Accused unable to make trial diet due to English custody loses appeal against extension of trial time bar

About this case:

• Citation:
  [2023] HCJAC 27
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

Ramel Appleby was due to stand trial for various drug-related offences in Scotland before being arrested in England and pleading guilty to analogous offences before an English court. The Crown was unable to ensure his attendance at a floating trial diet in June 2022, which he argued was a significant error that did not provide cause for an extension.

The appeal was heard by Lord Pentland, Lord Tyre, and Lady Wise. Alonzi, advocate, appeared for the appellant and Cross, solicitor advocate, for the respondent.

Systemic failure

The appellant first appeared on petition on 8 January 2021 and was granted bail. On 30 August 2021 the reporting police officer advised the Crown that the appellant was in custody in England on remand in connection with drugs charges analogous to those he faced in Scotland. The Crown advised the appellant’s agents of this. In due course he pled guilty to the English charges and at a preliminary hearing on 26 November 2021 the court was advised that he remained in custody in England, the case against a co-accused not yet having been resolved.

Following the preliminary hearing, a 13-day floating trial diet was set beginning 20 June 2022. A few days before the first day of the floating trial the appellant’s counsel and solicitors held a consultation by video link with the appellant during which they became aware that he had not been transferred to Scotland to enable him to attend the trial. They informed the advocate depute, and the Crown then attempted to arrange for the appellant to be transferred to Scotland, but this could not be done in the limited time that was by that stage available.

The trial was further adjourned until 13 March 2023 on an unopposed Crown motion. The Crown also moved to extend the time bar in respect of the appellant until 17 March 2023, a motion that the appellant opposed. The temporary High Court judge granted the extension motion, identifying the error as an isolated human error that was excusable in the circumstances.

Counsel for the appellant submitted that there had been a systemic failure on the part of the Crown. A proper system would have picked up well before the trial that he was still to be transferred, and as a result there was a loss of a 13-day trial diet and a need for an 8-month extension. For the Crown it was argued that in the circumstances the judge could not be said to have erred in law, to have adopted the wrong legal test, or to have had regard to irrelevant matters.

Interests of justice

Lord Pentland, delivering the opinion of the court, said of any applicable precedent: “In the present case the appellant’s trial was due to commence within the 12-month time bar. The circumstances are not similar to those that arose in Swift v HMA (1984) or Early v HMA (2006). It would not be appropriate to apply a two-stage test. The right approach, in a case such as this, is simply to examine the single issue of whether cause has been shown for granting an extension of the 12-month time bar. That is a question that falls to be answered by considering whether it is in the interests of justice to do so.”

He continued: “In this case a single inadvertent mistake by the case preparer in neglecting to make a diary entry resulted in the trial having to be adjourned. The Crown made substantial efforts to salvage matters, but through no fault on its part these were ultimately not successful. The position is that the need to extend the time bar arose from one incident of human error. There was nothing in the nature of systemic failure on the part of the Crown.”

Addressing public interest, Lord Pentland said: “It would clearly not be in the public interest for the case against the appellant to be brought to a premature end on the sole basis of an administrative oversight of the type that occurred in the present case. The appellant is in custody in England awaiting sentence on drugs offences. He has never been held in custody by reason of the present prosecution. Beyond the delay in the resolution of the case against him, no other prejudice affecting the appellant was identified.”

He concluded: “Applying the modern approach to the matter, we are satisfied that it is in the interests of justice for the 12-month time bar to be extended so that the appellant can be brought to trial at the adjourned diet in March 2023. In the whole circumstances, we are satisfied that the present case will be brought to trial within a reasonable time. It cannot be said that the judge erred in granting an extension of the 12-month time bar.”

The appeal against the temporary High Court judge’s grant of an extension was therefore refused.