APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Reed Lord Philip	[2010] HCJAC 12 Appeal No: XC690/09 OPINION OF THE COURT delivered by LORD OSBORNE in BILL OF ADVOCATION by HER MAJESTY'S ADVOCATE Complainer; against (FIRST) SYLVIA CALDWELL AND (SECOND) ANDREW CALDWELL Respondents: _______

Complainer: Ogg, Q.C., A.D.; Crown Agent

Respondents: Moll; Barony Law Practice (for first respondent)

Templeton; Barony Law Practice (for second respondent)

22 January 2010

The background circumstances

[1] The first and second-named respondents have been charged with fraud arising out of allegedly false representations made to the Department of Work and Pensions, Disability and Carers Service. The amount said to be involved in the case of the first-named respondent is £29,841.55. In the case of the second-named respondent, the amount involved is said to be £23,825.70. The respondents appeared on petition at Aberdeen Sheriff Court on 25 April 2007, when the case was continued for further examination and bail was granted. An indictment was served on both respondents, citing them to a first diet on 1 April 2008. At that first diet, the case was adjourned to a first diet on 10 June 2008, in order to allow all parties time to make further investigations. The statutory time bar was extended to 4 July 2008. On 10 June 2008, the case was further adjourned to a first diet on 9 September 2008, the statutory time bar being extended once more to 10 October 2008. At the first diet on 9 September 2008, the case was continued to 23 September 2008 and thereafter to 29 September 2008, at which stage the indictment that had been served was deserted pro loco et tempore and once again the statutory time bar was extended to 28 February 2009. A new indictment was subsequently served on both respondents, citing them to a first diet on 10 February 2009 with a trial diet on 23 February 2009. Both respondents lodged Minutes of Notice under section 71(2) of the Criminal Procedure (Scotland) Act 1995 relating to preliminary pleas regarding the relevancy of the new indictment. At the first diet on 10 February 2009, the matter was continued to 17 February 2009 and thereafter to 18 February 2009 for a debate upon the Minutes of Notice. Following upon the debate, on 18 February 2009, the sheriff held that the charges against the respondents were irrelevant, upheld the preliminary pleas and dismissed the indictment.

[2] The Crown tabled an appeal against that decision of the Sheriff by means of a Bill of Advocation. The Bill of Advocation called in the High Court on 15 July 2009, at which time the Court sustained the appeal, passed the Bill and remitted to the Sheriff to proceed as accords. Reference is made to the interlocutor of that date. The Court indicated that a retrospective extension of the statutory time bar would be appropriate in the circumstances, but that matter was one that had to be considered by the Sheriff following upon an application to him. It should be explained that the statutory time limit had expired on 28 February 2009.

[3] The Sheriff Clerk in Aberdeen fixed a new first diet for 15 September 2009, with the case due to call in the sitting in Aberdeen Sheriff Court for cases under solemn procedure commencing on 29 September 2009. It is averred by the complainer that there had been no discussion between the Sheriff Clerk and the Crown as to the suitability of these dates, other than to confirm that they fell within a currently assigned sitting. On 15 September 2009, the Crown having failed to intimate the first diet to the respondents, the matter was continued to 22 September 2009. On 22 September 2009 the case called before the Sheriff. The Crown made a motion under section 65(3) of the 1995 Act for the extension of the statutory time limit retrospectively. The extension sought was to the end of 2009. It is explained in the Bill that this extension was sought in order to "facilitate the length of trial which agents for the accused had previously indicated was likely". On 22 September 2009, the Sheriff refused the Crown motion for extension of the time limit and dismissed the indictment. He also refused a Crown motion for leave to appeal. In these circumstances, the Crown have presented this Bill of Advocation to this Court.

[4] In the Bill, the complainer avers that the Sheriff erred in refusing the Crown motion for the extension of the time bar and thereafter in dismissing the indictment. Reference is made in the Bill to the test set forth in HM Advocate v Swift 1984 S.C.C.R.216 and Early v HM Advocate 2006 S.C.C.R.583. It is averred that the reason why the extension is necessary was the erroneous dismissal of the indictment by the Sheriff on 18 February 2009 when the matter previously called, said dismissal preventing the trial commencing within the time limit. It is said that the Crown has been prejudiced by the erroneous decision of the Sheriff to refuse to grant the extension of time ultimately sought. It is said that this Court had previously indicated that such an extension would be appropriate. By dismissing the indictment, it is claimed that the Sheriff frustrated the plain intention of the High Court. The complainer also avers that, there being no fault on the part of the complainer, the decision of the Sheriff to refuse the motion to extend the time limit and dismiss the indictment was unjust, erroneous and contrary to law. In this Bill, the complainer seeks that the decision of the Sheriff on 22 September 2009 should be recalled and the case remitted to the Sheriff to proceed as accords.

[5] Answers have been lodged by the first-named respondent to the Bill. There is no dispute relating to the procedural events just described. In the Answers it is averred that, had the preliminary pleas not been upheld and the indictment dismissed on 18 February 2009, the Crown would not have been in a position to proceed to trial. Further, it is averred that on 22 September 2009, the Crown failed to provide any reason to the Sheriff to justify the extension sought. It is said that the Crown, through their failure to obtain dedicated trial sittings, were not in a position to proceed to trial on 29 September 2008 or 23 February 2009. The fact that the second indictment was erroneously dismissed on 18 February 2009 had had no impact on the Crown's ability to proceed to trial on 23 February 2009. It is averred that the first respondent is a frail lady of 68 years of age with no criminal history, who has been prejudiced by the delay in these proceedings.

Submissions for the Crown

[6] When this matter came before us, the Advocate depute narrated the history to which we have just referred. He stated that, had the Sheriff not dismissed the indictment as irrelevant on 18 February 2009, a trial diet would have been available on 23 February 2009, prior to the expiry of the statutory time limit on 28 February 2009. As regards the later stages of procedure, a trial diet had been identified for 29 September 2009, but the Sheriff had wrongly refused to extend the statutory time limit to enable a trial to commence then.

Submissions for the first-named respondent

[7] Mr Moll agreed that there was no dispute concerning the occurrence of the various procedural occurrences. However, there was controversy over the preparedness of the Crown to proceed at certain stages. He contended that the Crown had failed to bring the case to trial in September 2008 and could not have mounted a trial on 23 February 2009, even if the indictment had not previously been dismissed as irrelevant, because no accommodation was available for it on that date. It had been contemplated that a trial diet of 3 weeks duration would have been necessary in the present case. The date of 23 February 2009 was in the middle of a 2 week sitting, so that there had been no chance of a trial proceeding at that time. It was not the Sheriff's erroneous dismissal of the indictment as irrelevant that had resulted in difficulties; it was the lack of preparation on the part of the Crown.

[8] Following the decision of this Court on the earlier Bill of Advocation, made on 15 July 2009, the Sheriff Clerk at Aberdeen had written to the Crown on 30 July 2009 giving a trial diet of 29 September 2009. However, the Crown had made no attempt until a late stage to have the statutory time limit extended. When application was made for the extension, the extension sought was to the end of the year 2009. The Crown had not approached the case with a proper sense of urgency.

Submissions of the second-named respondent

[9] Mr Templeton for the second-named respondent adopted Mr Moll's submissions. Following the decision of this Court on 15 July 2009, the Crown had taken no initiative whatever. Between the date of that decision and 22 September 2009 it had taken no effective action. The fact that this Court had remitted to the Sheriff "to proceed as accords" did not confer a responsibility on the Sheriff Clerk to act in the matter. It was for the Crown itself to take the initiative and, if necessary, to seek at an early stage any necessary extension of the statutory time limit.

The Advocate Depute's reply

[10] The Advocate depute stated that he had a full brief of what had occurred on 22 September 2009. He stated that, on that occasion, the representatives of the respondents had accepted that an extension of time might be appropriate. A trial could have proceeded on 23 February 2009. The Crown's view was that the trial would last one week. The Advocate depute refuted suggestions that the trial could not have taken place on that date, or on 29 September 2009. The Sheriff could have properly extended the time limit to 29 September 2009 but did not do so. The Advocate depute was unable to say what might have been said to the Sheriff regarding a start on that date.

The decision of the Sheriff

[11] The Sheriff has furnished us with a report, in which he sets out his reasons for refusing to extend the statutory time limit when the matter came before him on 22 September 2009. He points out that, when the case came before him on that date, the Crown's motion was to extend the statutory period to the end of 2009 "because the trial would be lengthy". Nothing further had been said on behalf of the Crown. The Sheriff goes on to explain that in reaching his decision, he applied the two-stage test set out in Early v HM Advocate. He concluded that there was fault on the part of the Crown in not bringing the case to trial prior to 22 September 2009. He narrates the lengthy procedural history of this case, observing that the position of the Crown lacked cogency in that special sittings of the Court had been asked for in the past and accommodated both in Aberdeen and in Stonehaven. A lengthy trial could be accommodated where necessary. He also took into account the whole circumstances, including the seriousness of the charges, the length of time to bring the case thus far, the age of the respondents and the availability of trial sittings prior to September 2009. In the light of the failure of the Crown to give a cogent explanation of their conduct, he refused their motion.

The decision

[12] It is appropriate, at the outset, to recognise that the current approach to matters such as raised in this Bill is explained in Early v HM Advocate, in which the two-stage test expounded in HM Advocate v Swift was affirmed. That entails consideration of, first, whether the error or fault of the Crown in any particular case is capable of being excused and, second, whether, in the particular circumstances of the case, in the exercise of the Court's discretion, it should be excused. In the present case it is necessary to identify what is the shortcoming of the conduct of matters by the Crown which is in issue. In our view, what has to be considered is the conduct of the Crown following upon the giving of a decision by this Court in the earlier Bill of Advocation brought to review the decision of the Sheriff made on 18 February 2009 to dismiss the indictment as irrelevant. That decision was given on 15 July 2009. Accordingly, what has to be considered is the handling of this case by the Crown between that time and the time when the Sheriff made his decision to decline to extend the statutory period retrospectively, which he did on 22 September 2009. As we understand it there is no real dispute as to what happened between these dates. The fact of the matter is that the Crown did nothing timeously following upon the issue of this Court's decision on 15 July 2009. In particular, despite the unhappy background of delay in this prosecution, it took no initiative in seeking to arrange a special diet of some particular appropriate duration, or indeed any diet. Rather, it was left to the Sheriff Clerk to react to the situation which followed the decision of this Court on 15 July 2009. It was suggested to us that, because in the interlocutor of that date this Court had remitted to the Sheriff "to proceed as accords", in some way it was for the Sheriff or the Sheriff Clerk to take the initiative in the matter. We reject that contention. The complainer is the master of the instance in this and any other prosecution and it is the responsibility of the complainer to make appropriate arrangements for the bringing of an indictment to trial. However, no action was taken in this matter. What happened was that on 30 July 2009 the Sheriff Clerk wrote a letter to the Crown intimating a trial diet of 29 September 2009. Even then, the Crown did not react to that either by thereupon seeking an extension of the statutory time limit, or even satisfying itself as to the adequacy of the duration of the diet of that specified date. What it did do only in September 2009 was to attempt to convene a hearing on 15 September 2009, presumably for the purpose of making an application to the Court for the necessary extension. However, no intimation was given to the respondents of that diet with the result that it did not take place. When the Crown's application did come before the Court on 22 September 2009, that occurred within days of the diet intimated by the Sheriff Clerk. On that occasion it appears that the Crown simply sought an extension from the Court of the statutory period until the end of the year 2009. It is to be inferred from that application that, either the Crown were unable to proceed to trial on 29 September 2009, or they considered that the diet available on that date was inadequate in duration. It is not clear which it was, since that aspect of the case was apparently not explained to the Sheriff. What this sequence of events demonstrates, in our opinion, is that the Crown have adopted a completely casual attitude towards the procedural arrangements necessary in this case following the decision of this Court on 15 July 2009.

[13] Adopting the two-stage test previously referred to, the question is whether the shortcoming identified is capable of being excused. With great hesitation, we are prepared to conclude that it might be capable of being excused. The next question which arises is whether it should in fact be excused in the particular circumstances of this case. On that matter we consider that we are entitled to examine the whole history of the case. Doing that, it is evident that, since its commencement with the bringing of a petition on 25 April 2007, there has been a history of failure to make effective progress in the case, as we have already narrated. Furthermore, the respondents in the Bill are both elderly persons who have had the present proceedings hanging over them since they were first put on petition on 25 April 2007. Looking at these various considerations, we have reached the conclusion that the shortcoming in the Crown's approach to the matter, identified above, should not be excused. For that reason we have declined to pass this Bill.