Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 124

HCA/2015-002564-XC

Lord Brodie

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRACADALE

in

NOTE OF APPEAL

by

DONNIE DANIEL POTTS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Ogg;  Gilfedder Mcinnes

Respondent:  Prentice QC (sol adv), AD;  Crown Agent

21 August 2015

[1]        On 18 June 2015 in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995 the sheriff at Hamilton granted an extension to the 12 month time limit.  We allowed an appeal against that decision, indicating that we would give reasons in writing, which we now do. 

[2]        Before the sheriff the procurator fiscal depute moved to adjourn the case to a sitting commencing on 21 September 2015 and extend the twelve month time limit to 2 October 2015.  He told the sheriff that he had been brought in as an ad hoc procurator fiscal depute earlier in the week.  On reading the papers he had identified a serious omission in the preparation of the case as a result of which evidence which could have been led was unavailable.  The charge related to a theft by housebreaking of £50,000 of money from the house of an 80 year old man.  The procurator fiscal depute told the sheriff that when the case had been indicted in March 2014 it had proceeded upon DNA evidence recovered from a crowbar found at the locus.  However, the DNA profile which matched that of the appellant was not the only DNA on the crowbar.  There was also other evidence of telephone analysis which placed the appellant in the South Lanarkshire area at the time.  The Crown had proceeded thus far on the basis of this evidence but the procurator fiscal depute conducting the trial had reservations as to the strength of the Crown case.  He told the sheriff that amongst the papers there was information relating to banking transactions carried out by the appellant which had been available since mid-2014.  This was to the effect that within four weeks of the theft the appellant had deposited cash amounting to over £15,000 at different bank branches.  Bank staff had found it unusual that a large proportion of the bank notes were by then out of circulation.  This was significant because the complainer had been a hoarder of money.  The addition of this evidence would make the circumstantial case against the appellant considerably more compelling.  The procurator fiscal depute told the sheriff that on 15 June 2015 he had spoken to the police reporting officer and had been told by the officer that at an earlier stage a non-qualified member of the procurator fiscal’s staff at Dumfries had told the reporting officer that the Crown would not be able to get a warrant to recover the relevant bank account records of the appellant, which were held in England, and that the matter was not being pursued.  The trial procurator fiscal depute had disagreed with that assessment and earlier in the week of the trial had obtained a warrant which would require to be transmitted to a judge in England for endorsement before it could be executed.  There was insufficient time to add this material by section 67 notice to allow the case to proceed at the sitting. 

[3]        The solicitor acting for the appellant opposed the motion pointing to the history of the case.  This was the fifth request to extend the time limit.  He referred to his requests for disclosure, the difficulty in obtaining it and his representations to the Crown as to the sufficiency of evidence against the appellant. 

[4]        The sheriff granted the motion.  In his report he states that he took the view that on the submission presented an extension ought to be granted and the trial adjourned.  As he saw it the reason for the extension was an erroneous decision taken by a junior member of the procurator fiscal’s staff.  This had led to a line of enquiry not being pursued until the procurator fiscal depute tasked with the trial had “diligently located the material and recognised its significance”.  In deciding whether to exercise his discretion to grant the extension the sheriff did not consider that there was prejudice to the appellant through further delay and had regard to the serious nature of the charge.  In relation to the earlier extensions the sheriff noted that the first, on 2 May 2014, was due to a defence expert report being awaited.  The second, on 22 August 2014, was to allow the defence time to consider material only recently obtained by them.  The third, on 7 November 2014, was to allow the defence further time to obtain an expert report.  The fourth, on 6 March 2015, had been due to pressure of business.  The sheriff remarked:

“Although this was to be the fifth extension, the prior delays were either to accommodate the appellant or due to other business set down by the court.  Therefore I did not consider that it should be refused for that reason alone.”

[5]        It became clear in the discussion before us that in certain important respects the information placed before the sheriff was either incorrect or misleading.  It is necessary therefore to look in more detail at the history of the case. 

[6]        In a letter dated 18 August 2015 the senior procurator fiscal depute in the appeals unit at Crown Office wrote to the court giving further detail as to what had happened in relation to the application for a search warrant in respect of the bank transactions.  Before us the advocate depute made reference to the letter and provided further information.  It appears that a somewhat bizarre arrangement existed as part of the structure of the procurator fiscal service in the West of Scotland.  The solemn legal manager in the procurator fiscal’s office at Dumfries had responsibility in relation to warrants, including warrants which required to be obtained at Hamilton Sheriff Court.  The advocate depute explained that because of what had happened in this case this arrangement was no longer in place.  We were told that the reference to a non-legally qualified member of staff at Dumfries was a reference to a “case preparer”.  On 20 February 2014 the case preparer at Dumfries sent an email to the reporting officer requesting that in relation to the bank transactions an application for a search warrant should be submitted to the Dumfries office for the attention of the Dumfries solemn legal manager.  On 25 February 2014 a member of staff at the procurator fiscal's office at Hamilton sent an email to the solemn legal manager at Dumfries indicating that the application for the warrant had been submitted to the procurator fiscal’s office at Hamilton but marked for the attention of the Dumfries solemn legal manager.  The solemn legal manager indicated that she was aware of the application and would deal with it.  She considered the application for the warrant and concluded that it was reasonable and appropriate.  As she could not sign the warrant herself she sent an email to the solemn legal manager and the sheriff and jury administration manager at Hamilton requesting that the warrant should be drafted and signed and placed before the sheriff at Hamilton.  The case preparer at Dumfries then advised the reporting officer by e-mail that the warrant had been sent to the Hamilton procurator fiscal's office for signing.  The warrant had not in fact been drafted at that point.  The staff at the office at Dumfries believed that the staff at the office at Hamilton were taking steps to obtain the warrant. 

[7]        Thereafter, on a number of occasions, the reporting officer raised the matter of the warrant with the case preparer at Dumfries.  The case preparer at Dumfries raised the matter with the solemn legal manager at Dumfries who in turn raised it with the procurator fiscal's office at Hamilton.  On 29 September 2014 the reporting officer sent an email to the case preparer at Dumfries regarding the warrant.  The case preparer at Dumfries responded by stating that he had heard nothing further on the matter and assumed that, as the case had been through a number of court diets by that stage, the procurator fiscal in Hamilton was content to proceed with the evidence that the Crown already had. 

[8]        The advocate depute advised us that in February or March of 2014 the procurator fiscal at Hamilton had made a decision that he was content to proceed on the evidence that was available, namely the evidence of DNA on the crowbar and the telephone evidence.  At Hamilton it was thought that for some reason a decision had been taken not to pursue the bank evidence and it was just left aside.  The advocate depute accepted that there had been an error in not following up the issue of the warrant and that evidence had simply fallen out of the picture.

[9]        In terms of the first stage of the two stage test in Swift v HM Advocate 1984 JC 83, namely, whether the Crown had shown sufficient reason which might justify the extension, the sheriff had concluded that the reason for the extension was that due to an erroneous decision being taken by a junior member of the procurator fiscal’s staff the line of enquiry had not been pursued.  It is clear from that conclusion that the full information in relation to this matter which was set out before us was not before the sheriff.  In our view the information before us indicates that there was a complete and sustained breakdown within the administration of the procurator fiscal service in relation to obtaining the warrant.  The error could have been readily avoided;  it could have been readily detected (Early v HM Advocate 2007 JC 50 LJC (Gill) at para [27]).  Furthermore, it is clear that the procurator fiscal at Hamilton had decided to proceed without this evidence and had told the court on more than one occasion that the Crown were ready for trial.

[10]      The reason also falls to be examined in the light of the explanation given to the sheriff about the earlier adjournments of the case.  In this respect, also, the information before the sheriff was incomplete.  Ms Ogg, who appeared on behalf of the appellant, produced a timeline of events which was accepted by the advocate depute as being accurate.  It is not necessary to examine the timeline in detail; it makes sorry reading.  It is sufficient to note that the defence motions to adjourn the trial diets were driven by late disclosure of the DNA report and the telephone analysis.  It became clear that the sheriff's observation that earlier adjournments had been granted in order to accommodate the defence were made upon an incomplete understanding of the reasons for these motions.

[11]      We were not surprised that on the basis of the information which was placed before him the sheriff came to the conclusion that he did.  We considered, however, that in the light of the full information placed before us the matter was at large for us.  In all the circumstances we were satisfied that the Crown had failed to advance sufficient reason to justify an extension.  In these circumstances it was not necessary for us to go on to address the question of the exercise of discretion and we allowed the appeal.