BILL OF ADVOCATION BY JAMES AYERS AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 98
HCA/2015/218/XC
Lord Justice Clerk
Lady Smith
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the
BILL OF ADVOCATION
by
JAMES AYRES
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: B Gilfedder, Solicitor Advocate; Gilfedder & McInnes (for Trainor Alston, Coatbridge)
Respondent: Edwards AD; the Crown Agent
26 February 2015
[1] The appellant has been indicted on three “bogus workmen” charges relating to incidents in Bishopbriggs, Bearsden and Paisley in October and November 2012. All the charges involved complainers aged between 70 and 80 and two of the charges involved obtaining in excess of £16,000 and £13,000. The appellant was originally remanded on petition on the Bishopbriggs charge at Glasgow Sheriff Court, but had been bailed, prior to full committal, on 21 November 2012. In relation to the remaining two charges, he appeared at Dumbarton and Paisley on 14 and 18 January 2013 and was again released on bail. The first two charges were initially indicted to a First Diet at Glasgow on 14 October, which was continued until 3 January 2014, with a trial diet set for 20 January 2014. However, the Crown decided not to call the case at the continued First Diet, but elected to re‒indict on all three charges in Paisley Sheriff Court.
[2] The indictment, with which the court is now concerned, was served in November 2013, with a First Diet on 23 November 2013 and a trial diet on 9 December 2013. The initial trial diet was postponed until 14 April 2014 on the unopposed motion of the appellant on the basis that disclosure of an unspecified nature was required. The 12 month time limit was extended unopposed until 1 May 2014. The First Diet, which had been set for 1 April, was continued to 9 April, on joint motion of the Crown and the co‒accused, to allow the Crown “to prepare and check the status of witnesses” (whatever that may mean). On 9 April the court was told that the case was ready to proceed to trial.
[3] On 2 May 2014 the trial diet was adjourned, on the unopposed motion of the Crown, because of “pressure of business” until 5 August, with a first diet set for 22 July. The time limit was extended again to 29 August. The appellant maintains that there was also a Crown witness absent on annual leave, but this was not minuted. In the absence, at least, of agreement to the contrary, the court proceeds on the basis that that is not something which the sheriff took into account.
[4] On 22 July 2014, although the co‒accused failed to appear and a warrant was granted for his arrest, the Crown and the appellant stated that they were ready for trial. However, on 18 August the trial diet was once more adjourned, again because of “pressure of business”, this time to 24 November. A first diet was fixed for 12 November and the time limit extended to 12 December 2014. The minute reads that these motions were granted unopposed. Although the appellant maintains that that is not so, the court proceeds on the basis of the accuracy of the minute, again in the absence of agreement to the contrary.
[5] On 12 November 2014, the co‒accused again failed to appear and a warrant was issued for his arrest. On 9 December the Crown moved to adjourn the trial diet and extend the time limit again. The reason given this time was the unavailability of the complainer in the first charge. In terms of a medical certificate, it was said, in very general terms, that he was “medically unfit to attend the court”, but would be available in two or three months. The certificate is dated 3 December and is said to have been received by the Crown only on 8 December. The Crown attempted to obtain further details as to the nature of the complainer’s incapacity, but that was not forthcoming prior to the motion being heard. The appellant opposed the motion to adjourn because of the multiple applications which had been made previously. The sheriff granted it and adjourned the trial diet into the sitting of 13 April 2015, with an extension of the time limit to 23 April. A first diet is fixed for 18 March 2015.
[6] The sheriff reports that she reasoned that it was a matter for her discretion whether to grant the motion or not. She deemed that it was in the interests of justice to do so, having regard to the serious nature of the charges, the elderly complainers involved and the fact that the Crown had not been at fault in relation to the unavailability of the witness. She took into account the appellant’s position prior to making her decision. She comments further that nothing in the Bill of Advocation points to any error made by her in the exercise of her discretion.
[7] There are two significant problems with this Bill. The first is that it seeks to appeal the decision of the sheriff to extend the time limit, in terms of section 65 of the 1995 Act. Such an application by Bill is incompetent, standing the availability of an appeal under section 65(8) of the Act. It was explained that the solicitor presenting the Bill had had regard to Akhtar v HM Advocate (sub nom Akhtar v Murphy) 2014 SCCR 475, but the question of competency was not raised in that case.
[8] The second problem is, as the sheriff rightly notes, that the Bill contains no basis whatsoever upon which the sheriff’s decision could validly be challenged. No specific ground of challenge is advanced; the plea‒in‒law being in the most general terms. At the hearing today, it was said that the sheriff had failed to attach sufficient weight to the history of the case, but, since it is not raised in the Bill, that is not something which the court has the sheriff’s report on.
[9] As has been said relatively recently and repeatedly, cases involving decisions to adjourn or postpone trial diets are fact sensitive (HM Advocate v MSW 2014 SCCR 361; Uruk v HM Advocate 2014 SCCR 369). It is primarily for the court of first instance to determine where the interests of justice lie, having regard to all the circumstances of the case. In this case, the sheriff was presented with a medical certificate stating that an essential witness, namely one of the complainers, was unavailable to give evidence. That provided a sound reason to adjourn the trial diet, notwithstanding its procedural history, against the background of serious charges. The court is unable to find any fault in the approach which the sheriff has taken. It will therefore refuse to pass the Bill.
[10] One matter of concern, which arises in this case, is that a person who is now aged 90 has been cited to attend a court of law, for perhaps the fourth time in this process, and one some distance from his home. The court makes no comment on the merits of the witness’s fitness to attend court. It may be that he is happy and wishes to do so. However, if it was not done, appropriate consideration should have been taken, at least by the stage of the first First Diet, both by the court and the Crown, as to whether this complainer’s evidence, and that of the other elderly complainers, ought to have been taken, at an early stage of the proceedings, on commission before the sheriff at a time and place suitable to all parties, including the witnesses. Their evidence could then be video recorded and played to the jury in due course, all in terms of section 272 of the 1995 Act.