APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Reed Lord Philip	[2008] HCJAC 76 Appeal No: XC611/08 OPINION OF THE COURT delivered by LADY PATON in APPEAL UNDER SECTION 65 OF THE CRIMINAL PROCEDURE (SCOTLAND)ACT 1995 by DAVID NEIL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Brown; George More & Co., Edinburgh

Alt: Young, A.D.; Crown Agent

17 December 2008

Extension of the 12-month period

[1] On 21 September 2007, the appellant (then aged 64) appeared with five co-accused on a petition warrant at Alloa Sheriff Court, charged with being concerned in the supplying of cannabis resin. The appellant pled not guilty, and was granted bail. A first diet was fixed for 9 June 2008 with a trial sitting commencing on 24 June 2008. By letters dated 29 May and 9 June 2008, the appellant's agents asked the Crown for a copy of a production label 42, in order to be in a position to instruct a defence expert. The letter dated 9 June 2008 specifically identified label 42 as "a book bearing notations". The letters were unacknowledged and unanswered. On 9 June 2008, on the unopposed motion of the Crown, the first diet was adjourned to 16 June 2008. On 16 June 2008 a co-accused (Andrea Neil) sought a postponement of the trial. The appellant's agents conjoined in that motion, as they had not yet received a copy of label production 42. The first diet was adjourned to 5 August 2008, with a trial sitting beginning on 19 August 2008. The appellant's agents, by letters dated 16 June 2008 and 18 July 2008, made further requests for a copy of label production 42. Those letters were also unacknowledged and unanswered. At the adjourned first diet on 5 August 2008, a copy of the production had not yet been made available to the appellant. His agents accordingly did not oppose a motion for a further adjournment made jointly by the Crown and another co-accused, James Neil. The first diet was adjourned to 12 August 2008. By letter dated 6 August 2008, the appellant's agents renewed their request for a copy of the label production, reminding the procurator fiscal that an expert was to be instructed.

[2] On 12 August 2008, shortly before the case called in court, the procurator fiscal gave the appellant's agents a copy of label production 42. The appellant's agents then sought an adjournment of the first diet in order to instruct their expert. The first diet was adjourned to 14 August 2008. On 14 August 2008, three of the appellant's co-accused pled guilty. Those pleas were accepted, as was a plea of not guilty from another co-accused Andrea Neil, leaving the prosecution continuing against the appellant and one co-accused, Janet Neil. The first diet was further adjourned on the appellant's motion to 2 September 2008, with a trial sitting commencing on 16 September 2008, to enable the appellant's expert to be instructed.

[3] At the adjourned first diet on 2 September 2008, a defence motion to adjourn the diet to 9 September 2008 was not opposed. On 9 September 2008, the Crown moved the court to adjourn the first diet to Friday 12 September 2008, to enable a preliminary issue taken on behalf of the co-accused Janet Neil to be argued. The issue concerned the fairness of her interview with the police, and the appellant was excused from attendance at court on that date. However on Friday 12 September 2008, a full-time floating sheriff continued the preliminary issue to the trial sitting beginning on Tuesday 16 September 2008.

[4] On Tuesday 16 September 2008, the appellant was ready to go to trial, but an essential Crown witness failed to attend. Having heard submissions, the sheriff granted a warrant for the missing Crown witness, and adjourned the trial to Wednesday 17 September 2008. The warrant was not in fact extracted until that day, because of a technical fault in the sheriff court's IT system. The sheriff devoted 16 September 2008 to the debate on the preliminary issue concerning the co-accused Janet Neil. The matter took all day, and in the light of the sheriff's ruling, the Crown subsequently did not call the case against that co-accused. That left the prosecution proceeding against the appellant alone.

[5] On Wednesday 17 September 2008, the essential Crown witness was still missing. The Crown made a motion in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995, seeking an adjournment of the trial diet, and an extension of the 12-month period until 17 October 2008, being the last day of the sitting commencing on 14 October 2008. The minutes record a Crown motion "to adjourn the trial in respect that an essential Crown witness was absent and lack of court time left within the sitting and on Crown motion to extend the timebar until 17 October 2008". The sheriff granted the Crown's motion. Had he not done so, the 12-month period would have expired on Sunday 21 September 2008.

Appeal against extension

[6] The appellant appeals against the grant of the extension in terms of section 65(8). His Note of Appeal contends inter alia:

"... the grant of the extension is unreasonable in respect that:- ...

(b) ... The absence of the essential Crown witness as well as pressure of business were cited as the reasons for seeking an extension of the time bar. This was opposed by the agent for the Appellant. In relation to pressure of business, the case of Warnes v H.M.A. 2000 SCCR 1127 was referred to by the agent for the Appellant. However, the motion was granted by the Learned Sheriff.

(c) The Learned Sheriff erred in granting an adjournment of the trial and an extension of the time bar given that the delays which had already occurred in the case were entirely attributable to the inaction of the Crown. The Procurator Fiscal at Alloa was written to by agents for the Appellant on 29^th May 2008, 9^th June 2008, 16^th June 2008, 18^th July 2008 and 6^th August 2008 requesting a copy of the label referred to. It was explained in each of these letters that an expert may require to be instructed in relation to the document. Not one of these letters was either responded to or acknowledged. In addition, the matter was raised at First Diets held on 9^th June 2008, 16^th June 2008 and 5^th August 2008.

Had the Crown complied with its duty of disclosure in respect of this label production timeously, the witness difficulty, which was used partly as the basis for seeking an extension of the time bar, would have become apparent prior to 17^th September 2008 and there would not have been the need to seek the extension of the twelve month time bar. As the Crown is entirely responsible for the delays in this case, it is respectfully submitted that the Learned Sheriff's decision to grant an extension of the time bar is unreasonable."

The sheriff's report

[7] The sheriff gave inter alia the following details in his report:

"Discussion and decision

[6] I granted the Crown motion and an extension of the twelve month period to the last day of the October sitting being 17^th October 2008. While it was not in dispute that previous adjournments on the motion of the defence were largely attributable to the inability or failure of the Crown to produce the label production referred to it remained the case that an adjournment to the present sitting had been allowed. The inability of the Crown to proceed with the trial was, however, attributable to a number of factors. Foremost amongst those was the absence of an essential crown witness. This was a factor largely outwith the control of the Crown in respect that the witness had been duly cited by way of a personal citation and upon failing to attend the first day of the sitting a warrant for the apprehension of the witness had been sought and granted. The unavailability of the warrant until the following day was not the consequence of inaction on the part of the Crown and the anticipated further delay in execution of the warrant in a different police force area was another factor over which the Crown had no control. Pressure of business was a factor but the circumstances whereby it became a factor in the course of [the] sitting merit closer scrutiny.

[7] The present case was set down to call on the first day of the sitting as a Continued First Diet and Preliminary Issue Hearing in respect of a Minute lodged on behalf of the fifth named accused, Janet Neil. It was inappropriate that such a preliminary issue hearing should be set down during a sitting in any event but in this Court where sittings can last only four days it was particularly inappropriate. The Minute appears to have been received at a continued First Diet on 5^th August when the Sheriff then presiding continued consideration of it to a continued First Diet on 12^th August. The diet of 12^th August was continued briefly to 14^th August when certain pleas were tendered on behalf of three of the accused, namely, James Neil, David Barney Neil and Robert Alexander Neil. The first named accused's plea of not guilty was accepted. In the course of a motion on behalf of the appellant for postponement of the trial to the September sitting I was informed by the solicitor appearing for him, Mr More (senior), that the so called tick list had been made available to him only at 9.50 a.m. on Tuesday 12^th August being the first day of that sitting and that an expert witness would be required. His motion was granted unopposed.

[8] The case called again at a continued First Diet on 2^nd September and adjourned again to 9^th September when the Sheriff then presiding further continued the First Diet and Preliminary Issue hearing to the first day of the sitting on Tuesday 16^th September. I heard evidence and submissions in respect of the Minute which I sustained. I was informed by the Procurator Fiscal Depute that as a consequence the case would simply not be called as against the fifth named accused Janet Neil. This meant that the trial was concerned only with the charge concerning the appellant.

[9] The upshot of these circumstances was that, contrary to expectations, the first day of an already short sitting was taken up with a preliminary issue hearing only for the further delays in the sitting discussed above in relation to the absent witness and the custody trial to exacerbate the situation. While the resources of this Court, with its single court room, are stretched, I considered that the delays and consequent pressure of business which bedevilled the September sitting were not entirely attributable to a lack of resourcing except to the extent that a spillover of business to the following week was impracticable. I came to the view that to this extent the present case was distinguishable from that of Warnes v HM Advocate (supra) and therefore granted the motion."

Submissions for the appellant

[8] Counsel for the appellant submitted that the two-stage test set out in HM Advocate v Swift 1984 J.C. 83 had not been satisfied. The Crown had not put forward sufficient reason for the extension of time. The reasons relied upon were first, the absence of an essential witness; and secondly, pressure of business. Warnes v HM Advocate 2000 S.C.C.R. 1127 established that pressure of business alone was not an adequate reason for an extension, although short-term pressures arising from unexpected circumstances (rather than an under-resourced system) might justify an extension. The fact that Alloa Sheriff Court had only one court-room and could not accommodate a continuation of either trial into the following week was redolent of the type of lack of resources which could not provide a valid excuse, standing the observations of the court in Warnes. Moreover, this court should take into account the whole conduct of the Crown over the preceding months: cf Early v HM Advocate 2007 J.C. 50 at paragraph [27]. In particular, the Crown had failed to produce the label production promptly, forcing the defence to request or acquiesce in adjournments. The preliminary issue relating to the co-accused Janet Neil had inexplicably not been determined by the full-time floating sheriff on duty on Friday 12 September 2008, but had been continued to the four-day sitting in which the appellant's trial (estimated to take two days) and one other two-day custody trial was to take place. The result had been that valuable time in a short sitting had been wrongly taken up with that preliminary issue.

[9] Counsel accepted that it would not have been possible for the sheriff to predict with any confidence that the missing witness would be traced and arrested within the four-day sitting (i.e. by Friday 19 September 2008). As it turned out, the witness had not in fact been found and arrested until after the end of the four-day sitting and after the original expiry date of the 12-month period. However the court was invited to have regard to all the Crown's failures. The sheriff had not done so. The sheriff had not given appropriate weight to the whole context; to the Crown's behaviour; to the Crown's failure to produce the label production; to the failure to have the preliminary issue dealt with on 12 September 2008; and to the lack of expedition in obtaining and executing the witness warrant. Thus in the context of the two-stage test set out in Swift cit. sup., the sheriff had erred in concluding that there was a sufficient reason to justify the grant of an extension.

[10] Esto the sheriff had not erred at the first stage of the Swift test, he had erred at the second stage. The second stage involved an exercise of the sheriff's discretion. But the sheriff had not mentioned in his report the fact that the preliminary issue had not been dealt with on Friday 12 September 2008, nor had he given any reason for that failure. Thus, in exercising his discretion, the sheriff had left a relevant factor out of account. The exercise of his discretion was accordingly flawed.

[11] Counsel invited the court to conclude that the sheriff had erred in granting the extension of time until 17 October 2008, and to quash the extension, with the result that the proceedings against the appellant would be time-barred and at an end.

Submissions for the Crown

[12] The Advocate Depute submitted that the appeal should be refused. It was accepted that the Crown could be criticised for delay in producing a copy of the alleged tick-list. But that was not the reason for the motion to extend the time-bar. The reason for that motion was the failure of a duly cited witness to attend the trial diet. The sheriff was therefore correct to distinguish Warnes, where the sole reason underlying the motion was pressure of business. In the present case, exceptional and unexpected circumstances had arisen, namely (i) the first day of the sitting had become unavailable as it was taken up with the debate on the continued preliminary issue; and (ii) a witness had failed to attend. The witness had not in fact been apprehended until after the end of the four-day sitting. Contempt proceedings were being pursued against him.

[13] In answer to questions from the bench, the Advocate Depute was unable to say whether attempts had been made to accommodate the trial in other sheriff courts, such as Falkirk or Stirling. Nor could he say whether it would have been possible to await the outcome of the police search for the witness, rather than starting the second trial (where the accused was remanded in custody), although it seemed likely that the custody trial would have its own time-limits. There might well be considerable criticism if the court were to remain unoccupied, with two trials pending.

[14] In relation to the delay in extracting and enforcing the warrant, the Advocate Depute advised that there had been a technological failure at the sheriff court. But the Crown had taken all appropriate steps, citing the witness for the correct day, and then seeking a warrant when he failed to appear. Warnes was clearly distinguishable. As for the delay in producing the alleged tick-list, there had been two different label productions listed in the indictment as "42", which had caused some confusion. The tick-list was lodged at the sheriff-clerk's office and was intended to be available for inspection (although counsel for the appellant advised this court that the sheriff clerk had been unable to locate the necessary keys when requests were made to inspect the productions).

[15] The Advocate Depute submitted that the Crown was entitled to seek to bring the trial to court at the end of the 12-month period. Reference was made to Early v HM Advocate, 2007 J.C. 50, paragraphs [36] and [39]. Moreover the history of previous motions to adjourn (and, arguably by analogy, previous delays) was irrelevant: cf Riaviz v HM Advocate 2003 S.C.C.R. 444.

[16] Thus the Crown had demonstrated "sufficient reason" for seeking an extension of time (the first stage of the two-stage test), namely the preliminary issue taking up a day, and the absence of a crucial witness who had been duly cited. In relation to the second stage, the Advocate Depute drew attention to the serious allegations of illegal drug-dealing over an extended period; and the general public interest in proceeding with the prosecution.

[17] Finally, the Advocate Depute advised that one further difficulty in the present case was that the indictment had fallen at the continued first diet on 27 October 2008 (following upon the marking of the appeal in terms of section 65), as the sheriff had mistakenly taken the view that the case could not call in terms of sections 65(3A) and 74(1). The appeal court was therefore asked not only to refuse the appeal, but also to grant a retrospective extension of the 12-month period, the extension being of such a length as to accommodate the re-serving of a fresh indictment. There was a live appeal before the appeal court (as in terms of section 65 the issue under appeal was the time-bar which began to run when the petition was served, irrespective of the existence or otherwise of an indictment). Reference was made to McGinty v HM Advocate 1984 S.C.C.R. 176; Cairns v Scott 1997 S.C.C.R. 287; and to section 65(8) of the 1995 Act. While the defence could in theory bring proceedings to an end by abandoning the appeal, the Crown would in such circumstances bring a Bill of Advocation challenging the sheriff's refusal to allow the case to call on 27 October 2008, and the case would ultimately re-appear in the appeal court.

Discussion

[18] In HM Advocate v Swift 1984 J.C. 83, Lord Justice General Emslie defined the two-stage test as follows:

"If an extension is to be granted under [the precursor of section 65], the first question for the judge concerned is, accordingly: '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?'"

[19] Applying that test to the circumstances facing the sheriff, we consider that the primary reason for the motion for an extension of the 12-month period was the absence of an essential Crown witness. The procurator fiscal was quite simply unable to proceed to trial without that witness, and had no option but to seek an adjournment. The warrant for the missing witness was granted on 16 September 2008, and, for technical reasons, was not extracted until 17 September 2008. The police then had to be instructed. The police had to trace and arrest the witness. In those circumstances, we consider that there could be no certainty that the witness would be found, arrested, and brought to court before the expiry of the 12-month period. Thus a decision to grant an extension of the 12-month period, which would give sufficient time for the witness to be found and brought to court, cannot in our view be criticised. We note in this context that the absence of a vital witness is mentioned by the Lord Justice Clerk at paragraphs [6] to [7] of Early v HM Advocate as an example of a circumstance for which the Crown may not be responsible, and which may indeed satisfy the test at the first stage.

[20] It has to be acknowledged that the case was being brought to trial at the end of the 12-month period. However the prosecution system is subject to many demands, and prioritisation and timetabling of cases is a matter for the Crown, subject to the obvious risks run in the light of the guidance given in Warnes. More importantly, the circumstances in the present case were, in our view, readily distinguishable from those in Swift, Early and Warnes. This was not a case where the sole reason underlying the request for an extension of the 12-month period was "pressure of business" in the sense used in Warnes. Nor was the only reason something for which the Crown was responsible, as in Early, or a "history of repeated, inexcusable, and wholly unexplained major errors on the part of the Crown", as in Swift. On the contrary, the primary reason in the present case was the absence of a duly-cited and crucial Crown witness. While therefore we accept that there was a background of time-tabling and administrative difficulties which the sheriff mentions in his report, and while there had been delay in providing the defence with label production 42, those matters cannot in our view detract from the fact that the Crown was wholly disabled from proceeding to trial on the due date by the unexpected absence of a duly cited, and essential, Crown witness. Accordingly we do not accept that the strictures expressed in Warnes are applicable in the present case.

[21] Thus, in the context of the first stage of the two-stage test laid down in Swift, we agree with the sheriff that "sufficient reason" for granting the extension was made out. In relation to the second stage, we consider that the exercise of the sheriff's discretion cannot be faulted. Being concerned in the supplying of illegal drugs is a serious charge. The extension sought was not long. There was no suggestion that the appellant would be prejudiced by the extension (other than by losing the benefit of the time-limit). For example, there was no suggestion that a line of defence would become unavailable to him. Accordingly the sheriff was in our view entitled to exercise his discretion as he did.

Decision

[22] For the reasons given above, we refuse the appeal. It was not disputed that the court is able to grant a retrospective extension of the 12-month period. Nor was it disputed that the sheriff's refusal to allow the case to call on 27 October 2008 was erroneous, as section 74(1) was not applicable in the circumstances. Accordingly we are prepared to grant a retrospective extension of the 12-month period to a date which will allow the Crown sufficient time within which to serve a fresh indictment. Precise details of the extension can be discussed at the advising.

[23] One matter remains. The conduct on the part of the Crown in failing to acknowledge or respond to the appellant's requests (both written and oral), to be provided with inter alia a copy of a label production which formed an important part of the case made against him, was unsatisfactory. No acceptable explanation has been offered. The fact that the Crown might have caused confusion by referring to two label productions as number 42 in the indictment is, in our view, merely an aggravation. The appellant was entitled to a reasonable and timeous response to his requests, if only to receive an explanation that the label production had been lodged with the sheriff clerk, and should be viewed at the sheriff court in terms of section 68 of the Criminal Procedure (Scotland) Act 1995. There was an unacceptable lack of acknowledgment or response from the prosecution during the period from the first defence request dated 29 May 2008 until the continued first diet on12 August 2008, when a copy of the label production was finally made available to the defence.