Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 113

HCA/2015-001587-XC

Lady Paton

Lord Drummond Young

Lord Malcolm

OPINION OF THE COURT

delivered by LADY PATON

in

NOTE OF APPEAL

by

WILLIAM BENNETT McGUIRE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  G Forbes;  Capital Defence Lawyers

Respondent:  P Brown, AD;  Crown Agent

12 June 2015

[1]        In this case, counsel for the appellant contended that the judge (Lady Rae) had erred in the application of the two-stage test set out in HM Advocate v Swift 1984 JC 83. 

[2]        In relation to the question of “sufficient reason”, it was submitted that the need for an extension arose as a result of error on the part of the Crown in failing to set an appropriate deadline for the forensic laboratory to send their final DNA report to the Crown. 

[3]        We note that the crimes alleged in this case (petrol bombing and the use of offensive weapons, namely a crossbow and a machete) are said to have occurred on 13 January 2015.  The appellant and one other person appeared on petition two days later, on 15 January 2015.  Other suspects could not be identified at that stage until a large number of items had been forensically examined and DNA identification was obtained. 

[4]        The forensic laboratory was instructed promptly on 16 January 2015.  More than 100 items required forensic examination, and various departments were involved (for chemical tests, fingerprint examinations and DNA analysis).  Thus the work of the forensic laboratory took some time.  It appears that the Crown’s precognition officer emailed and telephoned regularly to check on progress.  Ultimately a report dated 8 April 2015 passed certain internal checks in the laboratory and was received as an email by the precognition officer on 17 April 2015.  It was read on 20 April 2015, the few days delay being caused by the absence of the procurator fiscal.  Only then was the Crown able to identify three others suspected of involvement in the offences, and only then could the Crown take the necessary steps to prosecute those three with a view to trying all five accused together.  That resulted in the Crown seeking, on 7 May 2015, the extensions of time currently challenged. 

[5]        In our view the sequence of events in this case does amount to “sufficient reason”, and the judge was entitled so to conclude.  We do not accept that there was any error or fault on the part of the Crown.  As the judge points out, the Crown cannot organise or dictate the laboratory’s order or method of work, even for cases involving the 140 days.  The appellant’s case involved an unusually large number of items to be examined by various departments, and the work took time.  The precognition officer’s frequent contact with the laboratory showed a conscientious effort on the part of the Crown to make progress with the case. 

[6]        In particular, in response to the submissions presented by Mr Forbes, we make the following observations.  First, our attention was drawn to a 21 day period between late March and early April 2015 during which, it was contended, there had been no contact by the Crown, (contrary to the judge’s report page 3 at the foot, which stated that there had been follow-up requests during this period).  The Crown chronology which has been provided to us, and which is not challenged, notes at page 5 the sort of work and activity that was occurring both in the laboratory and in the procurator fiscal’s office during that period, as follows: 

“25^th March 2015 - The procurator fiscal depute received an email from [the forensic scientist], Joanne Carter, advising that her report was almost prepared but that it would be another week before the results would be submitted to the procurator fiscal,(i.e. by 1 April 2015).  Although it would appear from this that the laboratory had been remiss in not adhering to the revised timescale for reporting which had been agreed, Joanne Carter has confirmed that the last sample was received from the Mark Enhancement Laboratory on 27 March 2015.  The DNA result on this sample was only obtained on 1 April 2015.  This accounts for the slippage on the revised timescale.” 

Thus work was being carried out during the period criticised which involved operations and timings which the Crown, although asking about progress, could not dictate. 

[7]        The second matter arising from Mr Forbes’ submissions is, to some extent, a reiteration of the last point.  The Crown is not in a position to tell the forensic laboratory to give priority to a particular matter, although a request may be made.  Nor can the Crown tell the laboratory how to carry out their procedures, including having their written work internally checked. 

[8]        The third matter arising from Mr Forbes’ submissions was this:  the DNA linkage in this particular case was critical.  We do not accept that any form of verbal report in such a serious matter could be relied upon by the Crown in order to indict other individuals.  The Crown’s written submissions explain fully how and why it took until April 2015 for the report to be completed and emailed to the Crown, and thereafter how the Crown took steps to indict other people. 

[9]        Taking all the circumstances into account, we are not persuaded that the judge erred in any respect in holding that the first stage of the test set out in Swift was satisfied. 

[10]      In relation to the second stage of the test, it was submitted that the judge had erred in the exercise of her discretion by attaching too much weight to court timetabling.  However, it seems to us that the judge took into account all the circumstances of the case including the undeniable desirability of having one trial for all five accused, rather than two separate trials.  Also taken into account were the ways in which that might be achieved, the alternatives available and information concerning the likely availability of diets in the court timetable.  Again, in our opinion, the judge was entitled to exercise her discretion as she did, and the question of the weight to be given to each of these factors was very much a matter for her.  In the result, we are not persuaded that the judge erred in the exercise of her discretion.  Accordingly, we refuse the appeal.