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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Crawford [2005] ScotHC HCJAC_125 (22 November 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_125.html Cite as: [2005] ScotHC HCJAC_125, [2005] HCJAC 125 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk Lady Cosgrove Lord Johnston
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[2005HCJAC125] Appeal No: XC573/05 OPINION OF THE COURT delivered by LORD JOHNSTON in NOTE OF APPEAL in terms of Section 65 of the Criminal Procedure (Scotland) Act 1995 by HER MAJESTY'S ADVOCATE Appellant; against JAMES DAIR CRAWFORD Respondent: _______ |
Appellant: Di Rollo, A.D., Q.C.; Crown Agent
Respondent:
Burns; Burnett Christie (for Peacock Johnston, Glasgow)22 November 2005
[1] This is an appeal at the instance of the Crown against a decision of the Sheriff at Greenock refusing to extend the time for the bringing of a prosecution against the respondent. [2] The case has a long procedural history. [3] On 12 December 2002 the respondent appeared in the Sheriff Court at Greenock to answer a petition in which he was charged with various sexual offences allegedly committed by him over a period of time in Quarriers' Homes in respect of young persons. The allegations relate to instances between 1971 and 1976 respectively. [4] The respondent was indicted to a trial diet with a first diet on 1 November 2003, where a defence motion to adjourn was made. The case was deserted pro loco et tempore by the Crown and the time limit was extended to 12 June 2004. [5] The respondent was re-indicted to a trial diet at Greenock Sheriff Court and after sundry procedure the Crown again deserted the case pro loco et tempore on 16 April 2004 and extended the time limit to 12 December 2004. [6] The respondent was re-indicted for a further diet on 29 June 2004. [7] Thereafter sundry procedure involving some 11 appearances before the Sheriff between 30 June 2004 and 3 May 2005, which was scheduled to be the trial diet took place. In the course of that procedure the time limit was again extended to 31 May 2005. It has to be noted that with three exceptions the requests for postponement were made by the defence. [8] On 6 May 2005 the respondent raised for the first time a preliminary plea that the indictment was incompetent by reason of the fact that it had omitted the words "By Authority of Her Majesty's Advocate" as required by section 64(4) of the Criminal Procedure (Scotland) Act 1995. The plea was repelled by the Sheriff but the respondent was granted leave to appeal. The trial diet was again adjourned and the time limit extended to 30 June 2005, which was allowed by the court despite opposition from the respondent. [9] The appeal was disposed of by this court on 13 July 2005 at which time the time limit had been in fact extended only to 30 June 2005. [10] The appeal by the respondent was allowed by this court and the indictment fell. Thereafter the respondent was re-indicted for a trial diet on 12 August 2005. An application was made for a further extension of time to 14 August 2005, but the sheriff declined to grant that motion which had the result that by the time that the accused was re-indicted the time limit had expired. At the hearing at which this court allowed the appeal by the respondent, no application was made by the Crown further to extend the period of the time limit. Accordingly, as at 13 July 2005 the statutory time limit had expired, hence the attempt before the sheriff further to extend the period to enable a further prosecution to proceed. It goes without saying that unless an extension is granted by either the sheriff or this court, no further prosecution is possible. [11] It is against that decision that the Crown now appeals, seeking an extension of time to 23 December 2005 in order that the case may be yet again re-indicted. [12] The sheriff held that the application to him was incompetent since the matter had been to the High Court, and he could not therefore grant a further extension. The Advocate Depute submitted before us that the sheriff erred in that respect and was entitled to grant a Crown motion further to extend the twelve month period under section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995. Furthermore, it was submitted on behalf of the Crown that the error in relation to the indictment, which had led to the appeal being sustained by this court and the indictment falling, namely the omission of the vital words, although fundamental in its terms as an error was also excusable. He relied upon HM Advocate v Swift 1985 S.L.T. 26. Reference was also made to HM Advocate v Fitzpatrick 2002 S.C.C.R. 758. [13] Counsel for the respondent, in reply, submitted that the sheriff had been correct to refuse to extend the time on the grounds of competency but, more importantly, even if he was wrong in that respect, the fundamental nature of the error in this case was such that it could not be regarded as excusable on the basis of the authorities and accordingly no relief should be granted to the Crown. That brief summary means no disrespect to an excellent submission by Ms Burns on behalf of the respondent. [14] It has to be borne in mind that the decision of this court in July 2005 was to the effect that the leaving out of the words in question from the indictment rendered it a fundamental nullity since it was necessary in terms of the legislation that an indictment on the face of it ran in the name of the Lord Advocate as prosecutor. Obviously it did not need to be signed by him personally, but on the face of it it has to be his writ. That being so, Ms Burns could quite understandably submit that such a fundamental error could not be regarded as excusable, whatever the reason. [15] With that proposition we cannot agree. 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 Greenock, which mistake was neither noticed by prosecution nor defence until very late in the day of what was a very lengthy case in procedural terms. The error could have been remedied if the point had been taken promptly There was nothing improper about making the application to the court when it was taken in May 2005, but it is not without significance for at least two years before that time the accused and his advisers were well aware of the charges he was facing, and were obviously preparing to meet them. The number of adjournments occurred for different reasons, but none of them related to any deficiencies in the indictment until the point was raised at the trial diet when such was finally achieved. [16] We are therefore prepared to regard the error in this case, albeit serious in its consequences, isexcusable in fact and the test in Fitzpatrick particularly is met. [17] As regards the issue of competency before the sheriff we would offer no positive view, save that it seems to us that the matter once again being at large in the absence of the previous indictment, it would have been competent for the sheriff, as the court of jurisdiction to hear the trial, to have heard the application. However, since the matter is now before us there is no question but that it is competent for us to entertain the application on behalf of the Crown. [18] Having said that, the real issue for us is whether or not we should grant it. In this respect the procedural history of the case is important because, as we have already stated, no question of deficiency in the indictment arose until very late in the day, nor can it be said during the whole proceedings that the defence was any way prejudiced in its preparation by the absence of the relevant words. This seems to us to be an important factor in considering whether we should grant the Crown's application. [19] Since, however, the matter before us is now at large and subject to the exercise of our discretion, we also consider it to be very important to take into account the public interest in this matter. These are very serious charges involving alleged breach of trust in a children's home where the occupants are obviously vulnerable. There have to be very compelling reasons before technicalities in procedure, even of a fundamental nature, can be used to avoid a prosecution. It is a fundamental part of our criminal justice system that if technicalities are available to be taken by the defence, they must have a positive result in a sense of prejudice to the accused. There is no way that we can see this accused of being prejudiced by the success of the appeal in July in the sense that that indictment had to fall. At the end of the day it is the duty of this court to ensure, within the responsible parameters of requiring the prosecution to adhere to the statutory rules incumbent upon it, that serious charges, such as in this case, are brought to court. [20] In these circumstances we are entirely satisfied that it is appropriate to allow the appeal and extend the time limit for bringing of a further prosecution in terms of the legislative opportunities available to 23 December 2005, which was the date requested by the Crown. [21] On that basis, this appeal is allowed.
