Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 121

HCA/2014-3706/XC

Lord Bracadale

Lady Clark of Calton

Lord Wheatley

OPINION OF THE COURT

delivered by LORD BRACADALE

in an Appeal under section 65 of the Criminal Procedure (Scotland) Act 1995

by

JOHN MACDONALD

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Dempsey, Sol Ad; Capital Defence, Edinburgh (for Graham Walker Defence Lawyers, Glasgow)

Respondent:  Bain AD; Crown Agent

14 October 2014

Introduction

[1]        The appellant was indicted at the Sheriff Court at Glasgow on a charge of assault to injury and danger of life.  On 15 august 2014 the sheriff granted a Crown motion to adjourn the trial of the appellant to 10 November 2014 and extend the twelve month time bar in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act).  This appeal is taken against the decision to extend the twelve month time bar.  On 14 October 2014 we refused the appeal stating that we would give written reasons, which we now do.

Procedural history

[2]        It is necessary to set out the procedural history of the case in some detail. 

[3]        On 1 August 2013 the appellant appeared on petition at the Sheriff Court at Glasgow.  He was committed for further examination and granted bail. 

[4]        The appellant was initially indicted for trial on 10 February 2014 with a first diet on 22 January 2014.  At the sitting in February 2014 the case was not called due to lack of court time and the indictment fell.  A second indictment was served on the appellant indicting him for trial on 19 May 2014 with a first diet on 30 April 2014. 

[5]        There was a background of ill-health on the part of the complainer.  As early as 22 August 2013 the case was allocated to Victim Information and Advice (VIA) because of information that the complainer had a severe degenerative disorder and was disabled.  At the end of August 2013 the complainer left Scotland and could not be contacted.  Between then and February 2014 attempts to trace the complainer failed.  On 3 February 2014 she telephoned the procurator fiscal’s office giving an address in Liverpool.  She advised the procurator fiscal that she was unable to return to Glasgow because of her condition.  She suffered from spondylosis;  she was unable to travel alone and had no one with whom she could travel.  The representative from VIA discussed with her the possibility of using special measures.  The possibility of taking her evidence by live television link was mooted.  Thereafter there were discussions between the procurator fiscal’s office and the courts in Liverpool with a view to making arrangements for a live television link.  These discussions pre-dated the trial diet on the first indictment and continued thereafter. 

[6]        The first diet on 30 April 2014 was continued to 13 May 2014.  On 13 May 2014 the Crown moved to adjourn the trial as they wished to make an application to have the evidence of the complainer taken by live television link.  The trial was adjourned to 23 June 2014 with a first diet on 3 June.  On 16 May 2014 a vulnerable witness application allowing the complainer to give evidence by live television link was granted by the sheriff. 

[7]        On 2 June 2014 arrangements were put in place to use live television link at Liverpool Crown Court after 2pm on 25 June 2014.  Because the complainer was giving evidence by live television link the issue of identification required to be addressed.  Although, as the alleged assault was in a domestic context and the appellant had lodged a special defence of self-defence, there appeared to be no issue about identification, the defence were not prepared to agree that evidence.  In the absence of agreement the Crown sought an order under section 267B of the 1995 Act for an identification parade to be held.  As it would not be possible to conduct the parade prior to the sitting the Crown moved to adjourn the case to a trial diet on 4 August 2014 with a first diet on 16 July.  This necessitated a motion to extend the 12 month time bar to 15 August 2014.  This extension, which was the first sought, was not opposed.  On 3 July 2014 a video identification parade was carried out in Liverpool in the course of which the complainer positively identified the appellant. 

[8]        On 7 July 2014 the procurator fiscal arranged with Liverpool Crown Court to use the live television link on 7 August 2014.  On 4 August 2014 the Crown were advised by Liverpool Crown Court that the arrangement could only be accommodated from 9.30 for 45 minutes.  Subsequently the Crown were advised that it would be possible to accommodate the case on Monday 11 August 2014.  On Friday 8 August 2014 the Crown were advised that a new telephone system which had been installed at Liverpool Crown Court had knocked out the ISDN link and the live television link was not working.  As it was thought unlikely that it would be rectified by 11 August the complainer was asked whether it might be possible for her to attend court in person in Glasgow.  She was unable to do so.  The difficulties with the live television link continued until 15 August when it was confirmed that the fault was not capable of being rectified in the near future. 

[9]        On 15 August 2014 the Crown moved to adjourn the trial to 10 November 2014 with a first diet on 25 September.  The sheriff extended the twelve month time bar to 21 November 2014.  That decision is the subject of this appeal.

The sheriff’s decision

[10]      In his report the sheriff states that he applied the two-stage test set out in HM Advocate v Swift 1985 SCCR 216 at 226.  He recognised that the appellant was entitled to the protection afforded by statute and that any extension of the time bar had to be for a sufficient reason.  He took the view that the Crown had been frustrated by technical issues at Liverpool Crown Court which could not reasonably have been envisaged.  The sheriff was persuaded that the Crown had advanced a sufficient reason to justify the motion to adjourn and extend the time bar.  The case was otherwise ready to proceed to trial.  He noted that the charge was a serious one.  No prejudice to the appellant had been advanced.  The sheriff decided to exercise his discretion at the second stage by granting the extension. 

Submissions

Appellant

[11]      Before us it was argued that the approach of the sheriff was an over-simplification.  The Crown had taken no steps to ensure that the live television link was working beforehand and during the week after the problem had arisen had done little to resolve the matter.  The Crown should have tested the system in advance.  They should have ensured that the Liverpool facility was available for the first week.  They should have taken steps to resolve the issue once the situation arose.  The possibility of using another venue should have been explored.  Instead, what the Crown did was to present the court with a fait accompli by making a motion on the last day of the sitting.  This was against a background of previous delays.  There was insufficient reason to justify the grant of the extension.  The sheriff erred in exercising his discretion.  The extension was a lengthy one to November which meant an extension of over three months to a date about sixteen months from the date of the alleged offence.

Crown  

[12]      The advocate depute acknowledged that at the February 2014 sitting the case had not called due to lack of time.  In addition, she accepted that it had been re-indicted prior to the way in which the complainer was to give evidence being resolved.  However, the case could have proceeded to trial in June 2014 if the defence had been prepared to agree the evidence of identification.  Had that happened, no extension would have been required.  The problem that arose in the August sitting could not have been foreseen.  Prior to the sitting the Crown had checked that the system was working.  The installation of the new telephone lines constituted a new and unforeseeable event.  Sufficient reason had been advanced to justify an extension.  As to the exercise of discretion, the charge was a serious one;  the length of time of the extension was not unreasonable;  there was uncertainty about resolving the difficulties. 

Discussion and decision

[13]      In relation to the first stage of the test we have to consider whether the Crown had shown a reason which might justify the extension (Swift (supra)).  We are not persuaded that there was fault on the part of the Crown in relation to the arrangements for taking the evidence of the complainer by live television link from Liverpool in August.  We must therefore determine the issue by a consideration of the whole circumstances (Early v HM Advocate 2006 SCCR 583).  We note that the case was indicted well within the 12 month time limit.  There were clearly difficulties in relation to the ability of the complainer to give evidence in the case.  The Crown were undoubtedly slow in dealing with that aspect of the case and it was not until 16 May 2014 that the vulnerable witness application was obtained.  Nonetheless, the arrangement to use the live television link was in place for the June sitting.  Had the case gone ahead at that sitting no extension would have been required.  Had the defence been prepared to agree the evidence of identification the trial could have gone ahead.  As already noted, we were given to understand that the charge was of a domestic nature and the appellant lodged a special defence of self-defence.  Identification could not have been in issue.  Mr Dempsey, who appeared on behalf of the appellant, told us that the decision not to agree the evidence had been made for “tactical reasons”.  He was unable to expand on that explanation and we have some difficulty in understanding what was meant by it.  We note the terms of section 257 of the 1995 Act as to the duty to agree evidence, which duty continues up until the swearing of the jury (275(3)).  The adjournment in June in order to make alternative arrangements with respect to identification required the first extension of the twelve month time bar, which was not opposed.  The failure of the live television link in August was not foreseeable and was a matter over which neither the Crown nor the court in Scotland had control.  In all the circumstances we are satisfied that the Crown did show a reason which might justify the extension.

[14]      As to whether the sheriff was entitled to exercise his discretion by granting the motion, we note that the charge was a serious charge of assault.  It is in the public interest that such a crime should be prosecuted.  The length of extension was not untoward and the appellant was not able to point to any significant prejudice.  We are satisfied that the sheriff did not err in exercising his discretion by granting the motion. 

[15]      In the result the appeal must be refused.