High Court allows extension of trial diet time limit for man accused of abusing partner

About this case:

• Citation:
  [2023] HCJAC 9
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Philip Barr was set to be tried under a charge of abusive conduct towards his partner, KM, contrary to section 1 of the Domestic Abuse (Scotland) Act 2018. It was noted by the High Court that the case raised an issue of principle relating to continued reliance by the sheriff and the parties on dicta in Swift v HM Advocate (1984).

The appeal was considered by the Lord Justice General, Lord Carloway, together with Lord Pentland and Lady Wise. Findlater, advocate, appeared for the appellant and Gillespie KC for the Crown.

Unreasonable grant

After appearing on petition on 15 July 2020, the appellant was indicted to a First Diet on 29 April 2021. That diet was continued administratively to June and then July 2021 because of the Covid pandemic. It was then continued again to 26 August in order to ascertain whether it was possible to resolve the case. The case was not resolved, and a trial diet was fixed for 24 January 2022, with a short time bar extension granted to 28 January.

When the trial diet called, the complainer did not appear. The trial bar was then extended again until 27 May on the opposed motion of the Crown. The sheriff was informed that the police had told the Crown that the complainer no longer lived at the address which she had provided, but 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.

At the May calling of the trial diet the complainer was again absent. The appellant’s agent stated he had been told the Crown decided not to execute the warrant but planned to re-cite the complainer. However, this was a misunderstanding, and the warrant had not been passed to the Crown. In hearing submissions on whether a fresh extension should be granted, the sheriff asked specifically to be addressed on the two-stage test found in Swift.

It was contended by the appellant that the grant of the extension in May 2022 was unreasonable. The Crown had understood that the only way to secure the complainer’s attendance at court was with a warrant but had done nothing to check on its progress with the police or whether they had ever received it. For the Crown it was submitted that there was no positive culpability on its part, and fault also lay with the complainer in failing to attend the trial diets.

Balancing of interests

Lord Carloway, delivering the opinion of the court, observed: “In HM Advocate v Graham (2022), the court explained that the dicta in Swift 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.”

Outlining the context of those dicta, he said: “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.”

He continued: “Having regard to the jurisprudence on the interaction between the reasonable time requirement and the general right to a fair trial, 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 [ECHR], where a reason for an extension has been proffered and no additional prejudice to the accused is demonstrated.”

Addressing the appropriateness of delaying trial in this case, Lord Carloway said: “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.”

He went on to say: “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 Lord Justice General concluded: “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.”

The appeal was therefore refused.