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[2017] HCJAC 32


Lady Paton

Lord Malcolm

Lord Turnbull


delivered by LADY PATON










Appellant:  S Collins (sol adv);  Collins & Co (for Glasgow Defence Lawyers, Glasgow)

Respondent:  A Brown QC, AD; Crown Agent

25 November 2016

[1]        In this case Mr Collins, solicitor advocate for the appellant, contended that Sheriff McGowan had erred in the application of the two‑stage test set out in HM Advocate v Swift 1984 JC 83.  First, it was submitted that there was no sufficient reason to justify the grant of the extension of time.  Secondly, the sheriff had erred in the exercise of his discretion by granting the extension. 

[2]        In relation to the first stage, it was contended that the reason that the trial could not take place within the time limit was an error on the part of the Crown in prosecuting the case in the wrong jurisdiction.  When that error was first noticed in August 2016, the sheriff should have refused the Crown’s motion for an extension in order to re‑indict in the correct jurisdiction.  In particular, it was submitted that there was no proper explanation why this error had occurred.  The sheriff should have investigated further.

[3]        We note that the first part of the two‑stage test does not specifically refer to error.  To quote Lord Justice General Emslie’s words “The first question for the judge concerned is:  ‘Has a sufficient reason been shown which might justify the grant of an extension?’”  That was the question to which the sheriff initially and properly directed his attention. 

[4]        The reason for seeking the extension, as explained by the Crown, was recorded by the sheriff in his report.  The petition had originally included a charge alleging an offence in Edinburgh.  However at the stage of indictment, that charge had been dropped.  As the sheriff explained in paragraph [4] of his report:

“Although the remaining charges all fell within the jurisdiction of Stirling Sheriff Court, there had originally been one charge which fell within the jurisdiction of Edinburgh Sheriff Court.  That was why the case had been brought here.  At some stage, the prosecution of the latter charge had been discontinued.  Through an administrative error, it had not been noticed that that had an impact on jurisdiction.”


[5]        Before us today, the advocate depute explained that what had occurred was a simple error.  A checklist had been used which did not highlight the question of jurisdiction.  Thus despite two checks with the checklist, the Crown Office staff had failed to appreciate the difficulty.  Furthermore, when the case came before the sheriff court on several occasions prior to August 2016, the error went unnoticed not only by the Crown but also by the defence and by several sheriffs. 

[6]        In these circumstances, the five‑judge authority of Early v HM Advocate 2007 JC 50 is helpful.  A similar type of error occurred in that case, as two of the charges did not specify a locus.  The Crown accepted that there was an error.  At paragraph 39, the five‑judge bench identified the real nature of that error as “the lack of an effective checking system”.  In the present case, the error is similar.  A similar application in terms of section 65 has been made by the defence.  In Early the five judge bench sustained the sheriff’s decision to grant an extension.  Paragraph 27 of the Opinion is particularly relevant in placing that error in context. 

[7]        In the present case, we note that in previous court hearings the defence requested four adjournments:  on one occasion for further time to prepare;  on another occasion, because of the appellant’s failure to attend;  on a third occasion because of medical evidence that the appellant was not fit to go to trial;  and finally, because the appellant’s agent would be on leave at a particular trial date.  We note that these previous continuations contributed to delay in that there were several extensions of the 12‑month timebar being sought and granted. 

[8]        In all the circumstances we agree with the sheriff that “sufficient reason” has been shown.  We therefore turn to the second stage of the two‑stage test.  Mr Collins submitted that the sheriff had erred in the exercise of his discretion in all the relevant circumstances of the case by granting the extension. 

[9]        At the second stage, Sheriff McGowan took account of the serious nature of the charges (possession of images of the signatures of bank customers in connection with the commission of a fraud).  He also took into account the history of previous defence motions to adjourn, and the extensions granted.  Again, he took into account the fact that no specific prejudice was prayed in aid by the defence.  Ultimately, having considered all the relevant circumstances of the case, he concluded that he should exercise his discretion by granting an extension. 

[10]      In our opinion, the sheriff’s exercise of his discretion cannot be criticised.  Relevant factors were taken into account, and weighed up appropriately.  

[11]      In the result, this appeal is refused.