First Complainer:  G. Anderson;  Keegan Smith, Livingstone

Second Complainer:  J. Keenan, Solicitor Advocate;  Graham Walker Solicitors, Glasgow

Third Complainer:  B. Gilfedder, Solicitor Advocate;  Murphy Robb & Sutherland, Glasgow

Fourth Complainer:  Mullan;  Paterson Bell, Edinburgh

Respondent:  Wade, QC, AD;  Crown Agent

16 April 2014

Summary

[1]        The four complainers in the bills of advocation (hereinafter referred to as the appellants) appeared on petition on 12 October 2012 before the Sheriff of Tayside, Central and Fife at Perth along with other co-accused.  The appellants, in separate bills of advocation, made complaint against decisions of the Sheriff at Perth on 3 March 2014, whereby the said sheriff, when the indictment called for trial in the sitting to which it had been appointed, ex proprio motu adjourned the trial diet, and thereafter granted a motion by the procurator fiscal depute for an extension of time in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995. 

[2]        The bill of advocation presented by Harun Akhtur, the first appellant, was in very similar terms to the bills of advocation of the second, third and fourth appellants, namely Nasir Mahmood, Nitin Kuwar and Nadeem Ali.  The answers lodged on behalf of the respondent in respect of each of the bills of advocation were also in very similar terms.  The main differences in the bills related to the charges libelled in respect of each of the appellants and their personal circumstances which were relevant to alleged prejudice suffered by individual appellants. At the conclusion of the hearing, the court intimated its decision that the bills should be passed; but that the reasons for the decision would be given later in writing. This we now do.

Charges libelled in the indictment

[3]        There were seven charges libelled in the indictment.  In respect of each of the charges it was libelled that the offence, in terms of section 29 of the Criminal Justice and Licencing (Scotland) Act 2010, was aggravated by connection with serious organised crime.  Charge 1 which named three of the appellants (Nitin Kuwar was not included)  and others, alleged a fraudulent scheme to obtain money by unlawful means by pretending to be bank officials and inducing an elderly complainer to provide personal and bank details by fraud and using said details to obtain £50,000.95 of money and goods to the value of £9021.31.  The second charge named the aforesaid three appellants and others and libelled the making of purchases with said fraudulently obtained money and converting it into goods contrary to the Proceeds of Crime Act 2002, section 327(1)(c).  None of the appellants were named in respect of the third and fourth charges which related to various fraudulent activities.  The fifth charge concerned a single accused, who appeared only on that charge.  The charge libelled a theft by housebreaking at a date and location peculiar to that charge involving the stealing of bank cards, bank documentation and £400.  The sixth charge did not name any of the appellants and libelled a fraudulent scheme to obtain money.  The seventh charge named only the third appellant, Nitin  Kuwar, and alleged that he conceived a fraudulent scheme to obtain bank details and the use of said details to obtain goods.

History of proceedings

[4]        The sheriff noted that he was not personally involved until the trial diet.  The sheriff recorded from submissions and the court minutes that on 15 August 2013 a first diet:

“…was adjourned until 22 August to allow disclosure to be made.  On 29 August 2013 the trial which had been assigned for 2 September 2013 was discharged and the new trial was fixed for 9 December2013.  At the same time the time limit was extended without objection to 20 December 2013.  There were a number of continued first diets in relation to further disclosure.

[3]  At a continued first diet on 28 November 2013 a motion was made by 4 of the accused namely Nadeem Ali, Nasir Mahmood, Nile Ateem and Jawwad Ali to discharge the trial diet which had been fixed for 2 December 2013.  The motion was opposed on behalf of [Harum Akhtar] and [Nitin Kuwar] with the Crown having no objection.  The motion was granted by the court and the trial was postponed to the sitting commencing 17 February 2014.  At the same time the time bar was extended to 7 March 2014 with no objection being taken by the 4 accused who had applied for the postponement of the trial.  The 2 who had opposed the postponement also opposed the extension. 

[4]  Another first diet took place on 23 January 2014 and the Crown lodged a notice in terms of section 259(5) of the Act and the first diet was continued to 6 February 2014 along with consideration of the notice.  The first diet was continued again until 13 February2014.  On that date the diet was again continued to 20 February 2014 and on that date it was continued to 24 February 2014 which was the second week of the assize which had been fixed for 3 weeks commencing 17 February 2014 for trial.  The diet itself did not call on that date because the Crown were of the view that the 24 February was the start of an original two-week sitting but at some stage in the past the programme was by the clerk to make the assize one of 3 weeks.  Instead the Crown asked for their section 259 application to be called to allow it to be continued and it was continued until 27 February 2014 when it was again continued until 28 February 2014.

[5]  On that date the Crown called the diet of the case and first of all moved that the section 259 application be granted which was done without opposition.  The Crown then informed me that it was their intention to commence the trial the following Tuesday which would be 4 March 2014.  They said they were ready for trial and the accused all agreed that they were also ready to start that day. …” 

[5]        We understand from undisputed submissions before this court that the discharge of the first trial diet fixed for 2 September 2013 was on a Crown motion.  The main reason for this was that the Crown had not yet made full disclosure.  The second trial diet fixed for 7 December 2013 was adjourned on defence motion but we understand that the reason for that motion related to difficulties which the defence had encountered in the continuing absence of full Crown disclosure.  The first and third appellants unsuccessfully opposed the adjournment and the extension of the time bar.  The third trial diet was assigned to an assize commencing 17 February 2014 and programmed in the court diary for a period of three weeks. 

[6]        The charges related to events dating back to May 2011 in respect of which the appellants first appeared on petition on 12 October 2012.  There had been numerous first diets, two discharged trial diets and two extensions of the one year time bar prior to 3 March 2014.

The decisions and interlocutor of the sheriff dated 3 March 2014 which were the subject of the bills of advocation

[7]        By interlocutor dated 3 March 2014, the sheriff ex proprio motu, adjourned the trial to a date outwith the continuing assize which had commenced on 17 February 2014.  The sheriff assigned a first diet for 24 April 2014 and a trial diet commencing 7 May 2014.  The sheriff made said decision despite the opposition of all parties who informed the sheriff that they were ready and prepared to proceed to trial within the still current assize.  Following the said decision of the sheriff to adjourn the trial, on the motion of the depute procurator fiscal, which was opposed on behalf of the appellants, the sheriff further extended the 12 month time bar until 9 May 2014.

[8]        The background to this decision making of the sheriff is set out in detail in his note.  The sheriff explained that, unusually for Perth Sheriff Court, an assize programmed for three weeks was set down to accommodate the trial involving the appellants which was expected to last for up to four weeks.  The expectation was that the Crown would commence the trial on the first day of the assize, that is 17 February 2014, and a one week overrun could have been accommodated.  It was not disputed before this court that the reason the Crown did not commence the case as expected at the commencement of the assize was that the depute procurator fiscal, assigned to conduct the trial, identified an obvious problem in relation to finger print evidence. This related only to the single accused who appeared only on charge 5 (housebreaking).  We were told, the problem was that proof of the charge depended wholly on linking crime scene fingerprint lifts to the accused but the Crown had omitted to obtain and include as productions, on the list appended to the indictment, any admissible evidence of fingerprint impressions from the accused in question.   At the start of the assize, the Crown were therefor not in a position to lead evidence essential to the proof of charge 5.  Although the problem affected only charge 5, the procurator fiscal depute decided to delay commencement of the trial to enable this evidential difficulty to be resolved.  As a result of her decision, various continued first diets were held including a continued first diet on 28 February 2014. 

[9]        On 28 February 2014, the sheriff was informed by the depute procurator fiscal that it was the intention of the Crown to commence the trial on 4 March 2014.  The sheriff was informed that all parties were ready for trial.  By 28 February 2014, both the sheriff clerk and the sheriff were very concerned about the accommodation of future court business in circumstances where it appeared that the lengthy trial would not be started until the third week of the envisaged duration of the assize of 17 February.   The sheriff in his note set out in detail the various difficulties which were faced by the court administration.  He also narrated attempts which had been made to find alternative accommodation within a different court in the sheriffdom.  The administrative difficulties were compounded by a programmed High Court sitting in Perth.  The sheriff explained that:

“…the sheriff clerk examined our programme and found that with considerable rearrangement we would be able to provide a four-week unbroken assize in May 2014.  He had time to move cases and also to rearrange cases to enable that to happen.  In these circumstances I came to the conclusion that I should postpone the trial ex proprio motu to the date in May which had been identified by the clerk and of course when I did so the Crown moved the court to extend the time bar to accommodate it”. 

[10]      In considering whether an extension to the time bar should be granted the sheriff stated that he applied a two-step test.  He considered whether there was a sufficient reason to justify an extension under reference to Gary Rudge v Her Majesty’s Advocate 1989 SCCR 105.  He relied on Rudge in concluding that the pressure on accommodation in the present case was sufficient reason to justify the grant of an extension (paragraph 19 of the note).  The sheriff explained that he then considered that it was necessary to apply the second part of the test set out in HM Advocate v Swift 1984 JC 83.  In considering whether to exercise his discretion to extend the time bar, he considered the conduct of the Crown.  He accepted the submissions of the procurator fiscal depute that there was no fault on the part of the Crown.  He noted that the reason the trial was not started earlier was a lack of proper preparation by the Crown in relation to charge 5.  But as the Crown has the power to commence the case at any time during the sitting, and the procurator fiscal depute was prepared to do that, he concluded that it could not be said that the Crown were at fault.  He was also critical of what he seemed to regard as a defence failure to take reasonable steps to reach an agreement about evidence.  Submissions were made about resultant prejudice to the appellants but the sheriff was unpersuaded by them in exercising his discretion.  In exercising his discretion to grant the motion extending the time bar, the sheriff also took into account that the indictment included serious charges and allegations of a connection with serious organised crime. 

[11]      In conclusion in paragraph 27 of the report in respect of the first appellant, the sheriff stated:

“The case was undoubtedly longer than most cases.  The Crown had indicated a readiness to proceed during the course of the sitting but had been prevented from doing so because of the lack of court accommodation and the fact that other business was already programmed.  The prejudice to the appellant [Harun Akhtar], although important, was not so serious that it required the refusal of the application.  The interests of justice required that the trial should proceed in the public interest.  The extension was to allow a special sitting of the court to be programmed which would allow the trial to be completed.  Any fault on the part of the Crown was at least mitigated by their readiness to start the case within the extended time limit.  For all these reasons I decided to exercise my discretion to extend the time bar”. 

Submissions on behalf of the appellants

[12]      In the course of submissions two issues were raised by the court.  The first issue related to the competency of the sheriff’s decision ex proprio motu to adjourn a trial and remove it from the assize in circumstances where all parties were able and willing to proceed to trial and no motion was made by any party to adjourn.  It was accepted that no consideration had been given to competency in preparing the bills and no submissions about competency had been made to the sheriff. 

[13]      The second issue raised by the court related to the implications, if any, of section 83 of the Criminal Procedure (Scotland) Act 1995.  This section makes provision, in specified circumstances, initiated by the prosecutor, to transfer a case in a trial sitting to a court outwith the sheriffdom.  It was accepted in the present case that consideration had been given by the sheriff to the possibility of a transfer within the sheriffdom.  It was not disputed that no consideration was given by the sheriff or parties to the provisions of section 83 of the 1995 Act either in relation to the present case or in relation to other business which might have been transferred to enable the present case to proceed so late in the sitting.

The first appellant, Harun Akhtar

[14]      Counsel for the first appellant very fairly recognised that the sheriff had been left in an unenviable position in that the delay in starting the trial was likely to create some administrative chaos.  The sheriff had taken the initiative to try to resolve the administrative difficulties caused by the Crown’s insistence on starting the trial diet on 4 March 2014 (the third week of the assize), despite the obvious administrative problems which that caused.  Counsel submitted that it appeared that the “discussion” before the sheriff on 28 February 2014, when the sheriff expressed concerns about administrative difficulties and raised a question about a potential adjournment, appeared to be rather unfocussed.  The sheriff erred in relying on Rudge which was distinguishable.  In Rudge there was a motion by the Crown for extension in circumstances where there was no criticism to be made of the Crown position.  Counsel submitted that there were many circumstances in which extensions of the time bar had been considered and principles discussed as illustrated in Dobbie v HM Advocate 1986 SLT 648 in particular 649B; Early v HM Advocate 2007 JC 50; Warnes v HM Advocate 2001 JC 110 in particular paragraphs 4 and 9; and Nicol v HM Advocate 2012 SLT 915.  The reference to Nicol was to anticipate any response by the Crown, as focussed in answer 9 of their written answers to the bills of advocation.  Counsel submitted that in the present case there had been delay by the procurator fiscal depute in producing a draft joint minute and that no draft joint minute was ever produced prior to 3 March.  The defence were not responsible for delay in the case.

[15]      Counsel submitted that in granting an extension, the sheriff plainly erred in his attempts to apply the two stage test set out in HM Advocate v Swift 1984 JC 83.  The sole reason that the Crown were unable or unwilling to commence the case at the commencement of the trial diet was failure on the part of the Crown to properly prepare their case in respect of charge 5.  All the substantial delay in this case resulted from the acts or omissions of the Crown.  The sheriff failed to give proper effect to this.  In addition, taking into account the real prejudice to the appellant by delaying the case into the period of his university examinations and the general delay in the case, the sheriff plainly erred.

[16]      Counsel acknowledged that he had not previously considered or researched the competency point.   He submitted that there was no clear authority or legislation giving the sheriff the power to adjourn in the circumstances of the present case.

Submissions on behalf of the second, third and fourth appellants

[17]      The submissions by counsel for the first appellant were adopted on behalf of the other appellants.  Points of emphasis and detail relating to individual appellants were raised on behalf of the other appellants.  On behalf of the second appellant it was submitted that the sheriff, as demonstrated in paragraphs 18 – 21, failed to properly apply the two stage test in Swift.  The sheriff erred in his conclusion that there was no fault on the part of the Crown and his conclusion in paragraph 21 could not be justified on the facts.  On behalf of the third appellant, it was submitted that the appellant appeared only on charge 7 and had opposed the adjournment and extension on 28 November 2013.  There was considerable prejudice in that the third appellant was an Indian national who had graduated; he was unable to return home pending the proceedings;  but was precluded under immigration legislation from undertaking any employment to meet his daily living costs, for which he had to rely on remittances from his family.  No new issues were raised on behalf of the fourth appellant.

Submissions by the advocate depute

[18]      The advocate depute submitted, under reference to section 75A of the Criminal Procedure (Scotland) Act 1995 and in particular to section 75A(3) thereof, that the decision of the sheriff to adjourn was competent.  The trial diet had not begun as the jury had not been sworn.  The restriction in section 75A(3)(a) therefore did not apply.  He referred to the inherent power of the court to regulate its own procedure under reference to Bruce v Linton (1861) 23 D. 85.

[19]      The advocate depute sought to support the actions of the procurator fiscal depute.  He submitted that she had identified in the course of her preparation a problem in the evidence which she anticipated she could cure and still bring the case to trial within the assize.  She told the sheriff and parties in advance that she intended to start the trial in the later part of the sitting.  She could not have anticipated that the sheriff would in the third week ex proprio motu adjourn the trial diet.  She did obtain the necessary evidence and was in a position to start the trial timeously and so informed the sheriff.  The advocate depute submitted that although the Crown could be expected to be aware of the pressure of business, the Crown were not the providers of the court accommodation and resources.  The obligation of the Crown was to prepare the evidence and commence the trial within the assize and the procurator fiscal depute was able and willing to fulfil that obligation.  The advocate depute submitted that the sheriff had identified and applied the correct test as set out in Swift.  The sheriff was correct to identify the problem as an accommodation problem rather than a problem caused by the Crown.  In weighing up all the circumstances, the sheriff took into account that there had been some difficulties in the preparation of the Crown case but properly took into account other important factors.  The indictment related to serious charges aggravated by allegations in respect of organised crime and involved an elderly and vulnerable complainer in charge 1.

[20]      The advocate depute accepted that the sheriff had not applied his mind to section 83 of the 1997 Act.  He appeared to accept that this might be interpreted as a failure by the sheriff to take account of a material factor. 

Discussion

[21]      In this case we consider that there may be an issue of the competency of the sheriff’s decision in solemn proceedings to refuse to allow the trial to proceed within the assize, in circumstances where all parties submitted that they wished the trial to proceed and were ready to proceed.  But in circumstances where we were not provided with full and researched submissions about that issue, we approach matters primarily by a consideration of the merits of the case.

[22]      At the outset we  express sympathy with the sheriff and the sheriff clerk in the  serious administrative difficulties for the future organisation of the business programmed for the court in Perth occasioned by the course of the proceedings with which these Bills of Advocation are concerned.  It is of course appreciated that in all good faith, and with genuine concern for the administration of justice, the sheriff with the assistance of his sheriff clerk, did his best to find a resolution to the difficulties which had arisen. 

[23]      But the sheriff’s decision, of his own motion, to adjourn the trial diet to a later sitting on the view that the trial could be accommodated in that later assize, inherently carried with it deprivation of the appellants' time-bar protections to which they are entitled under section 65 of the 1995 Act.  The conduct by the Crown of the  proceedings hitherto was an important factor in the taking of such a decision. While the decision by the sheriff to adjourn the trial diet was the principal decision, that decision carried with it obvious implications and consequential decision making in relation to yet another extension of the time bar.  As we note in paragraphs [5] and [6], the history of this case involved significant delays related to problems with Crown disclosure.  There had been two discharged trial diets and two extensions of the one year time bar.  Special arrangements had been made to arrange a three week assize commencing 17 February 2014 to accommodate the trial of the appellants.  In the course of his submission, the advocate depute emphasised the evidential difficulty faced by the procurator fiscal depute in respect of charge 5 but we consider that her decision making should not be considered in isolation.  The decision making which resulted in the lack of proper preparation of the evidence in respect of charge 5 is the responsibility of the Crown.  It is not appropriate merely to consider the actions of the procurator fiscal depute who identified a deficiency in the Crown evidence.  The Crown must bear responsibility for all the decision making and any deficiencies in preparation.  In any event, accepting that there was a deficiency in the Crown case, the procurator fiscal depute had a number of options available in respect of charge 5.  She could, for example, have decided to proceed at the commencement of the assize with the indictment excluding charge 5  with the offence libelled in charge 5 possibly being proceeded with on a summary complaint.  Charge 5 did not involve any of the appellants and related to an offence which was less serious than the other charges, in particular charges 1 and 2.  We consider that it should have been obvious to the procurator fiscal depute that her decision  to delay starting this trial until four days before the end of the period programmed for the sitting and arranged for this trial, was likely to cause very serious administrative difficulties.  We accept that the Crown was not responsible for the provision of court accommodation and resources but nevertheless the Crown must be taken to have been aware of the effect of their decision making in the circumstances and of the need to bear in mind practicalities and pragmatism.  The sheriff did not give due weight to the history and failures of the Crown when he adjourned the case.  

[24]      The sheriff appears to consider that ultimately the Crown was not to be faulted because the procurator fiscal depute had eventually called the case with a readiness to proceed to trial while the sitting to which it had been appointed had not yet concluded;  and the Crown was entitled to call the case for trial at any point in the assize. That is no doubt correct as generality; and it poses the question whether the judge presiding at an assize has power, of his own motion, to decline to proceed with the trial. If he does not have that power, then clearly the bills required to be passed. The sheriff should have proceeded with the trial, an option plainly open to him even with that power. That would of course cause difficulties for future programmed sittings and the Crown would no doubt be faced with the need to seek extensions of the time-bar provisions in a number of cases, perhaps including cases of much greater seriousness than the housebreaking charge in charge 5 on the indictment in this case. In dealing with such applications, the sheriffs in Perth would, in our view, be well entitled to take into account the fact that the need for such applications was prompted by the sorry history of failure by the Crown in its preparation of this case and the lack of sound, pragmatic judgement on the part of the trial depute dealing with it. Put bluntly, if the trial depute insisted against that history on not proceeding to trial until the concluding days of a sitting programmed specifically for this case the Crown would simply have to bear the adverse "knock on" consequences in other cases affected by the likely disruption of other programmed business.

[25]      The sheriff’s decision ex proprio motu to adjourn the trial diet to the future assize which he, with the help of the sheriff clerk, had identified inevitably incorporated in it a decision that he extend the relevant time-bar.  Without such an extension, the ex proprio motu adjournment would be of no practical consequence. So, in that sense, one arrives at the question, assuming competence to adjourn ex proprio motu, whether an extension of the relevant time limit could be justified.  It may be noted that it appears the sheriff reached, and gave, his decision to adjourn the trial diet without having heard parties on the question of extension of the time bar.  We note the opinion of the Lord Justice General (Emslie) in HM Advocate v Swift at page 1984 in which he emphasised the importance of bringing an accused to trial within the statutory time limit.  Adopting the approach approved by the Lord Justice General, we conclude, contrary to the opinion of the sheriff, that there appears to have  been inexcusable delay and failure on the part of the Crown in light of which, had there been a motion for adjournment and consequent extension of the time bar by the Crown for the reason that to start the trial at this late stage in the assize would cause problems for future programmed business, the sheriff should have concluded that there was no sufficient reason put forward by the procurator fiscal depute to grant an extension of the time bar. Viewed from that perspective, the decision ex proprio motu to adjourn the trial diet is flawed.  In any event, taking into account the whole circumstances including the periods of delay and the particular prejudice suffered by the first and third appellants, the sheriff ought to have exercised his discretion and refused the extension.

[26]      For the reasons given above, we passed each of the bills of advocation, and quashed the decisions contained within the interlocutor of the Sheriff at Perth pronounced on 3 March 2014.