parliament". This may have been based upon an optimistic assumption that the Government had limitless financial and other resources with which to achieve that end, which is not, of course, entirely dependent upon financial considerations. It may also be that the court's reasoning in Warnes was influenced by the idea, now discredited, that unreasonable delay in a Convention sense resulted in termination of a prosecution (Spiers v Ruddy 2009 SC (PC) 1, esp. Lord Rodger at paras [25] and [26] overruling the use of the axe rather than the scalpel in R v HM Advocate 2003 SC (PC) 21, Lord Rodger at para [155]).

[12] As chance would have it, it was Lord Philip who thereafter granted the extension in Riaviz v HM Advocate 2003 SCCR 444 on the basis of pressure of business at a High Court sitting in Glasgow. There had been two previous extensions granted respectively upon defence and Crown motions; one being because of the illness of an important witness. An appeal was allowed on the basis that the case could not be distinguished from Warnes; the only reason advanced for seeking an adjournment being pressure of business. The court was clearly expressing its displeasure at 49 cases being set down for a Glasgow High Court circuit, even if that would have involved the use of several courts (see commentary at 2003 SCCR 447).

[13] These cases occurred before the re-organisation of the courts and their administration in the Judiciary and Courts (Scotland) Act 2008, which established (s 60) from 2010 the Scottish Court Service as a corporate body independent of Government with a view to ensuring adequate provision of courts and related services (s 61). The SCS has a majority of judicial members on its board and representation from the solicitors' branch of the legal profession. The Act (s 47) places responsibility for the efficient disposal of business in the sheriff courts firmly in the hands of the sheriffs principal (Sheriff Courts (Scotland) Act 1971 s 15). In relation to the High Court, these cases predated the reforms which took place in consequence of the Bonomy Report ("Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Justiciary"), which have introduced fixed (or floating) trial diets allocated by the court (Criminal Procedure (Scotland) Act 1995 s 72A; as amended by the Criminal Procedure (Amendment) Act 2004 s 1) in place of sittings into which trials would be allocated by the Crown. At the time, it was observed (A Brown's commentary to s 1 in 2004 Current Law Statutes) that it was impossible for one court to deal with up to 20 cases indicted into a sitting of 10 days. This particular reform has undoubtedly had an effect on the practical operation of the time bar in section 65 (cf s 72A(3)). However, in so far as practical matters are concerned, the point is that the responsibility for any practice which involves the excessive overloading of trial sittings rests not with the Government as such and not only with the Crown, but also with the High Court, the judicially led SCS and the sheriffs principal.

[14] There is a peculiarity in a court's refusal of an application for an extension of time, when, for whatever reason, a case simply cannot be accommodated within the time allocated in a particular court. It has as its effect that the Crown, if they are to proceed at all, must then succeed in calling the case for trial in a particular court; even if that court cannot actually, in pure physical terms, deal with the case on the particular day other than in an entirely formal manner (ie by starting the trial and adjourning it to another day). The particular oddity is that, if an application is, on the other hand, granted and reversed on appeal, the opportunity to proceed is entirely lost. This use of appellate powers is, of course, open to this court. In that connection, it is not without significance that there is, unusually, an unrestricted right of appeal from a decision taken upon an extension of time (1995 Act s 65(8)). Nevertheless, it may seem an unduly blunt instrument (see Lord Rodger's axe in R v HM Advocate (supra)), if the intention is really that the court should create what might otherwise be regarded as an injustice in a particular case, in a vain attempt to prompt the Government into allocating more money to either or both of the COPFS and the SCS with a view to expanding the judicial space into which trials can be accommodated.

[15] Be all that as it may, the court has recently explained in Mitchell v HM Advocate [2013] HCJAC 30 (at para [8]) that the cases commonly cited in this area of procedure are fact sensitive. Although the proposition that an extension ought not to be granted solely on the basis of "pressure of business" is often quoted, its fons et origo and true context can be found in McGinty v HM Advocate 1984 SCCR 176. The Lord Justice General (Emslie)'s remarks (at 180) were specifically related to the timeous service of an indictment in order to enable a trial to commence within the 12 month period. That is a matter almost exclusively the responsibility of the Crown. It is the central feature of the protection in section 65 in that there is an obligation on the Crown to ensure that their processes are sufficient to ensure that a trial can be commenced within the 12 month limit. That was achieved in this case and it has not been disputed that the trial fixed for 8 July 2013 could have proceeded but for the complainer's absence from the country.

[16] When an initial trial diet selected by the Crown is lost, for whatever reason, the process comes, at least in large part, under judicial control. The Crown has achieved its primary goal, but, once the trial diet fails, it is for the court to determine, in the interests of justice, what is to happen with the case so far as a further diet is concerned; even if, at present, in practical terms, the Crown's input may be almost determinative in sheriff court proceedings given its knowledge of the cases which have not yet called in court but have already been allocated to particular trial sittings (cf. Criminal Justice (Scotland) Bill (SP Bill 35) s 67, (as introduced) amending prospectively the 1995 Act). There can be no reasonable expectation of a new diet in the immediate future, given the proper allocation of other trials to proximate sittings.

[17] The loading of sittings is essentially an art and not a science. Much will depend upon the particular circumstances applying in the local court; notably the incidence and timing of pleas of guilty. As was said in Mitchell (supra, para [11]), if it were demonstrated that a trial had been placed into a sitting at which there was no reasonable expectation that it would take place, the court may be inclined to refuse an application for an extension of time which was required only because the trial could not take place in that sitting because of the anticipated level of business. However, that is not alleged here. There is no contention that, when the case was allocated at the original trial diet in July for trial at the October sitting, it was anticipated that it would not take place. It did not take place because of a combination of factors, including the unexpected overrunning of another trial.

[18] Once again, as was said in Mitchell (supra), where contentions surround issues about the programming of business, this court will place great weight on the views of the local sheriff, who is far better placed to assess whether there is such a systemic failure in his sheriffdom as might prompt the use of Lord Rodger's axe (supra). Although this court must, and does, express its concern that the practice in Paisley Sheriff Court appears to be to indict 34 cases for a 2 week sitting before a single sheriff, it is not in a position to say that such a practice in entirely unreasonable in the absence of a view to that effect from those presiding in that court. In any event, it is entirely content that, in the particular circumstances of this case, the sheriff, with his knowledge of the sitting and what had occurred at the original trial diet, properly exercised his judgment to the effect that the first stage of the test in HM Advocate v Swift 1984 JC 83 had been met, in that there had been sufficient reason ("cause") shown for an extension. It was not argued that he was not then entitled, in the exercise of his discretion, to grant an adjournment in terms of the second stage.

[19] The appeal is accordingly refused. It remains for the court to observe that the appeal against the sheriff's decision on 18 October 2013 was not marked until a Note lodged on 8 January 2014. This was one day after a continued first diet on the previous day. The effect of the appeal was to postpone the trial diet fixed for later that month and, by virtue of that, prompted another extension of the time limit pending determination of the appeal. It would seem appropriate that the Government be asked to consider the introduction of a time limit for such appeals in order to avoid such an unfortunate situation recurring.