Appellant:  Keenan, Solicitor Advocate;  Capital Defence,Edinburgh

Respondent:  Scullion AD;  Crown Agent

29 July 2014

[1]        The appellant is charged with the theft of a wallet and £120 and with assault to injury of an 82 year old man in his own home involving inter alia threats to stab him with scissors.  The offences are alleged to have occurred on 21 June 2013.

[2]        On the last day of the trial sitting (Friday, 20 June 2014) it was discovered that an essential Crown witness, Police Constable Hardie, was absent on holiday.  He had been cited electronically on 28 April 2014.  The Crown moved the court to adjourn the trial and to extend the 12 month time bar.  The defence opposed any extension.  The sheriff, having heard submissions, adjourned the trial diet to the sitting beginning 7 July 2014, and extended the 12 month time bar until 18 July 2014.  The appellant appealed against the extension.

[3]        Before us Mr Keenan for the appellant contended that the absence of the police officer was the Crown’s fault in that, first, there might be a systemic problem with electronic citation;  secondly the Crown had chosen to serve the indictment close to the expiry of the time bar;  and thirdly the Crown had chosen to excuse another officer, Police Constable Kennedy who spoke to the same important piece of evidence as Police Constable Hardie (namely following a trail of blood from the locus to the appellant’s flat.)  Mr Keenan pointed out that one of the appellant’s bail conditions had prevented him from entering a named street, and as that was his home address he had been unable to visit his home for the past year, which was not acceptable.  In all the circumstances, the time bar should not have been extended. 

[4]        The advocate depute explained that the Crown had not known of any difficulty concerning the police officer until the day of the trial diet.  Generally there was no difficulty with electronic citation.  No request for excusal had been received from Police Constable Hardie.

[5]        In his report to this court, the sheriff explains that he concluded that the Crown was not at fault.  The electronic citation of officers did not normally cause any problems, and the fiscal had been entitled to assume that the officer would attend court.  In this context, the appeal court was given further information which was not before the sheriff.  In particular we were advised that there is in place a fairly tight system of control of electronic citation.  Not only do the individual officers receive the email citation, but also their supervisors.  Further, the police diary is updated, noting which officers are required in which courts on what dates.  What occurred on this particular occasion, however, was that although Police Constable Hardie had received a citation indicating that he should attend court at the beginning of the trial sitting on 10 June 2014, he received information on 9 June 2014 from the police liaison officer which regrettably he misunderstood as meaning that he was not required on 10 June 2014 or at any time following that date in that sitting, and that he would be re-cited to attend another sitting.  So there was a misunderstanding on the police officer’s part.

[6]        In Her Majesty’s Advocate v Swift 1984 JC 83 Lord Justice General Emslie defined the two-stage test applicable to extensions of time bar as follows:

"If an extension is to be granted under [section 65 of the Criminal Procedure (Scotland) Act 1995] the first question for the judge concerned is… 'Has a 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?'”

[7]        The sheriff, on the information before him, concluded that sufficient reason had been shown.  We agree.  While the case was brought to trial near the end of the 12 month period, it must be acknowledged that the prosecution system is subject to many demands, and prioritisation and timetabling of cases (including custody cases and cases involving young or vulnerable witnesses) is a matter for the Crown.  The primary reason for the difficulty in the present case was simply the unexpected absence of a duly cited and essential Crown witness, without whom the Crown could not proceed.  On the information made available to us, we are not persuaded that there was any systemic problem shown in relation to electronic citation, nor are we persuaded that the Crown was at fault in excusing the alternative officer, Police Constable Kennedy, when Police Constable Hardie had been properly electronically cited on 28 April 2014, and had made no request to be excused.

[8]        In relation to the second stage, ie the exercise of discretion, we take into account first, the fact that the alleged assault on the elderly complainer was a serious one, which in the interests of justice ought to be brought to court.  Secondly, the difficulty which arose was not foreseeable and was not of the Crown’s making.  Thirdly, the extension granted was a moderate one.  Accordingly we are satisfied that the sheriff did not err in the exercise of his discretion. 

[9]        We should add that we were very properly advised by Mr Keenan today that as the appellant had in fact breached the condition of his bail order and had entered the named street in order to reach his home on three occasions, that had resulted in two summary complaints.  On 27 May 2014 the appellant had been sentenced to four months for the breach, and had been placed in custody (where he was at the time of the date which the sheriff had proposed for the continued trial diet).  Be that as it may, the appellant has now been released from custody.   The trial date is set for a sitting beginning Monday, 4 August 2014.  All of these factors tend to emphasise the correctness of the sheriff’s exercise of his discretion, in that had no appeal been made in respect of the extension the appellant would have been appearing from custody to deal with his trial at the sitting beginning on 7 July. 

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