Introduction

[1] This case came before me on 6 March 2007 for a preliminary hearing at the High Court at Edinburgh. Miss MacKenzie, who appeared on behalf of the accused, moved me to continue the preliminary hearing for a further four weeks. I refused the motion and appointed the case to a trial diet.

History of case

[2] The accused is charged with various charges of a sexual nature alleged to have been committed on nieces and nephews of the accused in the 1960's and 1970's. He appeared on petition at Kirkcaldy Sheriff Court on 1 December 2005. In due course an indictment was served citing the accused to a preliminary hearing on 10 October 2006. Thereafter, the preliminary hearing was continued on a number of occasions.

[3] Schedule 2 of the joint written record was received in the Justiciary Office on 9 October 2006. Paragraph 11 includes the following statement:

"A medical report has been sought which is not yet available. Advice is to be sought in relation to the accused's health bearing on his ability to commit some of the crimes alleged, the functioning of his memory and his present state of health. A report is expected shortly. It may be that further investigations will be necessary in the light of the contents of the report."

The minute of the preliminary hearing on 10 October records that counsel for the accused advised that the defence were not yet prepared to go to trial. A medical report would require to be prepared in respect of the accused and issues around the physical capabilities of the accused would require to be given consideration in preparing a defence in this case. The preliminary hearing was continued until 21 November 2006.

[4] On 20 November 2006 a joint minute for alteration of the diet under section 75A of the 1995 Act was lodged with the court. The minute sought discharge of the diet because the defence preparations were not yet complete as the defence were currently awaiting a medical report and required to seek a further medical opinion. No further specification was given. The hearing was continued under section 75A until 19 December 2006.

[5] On 19 December 2006 the minute records that counsel for the accused informed the court that Dr Donat had been asked to prepare a report and sent the papers. Counsel advised that the defence had not yet received confirmation that Dr Donat could accept instructions and prepare a report. If he was able to do so then an estimate would require to be submitted to SLAB with a request for sanction for the expert's report. I pause to observe that it is somewhat difficult to square this state of affairs with the paragraph in the joint written record referred to above, namely, that a medical opinion had been sought. It does not appear from the minute that there was any explanation of this matter. In any event, the preliminary hearing was continued until 13 February 2007 to allow the defence report to be prepared.

[6] The minute of the hearing on 13 February 2007 records that counsel for the accused advised the court that the report was not yet available. The minute describes the report as relating to the fitness of the accused to stand trial but before me. Miss MacKenzie submitted that this was an error in the minute and that the report was into the question of whether the accused physically could have committed the offences. The hearing was continued until 6 March 2007.

[7] When the case called before me on 6 March 2007 Miss MacKenzie advised me that the report from Dr Donat was now available. However, she did not intend to seek leave to lodge the report or add its author as a witness. She then went on to advise me that there was a further line of enquiry. She explained that an issue arose in relation to the accused's position which was that he had no memory of events libelled in the charges. In November 2006 the defence had received a report from a psychologist, Michael Carlin, with respect to the psychological ability and functioning of the accused. Mr Carlin had been asked to explore the accused's position that he was unable to remember any of the events. The accused did not accept certain comments made in Mr Carlin's report. He said that he was unable to remember any of the period surrounding these events. Miss MacKenzie told me that the accused had suffered a stroke in 2004. On 26 January 2007 the solicitors wrote to the accused's general practitioner asking if he could provide further information in relation to the accused's stroke. On 5 February 2007 the general practitioner wrote supplying information in relation to the stroke. This letter was forwarded to Mr Carlin who suggested that a neuro-psychologist should examine the accused in relation to possible subjective memory loss. A neuro-psychologist had been identified but was unable to accept instructions. As at the date of the hearing the solicitors were waiting for a response from another neuro-psychologist whose name had been suggested to them.

[8] Against that background Miss MacKenzie moved me to continue the hearing for a further four weeks. The Crown did not oppose the motion.

Preliminary hearings: statutory provisions

[9] The scheme for preliminary hearings in the High Court is to be found in section 72 and subsequent sections of the Criminal Procedure (Scotland) Act 1995 as amended by the Criminal Procedure (Amendment) (Scotland) Act 2004 ("the 1995 Act"). In addition, certain consequential amendments were made to a number of other sections of the 1995 Act. The new system came into operation in April 2005. These provisions were introduced in response to the 2002 Review of the Practices and Procedure of the High Court of Justiciary by Lord Bonomy: Improving Practice ("the Bonomy Report"). The Bonomy Report found that a large number of trials were being adjourned on one or more occasions. One of the reforms proposed in the report was the introduction of a preliminary diet in order to identify those cases in which a trial was necessary and to assign a trial diet. The report anticipated that there would be few cases in which it would be necessary to adjourn the preliminary diet.

[10] Section 72(6) of the 1995 Act provides the responsibilities and duties of the court in a cases where at the preliminary hearing the accused pleads not guilty. Unless it considers it inappropriate to do so, the court is to dispose of various preliminary issues and applications, including objections to the admissibility of evidence. Among other requirements the court is to ascertain which witnesses are required. The court is to ascertain the extent to which parties have complied with the duty to seek agreement of evidence and the court is to ascertain so far as is reasonably practicable the state of preparation of the prosecutor and the accused with respect to their cases. It is open to the court to adjourn the diet in terms of section 75A(2). Section 72A requires the court after complying with subsection 6 of section 72 to appoint a trial diet.

[11] Section 72E(2) provides that the prosecutor and the legal representative of the accused shall communicate with each other not less than two days before the preliminary hearing with a view jointly to preparing a written record of their state of preparation and the written record is to be lodged with the Clerk of Justiciary. Paragraph 9A.4 of the Act of Adjournal (Criminal Procedure Rules Amendment) (Criminal Procedure (Amendment) (Scotland) Act 2004) 2005 makes detailed provision for the joint written record which is to follow Form 9A.4.

[12] Notices by the Crown under section 67 of the 1995 Act require to be given to the accused not less than seven clear days before the preliminary hearing unless on cause shown. Notices under section 78 of the 1995 Act of special defence, incrimination of a co-accused, and lists of witnesses and productions require to be lodged and intimated not less than seven clear days before the preliminary hearing unless the court on cause shown otherwise directs. An application under section 275 shall not be considered by the court unless made not less than seven clear days before the preliminary hearing or on special cause shown after that time (section 275B).

Practice Note

[13] On 28 January 2005 the Lord Justice General issued Practice Note 1 of 2005 which gives comprehensive guidance as to what practitioners must do in preparation for the preliminary hearing, the conduct of the hearing and the issues which the court expect practitioners to be able to address. The court expects all practitioners to be fully conversant with all of the provisions and requirements of the Practice Note.

Early preparation

[14] The provisions relating to preliminary hearings, and the recommendations of the Bonomy Report, clearly have in contemplation a requirement that preparation for trial be commenced at an early stage. In September 2004, in anticipation of the implementation of the new provisions, the Lord Advocate issued a Crown Practice Statement in relation to the provision of information by the Crown to the defence in High Court cases. In terms of the Practice Statement the Crown undertake to provide the defence with a copy of a provisional list of witnesses within fourteen days of first appearance. Within twenty eight days of first appearance the Crown will provide to the defence such copies of witness statements (excluding precognitions) as are then in the possession of the Crown. Certain exceptional situations in which provision might be withheld are identified. Where additional statements are received these will be provided as soon as practicable. The Crown undertake to provide the defence with copies of documentary evidence as soon as practicable and, on service of the indictment, a note giving details of where and when any previously undisclosed copy productions may be collected and labelled productions examined. This note will be given no later than seven days after the service of the indictment.

[15] Compliance by the Crown with commitments set out in the Practice Statement is essential in order to allow the defence to embark on preparation at an earlier stage than service of the indictment.

Continued preliminary hearings

[16] It is clear from the statutory provisions relating to preliminary hearings that Parliament had in contemplation that the preliminary hearing would be the end point of preparation rather than the starting point. Experience has shown that in practice continuation of the preliminary hearing has become all too common. In a number of cases, including the present case, there have been repeated continuations of the preliminary hearing. Research into the operation of preliminary hearings was commissioned by the Scottish Executive and was undertaken by researchers in the University of Aberdeen School of Law led by Professor Peter Duff. Their findings have recently been published: An Evaluation of the High Court Reforms Arising from the Criminal Procedure (Amendment) (Scotland) Act 2004 ("the Duff Report"). At paragraph 7.16 the report found that the number of preliminary hearings that were continued appeared to be growing steadily and to be causing serious scheduling difficulties in the High Court. The report identified the variation in judicial approach to preliminary hearings and the variable quality of court minutes as being factors in the number of continuations.

[17] In my opinion continuation of the preliminary hearing should be regarded as an exceptional course rather than the rule. It follows that in support of any motion for a continuation an explanation will be required as to why the particular line of inquiry giving rise to the motion was not, and could not reasonably have been, completed prior to the preliminary hearing. Where a continuation is granted, the reasons for the continuation must be fully and accurately minuted, and, where there are any further motions to continue the preliminary hearing, these must be examined in the light of the history of the case as disclosed in the minutes. In the course of discussion before me it became clear that defence counsel had not seen any of the minutes of the previous hearings. Minutes are sent to the parties immediately after the preliminary hearing. It seems to me reasonable to expect that at any continued preliminary hearing counsel should be in possession of a copy of any earlier minute and be in a position to address the court on the matters recorded in the minute.

Decision

[18] The motion further to continue the preliminary hearing in this case was made at the fifth continuation. It was made fifteen months after the accused had appeared on petition and some six months after service of the indictment. The twelve month time bar had already been extended by a significant period. No expert had been instructed. No realistic estimate of the length of time required was advanced. No explanation was advanced as to why these inquiries had not been embarked upon at a much earlier stage. It was not suggested that there had been any failure by the Crown to disclose material which gave rise to this line of inquiry. The inquiry seemed to me to be wholly speculative against a background where there had already been a lengthy delay in order to obtain a medical report which, in the event, was not lodged. I was not persuaded as to the necessity of the line of inquiry and it seemed to me that it came far too late in the day. Accordingly, although, somewhat surprisingly, the Crown did not oppose the motion, I refused the motion for a further continuation and I appointed a trial diet.