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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 6
HCA/2020/000336/XC
Lord Justice Clerk
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL UNDER SECTION 65 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
CS
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Ogg, Sol Adv; McCusker, McElroy & Gallanagh
Respondent: A Edwards, QC, AD; Crown Agent
29 January 2021
[1]
The appellant has been indicted on a charge that on 2 March 2019, at a public place in
Paisley, without reasonable excuse or lawful authority, he had with him an article which
had a blade or a sharp point, namely a knife, contrary to section 49(1) of the Criminal Law
(Consolidation) (Scotland) Act 1995. The indictment also includes a charge of failing to
2
comply with a special condition of bail, contrary to section 27(1)(b) of the Criminal
Procedure (Scotland) Act 1995.
[2]
In this appeal he challenges the decision of the Sheriff dated 30 October 2020 to
extend the period of 12 months specified in section 65(1) of the 1995 Act from 8 November
2020 to 7 February 2021.
Procedural history
[3]
The relevant history of the case is as follows. The appellant appeared on petition on
4 March 2019 and again on 12 March, when he was fully committed and granted bail. He
was indicted to a first diet on 10 January 2020, at which he pled not guilty, and the diet was
adjourned, on his motion, for the purpose of obtaining medical records and for further
investigations to be made.
[4]
At the continued first diet on 31 January 2020 a trial diet was appointed. That diet
called on 27 February and was adjourned to 4 May 2020, on the appellant's motion, on the
basis that an essential defence witness was unfit to attend.
[5]
By the date of the adjourned trial diet the country had been affected by the Covid-19
pandemic. In accordance with the direction issued by the Sheriff Principal of North
Strathclyde dated 8 April 2020, the diet fixed for 4 May was discharged with a new diet
fixed for 31 July 2020, which was in turn adjourned with a further diet fixed for 23 October
and again adjourned with a new diet fixed for 15 January 2021.
[6]
The original 12 month time bar provided for by section 65(1)(b) of the 1995 Act was
due to expire on 4 March 2020. On 28 February 2020, on the unopposed motion of the
Crown, that period was extended to 8 May 2020. By virtue of the "suspension period"
3
inserted into section 65 of the 1995 Act by The Coronavirus (Scotland) Act 2020 the expiry
date for the 12 month time bar period in the appellant's case became 8 November 2020.
The contested application
[7]
On 30 October 2020 the sheriff heard submissions on the Crown's motion to further
extend the time bar period by three months. The application was moved on the basis that
the extension was necessary due to the Covid-19 pandemic. The procurator fiscal explained
that on the instruction of the Lord Justice General jury trials had ceased in Scotland on
17 March 2020 but had recently recommenced. It was anticipated that Sheriff Court jury
trials would recommence at Paisley in January 2021. The circumstances caused by the
pandemic were said to constitute a sufficient reason to justify the extension and, there being
no fault on the part of the Crown, the court ought to exercise its discretion in favour of
granting the motion.
[8]
Before the sheriff the appellant accepted that there could be no criticism of the
Crown in relation to the procedural history. It was contended that there had been fault on
the part of the Scottish Courts and Tribunals Service and on the part of the Sheriff Principal.
Section 27 of the Courts Reform (Scotland) Act 2014 imposed a duty on the Sheriff Principal
to ensure the efficient disposal of business in the Sheriff Court and to make such
arrangements as are necessary or expedient for the purpose of carrying out that
responsibility. The six month "suspension period" enacted by Parliament provided a
timeframe within which the Scottish Courts and Tribunals Service and the Sheriff Principal
required to find appropriate means and facilities to enable jury trials to proceed. Since
Parliament had fixed a suspension period of six months, suitable arrangements required to
be put in place within that timeframe. Arrangements had been made to allow High Court
4
trials to recommence within that period but there were no known arrangements, published
proposals or identified dates for the commencement of jury trials within the Sheriffdom of
North Strathclyde. There was fault on the part of the "strand of the state with responsibility
for enabling the Crown to carry out its function". The result was that the appellant was
denied a trial within a reasonable period and the application ought to be refused.
[9]
The sheriff noted that the recommendations of the restarting trials working group
had led to High Court trials commencing as of 28 September 2020. A working group to plan
the restart of Sheriff Court jury trials had been in place since the beginning of October,
leading to venues being confirmed to permit jury trials to take place in the Sheriffdoms of
Glasgow and Strathclyde and Lothian and Borders. He understood that it was hoped to
conclude contracts in respect of venues for North Strathclyde for a planned restart of solemn
trials in January 2021. He noted that the court programme for Paisley Sheriff Court included
provision for a sheriff and jury court as from 11 January 2021. In these circumstances the
sheriff considered that the submissions to the effect that there had been fault on the part of
the Sheriff Principal, or on the part of the Scottish Courts and Tribunals Service, were
without foundation. The sheriff accepted that the reason for the application to extend the
time period was the impact of the Covid-19 pandemic and that this was a sufficient reason to
justify the extension.
[10]
In considering whether to exercise his discretion in favour of granting the extension
the sheriff took account of the unprecedented nature of the pandemic and the challenges
involved in securing arrangements for solemn trials to take place in a manner which gave
due regard to the protection of the health and welfare of all involved. He took account of
the serious nature of the charge and the procedural history of the case. Taking account of all
5
of the information available to him the sheriff concluded that he should exercise his
discretion by granting the application.
Submissions on appeal
[11]
On the appellant's behalf, Ms Ogg challenged the sheriff's decision on the basis of
the written submissions which she prepared and lodged in advance of the hearing and on
her supplementary oral submissions presented at the appeal hearing.
[12]
Ms Ogg acknowledged that the sheriff was correct to refer to the circumstances of the
coronavirus pandemic as unprecedented. He was correct to say that the pandemic had
presented significant challenges to the administration of justice, in particular in conducting
jury trials, but she argued that the sheriff did not have adequate information available to
him as to the re-commencement of trials in Paisley so as to permit him to conclude that
there was a sufficient reason for an extension.
[13]
There was also what was termed "the issue" of whether the recommencement of
solemn cases had been dealt with expeditiously. In this regard Ms Ogg drew attention to
the various announcements which had been made between 17 March and 27 October 2020
by the Scottish Courts and Tribunals Service concerning the steps which were being taken to
recommence solemn trials. She accepted that by 30 October proposals to resume solemn
trials had been identified in respect of certain Sheriffdoms but pointed out that it was not
until 17 November that an announcement was made that plans were in place to recommence
sheriff and jury trials at Paisley Sheriff Court from 11 January 2021. In the absence of further
information as to when solemn trials would recommence in Paisley there had been
insufficient information available to the sheriff on 30 October to entitle him to conclude that
the first stage test set out in the case of Swift v HM Advocate 1984 JC 83 had been met.
6
[14]
It was also argued that the sheriff had exercised his discretion unreasonably in
granting the extension for the reason specified. The case of Warnes v HM Advocate 2001
JC 110 was referred to as providing support for the submission that there was an obligation
on the Scottish Executive and the Sheriff Principal to organise the legal system so as to allow
the courts and all other components in the system to bring cases to trial within the time
limits set down. As part of this submission, Ms Ogg argued that the sheriff ought to have
taken account of the fact that whilst a section 49 contravention was a serious matter the case
was not complex. The evidence was within short compass. There was a public interest in
the prosecution of crime and bringing offenders to justice but also in that being done
expeditiously to save court time and money.
Crown
[15]
The advocate depute submitted that the complaints made were without foundation.
The progress towards the recommencement of sheriff and jury trials in the Sheriffdom of
North Strathclyde was ongoing as at the date of the hearing before the sheriff and shortly
thereafter, on 17 November 2020, the Scottish Courts and Tribunals Service published a
document outlining the plans to recommence jury trials in that Sheriffdom. The principal
complaint identified before the sheriff had been the absence of any such public statement.
Since there had now been such a statement the point relied on had no merit.
[16]
In any event the sheriff was correct to conclude that the public health emergency and
resultant disruption to the administration of justice was a sufficient reason to justify the
extension and took all relevant considerations into account in determining the exercise of his
discretion. The decision taken was appropriate and could not be criticised.
7
Discussion
[17]
On appeal the argument suggesting fault was not repeated in the same terms as it
had been before the sheriff. However, the court understood this to be what was meant by
the oblique reference to the "issue" of whether the recommencement of solemn cases had
been dealt with expeditiously and by the submissions referring to the case of Warnes. As
reflected in the references to the announcements made by the Scottish Courts and Tribunals
Service, it was well known that a working group was set up in May 2020 to consider the
practicalities of restarting solemn cases. The terms of reference for that group were:
"To facilitate the recommencement of solemn trials, and in particular:
·
to consider options and make recommendations on the feasibility of
commencing jury trials in some form whilst maintaining social distancing
during the Covid-19 pandemic, with initial focus on the High Court of Justiciary
·
to identify the conditions that need to be present to enable such trials to
proceed, including the conditions necessary to enable all participants to
engage with the process
·
to consider what technological support might assist the process
·
to consider the constraints and practicalities within the current legislative
framework, and whether any further legislative change might be required to
facilitate the restart
·
to assess the capacity of the court estate with appropriate measures in place,
and the likely volume of cases that might be progressed"
[18]
That working group had the full support of the Law Society of Scotland and the
Faculty of Advocates, with representatives of both branches of the profession serving as
members of the group. It is obvious from the breadth of the terms of reference that the work
of the group would take time to be completed. As was acknowledged, the progress of the
group was communicated to the public and the legal profession through the regular
announcements published by the Scottish Courts and Tribunals Service.
8
[19]
It was obvious from those announcements, which Ms Ogg sought to rely upon, that
substantial efforts had been made during the months between May and October 2020 to
recommence solemn trials across Scotland. It was also obvious that the ability to
recommence any solemn trials had been achieved as a consequence of substantial effort, a
determined and radical approach to finding a solution and the application of very
substantial resources. The solutions decided upon were not capable of being implemented
immediately, even when identified as viable options. Appropriate investigations as to
venue suitability required to be undertaken and commercial arrangements entered into. It
was made clear that solutions were being implemented on a step-by-step basis. Following
the success of the arrangements put in place for the High Court a working group was set up
in October 2020 to focus on the arrangements for restarting solemn cases in the Sheriff
Court. Prior to the hearing before the sheriff in the present case venues had been identified
to permit trials to commence in the Sheriffdoms of Glasgow and Strathkelvin and Edinburgh
and Borders. It was anticipated that the solution identified would provide for the
recommencement of trials in Paisley in January 2021, as was confirmed by the subsequent
publication.
[20]
Given this background, the submissions suggesting fault were presented in an
insubstantial and unvouched manner. Ms Ogg conducted no analysis of the steps which
had been undertaken and offered no suggestion as to alternative methods of progressing
solemn criminal case work which might reasonably have been adopted. No comparison
with what steps had been taken in other national jurisdictions was undertaken. The
observations in the case of Warnes simply have no application to the present circumstances.
[21]
The efficient administration of justice is always a matter of legitimate public interest.
The current pandemic has resulted in disruption for witnesses, victims of crime and persons
9
accused of crime. It is obvious that such disruption may lead to public concern about the
ability of the justice system to progress cases and continue to provide an essential service.
That is why the Scottish Courts and Tribunals Service has engaged in regular
communication with the public and the legal profession to explain the steps which are being
taken. It is also no doubt why such substantial levels of resources have been invested.
[22]
Public criticism, such as advanced in this case, of the steps taken to recommence
trials for serious criminal offences is capable of undermining public confidence in the
administration of justice in such difficult times. There is therefore plainly a professional
obligation on legal representatives to justify submissions made publicly which criticise those
responsible for the administration of justice. In the present case no effort was even made to
do so. The contention that no sufficient reason for the granting of an extension had been
identified was not only without merit, it was entirely devoid of any meaningful content.
The contention advanced constituted nothing more than an unjustified and unsupported
criticism of an inappropriate nature.
[23]
The court is satisfied that the sheriff was correct to conclude that a sufficient reason
had been identified which would entitle him to grant an extension.
[24]
The question of the exercise of the sheriff's discretion opens up further troubling
aspects of this case. Ms Ogg was right to observe that there was a public interest in the
prosecution of crime and bringing offenders to justice and of that being done expeditiously
to save court time and money. The question is why has that not happened in the present
case?
[25]
The two charges on the present indictment are of the most straightforward sort. The
only productions listed are a knife and a rucksack. There are only four Crown witnesses
listed, all of whom are police officers. Unsurprisingly, the Crown were in a position to
10
commence this straightforward case within the statutory time period provided for by
section 65 of the 1995 Act.
[26]
The minute for the first diet on 10 January 2020 records that the defence statement
and written record were tendered late at the bar and were allowed to be received on that
date. The written record explains that there are no lists of witnesses or productions on
behalf of the defence and that the defence were ready for trial. The defence statement sets
out that the accused denied both offences and had a reasonable excuse in relation to charge
2. Despite the terms of the written record, the minute then records that the first diet was
adjourned on defence motion for further investigations and to obtain medical records.
[27]
At the continued first diet on 31 January a list of defence witnesses was lodged,
although late, and a trial diet was fixed for 24 February 2020. On the face of matters the
appellant had a period of 10 months between his first appearance on petition and the date of
the first diet to prepare his case. Ms Ogg was unable to provide the court with any
explanation as to why it was necessary to seek a further continuation at the first diet or to
provide any explanation as to why a list of witnesses was only tendered out of time at the
continued first diet.
[28]
When the case called for trial on 27 February 2020 another list of witnesses on behalf
of the defence was tendered, again late, and the sheriff was then moved to adjourn the diet
of trial until 4 May, on the basis that an essential defence witness was unavailable. Ms Ogg
was unable to inform the court who this witness was, what the nature of her evidence was
and whether any steps had been taken to attempt to agree her evidence or to introduce it by
other means. Given the limited extent of the evidence to be led by the Crown and what
would appear from the defence statement to be the narrow scope of the appellant's defence,
it is difficult to understand why it had not been possible to fully prepare for and conduct the
11
case before the difficulties caused by the current pandemic arose. Ms Ogg was not able to
resolve this difficulty for the court.
[29]
Some of these matters were taken account of by the sheriff in determining the
exercise of his discretion. The written submissions on behalf of the appellant seek to criticise
the way in which he did so. They assert that there was good reason for the first trial diet to
be adjourned and contend that the effect of the previous history of the case was outweighed
by the subsequent events. Despite inviting the court to take account of these submissions
Ms Ogg was unable to provide the court with any of the relevant supporting information, as
explained above.
[30]
In the whole circumstances the court is satisfied that the sheriff exercised his
discretion in a flawless manner and that the criticisms of his decision were unwarranted and
without substance. The sheriff correctly concluded that a sufficient reason had been
identified such as would permit him to grant the extension sought and exercised his
discretion appropriately in deciding to do so. He applied the correct tests as described in the
cases of HM Advocate v Swift and HM Advocate v Early 2007 JC 50. The appeal is accordingly
refused.
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