APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Bracadale Lord Kingarth	[2014] HCJAC 47 XC675/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   CROWN APPEAL UNDER SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   HER MAJESTY'S ADVOCATE Appellant;   against   MSW Respondent:   _____________

Appellant: JS Bain AD; the Crown Agent

Respondent: I Paterson, Solicitor Advocate; Paterson Bell (for Martin & Co, Ayr)

 

24 January 2014

Introduction
[1] The progress of this case paints a depressing picture of the manner in which a sexual offences allegation can be processed through a sheriff court. It probably suffices as an introduction to note that the libel is of a single act alleged to have taken place on 23 November 2011. The respondent appeared on petition on 28 June 2012. He was indicted to a first diet on 22 January 2013, with a trial diet scheduled for 4 February 2013. The eventual trial diet, upon which this appeal was focussed, occurred in a sitting in late October 2013, almost 9 months later. By that time there had been 12 first diets, and continuations thereof, at which nothing of significance appears to have been decided.

[2] One of the purposes of this Opinion is to highlight what has occurred with a view to encouraging a different approach to first diets and one which is more in keeping with their essential purpose, which is, amongst other things, to consider (that is, to determine) any preliminary pleas or issues (Criminal Procedure (Scotland) Act 1995, s 71(2)), including Vulnerable Witness Applications (ibid s 71(1A)), and to fix a new trial diet, if (and only if) parties' state of preparedness is such that the diet originally fixed should not take place. Although there is power to appoint a "further" first diet (ibid s 71(7)(b)), that should not be taken as an incentive to hold multiple first diets which, instead of involving decisions being made, are simply "continued", often for the same or similar reasons as those which have gone before.

[3] As was made clear in the Independent Review of Sheriff and Jury Procedure (The "Bowen Report", June 2010, para 5.21), "The First Diet should not sound the starting gun for preparation, rather it should sound the bell for entering the final lap". Even in advance of the reforms proposed in the Criminal Justice (Scotland) Bill 2013 relative to section 71 of the 1995 Act, there is an obligation on parties to be properly prepared at these diets and on the court to ensure that they are not consigned to the category of wasted time. It should be noted, in particular, that the intention of the Act is that, as a generality, there should be one first diet at which the court is to decide the various matters referred to in section 71. The fixing of a "further" first diet (s 71(7)) is to meet the situation where the court has ascertained the preparedness of the parties and determined to postpone the trial diet for that reason (see generally for the appropriate equivalent procedure in the High Court: Murphy v HM Advocate 2012 SCCR 542). Again, as the Bowen Report observes in relation to First Diets (para 5.14), "a firm and consistent judicial approach has a clear positive impact on the efficient and effective disposal of business at that stage". It is difficult to fit this case into the efficient or effective category.

 

Pre Trial Procedure
[4] The indictment charges a single contravention of section 3 of the Sexual Offences (Scotland) Act 2009, by digitally penetrating the vagina of the complainer. There are only 2 civilian witnesses (including the complainer) on the list and 6 police officers (1 added by s 67 notice). The productions and labels appear restricted to recorded interviews. The defence statement is that the respondent, who may have been the complainer's partner, was not at the locus ("the matrimonial home") at the time and that the allegation was a "malicious complaint".

[5] The first diet of 22 January 2013 was "continued" until 29 January 2013 on the respondent's motion. No reason was minuted for this, although the appellant's record is that it was "for further investigation and to consider lodging [a] s 275 application". This application was flagged up in the defence statement, which refers to the complainer having an affair with the only other civilian witness. There was also reference to the need to recover phone records and recordings of phone calls said to have been made by the complainer.

[6] At the continued diet, the trial diet was discharged on the defence motion "in respect that the Defence requires further time to prepare". The appellant's record suggests that a section 275 application was still in contemplation. The trial diet was "adjourned" until 29 April 2013, with a "continued" first diet fixed for 16 April 2013. On that date a "further" first diet was fixed for 23 April "in terms of section 71(2ZA)". It is not clear what this relates to since, in terms of that provision, there requires to have been some objection raised late for which leave to argue has been granted. At this diet, although it was not minuted, there was a concern raised about the complainer's fitness to give evidence. She was said to be contemplating suicide.

[7] There was a flurry of defence activity on 23 April, when a Special Defence of Alibi was lodged together with a list of 6 defence witnesses. The section 275 application was presented. All this sought was permission to lead evidence that, for a year prior to the alleged incident, the complainer had "engaged in sexual relations with" the witness. This was said to be designed to show that they had acted "in a common purpose against" the respondent. A list of 30 defence productions was lodged.

[8] The section 275 application was not dealt with. Once more, section 71(2ZA) was said to have permitted the appointment of a "further" first diet, this time to the trial diet itself; something which, in relation to the determination of a section 275 application, is precisely what ought not to happen. The application should have been dealt with in advance of the first appointed trial diet.

[9] Meantime, the appellant was expected to submit a "soul and conscience" certificate from her doctor dealing with her health. On 29 April 2013, on the motion of the appellant, the twelve month time limit was extended to 5 July 2013. The trial diet was then discharged and "adjourned" until the sitting commencing on 24 June 2013. There was no objection to this, but no reason given for it either. The appellant states that the reason was that the complainer was not fit to give evidence, although no certificate was then available. A new "continued first diet" was fixed for 11 June. The section 275 application had still not been dealt with. On 11 June, the first diet was "journed" (sic) to the first day of the sitting. This was on joint motion, although no reason was minuted. The appellant states that the reason was to allow the appellant to consider whether to lodge a Vulnerable Witness Application (VWA) in light of a certificate then produced (this is not with the papers).

[10] On 24 June 2013, on the unopposed motion of the respondent and on the basis that he required further time to prepare, the trial diet was again "discharged" and a new diet fixed for the sitting commencing 19 August. The appellant states that the respondent was contemplating amending his section 275 application, which had still not been dealt with. The time bar was extended until 30 August. Yet another "continued" first diet was fixed for 6 August. At that diet the appellant lodged a VWA. All this sought was the use of screens and the availability of a support person (s 271K and L) because the complainer would "have to give evidence of an intimate, sexual and distressing nature" and felt "intimidated" by the presence of the respondent. There was nothing of a medical nature in the VWA.

[11] Neither the VWA nor the section 275 application were considered at the diet on 19 August. They were simply "continued" to a continued first diet fixed for 23 August, in the midst of the trial sitting.

 

The Trial Diet
[12] On 23 August 2013, a motion from the respondent to "adjourn" the trial diet further, on the ground that he required even more time to prepare and to "expand" the section 275 application, was opposed and refused. The section 275 application and the VWA were continued to a diet of "debate" fixed for 27 August. On 27 August, a motion by the respondent, to adjourn the trial diet in order to carry out further investigations, was this time granted and the trial diet adjourned until the sitting of 15 October 2013, with yet another "further" first diet fixed for 1 October. The time limit was extended unopposed until 25 October.

[13] On 1 October, the first diet was, again, simply "adjourned" for a week "in terms of section 75A(2)", with no reason recorded. Exactly the same thing happened on 8 October. The appellant states, however, that the joint motion was made to allow the respondent to take "further instructions" on the section 275 application, whilst the appellant was going to obtain an update of the medical certificate in advance of any consideration of the VWA.

[14] The case called on the first day of the trial sitting on 15 October, with a view to dealing with the VWA. The sheriff reports that, despite repeated requests, the appellant had advised that the complainer had failed to furnish medical evidence in support of this application. It is not obvious why it was thought that medical evidence was necessary to support a screens application. The trial was said to be the priority one at the sitting, but the sheriff reports that "neither the complainer nor her corroborating witness had attended court" and that, accordingly, the trial could not proceed, but would require to be continued later into the sitting. The sheriff's report is slightly cryptic in respect that it does not suggest at this point in the narrative (cf infra) that the complainer and the witness had wilfully failed to attend. In fact, according to what this court was told, the complainer had been advised by the appellant that, although cited, she did not require to attend on that (or any other) day. The case called again on 21 October, but there had been no progress advised by the appellant and the same situation prevailed on 23 October.

[15] On 24 October the sheriff reports that the appellant advised that, although no medical certificate had been made available, the complainer had attended at Crosshouse Hospital, Kilmarnock having "collapsed at work". Tests were to be carried out and she was to return the following day. There was a "suspicion" that the complainer was pregnant. A letter from the complainer's general medical practitioner, of the same date, said that the complainer had gone to A&E because she thought that she might be suffering a miscarriage. She had been given an appointment at the early pregnancy assessment unit for 25 October. Her GP recommended that she should go to that appointment and, apparently on that basis, certified her as "not fit" to attend court on 25 October.

 

The Sheriff's Decisions
[16] On 25 October, the sheriff granted the appellant's motion to adjourn the trial diet. In so doing, he said:

"he drew a clear inference ... that the Crown were frustrated by the complainer having fallen short in her obligation to attend court for trial and also ... in her commitment to providing ... supporting evidence as to support her status as a vulnerable witness."

 

He considered that the only reason for the trial not having commenced on 15 October was the complainer's failure to provide the appellant with the medical information sought in support of the VWA. He was concerned that the complainer had been at work instead of at court. Nevertheless, he considered that the medical certificate "had to carry some weight" and, on that basis, he adjourned the trial diet.

[17] However, in relation to the motion to extend the time bar, the sheriff purported to apply the test set out in in HM Advocate v Swift 1984 JC 83, that the court required to ask two questions viz.: (1) has sufficient reason been shown which might justify the grant of an extension; and (2) ought the court, in the exercise of its discretion, to grant that extension? He considered that there was material which could justify the extension but that, in the circumstances, an extension should not be granted. He reasoned as follows:

"There were additional matters which I considered were of sufficient weight in this case and which ... weighed heavily against the grant of a fourth extension of the time bar. In particular there was a lengthy history in this case where the Crown had implicitly or overtly acceded to the various motions to adjourn. There had also been an earlier occasion where the complainer had intimated that she was unwell and unable to attend a sheriff and jury sitting. More importantly however the complainer had failed to attend court for the first week of the sitting commencing 15 October 2015 (sic) and by the second week of that sitting had advised the Crown that she had become unwell 'at work'. This seemed to me to contradict her clear obligation to attend court and to immediately advise the Crown of any difficulties she was experiencing in her attendance. There was a further failure on the part of the complainer to co-operate with the Crown which would have allowed them to argue in support of her request to have vulnerable witness status. Had the complainer attended court in answer to her citation and had she provided the Crown with the information they had sought over a number of months, then there was no reason why the trial should not have proceeded on 15 October 2013".

 

Note of Appeal
[18] The Note of Appeal maintains that the sheriff erred in that he failed to apply the two-stage test as set out in HM Advocate v Swift (supra) and Early v HM Advocate 2006 SCCR 583. It is not stated in what way the tests were not applied. However, it is averred that it was unreasonable for the sheriff to grant an adjournment of a trial and then to refuse the application to extend the time bar to enable the new trial to take place.

 

Decision
[19] The sheriff's approach to the question of adjournment of the trial on the one hand and to the issue of extension of time on the other is inherently inconsistent. Having determined that, in the exercise of his discretion, it was in the interests of justice that the trial diet required to be adjourned, it was not open to the sheriff to determine, again as a matter for his discretion and in terms of the second stage of the test in HM Advocate v Swift 1984 JC 83 that, in all the circumstances it, it was not in the interests of justice that an extension should be granted. The latter decision was bound to follow the former. For that reason alone, the decision must be reversed. A new trial diet will be fixed for the sitting commencing on 28 April and the time limit extended to the end of that sitting. It is, however, worth adding that, although it did not create any inevitability that any motion to extend the time limit would be granted (cf Riaviz v HM Advocate 2003 SCCR 444), the postponement of the trial diet of 4 February and the adjournment of those of 24 June and 19 August, on the application of the respondent in order to have more time to prepare, ought to have featured strongly in the determination of any such motion supported by the medical evidence.

[20] Having set out the procedural history in such detail, it remains to be emphasised that, in the absence of exceptional circumstances, where section 275 applications and VWAs are made, they ought to be dealt with promptly and not repeatedly continued from one diet to the next. They ought certainly to be disposed of in advance of any trial diet. There was nothing complex about the section 275 application and it ought to have been disposed of within a period measured in minutes. In terms of section 275B, it ought to have been not only lodged but also considered by the court "not less than 14 days before the trial diet" unless "special cause" was shown. This provision appears to have been ignored.

[21] Similar considerations apply to the VWA. The issue of whether there was to be any VWA ought to have been explored at the first diet (s 71(1A) cf s 271C(2), (12) and (4)); meaning that of 22 January, and not at a "continued" one taking place 6 months later. Any VWA ought to have been presented at that diet and disposed of then (s 71(2XA)), even although it is, of course, competent to present and deal with one later. The VWA in this case was of the most simple nature and it is difficult to envisage what objection there could be to the use of a screen in a sexual offences case; it being almost standard in current practice. It ought to have been determined quickly. There was certainly no requirement to obtain medical evidence of vulnerability in a sexual offences case, where all that is sought is the use of a screen.

[22] There must be some concern expressed about the time which this case has taken. The court is not aware of the reason for the appearance on petition only taking place in June 2012, some 6 months after the alleged incident. It is not aware of the reason for the case only being indicted for a first diet a further 6 months later. It is not in a position to comment on these matters. However, from the point at which the court became seised of the case in January 2013, the case ought, given its straightforward nature, to have proceeded with far more alacrity than that which has occurred. In particular, the number of first diets appointed is simply not acceptable, even if there may be pressures upon the particular sheriff court. The court is well aware of the practice in some sheriff courts of allocating 30 or more first diets for a hearing before a single sheriff on one day. Some of these diets will involve guilty pleas and may take some time. This is likely to result in the other diets not being allocated sufficient time in which to deal properly with outstanding issues in order to ensure the efficient progress of cases consistent with the interests of justice. If that practice continues to prevail, its efficacy ought to be addressed.

[23] It would hardly be surprising, in the circumstances which have been shown to exist in this case, that a complainer might despair at the prospects of an allegation ever being adjudicated upon in the midst of such repeated and apparently pointless procedural continuations, quite apart from any considerations surrounding an accused's right to a trial within a reasonable time. It is also of concern if, as the court was told, the sheriff was, understandably, left with the impression that the complainer was deliberately obstructing progress of the case by failing to appear at the trial sitting in October, when she had not been asked to attend. Similar considerations apply to the production of a medical certificate. It is primarily for the appellant to make reasonable progress with the prosecution. This includes attempting to ensure that applications are properly prepared and presented and that trials are ready to proceed at the appointed diets. It is for the appellant to obtain proper vouching (if required) for any VWA and not to rely on the witness to do so. It is difficult to conclude accordingly that appropriate progress was attempted in these proceedings.