Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 108

HCA/2015/3351/XC, HCA/2015/3350/XC
and HCA/2015/3299/XC

Lord Justice Clerk

Lord Bracadale

Lord Jones

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the Appeals under section 65(8) of the Criminal Procedure (Scotland) Act 1995

by

(1) AARON HOLLAND, (2) CONNOR McINTYRE and (3) CHRISTOPHER CULLEN

Appellants;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Mackintosh; McCusker, McElroy & Gallanagh, Paisley

Respondent: Farquharson; the Crown Agent

27 November 2015

Introduction
[1]        These are three appeals against a sheriff’s decision to extend the 12 month time bar in bail cases from Paisley Sheriff Court.  The circumstances of each case are similar, but not identical. 

[2]        The appellant Holland appeared on petition on 16 June 2014, on charges of a statutory breach of the peace and possession of a knife in Johnstone two days earlier.  He was indicted to a First Diet on 18 March with a trial diet in the sitting of 30 March 2015.  The case is apparently relatively straightforward; with 1 label and 9 witnesses, including 4 police officers.  However, the First Diet was continued for a week “to confirm the citation of witnesses”.  A late defence statement was allowed.  On 10 April, the trial diet was adjourned to the sitting commencing 26 May because of “pressure of business”.  That application is recorded as being unopposed.  At the end of that sitting, on 5 June, the diet was again adjourned on the Crown’s motion because of pressure of business, this time to a sitting commencing 31 August, with the time bar extended to 11 September 2015.  These applications were unopposed.  At the end of that sitting, the same thing happened and the trial diet was adjourned to the sitting of 7 December, with the time bar extended to 18 December.  The trial diet has accordingly been adjourned three times and the time bar extended by about 6 months.  Prior to each trial diet there had been additional First Diets, apparently simply to reiterate readiness for trial.

[3]        The appellant McIntyre, appeared on petition on 5 August 2014 on charges of assault to injury on 30 July and assault and theft on 1 August 2014, whilst on bail.  The incident on 1 August involved him allegedly stealing various domestic and personal items.  He was released on bail, but breached the conditions several times and was remanded in custody, probably on or about 6 March 2015.  He was indicted to a First Diet on 30 April with a trial diet fixed for 11 May 2015.  There are 2 productions, 5 labels and 28 witnesses, including 19 police officers on the lists with more being added by section 67 notices.  There were certain pleas of guilty and not guilty accepted at a continued First Diet on 7 May.  On 21 May the trial was adjourned on the unopposed motion of the Crown, due to pressure of business, to the sitting commencing 20 July 2015.  Bail was granted once more.  On 31 July, the trial was again adjourned, on the unopposed motion of the Crown, to the sitting commencing 31 August, with the time bar extended to 11 September 2015.  On 8 September the same occurred, except that the application to adjourn and extend the time bar was opposed, but granted.  The new trial diet was to be in the sitting of 9 November and the time bar was extended to 20 November 2015.  By 8 September, the appellant had been remanded in custody on other matters.  There have been 3 adjournments and extensions of about 3 months.

[4]        The appellant Cullen appeared on petition on 15 September 2014, on a charge of assault to severe injury and danger of life on the previous day.  He was remanded in custody.  He was indicted to a First Diet on 23 December 2014, with the trial diet on 5 January 2015.  The case appears to be relatively straightforward with 1 production, 2 labels and 10 witnesses, 4 of them police officers.  A label, one witness and 2 productions were added by section 67 notice.  Nevertheless, the First Diet was continued to 31 December to allow both parties to prepare.  On 14 January, the trial diet was adjourned to the sitting of 13 April, unopposed, because of the absence of an essential witness.  Bail was then granted.  There was an evidential hearing on a preliminary issue, which was ultimately not insisted upon by the appellant, on 13 April 2015.   On 22 April 2015, the trial diet was again adjourned because of the absence of a Crown witness.  This time the motion was opposed, but granted with the case going into the sitting of 31 August.  On 11 September, it was again adjourned, once more opposed, because of pressure of business, to the sitting of 17 September 2015.  The same happened on 7 October, when the case was adjourned, opposed, into the sitting of 26 October, with the time bar extended to 6 November 2015.  There have been 4 adjournments and the time bar has been extended by about 2 months.

 

The sheriff’s reasoning
[5]        The sheriff reports upon the continued difficulties surrounding pressure of business at Paisley.  There were 21 trials “continued”, as the sheriff puts it, into the two week sitting commencing 31 August.  There were 2 new custody trials scheduled for the sitting and 2 further custody trials were adjourned into it.  However, the first day was taken up with preliminary issue minutes, leaving only 9 days for the trials.  Not surprisingly, only 3 could be accommodated, although 5 were resolved upon pleas.  13 trials were adjourned into other sittings, with 9 of the adjournments and/or relative time bar extensions being opposed.  The sheriff reports that one of the problems with his jurisdiction is the low rate of pleas of guilty, which he attributes to some accused refusing to accept their guilt.  The sheriff states that he applied the dicta in HM Advocate v Swift 1984 JC 83 and Early v HM Advocate 2007 JC 50 and attempted to strike a balance between all the persons involved, not least the victims of crime.  He reasoned that the Crown cannot control the levels of serious crime in his jurisdiction.  They are required to serve indictments within the statutory time limits, hence the problems.  The sheriff expresses concern about the lack of Crown and shrieval resources to deal with preliminary issues in advance of trial sittings.  He notes the additional resources which have been provided to deal with the backlog of summary business.  He was unaware of any similar resource being provided for solemn cases, but the court programme had been re-structured to encompass consecutive 2 week sittings.

 

Submissions
Appellants
[6]        The appellants drew the court’s attention to this being the third time in recent years that the problems at Paisley have been raised (following Stewart v HM Advocate [2014] HCJAC 93 and Uruk v HM Advocate 2014 SCCR 369).  Whatever was going on had not got any better.

[7]        The time bar provisions were designed to protect the lieges and were thus important (HM Advocate v MacTavish 1974 JC 19, LJC (Wheatley) at 22).  The court required to ask first whether sufficient reason had been shown which might justify an extension.  Errors on the Crown’s part could not supply such a justification (HM Advocate v Swift 1984 JC 83, LJG (Emslie) at 88-89).  The second question was whether the court ought to exercise its discretion to grant an extension in all the circumstances.  It was only at that stage that a balancing exercise was required (ibid; and Early v HM Advocate 2007 JC 50, LJC (Gill) at 52-53).  Positive culpability was to be distinguished from administrative mishaps (ibid).

[8]        The obligation in terms of section 65 existed until such time as the trial commenced (see Thomson Committee on Criminal Procedure, 2^nd Report, para 15.09; Hansard, House of Lords, 15 January 1980, vol 404, Lords Mansfield and McCluskey; Uruk v HM Advocate (supra) at para 15).  It was not only the Crown who were responsible.  The court was too (Dyer v Watson 2002 SC (PC) 89, Lord Bingham at para 55).  If the system has failed and the problem persists, Lord Rodger’s axe (R v HM Advocate 2003 SC (PC) 21, at para 155) ought to be applied.

[9]        In all 3 cases there had been no reasonable prospect of the trials proceeding.  The failures had been systemic.  It was not said that the time lapse in itself amounted to unreasonable delay in Convention terms.  Nevertheless, there had been a backlog of business which required, but had not been given, “reasonably prompt remedial action” (Buchholz v Germany (1981) 3 EHRR 597 at para 51).  That amounted to a breach of Article 6.

[10]      The changes in the Judiciary and Courts (Scotland) Act 2008, relied upon in Uruk v HM Advocate (supra at para [13]), had not had a bearing on the issue.  The Act had not made reference to section 65 of the 1995 Act.  The Policy Memorandum accompanying the Bill had referred (at para 112) to the responsibility for the arrangements for the disposal of business passing to the Lord President. 

[11]      According to a letter from the sheriff clerk dated 20 November 2015, in the sitting of 31 August, there had been 28 trials scheduled.  11 were dealt with at First Diets by pleas, warrants or postponements.  The first day was taken up by an over-spilling trial (ie not by preliminary issues).  3 cases had proceeded to trial.  Others were adjourned or pled, but one motion by the Crown to adjourn was refused.

 

Respondent

[12]      The advocate depute replied by emphasising that the sheriff was in the best position to determine the issue, having regard to his knowledge of the system in his sheriffdom and the particular circumstances of the case.  The sheriff had correctly applied the first stage of the test in HM Advocate v Swift (supra) and Early v HM Advocate (supra) and thereafter exercised his discretion in terms of the second stage.  Steps had been taken to address the situation in Paisley by allocating additional sitting time and transferring cases to other courts within the sheriffdom.  The number of outstanding indictments awaiting trial had decreased by 20% over the period April to November 2015 (102 to 79).  An additional week every month had been put in place and an additional procurator fiscal depute had been allocated to solemn business.  Transfers to Dumbarton and Greenock were being facilitated.

 

Decision
[13]      It was emphasised in Uruk v HM Advocate 2014 SCCR 369 (at para [10]) that it was important to put the previous cases involving extensions of time into an historical context.  The previous concern was about the Crown indicting too many cases into a single sitting at which they could not possibly be processed.  They are from an era before the re-organisation of the courts in the Judiciary and Courts (Scotland) Act 2008, which established what is now the Scottish Court and Tribunal Service, independent of government.  The responsibility for the efficient disposal of business in the sheriff courts is that of the sheriffs principal.  The overloading of trial sittings, other than in relation to new cases indicted to a First and Trial Diet rests not with the Crown, or Government, but the judicially led SCTS and the sheriffs principal.  Put another way, the cause of any problem relative to pressure of business ceases to be that of the executive and becomes that of the court, which must also take the decisions on how the various interests are to be weighed on the scales of justice.

[14]      In all of the current cases, the Crown fulfilled their obligation to indict the appellants to a trial diet within the statutory time limits.  That having been done, the decision on whether that diet could proceed rested with the court.  In each case, the diet was adjourned without objection.  The progress of the cases then fell within what was, and is, judicial control, albeit that the Crown would have an input on that process given their exclusive knowledge of new cases.  The decisions to adjourn and to extend any time bars were all discretionary judicial ones which depend upon a number of factors, including the accused’s rights under Article 6, but also the public interest in seeing that serious crime was prosecuted rather than being discontinued without enquiry.

[15]      Again, as was hinted at in Uruk v HM Advocate (supra), issues of programming are essentially for the local courts to manage, albeit under the general supervision of the High Court.  The court notes the continuing problems in Paisley; although the number of cases in the fortnightly sittings under consideration here were substantially less than the 34 in Uruk.  It notes also the positive steps which have been taken to reduce the levels of churn with trial diets by allocating more sitting time in Paisley, Greenock and Dumbarton.  There is a dispute over whether the first day of the particular Paisley sitting in August was occupied by an over-spilling trial or the hearing of preliminary issue minutes.  If it was the latter, the court must re-affirm its view that trial diets should not be used for such business. 

[16]      The level of trials being set down for one sitting appears to continue to be a problem and one which must be resolved.  It is not clear, for example, why 21 cases were continued into a single sitting, when it must have been obvious that that was, at the very least, a challenging number with which to cope.  Why all these cases required continued First Diets is also unclear from this court’s perspective.  The simple reality is that adjourned trials should only be programmed into sittings which can reasonably be expected to cope with them.  If that means that they require to be allocated to sittings which involve a long extension to the time bar, that may be the consequence which must be countenanced.  What is not acceptable is the repeated adjournment of trial diets with all that means in terms of witness citation and appearances by all parties, both to no effect.

[17]      That all having been said, the court cannot find any proper basis for interfering with this experienced sheriff’s decision to extend the time limits and adjourn the trial diets.  In each case, he correctly addressed the legal tests, notably the first stage in HM Advocate v Swift 1984 JC 83 and Early v HM Advocate 2007 JC 50.  He then balanced the competing interests and reached a reasoned decision, no doubt based on his in-depth knowledge of the practices and problems in Paisley Sheriff Court, which he was well entitled to reach.  Given the dates of the offences, the timing of the appearances on petition and what will be the prospective diets of trial, there is no question of any of these prosecutions having involved unreasonable delay in contravention of Article 6.  The appeals must therefore be refused.