BILL OF ADVOCATION BY HER MAJESTY'S ADVOCATE AGAINST FRANCIS JUDE DONALDSON
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 29
HCA/2015/3353/XC
Lord Justice Clerk
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the Crown Appeal
BILL OF ADVOCATION
by
HER MAJESTY’S ADVOCATE
Appellant;
against
FRANCIS JUDE DONALDSON
Respondent:
Appellant: Edwards AD; the Crown Agent
Respondent: Jackson QC; Reilly Cassidy & Co, Glasgow
20 November 2015
[1] This is a Bill of Advocation by the Crown complaining about a decision of the sheriff at Glasgow on 18 August 2015 to desert simpliciter. The respondent faced sixteen charges of assault, breach of the peace, assault to injury and danger of life, and contraventions of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. All the alleged offences involved two women, one of whom was his wife, and were said to have occurred between 2001 and 2013. It was the respondent’s contention that the allegations have all been fabricated in order to achieve financial leverage in negotiations in his pending divorce proceedings. He maintained that there are incriminating text messages between his wife and her sister confirming this malicious intent.
[2] The respondent had initially appeared on petition charged with only 9 offences on 30 December 2013. He was indicted to a First Diet on 20 November 2014. The trial fixed for 8 December 2014 was postponed until 30 March 2015 on the motion of the respondent, to allow him further time to prepare. The 12 month time-bar was extended. At a continued First Diet on 11 March 2015 the trial was adjourned again, this time to 26 May 2015, again on the motion of the respondent, to allow yet more time to prepare, with the time-bar period once more extended.
[3] The defence preparations included the proposed recovery of the telephone records of the appellant’s wife and of his own mobiles, both of which had been seized by the police. The respondent’s agent had written repeatedly to the procurator fiscal seeking these records, to no avail or even acknowledgement of some 15 letters sent. Eventually, a specification of documents was lodged. A hearing on the specification was fixed for 20 March 2015, but was continued twice on the basis of a Crown undertaking to produce the records. According to the respondent, unknown to his advisers at the time, the police did not want to hand over the material and were producing spurious reasons not to do so. The respondent thought that the Crown already had the material, but it had remained in police custody.
[4] On 6 May 2015, the respondent moved for the trial to be deserted pro loco et tempore, on the basis that the records had not yet been produced. On 21 May this application was ultimately granted. The time-bar period was extended to 31 August 2015. The respondent’s representatives had a meeting with the Crown thereafter and were assured that the material would be available when the case was re-indicted.
[5] A fresh indictment, containing seven additional charges, cited the respondent to a First Diet on 18 August, with a trial diet fixed for 31 August 2015. The Crown had received a pen drive containing the relevant information in advance of service of the new indictment. They did not consider that the information could be disclosed in this form. Rather, it would have to be printed out and then redacted to exclude confidential material, such as communications between the respondent’s wife and her legal advisers in the divorce. This would involve reviewing some 600 pages. This exercise had not been completed by the date of the First Diet. At that diet, the respondent moved the sheriff to desert the indictment simpliciter, on the basis that the Crown had given an undertaking to disclose the records, and they had still not done so. The Crown sought a continued diet to allow them time to disclose the records prior to the trial or at least to provide an explanation for the failure to disclose them. However, the sheriff deserted the indictment simpliciter.
[6] The sheriff has set out the factors which he took into account in his report. First, the Crown bore the primary responsibility for the failure to disclose the records. Their repeated failure supported the inference that they were either unwilling or unable to disclose material that the defence had contended was necessary for a fair trial. Secondly, a previous indictment had been deserted pro loco et tempore because of the failure to disclose the records. Finally, desertion pro loco et tempore would inevitably have involved a fourth extension to the time-bar period. As a fair trial required to take place within a reasonable time, this extension would be unwarranted.
[7] The sheriff records that he was not referred to the discussion of the appropriate test in HM Advocate v Fleming 2005 JC 291 and Paterson v HM Advocate 2008 JC 230, although he did consider whether any future trial would inevitably be unfair. He also explains that he took into account an irrelevant factor, being the likely extension of the time-bar period.
[8] In HM Advocate v Fleming 2005 JC 291, it was stated (LJC (Gill) at para [35]) that the test to be applied when a court is considering deserting a case simpliciter, and thus bringing the prosecution to an end, is whether an unfair trial has become inevitable (see also Paterson v HM Advocate 2008 JC 230, at para [13]). The sheriff states that, although he was not referred to the authorities, he did consider that any future trial would be unfair. The reason for his conclusion was that he had inferred that the Crown were either unable or unwilling to disclose the material which, it was conceded, ought to be disclosed if a fair trial were to take place.
[9] The problem with the sheriff’s reasoning is that the obvious remedy in the situation which had arisen was not desertion, but an order upon the Crown (or other haver), to produce the records. It is not clear why that had not been done at an earlier stage other than, as it was put, a reluctance on the part of the respondent’s advisers to force the issue in the face of assurances from the Crown. That is understandable. However, the appropriate course, whether in the earlier or the later proceedings, was for the court at the First Diet to ascertain the time required for production of the material, to set a clear time table for that production and to fix a trial diet a reasonable time beyond the expiry of that period. The court ought not to have countenanced the unnecessary churn of First Diets. In deciding instead, on the second indictment, that the appropriate remedy was a draconian one, the sheriff erred. There was no suggestion that the material could not be obtained by court order or otherwise. That being so, there was no reason for any subsequent trial to be classified as inevitably unfair.
[10] The Bill is accordingly passed and the order of desertion simpliciter recalled. The material was available, and handed over, at the hearing on the Bill. It will require some time to consider. The respondent was anxious to retain his current legal team and, if the Bill were passed, this could only be achieved if a new trial diet were set some months hence. That is what the court will do. It will extend the 12 month time bar in order to accommodate the respondent’s requirements in the absence of an objection by the Crown. There is no obvious need for a further First Diet.