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HIGH COURT OF JUSTICIARY
[2006] HCJ02
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IN665/05
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OPINION OF LORD HARDIE
in the cause
HER MAJESTY'S
ADVOCATE
against
DAVID NESBIT WELCH
ญญญญญญญญญญญญญญญญญ________________
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Act: E. Brown Advocate Depute; N.
McFadyen, Crown Agent.
Alt:
Gilchrist Advocate, Beaumont & Company, Solicitors
17 January 2006
History
of the case.
[1] The accused, David Nesbit Welch, was indicted at the instance
of Her Majesty's Advocate in respect of the following charge:
"On 13 August
2004 at Morrison Street, Edinburgh you did assault Alexander Brooks, c/o
Lothian and Borders Police, Edinburgh and did repeatedly strike him on the body
with a knife, to his severe injury, permanent disfigurement and to the danger
of his life and you did attempt to murder him."
[2] A hearing was fixed for 28 June 2005. On that date the accused was absent. The
minute is in the following terms:
"The diet
having been called the accused failed to answer to his name. Counsel for the accused informed the court
that she had advised the crown by letter that the accused was now in custody on
another matter and would require to be brought to court. She was fully instructed however and prepared
to proceed in the absence of the accused if the court so allowed. The court allowed the application to proceed
in the absence of the accused on joint motion of the parties.
The court on
the unopposed motion of counsel for the accused discharged the preliminary
hearing set down for tomorrow and fixed of new the 6 July 2005 as a new diet
for preliminary hearing."
[3] On 6 July 2005 a preliminary hearing was held under sections
72 and 72A of the Criminal Procedure (Scotland) Act 1995 as amended ("the 1995
Act"). It appears that the Crown had acted
upon the information that the accused was in prison because he was present. Having heard the advocate depute and the
solicitor for the accused the court continued the preliminary hearing until 1
August 2005 to enable certain matters to be progressed and for a full hearing
to take place. Bail had previously been
granted and was continued.
[4] On 1 August 2005 at the continued preliminary hearing the
accused pled not guilty. Counsel for the
accused advised the court that all outstanding matters had been resolved and
lodged a special defence of incrimination and lists of defence witnesses and
productions. The advocate depute advised
the court that he would instruct the police to locate the incriminee, which
might result in a further section 67 notice being lodged. Both parties confirmed that they were ready to
proceed to trial and that 5 days were required. Accordingly the court fixed 21 September 2005
as a fixed diet of trial at Edinburgh High Court.
[5] On 21 September 2005 the trial diet was called and the
advocate depute advised the court that Bryan Carter (Crown witness no.17), an
essential Crown witness, had failed to appear in answer to his witness
citation. On the unopposed motion of the
advocate depute the court granted a warrant for the apprehension of the said
witness and adjourned the trial until the following day at 10am as the Crown
was unable to proceed without the said witness.
[6] On 22 September the trial diet was called. The advocate depute moved the court to adjourn
the trial diet and to fix a fresh diet of trial on the basis that Bryan Carter
had not yet been apprehended and he was critical to the case for the Crown. Counsel for the accused opposed the motion. One of the reasons for the opposition was that
although the accused was on bail in respect of these proceedings his licence
had been recalled by Scottish Ministers pending the determination of these
proceedings. Thus the accused would
remain in custody pending the conclusion of any trial. The court discharged the trial diet and
assigned 11 January 2006 at 10 am as a fixed diet of trial at Edinburgh High
Court.
[7] Prior to 11 January 2006 representatives of both parties were
advised that the trial would not commence before 2pm because of other court
business allocated for that morning. Prospective jurors for the trial of the
accused were requested to attend at the High Court building at the Lawnmarket,
Edinburgh for 2pm. The Crown also
arranged for witnesses to attend at that time to enable the trial to commence
at the appointed fixed diet.
[8] On 11 January 2006 prospective jurors and witnesses attended
at court prior to 2pm but the accused was not present. The Crown representatives were reminded that
the accused was in custody. The Crown
representatives advised the clerk of court that the Crown would simply seek an
adjournment of the trial when the diet was called. They were informed that the diet would not be
called before 2.30pm because the clerk of court required to speak to the
prospective jurors and to ascertain if any of them were unable to serve as
jurors in this case. After he had spoken
to the prospective jurors, the clerk of court ascertained that the Crown was
not in a position to proceed to trial that day and with the agreement of the
Crown he discharged the prospective jurors before the trial diet was called. The decision to discharge the jurors was
appropriate in the circumstances where the Crown did not intend to commence the
trial because it prevented unnecessary inconvenience to the 35 members of the
public who had attended for jury service. However the result was that the trial could
not proceed because of the absence of jurors as well as the absence of the
accused.
[9] When the case called at 2.57pm the advocate depute moved for an adjournment of the trial until
the following day. Counsel for the
accused opposed that motion. In the
course of the discussion below I shall refer to the competing submissions. At the conclusion of the debate at 3.53pm I
adjourned to consider my decision. The
court resumed at 5.11pm and thereafter I refused the motion by the advocate
depute. In terms of section 65(3) of the
1995 Act the advocate depute then sought extensions of the statutory time
limits of the 11 and 12 month periods by 2 months from their current expiry
date of 16 January and 16 February respectively to enable a fresh indictment to
be served. That motion was also opposed
and I refused it. The proceedings finally concluded at 5.26pm.
Discussion
[10] In seeking the adjournment of the case the advocate depute
stated that the trial could not proceed due to the non-attendance of the
accused because he was in Barlinnie prison. He asserted that the Crown had been unaware of
that fact until shortly before 2pm that day. Moreover he asserted that a representative of
the Crown Office and Procurator fiscal Service had telephoned the accused's
solicitors the previous day to ascertain his status and had been advised that
he was at liberty. However in the course
of discussion the advocate depute acknowledged that the terms of the Minute of
Proceedings dated 22 September 2005 clearly indicated that the accused was in
custody at that date because his licence had been recalled. It was also plain that he was to remain in
custody until after the conclusion of the present proceedings. On that basis the advocate depute acknowledged
that the Crown ought to have known that the accused was in custody and should
have arranged for his attendance at the trial diet. Upon seeking clarification of the steps taken
by the Crown to secure the attendance of the accused at court once it was
appreciated before 2pm that he was in Barlinnie prison, the advocate depute
stated that he understood from past experience of the Crown that it was not
possible to transfer a prisoner to court at short notice. On that basis it would not have been possible
to bring the accused to court in the course of the afternoon to enable the
trial to commence. The advocate depute
confirmed that no effort had been made to ascertain whether it would be
possible to bring the accused to court that afternoon. In particular no attempt had been made
immediately upon learning that he was in Barlinnie prison to arrange for his
transportation to court. In conclusion
the advocate depute submitted that refusal of the motion would result in
prejudice to the Crown in not being able to proceed with the indictment of the
accused. In all the circumstances I was
invited to exercise my discretion and to adjourn the trial in terms of section
75A(2) of the 1995 Act.
[11] In reply Mr. Gilchrist, counsel for the accused, opposed the
motion. The Crown had known for more
than 3 months that the accused was in custody. It was nonsense for the Crown to suggest that
it was unaware of that fact or that it could not ascertain where the accused
was detained. It was also unacceptable
to suggest that the Crown could not make arrangements to bring the accused to
court and to seek to blame the accused's solicitors. Following the statement by the advocate depute
about the alleged telephone conversation the previous day, inquiries had been
made. The accused's solicitors disputed
the statement. According to them, a
Crown representative named Fiona had spoken to Shelley, an office junior with
the solicitors' firm. The purpose of the
call was to inquire as to the whereabouts of the accused. The office junior checked the position with
the office manager and returned the call to Fiona. She was advised that Fiona was at lunch and
she left a message advising Fiona that the accused was in Barlinnie prison. There was a further telephone call from the
Crown after lunch seeking confirmation of the position and it was confirmed
that the accused was in Barlinnie prison. Shelley's part of the conversations had been
heard by an office manager. In any event
the motion should be refused. The Crown
had simply assumed that it would be granted and had not taken any proper steps
to attempt to bring the accused to trial. The statutory test was whether the court
considered that it was appropriate to adjourn the trial. The circumstances of this case suggested that
it was not appropriate to do so.
[12] As I have already indicated I adjourned to consider the
submissions. The motion was made under
reference to section 75A(2) of the 1995 Act, which was inserted into the
Criminal Procedure (Scotland) Act 1995 by section 15 of the Criminal Procedure
(Amendment)(Scotland) Act 2004 ("the 2004 Act"). Section 75A(2) applies where any diet has been
fixed in any proceedings on indictment (s75A (1)) and is in the following terms:
"The court
may, if it considers it appropriate to do so, adjourn the diet".
It confers upon the court
discretion to act where the court considers it appropriate to do so. It seems to me that there must be some
justification advanced in support of the motion that persuades the court to
adjourn a fixed diet. Prior to the 2004 Act adjournments of trials were common
and it was not unusual for some trials to be adjourned more than once. The procedural changes introduced by that Act
were designed to ensure as far as possible that (a) pleas of guilty were
tendered at an early stage; (b) parties
were ready for trial before a trial diet was arranged and (c) trials would proceed on the appointed
date. It was hoped that the consequence
would be a more efficient system avoiding unnecessary adjournments and the
unnecessary attendance of jurors and witnesses. There has apparently been a significant
measure of success in that regard but the efficiency of the system depends upon
the continued commitment of everyone involved in it. There will continue to be cases where
adjournments of trial diets are inevitable, for example where essential
witnesses are absent through no fault of the prosecutor. An example of such an adjournment occurred in
this case on 22 September 2005
when an essential Crown witness failed to attend court in response to his
citation. Equally a trial cannot proceed
if an accused, who is at liberty, fails to attend for trial. In that situation the inconvenience to
witnesses and potential jurors is inevitable. However, while adjournments of trials will
continue to be granted in appropriate cases, they should be seen as the
exception rather than the rule and will require to be justified.
[13] In the present case the first reason advanced in support of the
motion to adjourn the case was the absence of the accused. The circumstances of his absence are different
from cases where an accused fails to appear in contravention of conditions of
bail. It is unclear whether his
incarceration prior to 28 June 2005
related to the recall of his licence. There
is no doubt that the Crown was aware of his incarceration at that time because
they were advised by letter. Moreover
they were told in open court on 28 June and would receive a copy of the court
minute. Whatever the reason for his
incarceration prior to 28 June there was no dispute that the accused has been
in custody since prior to 22 September
2005 as a result of the recall of his licence by the Scottish
Executive pending the determination of the present proceedings. The Crown must have been aware of that fact
for a number of reasons. The first is
that the Lord Advocate is a member of the Scottish Executive. The second is that the minute dated 22 September 2005 discloses that the
accused was present from which it can be inferred that the Crown authorised his
transportation from prison to court on that date, as prison officials normally
require such authorisation. The third is
that the minute records that the accused was subject to recall of his licence
"pending determination of these proceedings". In accordance with current practice the
parties each receive a copy of such minutes shortly after the hearing. Thus apart from being aware of the
imprisonment of the accused prior to 22 September as evidenced by the Crown
arranging for him to be brought to court on that date, and apart from being
represented in court when the court was advised of the circumstances of the
accused's incarceration, the Crown was provided with a written record of the
position shortly after 22 September. I
was not advised of the date upon which the accused was recalled to prison by
the Scottish Executive but on any view the Crown must have been aware of the
position from at least 22 September
2005. Depending upon the
reasons for his detention in June, it may be that the Crown was aware from that
date of the accused's detention until the conclusion of the present
proceedings. In either event it
respectfully seems to me that it was incumbent upon the appropriate Crown
Office officials to note the altered status of the accused and to arrange for
his transportation from prison to court for his trial. A proper system for identifying accused
persons who are in custody awaiting trial is essential if the Crown is to
fulfil its obligations to witnesses, potential jurors and to the court by
securing the attendance of accused persons for trial on the appropriate date.
Such a system is essential if the Crown is to be seen as genuinely committed to
the reforms introduced by the 2004 Act. Any
basic system would take notice of statements made in court about the status of
an accused and of written records of court proceedings. If there is no such system in place or if
systems are not enforced it is to be hoped that any such failures will be addressed
as a matter of urgency. At one stage in
his submissions the advocate depute suggested that the failure by the Crown to
communicate with the prison service was "because of resource implications". He was unable to elaborate upon that
statement. Such a suggestion can only be
of any relevance if it is being maintained that there are inadequate resources.
If that is the position adopted by the
Crown, I fail to understand how a telephone call to a solicitor can be cheaper
than a telephone call or e-mail to the appropriate authorities. If there is any substance to the claim of lack
of resources in this regard, it is a matter of concern that should also be
addressed as a matter of urgency by the Lord Advocate to enable him to ensure
the efficient prosecution of crime in the public interest.
[14] I did not consider it necessary to resolve the factual dispute
about the telephone conversations between Fiona and Shelley. In my opinion, it was incumbent upon the Crown
to inquire of the prison authorities or of the Scottish Executive about the
status and location of the accused. The
latest available information was that the accused was to be detained until
after the conclusion of these proceedings. The most reliable source of information about
his status and location would be either of these authorities. I would also suggest that e-mail
communications are more reliable than telephone conversations and it would be
prudent for the Crown to utilise modern technology in that regard. Such a
system would leave less room for confusion. The Crown cannot abdicate its responsibility
to have in place proper systems by relying upon a telephone conversation with
an office junior on the day before a trial. However, if I am wrong about that
and even if the Crown's version of the telephone conversation is accurate, the
Crown still failed in its duty to the court and to witnesses and prospective
jurors. The Crown could have taken steps
to transport the accused to court as soon as it was aware of his absence prior
to 2pm. Had that occurred the trial would have
commenced on the fixed diet long before the proceedings before me finally
concluded that day. It was clear from
the submissions that no efforts were made in that regard and the Crown acted
upon an assumption that the motion to adjourn would be granted. I did not accept the statements about the
impossibility of bringing prisoners to court at short notice. In any event they were proved to be wrong by
later statements by the advocate depute and the subsequent actions of the
Crown. In the course of the debate the
advocate depute advised me that if the accused required to attend court for the
hearing of the adjournment motion, arrangements would be made for his
attendance. By that time the trial could
not proceed because of the absence of prospective jurors. I was satisfied that it was competent to hear
that motion in the absence of the accused and no such arrangements were made. However, when I adjourned to consider the
submissions, the Crown did make arrangements for the transportation of the
accused to court in case his attendance was required for the motion to extend
the time limits. I was able to dispose
of the latter issue before his arrival. Had
the Crown acted with due diligence at 2pm it appears to me from these
subsequent statements and actions on the part of the Crown that the accused
could have been brought to court to enable his trial to commence that day.
[15] This case was in a different category from those where there
has been an error that may be excused. The
Crown failed to have in place and to enforce an appropriate system (a) to
identify accused persons who were in custody (b) to note statements to that
effect made in open court (c) to read and/or act upon court minutes to that
effect (d) to inquire of the appropriate authorities about the status of an
accused and (e) to ensure the attendance from prison of an accused for the
purpose of his trial. In addition when
the Crown became aware of the absence of the accused it took no action to
secure his attendance at court for trial. Rather before any efforts in that regard were
initiated and before the court convened the Crown agreed to excuse the
prospective jurors. The Crown appeared
to arrogate to itself the decision that the trial would be adjourned. It seemed to me that it was not appropriate to
adjourn the diet simply because of the absence of an accused, where there had
been to my mind a dereliction of duty by the Crown. If there had been failures of an equivalent
magnitude by an accused or his advisers I would not have acceded to a motion to
adjourn a diet. The same standards apply
with equal force and to the same effect to the Crown as they do to the defence.
The judicial oath requires judges to
show no fear or favour and no litigant, including the Crown, is entitled to
assume that it will be treated more favourably than others will.
[16] The second reason advanced in support of the adjournment was
that if it were not granted the Crown could not indict the accused. The consequences of refusing to adjourn a case
must be considered in the context of all the circumstances of the case. I do not think that the inability of the Crown
to proceed with an indictment necessarily makes it appropriate to adjourn a
diet. If it were otherwise, the Crown would
be entitled to an adjournment in every case on indictment where the statutory
time bar was imminent, however extreme the circumstances of the case and the
discretion conferred on the court by section 75 A (2) of the 1995 Act would be
meaningless. Nor is the seriousness of
the charge sufficient of itself to justify the grant of an adjournment
otherwise adjournments in the High Court of Justiciary at the instance of the
Crown would be automatic, however incompetently the Crown had conducted itself
and whatever the consequences for an accused. I did not consider that this factor, when
considered with the whole circumstances of the case, made it appropriate for me
to grant the motion. In any event it was
inaccurate to maintain that the Crown could not proceed to indict the accused
if the motion was refused. There are
other procedures available to the Crown that may enable the Crown to continue
with the prosecution of the accused but as these were not canvassed before me
it is not appropriate that I should discuss them in this opinion. In all the circumstances I did not think it
appropriate to adjourn the diet and I refused the motion.
[17] When I intimated my decision the advocate depute moved in terms
of section 65 (3)(a) of the 1995 Act for an extension of the 11 and 12 month
statutory time limits to enable a fresh indictment to be served. Section
65(3)(a) is in the following terms:
"On an
application made for the purpose,
(a) where an
indictment has been served on the accused in respect of the High Court, a
single judge of that court may, on cause shown, extend either or both of the
periods of 11 and 12 months specified in subsection (1) above"
The advocate depute did not seek
to support the motion on any grounds other than those canvassed in the earlier
motion. He simply referred me to the
earlier discussion and invited me to grant the extensions sought. Mr Gilchrist opposed the motion on the basis
that the Crown had not shown any cause for the extension. Moreover an extension was not appropriate in view
of my earlier decision and stated reasons concerning the Crown's conduct. It seemed to me that the Crown had not shown
any cause for such an extension. In any
event having regard to the conduct of the Crown mentioned above I did not
consider it appropriate to extend the statutory time limits. Furthermore as I have already observed, there
are other procedures that may be available. They would not involve the service of a fresh
indictment. The extensions sought were
unnecessary. Accordingly I refused the
motion.
