Appellant: CM Mitchell; Ward & Co, Perth

Respondent: Prentice QC AD; Crown Agent

21 February 2014

[1] The appellant and a co-accused face charges under section 4(3)(b) of the Misuse of Drugs Act 1971 and section 170(2) of the Customs and Excise Management Act 1979. The alleged offences are said to have occurred in May 2012. The appellant appeared on petition on 1 June 2012. He is currently on bail. He appeals against an extension of the 12 month period until 1 March 2014 granted by Sheriff Fletcher on 16 December 2013.

[2] The procedural history to date is fully set out in the sheriff's report (with two minor corrections in paragraphs 1 and 2, as it was the appellant who sought the adjournments, not the co-accused). Suffice to say that there have been three extensions of time to date: two caused by difficulties with disclosure of telephone records, and one (extending the time bar to 20 December 2013), resulting from intimation to the defence in October 2013 of material potentially supportive of the co-accused's incrimination of the appellant ,and ultimately incrimination of the appellant's partner Leanne Scobie.

[3] At the trial diet on 16 December 2013, with four days to go to the end of the time bar, the appellant's co-accused moved to lodge late productions and witnesses relevant to the incrimination of the appellant's partner Leanne Scobie. The sheriff granted that motion. The appellant then moved for a separation of trials, citing the potential prejudice arising from the incrimination Ms Scobie and the late productions. The sheriff concluded that the appellant did require the protection of a separate trial. He accordingly granted the motion for a separation of trials, and further granted an extension of the time bar until 1 March 2014. The appellant appeals against that extension contending that the Crown could have proceeded against the appellant with a trial in that sitting and that it was unfair and prejudicial to the appellant to extend the time bar further.

[4] As is recognised by both Ms Mitchell and the Advocate depute, the test to be applied in question of extensions of time bar was defined by Lord Justice General Emslie in Her Majesty's Advocate v Swift 1984 JC 83 as follows:

"If an extension is to be granted ... the first question for the judge concerned is ... 'Has 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?'"

[5] It is generally acknowledged that cases involving the exercise of the discretion in terms of section 65 are very fact-sensitive. The bench in Early v Her Majesty's Advocate 2006 SCCR 593 noted, especially in paragraph 27, that the court must consider all the relevant circumstances in coming to a conclusion at the first stage of the Swift test.

[6] The sheriff in his report has specified all the factors that he took into account when considering the first stage of the test. We agree with all the factors and all the points made by him. We would only add that the Crown did not become aware of the information about the East Midlands Airport Operation (the material relevant to incrimination) until October 2013. That information was immediately disclosed to the defence. As a result of that information, the ensuing incrimination of the appellant's partner, Leanne Scobie, and the gathering of witnesses and documents supportive of that incrimination, it became clear to both the appellant's legal advisers and the sheriff that a separation of trials was necessary in order to protect the appellant's position. The separation of trials was duly granted on 16 December 2013.

[7] In our opinion it would be asking too much of the Crown to proceed immediately with the appellant's trial on that date. Issues arose about which order to take the separate trials in. A new indictment required to be printed. The question of which witnesses to call and how to approach matters had to be reconsidered.

[8] We therefore agree with the sheriff that while it was not satisfactory that earlier extensions had caused some delay, it was nevertheless correct to focus upon the true cause of the delay at the end of 2013, and to form the view that sufficient reason had been shown which justified the grant of an extension.

[9] As for the second stage of the test, the sheriff took into account all the events outlined in his report and the fact that there was no suggestion, (and there could be no suggestion) of fault on the part of the Crown in relation to the stage at which information about the East Midlands Airport Operation became available. He concluded, in his discretion, that the extension sought was not unreasonable given the circumstances. In our opinion, the sheriff's exercise of his discretion cannot be criticised.

[10] In the result we are not persuaded that the sheriff erred. The appeal is refused.

Fg