Act: Jackson QC; John Pryde & Co (for Sweeney & Co, Glasgow)

Alt: Erroch AD, the Crown Agent

21 January 2014

[1] This is an application, lodged on 12 December 2013, for an extension of time to lodge a Bill of Suspension challenging the grant of a vulnerable witness application (VWA) on 22 June 2010. If that circumstance has an air of familiarity, it is because this matter has already been litigated in AMI v Dunn 2013 JC 82.

Initial Sheriff Court Proceedings
[2] At the risk of unnecessary repetition, the applicant has been charged on a summary complaint at Glasgow Sheriff Court with a contravention of section 171(1)(b) of the Communications Act 2003 by sending naked images of his two 10 year old daughters to two adult complainers via Facebook on 8 May 2010. He first appeared at a pleading diet on 24 May 2010, when a somewhat optimistic trial diet of 8 July 2010 and an intermediate diet of 23 June 2010 were fixed.

[3] On 17 June 2010, the respondent made the VWA to the sheriff in terms of section 271C of the Criminal Procedure (Scotland) Act 1995. A certificate, confirming that timeous intimation had been made to the applicant's agent by recorded delivery on that date, is lodged in process. The VWA narrated that the two complainers were afraid of the applicant, had been deeply affected by the incident and suffered from post traumatic stress disorder and chronic fatigue. In each case it was said that there was a significant risk of the quality of their evidence being diminished if special measures were not used. The measures proposed were a live television link and a supporter. The VWA was supported by a letter from a general medical practitioner. On 22 June 2010 the sheriff considered the applications in chambers and granted them.

[4] The applicant lodged a devolution issue minute complaining that he had been denied the opportunity to make representations about the VWA. The minute protested that the complainers were not vulnerable and did not require special measures. The basis for this was said to be the content of certain photographs. In its amended form, the minute sought a "declaration" that the VWA provisions in the 1995 were incompatible with Article 6 of the European Convention because the applicant could not make representations about the VWA in advance of the application being granted. It was averred that this very fact rendered any trial unfair and that the respondent ought not to be allowed to adduce the testimony of the particular witnesses in this case. The minute came before a different sheriff who "refused" it. He offered the parties an opportunity to make submissions on the merits of the measures. This opportunity was declined. The applicant appealed to this court, with leave granted on 5 December 2011, under section 174 of the Criminal Procedure (Scotland) Act 1995. Meantime, a further trial diet had been fixed for 6 March 2012.

The Appeal to the High Court
[5] The appeal was heard on 23 March 2012. It was refused on 7 September 2012. The majority view was that there was no breach of Article 6 since an accused person could make representations to the sheriff in writing prior to the grant of the application (Lady Paton at para [37]) and, in any event, could seek a review of the grant by either using the statutory procedure for doing so (s 271D) or by presenting a plea based upon Article 6 unfairness (ibid para [39]). It is important to note that, despite the terms of the original devolution issue minute, it was not contended before the sheriff that the decision to grant the VWA had been incorrect (ibid para [18]) nor was it maintained before the High Court that the special measures authorised gave rise to any significant risk of prejudice to the fairness of a trial (ibid para [44]). It was for these reasons that Lord Carloway adopted the view of the advocate depute that the challenge to the legislation had been brought in an "academic vacuum".

[6] The position as at the date of the High Court's decision was that the applicant's challenge to the VWA, which had originally included matters relative to the merits of the grant later expressly departed from, had failed and the sheriff's decision had been upheld on appeal.

Further Sheriff Court Proceedings
[7] There had been various diets at the Sheriff Court continuing the cause pending the decision of the High Court, but eventually a notional trial diet was fixed on 8 October 2012. At that diet, it might have been expected that the case would have made some progress towards trial standing that all preliminary issues ought to have been resolved by then. However, regrettably, that is not what happened. Instead, another devolution issue minute was lodged by the applicant. This minute avers that:

"(g) The minuter's contention, within his minute of devolution issue, that he had the right to make submissions within an adversarial context at the time of the crown application of 17 June 2010 was upheld".

That this statement is a gross distortion, of what the applicant contended in his minute and what the judgment of the court actually was, is an understatement. No such submission had been made. Rather, the complaint had been that he had no such right and that this had resulted in a breach of his Article 6 right. However, that apart, the new minute, dated 8 October 2012, like its predecessor, did not seek any competent remedy within the process, such as a plea in bar of trial. Nevertheless, a "diet of Debate" was fixed for 7 November "in respect of the devolution minute". That was continued until 28 November "for Crown to further consider issues raised" and then to 11 December to allow an application for legal aid sanction for senior counsel to be considered. It was then continued again until 20 December to suit the diary of counsel.

[8] A second devolution minute had been lodged on 11 December. This was in very similar terms to the one already lodged but which, this time, asked the court:

"(c) To hold that to call the complaint for trial ... would be ... incompatible with the [applicant's] Convention rights to a fair trial and accordingly ultra vires".

This is precisely what the sheriff and the High Court had declined to do in relation to the original minute, which had contended that:

"(XVIII) To continue the Indictment (sic) for trial would be ... incompatible with [the applicant's] Convention rights and accordingly ultra vires".

[9] On 16 January 2013 the sheriff "refused" the first of the new minutes, refused leave to appeal, appointed a diet of 13 March 2013 as a section 271D review hearing and continued consideration of the second new minute (there may have been a third by this time). This diet was continued to 8 May to allow up to date medical evidence to be obtained and "for the crown to investigate the issues raised by the defence". It was continued again until 5 June "for the Crown to obtain medical reports for their witnesses and for further enquiries to be made". On that date it was continued once more for the same reason until a diet of debate fixed for 11 December 2013. However, an intermediate diet was fixed for 26 June, then 28 August and then 10 September, by which time the respondent had produced a medical report.

[10] On 10 September 2013 the sheriff "refused" "the review in respect of special measures" and assigned yet a further diet of debate on the devolution issue minute for 16 October. When that diet called, the applicant appears to have advised the sheriff that he had lodged a Bill of Advocation with the High Court and the diet was continued to await the "outcome" of this Bill until 13 November 2013.

The Bills of Advocation and Suspension
[11] The Bill sought to advocate the sheriff's decision of 10 September. The Bill repeated (para 6) the erroneous contention that the court had upheld a submission from the applicant that he had a right to make submissions prior to the grant of special measures. It averred (para 8) that the decision in AMI v Dunn (supra) had been wrong because of some perceived shift in onus. This Bill was regarded as so devoid of merit that, on 15 October 2013, a single judge refused to grant a warrant for its service on the basis that:

"This matter has been litigated ... and the legislation found to be Convention compliant. It was not then argued that the initial decision to authorise special measures was wrong. It is not now argued that that decision was wrong".

[12] This decision was intimated to the applicant on 18 October. Meantime the diet in the sheriff court of 13 November had been continued until 11 December, when an intermediate diet was fixed for 12 February and a trial for 26 February 2014. There matters rest in the sheriff court.

[13] On 11 December 2013, the applicant lodged a Bill of Suspension purporting to challenge the original grant of special measures more than three years previously on 22 June 2010. This correctly states that the High Court in AMI (supra) determined that an accused could seek to oppose a VWA prior to its grant. This time, however, what is averred is that, whereas section 271C(11) of the 1995 Act required the respondent to intimate the VWA to the applicant at the time of the application to the sheriff, the respondent had failed to do so. This, of course, flies in the face of the certificate to the opposite effect (supra). It says that had this been done, the applicant would have had the opportunity to oppose the grant and (para 8) would have done so. It is said (para 9) that the witnesses are not vulnerable and that, if the witnesses were to give evidence by live television link then there would be a risk of prejudice to the fairness of the trial.

Decision
[14] Section 191A(1)(b) and (2) of the 1995 Act provides, amongst other things, that, where a party wishes to appeal any decision in a summary prosecution by Bill of Suspension, he must do so within 3 weeks of the date of the decision. This was brought into force on 30 October 2010, after the grant of the special measures, but a 3 week limit still applies but dating from the coming into force of the provision (Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010, s 6(2)). The High Court may, in terms of section 191A(3) extend the time limit. There is a requirement that the applicant states the reason for the lateness and the proposed ground of appeal. Thus it is that the court will only grant an application for a late Bill if it is satisfied that: (1) there is an excusable reason for the failure to comply with the time limit; and (2) the Bill contains a ground of appeal with some substantial merit.

[15] In this case, there is, first, no adequate explanation for the lateness of the Bill. If the applicant had considered that the VWA was vitiated by virtue of the lack of proper intimation, he ought to have presented any Bill as soon as reasonably practicable after he became aware of the grant of the VWA. He did not do so, but elected instead to maintain that it was that very grant that potentially vitiated the fairness of the trial proceedings. No adequate reason for failing to present a Bill has been advanced. Indeed no reason at all has been given apart from "the intervening procedures" (see agents letter of 10 December 2013). None of these procedures had any bearing on the taking of this point. The application is refused for that reason alone (see also competency, infra).

[16] Secondly, there is no apparent merit in the Bill. There is copy certification that the VWA was timeously intimated to the applicant's agent by recorded delivery on 17 June 2010. No material has been presented (eg an affidavit from the agent) that no intimation was received. Had there been no intimation, the court would have expected that matter to have been raised in limine at the time of the initial protest about the grant, when the first devolution issue minute was lodged.

[17] In addition, the validity of the special measures granted has already been challenged by way of an appeal to the High Court. The applicant was given leave to appeal the sheriff's decision and he took advantage of that leave to challenge that grant. The challenge failed. In these circumstances, the court does not consider it appropriate to afford the applicant a further, and belated, opportunity to challenge the VWA on a ground omitted at the earlier stage.

[18] It would not be appropriate for the court to let matters rest without making clear its disquiet about the prolonged procedure which has dogged this case. This is a summary complaint containing a single charge. At least from the point at which the case was returned to the sheriff court on 7 September 2012, it ought to have been expedited to a trial diet, given the time that had already elapsed since the first (pleading) diet in May 2010. This did not occur and the case has meandered through a succession of intermediate diets at which very little, if anything, of practical value has been achieved. It is imperative that this case be concluded, at least at trial level, before the fourth anniversary of its inception. Both the parties and the court ought to strive to see that this is achieved with no more unnecessary delay.

[19] In summary proceedings, notwithstanding the pressures of business which may apply in a busy court, the focus must be on proceeding to trial with such expedition as is consistent with the interest of justice. The trial ought to take place within months and certainly not, as here, years after the first (pleading) diet. If an accused person wishes to contend that his trial will inevitably involve unfairness, he ought to tender a plea-in-bar of trial (with any accompanying compatibility (previously devolution) issue minute) at the first (pleading) diet (1995 Act, s 144(4)) or, at least in the case of a compatibility issue, with leave before any intermediate diet (ibid s 144(5), Act of Adjournal (Criminal Procedure Rules) 1996 rule 40.3). Where a plea-in-bar is timeously raised or allowed to be raised on cause shown (s 144(5)), any disappointed party may apply to the court for leave to appeal (s 174) within 7 days of the decision. If leave is not given, that ought to signal the end of the matter in the sheriff court, although the issue may be raised at the conclusion of the proceedings, usually by an application for a stated case (s 175).

[20] Procedure by way of Bills of Advocation and Suspension is not intended to circumvent the necessity of obtaining leave to appeal. In particular, a Bill of Suspension is not a procedure which is competent to challenge decisions (such as the one under consideration) taken in the course of summary proceedings (Morton v McLeod 1981 SCCR 159). That is precisely what the applicant seeks to do here. Suspension as a mode of review is competent only after the conclusion of the trial (ibid, Lord Cameron at 164; Durant v Lockhart 1985 SCCR 72). Quantum valeat, a Bill of Advocation is also not a competent remedy either to review decisions made pendente processu other than in very special circumstances (Muir v Hart (1912) 6 Adam 601) which are not present here.

[21] If the proper practice and procedure is adhered to, delays, such as those which have permeated this case since its inception, should simply not occur. If, ultimately, the applicant is convicted and he maintains that there was unfairness in the sheriff seeing and hearing the witnesses, or some of them, by live video link rather than in the witness box, he may seek to raise that matter in an application for a stated case and the court can decide whether to grant leave to appeal on that issue having duly considered the sheriff's report on what actually happened at trial.