Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 37

HCA/2016/000115/XC

Lady Paton

Lord Menzies

Lord Brodie

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL UNDER SECTION 65
OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

ROBIN ATTWELL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  N Allan, Solicitor Advocate;  More & Co

Respondent:  McSporran (sol adv) AD;  Crown Agent

8 April 2016

[1]        In HM Advocate v Swift 1984 JC 83, Lord Justice General Emslie defined the two‑stage test as follows: 

“If an extension is to be granted … 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?’”

[2]        Following upon Swift, guidance was given in relation to the two‑stage test in Warnes v HM Advocate 2001 JC 110, Early v HM Advocate 2007 JC 50 and Uruk v HM Advocate 2014 SCCR 369. 

[3]        Mr Allan focused on the first stage of the test, and drew our attention to paragraph [9] of Warnes v HM Advocate.  One factor which is relevant at the first stage is the loading of sittings, described in Uruk at paragraph [17] as “essentially an art and not a science”.  As was further pointed out in paragraph [18] of Uruk: 

“…where contentions surround issues about the programming of business, this court will place great weight on the views of the local sheriff, who is far better placed to assess whether there is … a systemic failure in his sheriffdom…”

[4]        In the present case, the sheriff in his report has outlined the matters which he took into account.  A combination of factors resulted in the motion for an extension on 26 February 2016.  In particular:  (1) an unusually lengthy trial unexpectedly lasted for 13 days, taking up much of the trial sitting;  (2) the Crown’s backup plan, namely, to transfer the case to Kilmarnock Sheriff Court where a procurator fiscal depute was available, failed as a result of shrieval unavailability;  and (3) the time‑bar in the 13 day trial, originally 16 October 2014, had been extended several times to a time‑bar of June 2016.  The sheriff was entitled to take all of those factors into account.  Further we note that the sheriff did not identify any systemic failure. 

[5]        The question for us today is whether the sheriff erred at the first stage of the Swift test.  In the light of all the submissions we have heard, we answer that question in the negative. 

[6]        In relation to the second stage of the test, as has been made clear in the decisions of this court, cases involving the exercise of discretion are very fact‑sensitive.  In this particular case, we note the gravity of the charges, the circumstances which led to the extension, the fact that the extension granted on 26 February 2016 was relatively modest, and the fact that the trial is set down for a two‑week sitting beginning on Monday 11 April 2016, the advocate depute having assured this court that the trial will proceed in that sitting. 

[7]        In the whole circumstances, we are unable to say that the sheriff erred in the exercise of his discretion. 

[8]        In the result, we refuse the appeal.