Sexual assault accused fails in appeal against decision to grant extension to 12-month period following Crown error

The Appeal Court of the High Court of Justiciary upheld the sheriff’s decision to grant a motion by the Crown after ruling that “sufficient reason” had been shown and that, having regard to the “whole circumstances” of the case, the sheriff had not erred in the exercise of his discretion.

Lady Paton, Lord Brodie and Lord Drummond Young heard that the appellant “GB” was charged in July 2016 but considerable police investigation was required to establish the identity of the alleged assailant and he ultimately appeared on petition in January 2017.

‘Communication failure’

Further investigations were required in order to establish whether or not the complainer, MH, required special measures when giving evidence, and a report dated 1 August 2017 concluded that the Crown would require to lodge a vulnerable witness notice.

The indictment was served in November 2017 with a first diet scheduled for the following month, but when the first diet called on 18 December 2017 no vulnerable witness notice was lodged due to a failure of communication in the prosecutor’s office.

Person A thought that person B was preparing the notice but person B thought that person A was preparing the notice, and as a result the notice was not available for the first diet.

The Crown therefore moved the court to continue the first diet to 23 January 2018 in order that (a) the prosecutor could consider taking MH’s evidence on commission; (b) an application could be made by the defence in terms of section 275 of the Criminal Procedure (Scotland) Act 1995; and (c ) a joint minute could be prepared.

That motion, which was unopposed, was granted by the sheriff.

Extension

At the continued first diet on 23 January 2018 the vulnerable witness notice was available.

The sheriff granted the notice, authorising certain special measures including the taking of MH’s evidence on commission.

The Crown moved the sheriff to adjourn the first diet until 26 March 2018 to allow the evidence of MH to be taken on a commission which had been fixed for the earliest date which suited all parties (ie the same date of 26 March 2018).

The Crown also moved the sheriff to extend the 12-month period, which was about to expire on 26 January 2018, until 11 May 2018 in order to accommodate both the evidence on commission and the trial.

These motions were opposed, but were nevertheless granted by the sheriff.

However, the appellant challenged the sheriff’s decision to grant the extension of the 12 month period, arguing that the sheriff erred in the application of the two-stage test set out in HM Advocate v Swift 1984 JC 83.

‘Sufficient reason’

Refusing the appeal, the judges observed that cases involving the exercise of direction were “very fact-sensitive” and that the court must consider “all the relevant circumstances” before reaching a conclusion.

Delivering the opinion of the court, Lady Paton said: “In the present case, the sheriff has set out the dates, the timescales, the nature of the error in the prosecutor’s office and the effect of that error.

“His reasoning and his conclusion at paragraph of his report demonstrate that he considered and weighed up all the relevant circumstances, and that he was ultimately satisfied that ‘sufficient reason been shown which might justify the grant of an extension’.

“We are not persuaded that the sheriff erred in his approach, reasoning or conclusion at the first stage of the test. He was, in our opinion, entitled to reach the conclusion he did.”

She added: “Turning to the second stage in Swift, in the whole circumstances of this case, including first, the nature and gravity of the charge, secondly, the nature of the administrative error in the procurator fiscal’s office and thirdly, the relatively short period of the extension, we are unable to say that the sheriff erred in the exercise of his discretion.”