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[2017] HCJAC 28


Lord Justice General

Lady Paton

Lady Smith











Appellant: Scullion QC, Mulgrew, Solicitor Advocate; Capital Defence Lawyers (for Keegan Smith, Livingston)

Respondent: W McVicar AD; the Crown Agent

28 July 2016

[1]        The appellant was indicted to a Preliminary Hearing at Glasgow on 5 July 2016, charged with offences involving inter alia the anal penetration of a 6 year old girl and a 6 year old boy in 2006.  There is a docquet attached to the indictment stating that it is the Crown’s intention to lead evidence of other lewd practices involving the complainers and another 6 year old.  The reason for the docquet is that the appellant was acquitted of these practices in 2008. 

[2]        The appellant originally appeared on petition in respect of the current charges on 6 June 2014.  He was indicted to a PH on 5 May 2015.  A trial diet was fixed for 29 October and the 12 month time bar extended to 4 November 2015.  The trial diet did not proceed because of the unavailability of defence counsel.  The appellant’s motion to discharge the diet for that reason was granted unopposed.  The reason for the lack of opposition was said to be the proximity of a new trial diet, although that was fixed for 5 January, with the time bar extended to 11 January 2016.

[3]        The problems which have arisen concern the citation of one of the complainers.  On 4 November 2015, the procurator fiscal wrote to the complainer’s father, in his capacity as a parent, advising him that the trial had been adjourned and would now take place some time between 5 and 11 January.  The complainer saw this letter, but it did not tell her exactly when she was to come to court, although she maintains that she would have attended had she been cited.  A citation had been prepared, but the police had been instructed erroneously that it ought to be served in the presence of a parent or guardian.  By that time the complainer was 16 and this was not necessary. 

[4]        Efforts by the police to serve the citation in the presence of the complainer’s father were unsuccessful initially because, when the police visited the complainer in early December, her father was not present.  The unserved citation was returned to the procurator fiscal’s office on 22 December 2015.  A further visit was made by the police on 24 December, asking the complainer to attend a pre-trial meeting with the advocate depute.  She did not do so.  On a second visit on Christmas day, a call-back card was left; there having been no response.  A further visit on 29 December again found the officers unable to gain access.  A further card was left, to which there was also no response.

[5]        On 5 January the complainer did not appear in court.  She had not, of course, been cited.  Further attempts were made to contact her, including visits by the police to her home on 5 and 6 January.  It had been the advocate depute’s intention not to have the case called until the end of the “float” period for the trial (11 January).  The judge having expressed dissatisfaction at that course of action, the case called on 7 January.  The advocate depute moved to desert pro loco et tempore.  The basis for this was the absence of the witness.  The advocate depute was unable to say whether the complainer was “engaging with the process”.  It is of some importance to note that this motion was not opposed.  The motion, and the lack of opposition, were both in a context in which it was understood that the Crown could apply at a later stage to extend the time bar retrospectively, if a reasonable explanation for the complainer’s non-attendance were proffered and it were made clear that she did wish to “engage”.  

[6]        It did not prove possible to contact the complainer until 17 January 2016, when she answered her door, apparently expecting someone else to be there, rather than the police.  The matter was re-reported to Crown Office only in mid-February.  On 1 March, instructions were given to re-indict and apply for an extension of time.  Drafts were prepared, but it took until 3 May for the indictment and application to be sent out for service. 

[7]        The case was re-indicted to a PH on 5 July 2016.  The indictment was accompanied by an application, under section 65(3) of the Criminal Procedure (Scotland) Act 1995, to extend the time bar to 6 August.  This was opposed.  The PH judge granted the motion, having regard to the two-stage test in Early v HM Advocate 2007 JC 1.  He decided that the Crown had shown a reason which might justify excusing the Crown’s failure to bring the case to trial timeously.  The complainer had been an essential witness but, at the time of the aborted trial diet, the Crown did not know whether she wished to give evidence or was reluctant to do so.  It had not been possible to cite her, despite repeated attendances at her address.  Once contact had been made, and it was realised that she was willing to continue, the case had proceeded.  The judge took the view that the Crown had been justified in deserting the diet, rather than requesting an extension to the time bar in January.  At that time no basis for an extension could have been advanced.  Any error, therefore, on the part of the Crown, in relation to the time bar, was capable of being excused.  Whilst it was regrettable that an extension was being sought several months later, the time lapse was understandable, given the work which required to be undertaken to prepare the new indictment. 

[8]        In looking at the second stage of the test, the judge recognised that the right to be brought to trial within the time bar was an important one and that an extension should not be granted lightly.  However, he had to balance that with the other circumstances, notably the serious nature of the charges and the fact that the appellant had not objected to the original desertion pro loco et tempore.  It was of some significance that the original trial diet had been lost, not because of any action on the part of the Crown, but because of the late unavailability of defence counsel.  Had the case proceeded expeditiously towards trial at that time, the current problems would not have arisen. 

[9]        It was submitted that the grant of an extension of time was an unreasonable one, having regard to:  (a) the absence of an adequate reason (Early v HM Advocate (supra) following HM Advocate v Swift 1984 JC 86).  It was said that some assistance could be gained from Squires v HM Advocate 1996 SCCR 916; (b) the judge’s error in excusing the failure to cite the complainer; (c) the judge’s error  in excusing the failure to use the time immediately after the trial diet to confirm whether the complainer was prepared to attend court and give evidence; (d) the judge’s error in excusing the decision of the respondent to allow the statutory time limit to expire; and (e) the judge’s error in excusing the failure to lodge an application to extend the time bar until May 2016, given that the new indictment did not involve any complex rewriting or other special feature.  There had been a wrongful exercise of the judge’s discretion. 

[10]      It was submitted on behalf of the Crown that the trial judge had addressed the correct test and that the decision which he had made was, in all the circumstances, “not unreasonable”.

[11]      The decision on whether to grant an extension of the 12 month time bar, in terms of section 65(3) of the 1995 Act, is primarily that for the judge at first instance, having regard to the two-stage test in Early v HM Advocate, (supra) following HM Advocate v Swift (supra).  The situation here was slightly unusual in respect that it involved an attempt to re-indict after the Crown had deserted pro loco et tempore.  Nevertheless, in order to overturn the decision, the court would require to identify an error either in the judge’s view that the Crown had shown cause, which might excuse their failure to proceed to trial within the relevant period, or in his discretion when balancing the various factors and determining ultimately that an extension should be granted.

[12]      There was a basis upon which the judge was entitled to excuse the Crown’s failure to secure the complainer’s attendance on 7 January and thereby commence the trial timeously.  Efforts had been made to cite the complainer, which had failed because they were, in part at least, frustrated by both the complainer and her father.  Squires v HM Advocate, involved a different situation in which the sheriff had misunderstood the import of a medical certificate.  The Crown had failed to show cause why, in that case, a trial could not have proceeded, albeit slightly later in time.  That was not the position here.  There was no information to suggest that the complainer could have been available, had the trial commenced slightly later during its “floating” period.  Once cause for an extension had been shown, the exercise became one of balancing the various interests involved.  That is what the judge did.  It is true that a time bar extension should not be granted lightly.  That was fully recognised by the judge.  However, he had to take into account the serious nature of the charges.  The fact that the original decision to desert pro loco et tempore had not been opposed was also a factor.  In the absence of an identifiable fault in the judge’s exercise of his discretion, the court is unable to see any basis upon which it could reverse his decision.   

[12]      The appeal is refused.