Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 8

HCA/2016/527/XC

Lord Justice General

Lord Malcolm

Lord Turnbull

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL

by

DONNIE DANIEL POTTS

Appellant

against

PROCURATOR FISCAL, HAMILTON

Respondent:

Appellant: A Ogg (sol adv); Callahan McKeown & Co, Renfrew

Respondent: Edwards QC; the Crown Agent

18 January 2017

Introduction
[1]        The appellant is charged on a summary complaint with the theft of some £50,000 in cash by housebreaking at Bellshill on 11 April 2013.  The owner of the cash was a 74 year old man, who had been hoarding it for some time.  The issue is whether the respondent has acted oppressively, by way of an abuse of process or in violation of the appellant’s Article 6 rights in prosecuting him on a summary complaint after the High Court had allowed an appeal against the decision of the sheriff to extend the 12 month time bar in solemn proceedings involving the same charge. 

The solemn proceedings
[2]        The appellant appeared on petition charged with the housebreaking at Hamilton Sheriff Court on 1 August 2013.  He was granted bail.  On 29 March 2014, he was indicted to first and trial diets on 2 and 19 May 2014.  There then followed three postponements or adjournments of the diets.  These were all on the application of the appellant, but it was subsequently determined that they had, in practical terms, been caused by late disclosure by the Crown of DNA findings and telephone analysis.  A fourth adjournment had been caused by pressure of business.  In due course, the new diets came to be 29 May and 15 June 2015.  The 12 month time bar, which would have originally expired in August 2014, had been extended to 21 June 2015.

[3]        On 18 June 2015, the respondent sought another adjournment of the trial diet to enable the respondent to recover certain bank records which, it was said, would prove that, within four weeks of the theft, some £15,000 cash had been deposited by the appellant at different branches of his bank.  A large number of the notes were out of circulation, thus indicative of them having been part of a hoard.  As recorded originally by the sheriff, the procurator fiscal depute accepted that there had been a serious omission in the preparation of the case.  The evidence against the appellant had been relatively straightforward.  It consisted of DNA on a crowbar found at the locus and a telephone analysis indicative of the appellant’s presence in the vicinity.  The depute had nevertheless been concerned about sufficiency.  The DNA was not exclusively that of the appellant.  The depute had maintained that an error had been made by a junior, non-legally qualified, member of staff, who had wrongly assumed that the bank material could not have been obtained because it was situated in England.  The sheriff considered that reasonable cause had been shown to allow an extension of time on the basis of this error.  He therefore extended the time to 2 October 2015 and appointed first and trial diets for 4 and 21 September 2015. 

[4]        On 21 August 2015, the High Court reversed the sheriff’s decision (2016 SCCR 109).  Following the first stage test in Swift v HM Advocate 1984 JC 83, the court (at para [11]) considered that the errors of the Crown had been of such gravity that insufficient reason had been advanced to justify an extension.  On further enquiry, in relation to the reason for the failure to obtain the bank records, it had been ascertained (at para [9]) that there had effectively been a “complete and sustained breakdown in the procurator fiscal’s administration” regarding the obtaining of a warrant for the bank records.  This breakdown could have been detected and avoided.  Furthermore, the respondent had previously repeatedly told the court that the Crown were ready for trial. 

[5]        Prior to 1996, the decision of the High Court would have brought all criminal proceedings to an end.  The governing part of the Criminal Procedure (Scotland) Act 1995 was that, in terms of section 65, a failure to bring an accused to trial within 12 months resulted in him being “discharged forthwith and thereafter ... forever free from all question or process for that offence”.  This had been the position since the introduction of the 12 month time bar in 1980.  The accused would have tholed his assize.  However, section 73 of the Criminal Procedure and Investigations Act 1996 deleted the quoted words and provided instead that the effect of the failure would simply be that the accused would “not at any time be proceeded against on indictment as respects the offence” (see now section 65(1A)(b)).

The summary proceedings
[6]        The opinion of the High Court was issued in October 2015.  The papers were sent for Crown counsel’s view on what ought to happen next.  It took some three months before a decision was taken to proceed summarily.  A complaint was served in January 2016.  This was followed by a plea in bar of trial based on contentions of both oppression and “abuse of process” on the part of the Crown and a breach of the reasonable time requirement in Article 6 of the European Convention.  On 30 June 2016, the sheriff repelled the plea. 

[7]        The sheriff reasoned that the mere passage of time did not equate to oppression.  The appellant required to demonstrate that any delay had prejudiced the prospects of a fair trial; that is that the sheriff could not be expected to reach a fair verdict in the circumstances.  There had been no prejudice here where the issues involved simply the appropriate inferences to be drawn from undisputed facts.  In relation to abuse of process, which the sheriff considered separately, he held that it was not incompetent to bring summary proceedings following upon the discontinuation of a solemn case.  This could not involve an abuse of process.  It was a step too far to argue that, as a result of the High Court decision, the appellant should thereby avoid prosecution altogether.  He had had the benefit of that decision, but the interests of justice required the investigation and prosecution of what the sheriff classified as a serious alleged crime.  Following Spiers v Ruddy 2009 SC (PC) 1, the sheriff noted that any breach of the reasonable time requirement could be compensated by the imposition of a lesser sentence.  At the time of his decision, he held that there was no continuing violation of the requirement. 

[8]        The Sheriff Appeal Court (2016 SCCR 412) first considered the question of oppression.  The primary focus of the SAC was on the passage of time.  It is delay that is recorded as the nature of the submission on this ground.  Applying the test in McFadyen v Annan 1992 JC 53 (LJC (Ross) at 60), the SAC asked itself whether any delay had prejudiced the prospects of a fair trial.  The question was whether the sheriff could put any prejudice out of his or her mind and reach a fair verdict.  Following Stuurman v HM Advocate 1980 JC 111 (LJG (Emslie) at 122), it was recognised that the power to prevent the Lord Advocate from proceeding was one which would only be exercised in special circumstances, likely to be rare.  The SAC specifically rejected an argument that there were instances where oppression could arise in circumstances where a fair trial had not been prejudiced.  Although the period which had elapsed amounted to about 3 years, the evidence was scientific and documentary.  The test in McFadyen v Annan (supra) had not been met.

[9]        It had been argued that an abuse of process had arisen because the decision to prosecute amounted to a deliberate attempt to circumvent the High Court decision.  However, the SAC held that “abuse of process” was not a separate and distinct plea, different from oppression.  Oppression was the proper vehicle within which to bring a complaint based on the conduct of the respondent.  For the reasons given in relation to oppression, this contention also failed.

[10]      In relation to Article 6, the Crown had conceded that the reasonable time requirement had been breached.  However, the remedy for such a breach was one for the domestic courts and could involve the lowering of any sentence which the sheriff might otherwise have imposed.  Following Spiers v Ruddy (supra Lord Bingham at para 8), a stay on the ground of a violation would only be appropriate where a fair hearing was no longer possible, or there was some other compelling reason making it unfair to try the accused.  Once it was accepted that there was no continuing breach of the requirement, there could be no incompatibility.  The SAC therefore refused the appeal.

Submissions
[11]      The appellant’s plea of oppression had been based not only on delay but on the conduct of the Crown throughout the proceedings.  MacFadyen v Annan (supra), following Stuurman v HM Advocate (supra), had indicated that there were situations where substantial justice precluded proceedings, even if any trial to follow would be fair.  Although it was originally to be argued, under reference to Grugen v Jessop 1988 SCCR 182, Brown v HM Advocate 2002 SLT 809; and Jones v HM Advocate 2010 JC 255, that “abuse of process” was a distinct plea, it was recognised that in HM Advocate v Withey, unreported, 13 May 2016, the court had made it clear (at para [39]) that it was not.  However, the same argument could be made under the heading of oppression.  Examples of the use of the court’s power could be found in Mowbray v Crowe 1993 JC 212, Benton v Cardle 1988 SLT 310; McConnachie v Scott 1988 SLT 480; Brown v HM Advocate (supra); Fleming v HM Advocate [2007] HCJ 01; and Jones v HM Advocate (supra).

[12]      The alteration in the legislation had been to allow the Crown to discontinue solemn proceedings and to proceed summarily outwith the 12 month period.  It was to cure the problem identified in Gardner v Lees 1996 SCCR 168, but it had not been designed to permit summary proceedings where solemn proceedings had been discontinued by the court.

[13]      The SAC had erred in determining that, as the summary complaint had been served after Crown counsel’s instructions had been obtained, that amounted to an expedition of proceedings and avoided a continuation of the Article 6 violation.  The appellant had been entitled to have the charge against him determined within a reasonable time.  The period ran from his first appearance on petition.  The summary proceedings could not be considered in isolation.  The initiation and continuation of the summary proceedings amounted to a continuing breach.  Even if the breach had ended, having regard to the delay and the previous history of the case, there was a compelling reason why it was unfair to try the appellant. 

[14]      The SAC had also erred in determining that the effective remedy for the Article 6 breach was a reduction in sentence.  The delays occasioned by the respondent, the significant fault on his part, including late disclosure, and the failure to determine whether there had been sufficient evidence, were compelling reasons why it would be unfair to try the appellant on summary complaint.  The effective remedy was to sustain the minute and halt the proceedings. 

[15]      The advocate depute maintained that the High Court had simply decided that, applying the test in Swift (supra) relative to the conduct of the Crown, cause had not been shown to grant an extension of time in which to bring a solemn case to trial.  The court had not decided that to do so would be oppressive.  The 1996 amendment to the 1995 Act had enabled the Crown to bring summary proceedings when the time bar for solemn cases had applied.  That is what the Crown had elected to do.  There was no unfairness in that or any attempt to circumvent the court’s decision. 

Decision
[16]      In Withey v HM Advocate, unreported, 13 May 2016, it was made clear (LJG (Carloway) at paras [39]-[40]) that there was no conceptual distinction between cases in which it was said that a fair trial could not take place and those where holding a trial would be an “affront to justice”.  Both fell into the common law category of oppression.  Where it was established that to have a trial would be such an affront or would undermine public confidence in the justice system and bring it into disrepute, such a trial would not be regarded as fair in terms of the common law.  Whether oppression can be established depends upon the particular facts and circumstances, including the Crown’s conduct, the seriousness of the charge and the public interest in ensuring that crime is prosecuted.  It may arise in circumstances other than delay (Mowbray v Crowe 1993 JC 212, LJC (Ross) at 217 citing Burnett: Criminal Law 309-310 and approving Renton and Brown: Criminal Procedure (5^th ed) para 16-35, see now 6^th ed para 9-21).

[17]      One of the difficulties which arose at both first instance and SAC levels was the attempt to divide oppression and “abuse of process” into two distinct pleas.  This division was accepted by the sheriff, who focused on delay as forming the basis for the former and the alleged circumvention as the ground for the latter.  Before the SAC, the appellant’s submission in relation to oppression was recorded as being based upon delay and that relating to abuse of process focused on the circumvention.  The manner in which the SAC dealt with the argument involved rejecting the oppression point because any delay would not result in an unfair trial and then dismissing the abuse of process contention because, the SAC correctly held, there was no such plea available, separate from oppression.  This reasoning may have been prompted by the manner in which the case was presented at both first instance and SAC levels.  The SAC noted (at para [13]), again correctly, that the plea of oppression is capable of encompassing a “wide range of factors”, but there is no clear statement by the SAC that these factors, notably the alleged circumvention and the other conduct of the Crown during the solemn proceedings, had been part of the equation in rejecting the oppression plea, unless the reference to “other relevant factors” was intended to include such matters.

[18]      However, that is not to say that the SAC erred in refusing the appeal.  It is important to observe that the decision on a plea of oppression involves a balancing exercise which is primarily one for the judgment of the court at first instance.  Its judgment will be accorded not inconsiderable weight.  Here, the sheriff, when dealing with the flawed abuse of process plea, correctly distinguished the High Court decision based on the first stage test in Swift v HM Advocate 1984 JC 83, which focused on the gravity of the Crown’s mistakes, and the court’s analysis of all the factors bearing upon the plea of oppression.  He rightly observed that all that the High Court had decided was that the solemn proceedings should be brought to an end, and not that the appellant should avoid a prosecution altogether.  He concluded that the interests of justice required the prosecution of this crime.

[19]      It is not possible to fault the sheriff’s conclusion.  Whatever the faults of the Crown, the offence here was a serious one.  There appears to be evidence implicating the appellant.  There is no real contention that the delay which has occurred has prejudiced a fair trial in the manner set out in Stuurman v HM Advocate 1980 JC 111, LJG (Emslie) at 122 and McFadyen v Annan 1992 JC 53, LJC (Ross) at 60.  Prosecuting the appellant in these circumstances cannot be regarded as oppression.

[20]      The determination of whether the reasonable time requirement in Article 6 of the European Convention has been breached does involve a consideration of the whole timescale from at least the appearance on petition to the present day.  If the time which has elapsed gives cause for concern, the court will have to look at the reason for it.  In this case, the summary proceedings were instituted in January 2016, within 3 years of the appellant’s appearance on petition.  In such circumstances, where it is not argued that the period since then can be criticised, it is highly doubtful whether the timescale does cause concern in Convention, as distinct from domestic law, terms (see eg McLarnon v McLeod 2004 SCCR 397, Lord Hamilton at para [6]).  This is so, even if, before the SAC, a breach was conceded by the Crown.

[21]      If there is a breach of Article 6, it has been made clear that the remedy of sustaining a plea in bar of trial is only appropriate where the delay is such that a fair trial can no longer take place or there is some other compelling reason such as “bad faith, unlawfulness [or] executive manipulation” (HM Advocate v CAM 2013 SCCR 67, Lady Paton at para [7] citing Attorney General’s Reference (No. 2 of 2001) [2004] 2 AC 72, Lord Bingham at para 29; Spiers v Ruddy 2009 SC (PC) 1, Lord Bingham at para 8).  It is not possible to fit the case into any of these categories.  Having failed to prosecute the appellant on indictment, the Crown have elected, as they are entitled to do, to proceed by way of summary complaint.  There is no unfairness in this where the appellant has already had the benefit, under domestic law, of not being subjected to the risk of a significant custodial sentence, which he would otherwise undoubtedly have faced, if convicted

[22]      The appeal is refused.