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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Early v. Her Majesty's Advocate [2006] ScotHC HCJAC_65 (30 August 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_65.html Cite as: 2006 SCCR 583, [2006] HCJAC 65, 2006 GWD 28-623, 2006 SLT 856, 2007 JC 50, [2006] ScotHC HCJAC_65 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk
Lord Abernethy Lord Johnston Lord Philip Lord Penrose |
[2006] HCJAC 65Appeal No: XC717/05OPINION OF THE LORD
JUSTICE CLERK in APPEAL by GERALD PATRICK EARLY Appellant; against HER MAJESTY'S ADVOCATE Respondent: ____ |
For the Crown: Miss Grahame, AD; Crown Agent
Introduction
[2] The
Second Report of the Committee on Criminal Procedure in Scotland (the Thomson
Committee) recommended that the prosecution on indictment of an accused person
who was not in custody should be subject to a time limit, namely that the trial
should be commenced within a period of twelve months from the date of the accused's first appearance on petition in respect of the
offence (1975 Cmnd 6218, para 15.09). The Criminal Justice (
[3] This
appeal and the appeal of Fleming v HM Adv
with which it was heard have been
remitted to us to consider by what criteria the court should determine whether
the Crown has shown cause in an application of this kind. Until a few years ago, the Crown invoked section
65(3) only rarely. But in recent years
applications under section 65(3) have become commonplace. In most of them, the Crown asks the court to
relieve it of the consequences of its own errors. The Crown's increasing recourse to section 65(3)
is reflected in the number of appeals on the point. There were 13 such appeals in 2003, 15 in
2004 and 19 in 2005.
[4] In
these appeals we have had the opportunity to review more than 20 years of case
law on this provision. There are more than 60 cases, of
which 18 have been reported since 2006.
It is now even more apparent that, as Lord Rodger of Earlsferry
observed in 2000, not all of the cases are easily reconciled (Ellis v HM Adv, 2001 JC 115, at pp
120I-121A).
The test established in HM Adv v
Swift (1984 JC 83)
[5] HM Adv v Swift was the first appellate
decision under the former section 101 (as amended) (supra). In that case the court held that the question
whether cause for an extension had been shown by the Crown was to be decided by
a two-stage test. At the first stage the
court had to consider whether the Crown had shown a reason that might be
sufficient to justify the extension. If
it had, the second stage was for the court to consider whether, in the exercise
of its discretion, it should in all the relevant circumstances grant the
extension for that reason (ibid, Lord
Justice General Emslie, at p 88).
The first stage test in Swift
[6] At the first stage, the court considers whether the reason
advanced for the application is one for which the Crown is responsible. Among numerous examples of cases where the
Crown is not responsible are cases where, for example, the accused or a vital
witness has absconded (cf Watson v HM Adv, 1983 SCCR 115;
Main v HM Adv, 1998 SCCR 694);
where a citation has failed because of the fault of the police (Coutts v
HM Adv, 1992 SCCR 87); where the Crown has been
misled as to the domicile of a witness (Black v HM Adv, 1990 SCCR 609; Anderson v HM Adv, 1996 SCCR 487); where there is no judge or court
available for the trial (Dobbie v HM Adv, 1986 SCCR 72; McNally v HM Adv, 1999 SCCR 565); where an essential witness is ill (McGinty v HM Adv, 1984 SCCR
176); where the accused is imprisoned outwith the
jurisdiction and cannot be brought to trial in time (Shevlin
v HM Adv, 1986 SCCR 462); where a postponement
is granted on the application of the defence (McDonald v HM Adv, 1988 SCCR 298) or for its benefit (Goldie v
HM Adv, 2003 SLT 1078, at paras [17]-[18]); or
where the Crown refrains from indicting in reliance on an indication by the
defence that the accused will plead guilty (Voudouri
v HM Adv, 2003 SCCR 448).
[7] In such cases the court decides the
matter on a consideration of the whole circumstances. This may involve a consideration of the
interests of parties other than the Crown and the accused. For example, in Ashcroft v HM Adv (1996 SCCR 608) an extension was granted to spare
a young girl the ordeal of giving evidence twice about an alleged indecent
assault upon her. An important factor is
whether the circumstances founded on could have been avoided by the Crown (cf Mejka v HM Adv, 1993 SCCR 978). If they were unavoidable, the court will
normally be satisfied that the first stage test is met; but the decision
depends in every case on the facts and circumstances.
[8] If the
application is necessitated by an error made by the Crown, the court has to
consider what the error was and why it occurred. Some cases involve what might be
described as positive culpability; for example, where a trial has been deserted
in consequence of some wrongful conduct by the prosecutor (Brown v HM Adv, 1998 SCCR
461) or of an incautious question asked by the prosecutor (Ellis v HM Adv, supra) or
of an improper comment made in the prosecutor's speech (McCulloch v HM Adv, 2001 JC 100); or where the Crown has, at its
own risk, released an essential witness to go on holiday (Ferguson v HM Adv, 1992 SCCR 480) or has failed to obtain vital
evidence timeously (Stewart v HM Adv, 1993 SCCR 1010) or has failed properly to
organise the business of the court (McGinty v HM Adv, supra;
Warnes v HM Adv, 2001 JC 110; Riaviz v HM Adv, 2003 SCCR 444) or has dealt
with a procedural problem inefficiently (Palmer
v HM Adv, 2002 SCCR 908).
[9] Such
cases can be distinguished broadly, if imprecisely, from cases arising from
administrative mishaps; for example, a failure to specify the locus in a charge
(Stenton v HM Adv, supra); a miscalculation of a statutory timetable by unqualified
staff (Lyle v HM Adv, 1991 SCCR 599,
at p 604B-D; Bennett v HM Adv, 1998
SCCR 23; HM Adv v Freeman, 2005 SCCR
571); a typing error by which the accused is convened to the wrong court (Fitzpatrick v HM Adv, 2002 SCCR 758), or
an accumulation of such errors (Swift v
HM Adv, supra; Willoughby
v HM Adv, 2000 SCCR 73).
[10] In HM Adv v Swift (supra) a distinction was made between
"major" and "minor" errors (ibid, Lord Justice General Emslie at p 89).
This distinction was suggested in the course of the debate before the
sheriff in that case (HM Adv v Swift,
reported on this point in 1984 SCCR 216, at pp 219-222). In numerous cases this terminology has been
adopted on the basis that a major error will not be considered excusable at the
first stage while a minor error may (eg Ellis v HM Adv, supra; Fitzpatrick v HM Adv, supra; Palmer v HM Adv, supra). The expressions
"significant fault" (Rennie v HM
Adv, supra, at p 195) and
the "nature and degree" of the error (McCulloch
v HM Adv, supra, at para [8]; HM Adv v Freeman,
2005 SCCR 571, at para [12]) have also been used in this context. In these cases, therefore, the criterion
appears to be the degree of gravity of the error per se.
The second stage test in Swift
[11] Where the first stage test is satisfied, the question at the
second stage is one of discretion. It is
only at this stage that the nature of the charge (Rennie v HM Adv, supra; Main v HM Adv, supra; Aslam
v HM Adv, 2000 SCCR 243; HM Adv v
Fitzpatrick, supra), the public
interest, the presence or absence of prejudice to the accused (Forrester v HM Adv, 1997 SCCR 9; Rudge v HM Adv, 1989 SCCR 105; Rennie v HM Adv, supra) and the length of the extension sought may properly be taken
into account. At this stage one of the
foremost considerations is that the accused ought not to be deprived of his
important right under section 65(3) unless sufficient reason is shown by the
Crown (Mejka v HM Adv, supra, Lord Justice Clerk Ross at pp 985-986).
[12] In Stenton
the defence objected to the indictment on the day of the trial on the ground
that no locus was specified in the charges.
The sheriff held that the indictment was a fundamental nullity. The procurator fiscal then moved for an
extension of the 12 months period. He
accepted that the Crown was at fault. He
ascribed its error to administrative difficulties within the procurator
fiscal's office. The appellant's
representatives had noticed the Crown's mistake before the first diet, but had
not tendered a plea to the competency of the proceedings then or at the
continued first diet.
[13] The sheriff held that the administrative difficulties that had
led to the error, however sympathetically they were viewed, were the
responsibility of the Crown. He did not
consider that the appellant had suffered prejudice. He thought that there was room for the view
that the appellant was to some extent the author of his own misfortune because
his representatives had noticed the mistake and had said nothing about it until
it was too late for another indictment to be served in time. He also considered that the extension sought
was relatively short. He therefore
granted the application.
[14] The appeal court allowed the appeal. Its reasoning on the point was as follows:
"The argument addressed to us in this case was
limited and it would not be right to attempt to go into detail in commenting on
the test for the grant of an application for an extension of the 12 month
period or how it might be applied in different circumstances. It is, however, clear in our view that the
decision in Swift tends to point the
judge who has to make the decision towards considering whether there is a
reason for seeking the extension of a kind which is capable of justifying the
departure from the rule, which has been laid down in the public interest, that
such prosecutions should be commenced within the 12 month period. It further appears that where all that can be
said by way of explanation of the need for the extension is that a mistake has
been made by the Crown, then that is not a reason of the kind which may be
capable of providing a justification for the extension. In the present case, it seems to us that the
appellant in this case is correct in suggesting that the sheriff did not pay
sufficient attention to the question of the identification of a reason and that
if he had done so he would have been compelled to the conclusion that the whole
difficulty arose from an error by the Crown.
The sheriff was, in our view, correct in holding that, if that were so,
the fact that staffing difficulties or the like had contributed to the Crown's
problems was still a matter within the Crown's responsibility. Since the whole difficulty arose from fault
of the kind (sic) on the part of the
Crown, we conclude that the sheriff misdirected himself in his approach to the
question. Considering the matter for
ourselves, we are of the view that the Crown have not stated a reason or cause
for the seeking of the extension which satisfies the requirements of the
statute as it has been interpreted" (at p 282C-G).
The decision in HM Adv v Crawford
(2005 SCCR 836)
[15] In this case an indictment libelling a series of offences of
lewd, indecent and libidinous practices against children in a children's home
fell because of an elementary blunder by which the Crown omitted to include in it
the statutorily required words "By Authority of Her Majesty's Advocate" (cf Crawford v HM Adv,
2006 JC 57). When the Crown sought to
re-indict, the sheriff refused to grant an extension under section 65(3) on the
ground that he could not competently entertain the application.
[16] On appeal, there was no doubt that the court had the power to
grant the application. Counsel for the
Crown submitted that the error in the indictment, although fatal to it, was
excusable. Counsel for the accused
submitted that by reason of its fundamental nature, the error was not
excusable.
[17] The appeal court agreed that the error was fundamental (HM Adv v Crawford, 2005 SCCR 836); but
in its wider review of the circumstances, it had regard to two particular
considerations. The first was that the
Crown had indicted the accused to a trial diet on
[18] The appeal court did not accept the defence proposition that a
fundamental error was inexcusable. It
approached the matter in a different way.
It considered that the determining issue was not the nature or gravity
of the error per se but whether in
all the circumstances it was capable of being excused. Lord Johnston expressed the court's reasoning
on the point as follows:
"However fundamental an error may be, the question
whether it can be excused depends on the reasons for it being made rather than
the intrinsic nature of it or its result.
In this case it is perfectly obvious that a mistake was made by the procurator
fiscal's office in
[19] Having decided that the error was excusable for these reasons,
the court then considered the question of discretion. It took into account the serious nature of
the charges and the absence of prejudice to the accused and observed that there
would have to be "very compelling reasons" before technicalities in procedure,
even of a fundamental nature, could be used to avoid a prosecution (ibid, at paras [19]-[20]).
[20] Over the years various members of this court have expressed
misgivings about the decision in Swift
(supra) and have questioned whether
it is necessary or appropriate that a simple provision that the court "may on
cause shown" grant an extension should require the court to apply the rigid
two-stage test that I have described.
These misgivings were alluded to, but not discussed, by the court in Ellis v HM Adv (supra, at para [16]). It was
open to any of the parties in these appeals to raise the point; but the
advocate depute and counsel for the appellants in both this case and Fleming v HM Adv (supra) have based their submissions on the view that Swift v HM Adv (supra) was rightly decided.
In the absence of any submission to the contrary, I shall apply the Swift test in my consideration of this
appeal.
[21] Counsel have not suggested that in cases where the Crown is blameless,
the law should be reconsidered. In the
analysis that follows, I shall therefore consider the operation of section
65(3) only in the context of an application necessitated by an error on the
part of the Crown and I shall try to identify the criterion by which the excusability of such an error should be determined at stage
1.
[22] The
statements in Stenton v HM Adv (supra) that I have quoted have been cited repeatedly in this court
for the proposition that the court must refuse an extension in all cases where
there has been an error on the part of the Crown. Counsel for the appellant disclaimed any such
proposition; but it was advanced at an earlier hearing in this appeal. In view of the persistence of this argument,
it is, I think, worth repeating that, for the reasons given in Ellis v HM Adv (supra, at para [14]) and in Mallison v HM Adv (1987
SCCR 320, Lord Justice Clerk Ross at p 332), an error on the part of the Crown
is not necessarily fatal to an application of this kind. All that Stenton v HM Adv decides is that it is not enough for the Crown merely to
show that an error was made. It must
explain why it was made and, before any question of discretion arises, the
explanation must satisfy the court that the error is capable of being excused (Stenton v HM Adv, supra, at p 282C-G; cf HM Adv v Swift, supra, at p 89).
[23] That takes
me to the central question in the appeal.
On the Swift test, if the
Crown error is categorised as major, the application must fail, no matter in
what circumstances it occurred.
[24] Counsel for the appellant submitted that the distinction
between major and minor errors was supported by numerous decisions that had
followed on Swift (eg Ellis v HM Adv,
supra) and was the true criterion at
stage 1. HM Adv v Crawford (supra)
was at variance with this body of authority.
It was wrongly decided and should be over-ruled. That course would be in keeping with the
long-established principle that strict compliance with statutory requirements
was not to be excused by reason of the gravity of the consequences (Sarah Fraser and James Fraser (1852 1 Irv 1, Lord Justice Clerk Hope at pp 8-11).
[25] The advocate depute submitted that HM Adv v Crawford was correctly decided and that in applications
for extension necessitated by an error on the part of the Crown, the broad
question for the court should always be whether the error was excusable in all
of the circumstances.
[26] In the light of an extensive review of the cases on section
65(3) and its predecessor, and with the benefit of counsel's submissions, I
have come to the conclusion that it is unhelpful and inappropriate for the
court to decide the question at stage 1 by classifying the Crown error as major
or minor. In my view, there is no useful
yardstick by which such a distinction can be applied. It requires the court to make a value
judgment of the most uncertain kind. It
leads to the making of fine and possibly unconvincing distinctions (cp Lyle v HM Adv, supra and HM Adv v Freeman,
supra) and sometimes it leads to surprising
results. For example, a failure by the
Crown to specify the locus in a charge has been held to be a major error (Stenton v HM Adv, supra), whereas an improper comment by a prosecutor, made in
ignorance of the law, which causes a trial to be aborted has been held not to
be (McCulloch v HM Adv, supra).
[27] But leaving
aside these practical difficulties, I consider it wrong in principle that the
question should turn on the single issue of whether the error is major or
minor. In my view, the court should
simply decide the question on a consideration of the whole circumstances, as it
does when the Crown is not at fault. The
degree of gravity of the error is of course a relevant factor, but it is only
one of many: for example, how the error came to be made; how readily it could
have been avoided; how readily it could have been detected; the circumstances
in which it came to light; whether the defence has contributed to the delay in
the accused's being brought to trial (Dobbie v HM Adv, supra; McGinlay v HM Adv, 1999 SCCR 779); whether the defence was aware of the error
and said nothing; whether the application could have been avoided if the Crown
had taken another course (Squires v HM
Adv, 1996 SCCR 916, at 920B-C), and so on.
In short, the court should take into account all the circumstances that
pertain to the commission of the error itself and to the subsequent history of
the prosecution. On this approach,
therefore, the court could hold that a grave error was excusable or that a lesser
error was not.
[28] In HM Adv v Crawford (supra) the
error was so fundamental as to invalidate the indictment. Nevertheless the appeal court was more
concerned with the reasons why the error was made and persisted in rather than with
its degree of gravity. In that case the
error could have been remedied if the objection had been taken promptly. In the court's view, it was significant that
for at least two years before then the accused and his advisers were well aware
of the charges that he was facing and were obviously preparing to meet them. The case had been the subject of numerous
adjournments, none of which related to any deficiencies in the indictment, and
the point was not taken until the eventual diet of trial.
[29] In my opinion, the court was entitled in these circumstances to
take the view that the error could be excused.
I would hold that HM Adv v
Crawford was rightly decided.
[30] In the course of the discussion the advocate
depute suggested that the gravity of the charge should be a relevant
consideration at stage 1; otherwise there could be the undesirable consequence
that the accused could escape prosecution on a grave charge. In my opinion, that suggestion is
unsound. If the procedural history would
lead the court to conclude that the error was otherwise inexcusable, I cannot
see why the gravity of the charge can make it excusable. In my opinion, in enacting section 65 and its
predecessor, the legislature has foreseen and accepted the possibility that a
failure by the Crown to bring an accused person to trial within the time limit
may have the consequence to which the advocate depute referred. The point is not novel. It was recognised as long ago as 1852 (Sarah Fraser and James Fraser, supra) that a failure to comply strictly
with procedural requirements may mean that a well-founded prosecution comes to
grief. It is that very discipline, of
course, that should serve to ensure scrupulous adherence by the Crown to
procedural requirements and time limits; but in these and in other kinds of
cases experience shows that the Crown is capable of surprising administrative
weaknesses; for example, the confiding
of serious responsibilities to junior and unqualified staff (eg HM Adv v Weir, 2005 SCCR 821) and the
failure of checking systems to pick up elementary errors in indictments (eg HM Adv v Crawford, supra).
[31] In HM Adv v Crawford (supra) the court took into account the
gravity of the charges, but only when considering whether or not to exercise
its discretion in favour of the Crown.
That, in my view, is the correct approach. The same approach applies to the question of
prejudice to the accused and to the question of the length of the extension
sought. It reflects that consistent
approach of the court in all cases in which the point has arisen (eg Swift, supra, at p. 89;
The decision appealed against
[32] This appellant appeared on
petition on
[33] On
[34] On
[35] On 19 September 2005 the procurator fiscal
depute informed the court that she had noticed that charges 2 and 3
did not specify a locus. She said that
this had resulted from a typing error in the draft charges that were submitted
to Crown Office along with the precognition in the case. The locus that should have been specified in
these charges was the appellant's home address.
She therefore moved the court to extend the time limit in terms of
section 65 of the 1995 Act by a period of two months from
[36] The sheriff granted the extension, but only for a period of one
month. He did not analyse the issue
before him by means of the two-stage test in Swift, at any rate so far as his report discloses. However, in response to the grounds of appeal
he says that he granted the motion because (a) the charges were serious; (b) the Crown had not indicted the case "up
to the wire," but had served the indictment for a trial diet that was just over
two months before the end of the twelve months period; and (c) that if the defence had taken a plea
to competency at any of the diets of 27 July, 24 August or
7 September 2005, the Crown would have had the opportunity to serve a
fresh indictment timeously (Report, pp 3-4).
Submissions on the appeal
[37] Counsel for the appellant submitted that the sheriff had failed to give sufficient attention to the question whether the extension should be granted. Counsel relied on Stenton v HM Adv (supra) for the proposition that the making of such a fundamental error by the Crown was sufficient per se to justify the refusal of the application.
[38] The advocate depute submitted that the omission of the locus was a mere typing error. If the point had been taken earlier, it could have been remedied. Unlike Stenton (supra), no prejudice was alleged on behalf of the accused. The procurator fiscal saw the fault. There was an explanation for the error, namely a typist's mistake. Furthermore, the locus which was lacking in charges 2 and 3 had been specified in those charges when they appeared in the petition.
Conclusion on the appeal
[39] In my opinion, the appeal should be refused. The error in this case in not, as the advocate depute suggested, a mere typing error. The real error lies in the lack of an effective checking system. The sheriff's first two reasons for excusing the error are not convincing, in my view. It is not clear at which stage of his reasoning he has taken into account the gravity of the charge; and whether or not the Crown indicted the case up to the wire is, in my view, irrelevant (Fitzpatrick v HM Adv, supra). But the sheriff's third reason is cogent. That alone, in my view, would entitle us to apply the first stage test in favour of the respondent. Moreover, I consider that the appeal should be refused for the further reason that the appellant has never been in any doubt about the locus to which charges 2 and 3 relate since that locus was specified in those charges in the petition.
Decision
[40] I propose to your Lordships that we should refuse the appeal.
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Justice Clerk
Lord Abernethy Lord Johnston Lord Philip Lord Penrose |
[2006] HCJAC 65Appeal No: XC717/05OPINION OF LORD ABERNETHY in APPEAL by GERALD PATRICK EARLY Appellant; against HER MAJESTY'S ADVOCATE Respondent: ____ |
For the Crown: Miss Grahame, AD; Crown Agent
[41] I agree that the appeal should be refused for the reasons given
by your Lordship in the chair and I have nothing to add.
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Justice Clerk
Lord Abernethy Lord Johnston Lord Philip Lord Penrose |
[2006] HCJAC 65Appeal No: XC717/05OPINION OF LORD JOHNSTON in APPEAL by GERALD PATRICK EARLY Appellant; against HER MAJESTY'S ADVOCATE Respondent: ____ |
For the Crown: Miss Grahame,
AD; Crown Agent
[42] I have read the Opinion of your Lordship in the chair and I am
in complete agreement. There is nothing
I can usefully add.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Justice Clerk
Lord Abernethy Lord Johnston Lord Philip Lord Penrose |
[2006] HCJAC 65Appeal No: XC717/05OPINION OF THE PHILIP in APPEAL by GERALD PATRICK EARLY Appellant; against HER MAJESTY'S ADVOCATE Respondent: ____ |
For the Crown: Miss Grahame, AD; Crown Agent
[43] I agree with your Lordship in the chair
that this appeal should be refused.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Justice Clerk
Lord Abernethy Lord Johnston Lord Philip Lord Penrose |
[2006] HCJAC 65Appeal No: XC717/05OPINION OF LORD PENROSE in APPEAL by GERALD PATRICK EARLY Appellant; against HER MAJESTY'S ADVOCATE Respondent: ____ |
For the Crown: Miss Grahame, AD; Crown Agent
[44] I agree with the Opinion of your Lordship
in the chair in its entirety.