LORENZO CARLO RIAVIZ v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Kirkwood Lord MacLean | Appeal No: XC515/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL under section 65(8) of the Criminal Procedure (Scotland) Act 1995 by LORENO CARLO RIAVIZ Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; John Henderson & Sons, Dumfries
Respondent: Turnbull, QC, AD; Crown Agent
8 May 2003
[1]On 3 April 2003 at Glasgow High Court Lord Philip granted an application by the Crown under section 65(3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) for an extension of the 12 months period within which the present appellant could be brought to trial. The extension was from 4 April 2003 to 13 June 2003. The appellant appeals against that extension in terms of section 65(8) of the Act.
[2]On 29 January 2002 the appellant appeared on petition at Dumfries Sheriff Court on a charge of assault to severe injury and danger of life. He was fully committed and released on bail. On that date the 12 months period began to run. The appellant was thereafter indicted for trial at the sitting at Glasgow High Court that was to begin on 2 December 2002, a date that was ten months into the twelve months period. To indict for trial so close to the time limit is not uncommon nowadays. At that sitting the court adjourned the case on the motion of the defence to the sitting that was to begin on 27 January 2003 and, on the motion of the Crown, extended the 12 months period from 29 January 2003 to 7 February 2003. This adjournment was granted on the basis that two crucial Crown witnesses had been unavailable for precognition, in the case of one of them by reason of serious illness.
[3]On 5 February 2003, on the unopposed motion of the Crown, the court adjourned the trial to the sitting that was to begin on 24 March 2003 and granted a further extension of the 12 months period to 4 April 2003. The extension was granted on the basis of the continuing illness of one of the Crown witnesses. The appellant was by then in custody on a separate matter.
[4]When the case called on 3 April 2003 the Crown applied for a third extension of the 12 months period on the basis of pressure of business at that sitting, which was due to end on the following day. The advocate depute informed the court that as at 3 April all available Glasgow courts were manned and in operation and all of them were occupied with continuing trials. Two of the courts in which trials were running could not continue to sit beyond 4 April because of the unavailability of either the judge or the advocate depute after that date. It would not be possible to start the appellant's trial on 4 April and conclude it within the day. The advocate depute submitted that all reasonable attempts had been made to deal with the business set down for that sitting but that the Crown had had to give priority to other cases in which time-bar problems were even more pressing.
[5]Counsel for the appellant opposed the application on the basis that in Warnes v HM Adv (2000 SCCR 1127) this court held that pressure of business is not of itself sufficient reason for the granting of an extension of the statutory period.
[6]The trial judge granted the extension on the view that Warnes was distinguishable. In his report to the court he observes that in Warnes, both before the sheriff and before the appeal court, the Crown advanced no cause other than the accumulation of cases in the sitting in question. The Crown did not refer to the history of the case nor rely on any earlier events that had given rise to the situation that had arisen. In the present case, on the other hand, the Crown had drawn attention to the fact that the progress of the case had been hindered at an earlier stage by the serious illness of the Crown witness to whom we have referred and that the case had had to be adjourned twice. If that had not happened, the situation in which the court by then found itself would not have arisen.
[7]On that view, the trial judge concluded that it was open to him to exercise his discretion as to whether or not to grant the application. He decided to grant the application. He considered it to be a material consideration that if the problem with the two witnesses had not arisen at the December 2002 sitting, the Crown would have been, at worst for it, in the same situation in the December sitting as it was in on 3 April. If it had been impossible for the appellant's case to be tried at the December sitting, it would have been possible to adjourn the trial to a date which would not have required an extension of the 12 months period. He therefore exercised his discretion in favour of the Crown and extended the time limit to the full extent applied for, that is to say for a further 71 days.
[8]At the sitting at which the extension appealed against was granted, the Crown cited no fewer than 49 cases, by no means an unusual number at Glasgow sittings nowadays. On the day on which Lord Philip granted the extension appealed against, eight other cases were called and adjourned, again because of pressure of business. The main causes of the pressure were that a three-accused murder trial had run on from the previous sitting, which made one court unavailable for the 27 March sitting, one court was closed for renovation, and the two other available courts could not continue after 4 April because they could not be manned. It has not been suggested that any of the accommodation problems were not foreseen by the Crown before the sitting began. When we asked the advocate depute if the Crown had had a plan B for the present case, such as an alternative venue, it became apparent to us that it had not.
[9]We have allowed this appeal. In our opinion, the trial judge erred in distinguishing Warnes on the supposed ground that in this case the Crown relied on the history of, and the reasons for, the previous adjournments, whereas in Warnes the Crown had relied only on pressure of business at the sitting in question. In our opinion, in the particular circumstances of this case there is nothing in that distinction.
[10]As it happens, there had also been a previous extension of the twelve months period in Warnes (Warnes, supra, at para [1]) in consequence of an adjournment granted to the defence. The extension appealed against had been granted on the representation of the Crown that other cases at the same sitting had been given priority.
[11]In our opinion, in both Warnes and this case the history of previous extensions was neither here nor there. The straightforward position that confronted the Crown in this case on and after 5 February 2003 was that the right to bring the appellant to trial would lapse on 4 April. The Crown was not entitled to make any assumptions as to the granting of further extensions. In that knowledge, the Crown gave priority to other cases at the sitting, with the result that it ran out of time in the present case. This case cannot be distinguished from Warnes in any material respect. The appeal must inevitably be allowed.