High Court sustains plea of unreasonable delay in embezzlement case where accused was charged in 2015

About this case:

• Citation:
  [2024] HCJAC 26
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Sylvia MacLennan and her partner were separately charged on the same indictment with embezzling over £112,000 from the Highland Law Practice in Wick, the vast majority of which was attributed to her partner, between 2008 and 2012. The charge against the respondent libelled embezzlement of about £7,297, and it was not suggested that she had benefited directly or personally from the embezzlement.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Pentland and Lady Wise. J Keenan KC, advocate depute, appeared for the Crown and Mackintosh KC for the respondent.

Not made available

On 5 January 2012, the firm received a letter from the Law Society of Scotland intimating that an inspection of the firm’s accounts would take place. On 18 January 2012, the respondent sent a letter to the Law Society advising them that there was a deficit in the client account. She accepted that she had intromitted with the client account to the extent libelled in the charge against her.

The Crown Office instructed the police to investigate in July 2014. Both accused were interviewed and charged in July 2015, but very little happened with the case between September 2015 and December 2018 while the matter rested with a specialised unit in the Crown Office. The case was then re-reported to the Crown Office and the local PF was instructed to indict on 3 January 2019.

The accused were first due to appear at a First Diet in December 2019, but this was then discharged administratively until April 2020. There were then some 17 separate occasions on which the First Diet was postponed administratively, 13 of which were based on joint applications. At a continued First Diet on 13 September 2022, the respondent tendered a plea in bar of trial on the basis of oppression and delay.

Eventually, the case called for a first diet on 15 March 2023. The respondent maintained that there was paperwork supporting her position which had not been made available to her by the Law Society or the Crown, without which she would not be able to put a clear picture of her defence before a jury. Having regard to the full timeline of the case and the relatively small sum involved in the respondent’s case, the sheriff sustained a plea of unfairness under Article 6 ECHR.

It was submitted by the Crown that it was not possible to rely on Article 6 as a primary ground of complaint. Although it accepted that there had been correspondence in which the respondent had sought certain material, in failing to lodge a defence statement which would have made it clear what was outstanding, she had not complied with her statutory obligations.

Caused by the Crown

Delivering the opinion of the court, Lord Carloway observed: “It was correctly conceded that there has been a breach of the reasonable time requirement under Article 6(1). The respondent was interviewed and charged by the police in July 2015; almost eight years ago. However, the remedy of sustaining a plea in bar as a consequence is only appropriate where the delay is such that a fair trial can no longer take place or there is some other compelling reason to stop the proceedings.”

In determining whether a fair trial was still possible, he said: “The court does not consider that any lesser remedy than sustaining a plea in bar of trial would be effective, just and proportionate to provide an adequate remedy to the respondent for the breach of the reasonable time requirement. Without repeating unnecessarily the various factors which the sheriff took into account, the significant feature in this case is the exceptional and unjustifiable delay, which was essentially caused by the Crown, between the first report of the case sometime in 2014 and the present day; some eight or nine years.”

He explained further: “As at present, the court has little confidence that the scheduled trial in October 2023 will proceed, whether the respondent is restored as an accused or not. There appear to be significant evidential problems in the case against the respondent’s partner involving the state of the computer equipment and the available paperwork. If the case cannot proceed against the respondent’s partner, it is difficult to envisage it proceeding only against the respondent when her partner would almost inevitably be called by her as a witness.”

Lord Carloway concluded: “In this state of grossly excessive delay and future uncertainty it is appropriate to stop the current proceedings by sustaining the plea in bar. The respondent is not acquitted but the prosecution against her is discontinued accordingly.”