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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 9
HCA/2022/251 /XC
Lord Justice General
Lord Pentland
Lady Wise
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL UNDER SECTION 65
OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
PHILIP MICHAEL BARR
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Findlater; Adams Whyte
Respondent: Gillespie QC AD; the Crown Agent
28 July 2022
Introduction
[1]
This is an appeal against a sheriff's decision to extend the twelve month time limit
for commencing a trial under section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995.
Such decisions are normally fact specific and therefore unlikely to raise issues that are
susceptible to appellate review. However, an issue of principle has arisen in relation to a
2
continued reliance by both the sheriff and the parties on dicta in Swift v HM Advocate 1984 JC
83 and Early v HM Advocate 2007 JC 50 coupled with an apparent disregard of the more
modern approach in HM Advocate v Graham 2022 SCCR 68 and Uruk v HM Advocate 2014
SCCR 369. Greater clarity is required in order to assist first instance courts with the
appropriate modern approach.
Facts
[2]
The appellant was indicted to a First Diet on 29 April 2021 in the sheriff court at
Edinburgh. He had earlier appeared on petition on 15 July 2020. The principal charge
libelled that, between January and July 2020, he engaged in an abusive course of conduct
towards his partner, KM, contrary to section 1 of the Domestic Abuse (Scotland) Act 2018.
The libel details a multiplicity of threats, assaults and general coercive activity, some to
injury, of a relatively serious nature. The second charge is a breach of a bail condition not to
approach the complainer.
[3]
The First Diet was continued administratively to 17 June 2021 and then 29 July,
because of the Covid pandemic. On the latter date it was continued, on the unopposed
motion of the appellant, to 26 August "to ascertain whether it was possible to resolve the
case". The case was not resolved. A trial diet was fixed for 24 January 2022. The twelve
month time bar under section 65 of the 1995 Act, which had been 15 January 2022 (see the
Coronavirus (Scotland) Act 2020, schedule 4), was extended to 28 January. When the trial
diet called on 27 January, it was adjourned, on the opposed motion of the Crown, until
23 May, on the basis that the complainer, who had been cited, had not appeared. The time
bar was extended until 27 May. The sheriff was informed that the police had told the Crown
that the complainer no longer lived at the address which she had provided. The police had
3
spoken to her on the phone. She had refused to disclose her new address and said that she
would not be attending court. The procurator fiscal depute applied for, and was granted, a
warrant for her arrest.
[4]
When the trial diet called in May, the complainer was again absent. The Crown
sought a further adjournment and another extension of the time bar. A different PFD
explained that it was normal for any arrest warrant to be passed from the court to the
Crown's administrative staff and thence to the police for execution. That had not happened.
The warrant had not been received by the Crown. The Crown attributed this to the fault of a
clerk of court. The appellant's agent advised the sheriff that he had been told by January's
PFD that she had spoken to the complainer and had warned her of her potential arrest,
should she not attend court. The agent had been told by the PFD that the Crown had
decided not to execute the warrant, but planned to re-cite the complainer for the trial in
May. The sheriff understood that she had not been cited. This was a misunderstanding (see
below).
[5]
The sheriff adjourned the trial to 8 August, with a continued First Diet fixed for
30 May to enable the Crown to respond to the defence agent's account of events. On that
date the new PFD confirmed that the earlier PDF had been told of the complainer's intention
not to come to court; hence the application for the warrant in January. Had the warrant
been passed to the Crown, the new PFD said that it would have been executed.
The sheriff's decision
[6]
For the FD on 30 May, the sheriff had asked to be addressed specifically on what has
become known as the two stage "test" in Swift v HM Advocate. The first question was
whether the Crown had shown a sufficient reason to justify an extension. The second was
4
whether, if they had, the court should grant an extension in all the circumstances. The
gravity of any error by the Crown was one relevant factor (Early v HM Advocate). Having
heard parties, the sheriff extended the time bar until 12 August. He considered that it had
not been unreasonable for the Crown to have considered that the warrant would have been
executed in normal course. The court had not passed the warrant to the Crown. What had
occurred was an "administrative mishap", rather than an error of the Crown. The Crown
had erred, however, in failing to conduct checks in advance of the trial to ensure that the
police were taking active steps to execute the warrant. The error had not been either a
serious or a systematic one. The first stage of the test in Swift had been met. The second
stage was also passed having regard to the seriousness of the charges and the proximity of
the trial diet. The prejudice to the appellant was counter-balanced by the public interest.
Additional material
[7]
It transpired that, prior to the trial diet in May 2022, efforts had been made to re-cite
the complainer. Although the details of exactly what steps had been taken remain unclear,
there must have been an initial attempt at postal citation, because the police were
subsequently instructed to execute a personal citation, presumably because postal service
had failed. On 19 May the police had gone to an address where the complainer was
apparently living. They gave the citation to a sister-in-law of the complainer. On 24 May,
the sister-in-law told the police that she had given the citation to the complainer.
[8]
At the hearing of the appeal, the Advocate depute agreed with a comment from the
court that, in light of the views on the arresting of complainers in Graham v HM Advocate (at
para [20]), the decision to seek a warrant for the complainer's arrest at the January diet was
"mystifying". The Crown Office Victims and Witness Manual provides:
5
"35.
Witness Warrants
There may still be cases where despite the various efforts and support mechanisms
outlined above, the victim refuses to attend court. It is recognised that taking
warrants for such victims may be counter-productive. Therefore, careful
consideration must be given to whether it is appropriate to seek a witness warrant in
these cases. Each case should be considered on its own merits and it is important to
ascertain if the victim has had any contact with VIA
1
. Where possible this should be
done before the warrant is sought, and in all cases before the warrant is executed.
Prior to taking a decision in relation to the execution of witness warrants, VIA should
be asked to make contact with the victim to ascertain whether there was a reason for
non attendance. VIA should also contact any specialist domestic abuse support or
advocacy service with whom the victim is engaging to ensure that they have an
opportunity to submit any relevant information that they may have in relation to the
non attendance of the victim. Where no good reason is given for the failure to
attend, then an opportunity to answer the warrant voluntarily at an arranged diet
should be offered.
Where, exceptionally, a decision is taken to execute a witness warrant this should be
approved by a senior member of staff (Principal Depute or above)."
The extent to which the Victim Information and Advice service had had contact with the
complainer, and with what effect, was not known. VIA would presumably have sent
various letters to the complainer in an attempt to keep her up to date and duly informed of
the progress of the case. The Crown understood that the complainer and appellant
continued to be in a "relationship".
Submissions
[9]
The Note of Appeal contends that the grant of the extension in May 2022 was
"unreasonable". No sufficient reason had been advanced to satisfy the first stage of the test
in Swift. That test had been affirmed in Graham, as had the dicta in Early. The Crown had
understood that the only way of securing the complainer's attendance was by executing the
warrant. They had a warrant in January but had done nothing to check what happened with
it between then and the trial diet some four months later. The Crown, as an organisation,
1
The Victim Information and Advice service
6
must have known that they had not received the warrant and that it had never been passed
to the police for execution.
[10]
The Crown submitted that the sheriff had applied the correct test. The respondent
recognised that the Crown were at fault in failing to check whether the warrant had been
executed, but the warrant ought not to have been applied for in the first place. More
effective steps could and should have been taken to secure the complainer's engagement
with the proceedings, which had fluctuated over time. There was no positive culpability of
the type described in Early, but rather an assumption that the process, which would
normally have flowed from the grant of a warrant, would have taken place. Fault also lay
with the complainer in failing to attend the trial diets, to which she had been cited.
Decision
[11]
The twelve month time limit on the commencement of trials in section 65 of the
Criminal Procedure (Scotland) Act 1995 is, in comparison to those ancient and embedded
provisions applicable to persons in custody (ibid s 65(4)), a relatively recent statutory
innovation. It was introduced by the Criminal Justice (Scotland) Act 1980 (s 14(1)). The
language of section 65(3) gives the judge or sheriff power to extend the period simply "on
cause shown". Such language is not, in other contexts, normally regarded as imposing a
high test, such as that applicable in a custody case (on which see HM Advocate v MacTavish
1974 JC 19), or one with more than one stage. Nevertheless, this is what has been taken from
HM Advocate v Swift 1984 JC 83, in which MacTavish was used as an exemplar, and has been
[12]
In HM Advocate v Graham 2022 SCCR 68, the court (LJG (Carloway), delivering the
opinion of the court, at para [15] et seq), explained, under reference to Uruk v HM Advocate
7
2014 SCCR 369 (LJC (Carloway), delivering the opinion of the court at para [10]), that the
dicta in Swift and Early must be read according to the context of, first, the criminal justice
system in place at the time, in comparison to that in the current era, and, secondly, their
facts.
[13]
At the time of Swift, control of the progress of cases was almost exclusively in the
hands of the Crown; an arm of the executive. The availability of court diets was, at least in
part, under the control of the Scottish Courts Administration, which was then another arm
of the executive. The courts' concern in the early 1980s and beyond was to ensure that the
Government was funding the criminal justice system at a level which ensured that the
twelve month time bar operated in practice. That was at a time when fault on the part of the
Crown, in prosecuting solemn cases timeously when an accused was in custody, could of
itself result in an accused tholing his assize. No doubt that may still occur in some
situations. The era was one in which the adjournment of trial diets was a rarity and heavily
discouraged. The numbers of solemn trials were low in comparison to today. This was all
before the increase in prosecutions, first, for concern in the supply of Class A drugs, notably
heroin and cocaine, and, secondly, for sexual, and especially historical sexual, offences.
[14]
The situation in relation to the adjournment of trials had changed by the time of
Early. By then the overloading of trial circuits by the Crown and the consequent churn of
trial diets, had become a significant problem. The Bonomy Report (Improving Practice: 2002
etc.) led to the changes introduced by the Criminal Procedure (Amendment) (Scotland) Act
2004. This in turn led to the court beginning to take over what had formerly been the
Crown's role in progressing cases once the indictment, citing an accused to a Preliminary
Hearing in the High Court (1995 Act s 72 as substituted in 2004) or a First Diet in the sheriff
court, (1995 Act s 71B inserted in 2016), had been served. The provision of funding to
8
accommodate trial diets remained a concern, in so far as it was controlled by the executive
until the Judiciary and Courts (Scotland) Act 2008 established (s 60) the Scottish Courts
Service (now the Scottish Courts and Tribunals Service) as a judicially led body corporate.
Thereafter it was for that body to provide the necessary funding to accommodate trial diets,
albeit within a Parliamentary approved budget. In short, the need for judicial scrutiny of
executive funding and control over the progress of individual prosecutions, from the point
at which the indictment was served, has changed since not only Swift but also Early.
[15]
The idea that a sexual offences trial would not proceed, and the charge deserted,
because of the non-appearance of a vulnerable complainer, was only beginning to be
dispelled in the wake of the notorious "Glasgow Rape Case" (see X v Sweeney 1982 SCCR
161, LJG (Emslie) at 171). Since then, the measures which have been put in place to secure
the testimony of vulnerable witnesses, rather than to discontinue the prosecutions
prematurely, have been considerable (1995 Act, ss 271 et seq, as substituted/amended by the
Vulnerable Witnesses (Scotland) Act 2004 and the Vulnerable Witnesses (Criminal Evidence)
(Scotland) Act 2019).
[16]
The introduction of the twelve month limit, with its provision for an extension on
cause shown, must now be viewed in light of the incorporation of the reasonable time
requirement in Article 6.1 of the European Convention into domestic law. Having regard to
the jurisprudence on the interaction between the reasonable time requirement and the
general right to a fair trial (Spiers v Ruddy 2009 SC (PC) 1), it may often be difficult to resist
an application for an extension of the twelve month time bar when the trial remains due to
start within what would be regarded as a reasonable time under the Convention, where a
reason for an extension has been proffered and no additional prejudice to the accused is
demonstrated.
9
[17]
In relation to the particular facts in Swift and Early, Swift was a fraud case in which
the Crown failed to serve the indictment upon the accused in time to hold a trial within the
one year period. That was the critical feature. The court (LJG (Emslie) at 88) did not purport
to lay down a test, but it did say that in such cases it should ask, first, whether a sufficient
reason for an extension had been shown and, secondly, whether that extension should be
granted in all the circumstances. Whether these were ever intended to be two separate
questions to be applied as if encased in hermetically sealed compartments may be doubted.
[18] The problem in Early was a failure (a clear drafting error by the Crown) to libel a locus in
certain lewd and libidinous behaviour charges. Early (LJC (Gill) at para [5]) described what
had been said in Swift as involving a two stage test. The reason why a Full Bench was
convened in Early may not be difficult to surmise. However, the Lord Justice Clerk went on
to observe (at para [20]) that:
"Over the years various members of this court have expressed misgivings about the
decision in HM Advocate v Swift and have questioned whether it is necessary or
appropriate that a simple provision that the court `may on cause shown' grant an
extension should require the court to apply the rigid two-stage test that I have
described. These misgivings were alluded to, but not discussed, by the court in Ellis
v HM Advocate [2001 JC 115] (para 16). It was open to any of the parties in these
appeals to raise the point; but the Advocate depute and counsel for the appellants in
both this case and Fleming v HM Advocate [[2006] HCJAC 64] have based their
submissions on the view that HM Advocate v Swift was rightly decided. In the
absence of submissions to the contrary, I shall apply the Swift test in my
consideration of this appeal."
Early did not therefore affirm Swift: it proceeded on a concession that a two stage test should
be applied. The appeal against the extension of time in Early was refused.
[19]
Neither Swift nor Early are about the adjournment of trial diets and consequent
extensions of time to accommodate a new diet. Both involved faults in the service of the
indictment or the content of the libel. The dicta in them should not readily be transposed
10
into different situations. In particular they should not be applied to cases, such as the
present, in which, in sharp contrast to Swift and Early, the Crown have brought the case to a
trial diet within the twelve month limit.
[20]
The Crown indicted this case timeously; that is within twelve months from the first
appearance on petition (1995 Act, s 65(1)(b)). Thereafter, control of the case passed to the
court. The trial was fixed for January 2022 and the complainer was duly cited. The reason
that the trial did not go ahead was not because of some serious, systematic fault on the part
of the Crown, but because the complainer did not respond to her citation. This is not an
unusual situation in this type of case.
[21]
A new trial diet was fixed. The principal reason why it did not go ahead was again
the absence of the complainer. It would seem that she was aware of the diet and had been
given a citation for it too. It is said that the complainer's absence was the fault of the Crown,
in the sense that they ought to have ensured that she was arrested under warrant of the
court. This is unrealistic. It runs entirely contrary to the modern understanding of the
inherent vulnerability of complainers in sexual and domestic abuse cases and the suitably
cautious approach of the Crown Manual (above). It is quite inappropriate in sexual and
domestic abuse cases for complainers, who may be regarded as vulnerable, to be arrested
and thus kept in custody pending liberation at a court appearance, or perhaps even until the
trial diet, thus adding to any trauma which they might have already sustained. The
appropriate course is, at least initially, to persuade the complainer to attend the trial, no
doubt by, amongst other things, putting in place vulnerable witness measures. Better still,
as was made clear in Graham (at para [20]), steps should be taken to have the complainer's
testimony taken on commission. It would certainly have been wholly unsatisfactory, in the
11
circumstances narrated, effectively to end the prosecution, especially without knowing the
reasons for the complainer's reluctance to appear in court.
[22]
In order to succeed in this appeal, the appellant requires to persuade the court that
the sheriff erred in granting the extension of time; ie that the Crown had failed to show
"cause". Since the fundamental reason for the trial not taking place was the absence of the
critical witness, who had been duly cited, that test was met. As has been explained at some
deliberate length, Swift and Early must now be understood as being from a different era.
They each involved different circumstances, both in relation to the system in place at the
time and on their facts. It may still be valuable to pose the two questions which were
desiderated in Swift, but the single true question for the court, when it is being asked
effectively to stop a prosecution in a solemn case because of the non-appearance of a crucial
witness at a trial diet, is: where do the interests of justice lie? This will involve a balancing
of the interests of the accused in being brought to trial within the statutory time limit with
those of the complainer and the public in general in allowing the system of justice to
determine the charges libelled on their substantive merits as opposed to on grounds that are
essentially procedural in nature. If the interests of justice dictate that the time bar ought to be
extended, cause to do so will have been shown.
[22]
The appeal is refused.
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