APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 56 Appeal No: XC112/12 OPINION OF THE LORD JUSTICE CLERK in the Appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995 by CRAIG NICHOL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Allan, sol adv; More and Co

For the Crown: P Ferguson QC, AD; Crown Agent

3 April 2012

Introduction

[1] This is an appeal against a decision of Sheriff Mackinnon at Edinburgh Sheriff Court dated 21 February 2012 by which he extended, under section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), the twelve months time limit within which the Crown could bring the appellant to trial.

[2] On 28 January 2011, the appellant and two co-accused appeared on petition on charges of fraud. After service of the indictment a first diet was fixed for 10 January 2012 and trial was fixed for 23 January 2012.

[3] On 10 January 2012, on the motion of the co-accused, the court postponed the trial diet to 5 March 2012 and extended the twelve months time limit to 30 March 2012.

[4] Before the first diet the solicitor for the appellant, with a view to avoiding the leading of unnecessary evidence, invited the Crown to prepare a draft joint minute of agreed facts.

[5] On 7 February 2012, at the first diet, the solicitor for the appellant moved that the first diet should be continued to await the submission of the draft joint minute by the Crown. The other parties concurred in the motion. The sheriff continued the first diet to 21 February. The Crown accepts that at that stage it was ready to go to trial.

[6] On 21 February 2012, at the continued first diet, the Crown had still not produced a draft joint minute. The solicitors for both co-accused moved that the trial diet should be further postponed.

[7] The solicitor for the appellant opposed the motion. He cited HM Adv v Swift (1984 JC 83) and Warnes v HM Adv (2001 JC 110). He made it clear that the appellant was anxious to go to trial on 5 March. At this point the procurator fiscal depute supported the motion for the co-accused on the understanding that if it were granted the court would grant the Crown a further extension of the time limit under section 65. We understand that she spoke of there being voluminous documents and many witnesses, and said that it would be expedient that the Crown case should be presented against all three accused in one trial. She did not refer to any case law on the point.

[8] The sheriff granted the motion of the co-accused, postponed the trial diet to 28 May 2012 and extended the time limit to 27 June 2012. The extension of the time limit is the decision appealed against.

[9] The Crown accepts that at that stage it remained in a state of readiness for the trial. The Crown also accepts that it was open to it to oppose the motion on the basis that it wished to go to trial against all three accused within the existing, and already extended, time limit and on the existing, and already postponed, date of trial. It also accepts that it was open to it to proceed with the indictment against the appellant and, with suitable extensions, thereafter to go to trial against the co-accused.

The indictment

[10] The indictment libels ten charges of mortgage fraud. The appellant appears on five of them. The essence of each charge is that the accused named in it caused a mortgage loan to be obtained by an applicant on the strength of a false declaration, supported by false documentation, as to the applicant's occupation and earnings. In charges 1 to 8 it is alleged that the application was submitted on the applicant's behalf by A1 Financial Solutions Ltd and in charges 9 and 10 by Innes Financial Services, also referred to in the indictment as Innes Financial Solutions.

The note of appeal

[11] The appellant contends that the extension was unreasonable because (1) the Crown chose to indict the case for the last sitting before the expiry of the original twelve months period and there had already been an extension of the period; (2) the Crown sought a further extension on the basis that it would be preferable for witnesses to give evidence only once, such practical concerns being no reason, in the absence of special circumstances, to defeat the appellant's right to be tried within the one-year time limit set by the 1995 Act, particularly where that limit had already been extended; and (3) the trial could have been delayed for three weeks and still have been commenced before the postponed time limit.

The sheriff's Report

[12] The sheriff observed that the convenience of trying several co-accused together would not be sufficient ground for an extension of time unless special circumstances existed. He considered that the following constituted special circumstances; namely (1) he was not satisfied there was any fault on the part of the Crown; (2) the charges related to a number of alleged frauds with a witness list of 80 witnesses; and (3) the appellant appeared on five charges that libelled frauds that varied in complexity and set out an intricate factual background. In the opinion of the sheriff, the combination of those circumstances justified his granting the Crown's motion.

[13] In his comments on the grounds of appeal the sheriff says that postponement of the trial for a few weeks was inappropriate because there was a problem of the availability of counsel for one of the co-accused. He had taken account of the submission that the time bar had already been extended, that the case had been indicted at the last minute and that the appellant was entitled to go to trial within a reasonable time. Nevertheless, the special circumstances justified the extension.

Submissions

[14] The solicitor advocate for the appellant explained that the Crown's submission was essentially that it was better for presentation to try all three accused together considering the numerous documents and witnesses which were involved. No authority was cited by the Crown. The Crown's position in light of the motions of the co-accused created the impression that they were jumping on a bandwagon which would permit them to delay a superficially difficult case. However, the frauds alleged were straightforward. The appellant was ready to go to trial. He was entitled to be tried within the time limits set by Parliament unless the Crown showed cause why he should not.

[15] The advocate depute based his reply on a report of the proceedings on 21 February signed by a procurator fiscal depute, Mr I Wallace, and written by him in the first person. To the embarrassment of the advocate depute, it became clear, and was confirmed by the minute of the court and by the solicitor who appeared for the appellant on that date, that the Crown was not represented by Mr Wallace. It was represented by Ms Isobel Clark, procurator fiscal depute. The advocate depute candidly admitted that in these unusual circumstances, he could not say with certainty what information was given to the sheriff by the Crown.

Conclusions

[16] It is the Crown that elects when to put an accused on petition. It does so in the knowledge that that starts the clock running in terms of section 65 of the 1995 Act. It is free to indict at any time during the ensuing year; but if it should indict up to the wire, so to speak, as happens much too often in our experience, it must recognise that unforeseen circumstances may necessitate an application under section 65, in which success is by no means certain. Parliament has laid down time limits in the 1995 Act for good reasons. Extensions under section 65 are not there for the asking. In Early v HM Adv (2007 JC 50, at para [30]), I emphasised the importance of scrupulous adherence by the Crown to procedural requirements and time limits.

[17] The Crown was all along ready to go to trial against all three accused. On 21 February, when the co-accused sought a postponement, it was to be expected that the Crown would oppose the motion on the basis that it wished to go to trial on the date fixed. Unaccountably, to my mind, the procurator fiscal depute supported the defence motion on the understanding that an appropriate extension of time would be granted to the Crown. The only consideration of any significance that she advanced was that the Crown wished to have all three accused tried together. This court decided in Mejka v HM Adv (1993 SCCR 978, LJC Ross at p 985C-E), to which the procurator fiscal depute did not refer, that the Crown's desire to go to trial against all co-accused at the same time does not per se justify an extension.

[18] As this court laid down in Early v HM Adv (supra, at para [8]) the court must first consider whether the Crown has shown a reason that might be sufficient to justify the extension sought; and if it has, to consider whether, in the exercise of its discretion, it should grant the extension for that reason.

[19] It is not clear from the sheriff's report whether he has proceeded in this way. He has not specifically dealt with the question whether the Crown had shown cause, before going on to determine whether it was appropriate to grant the extension in all the relevant circumstances. I am satisfied that the sheriff's reasons are insubstantial. It was not correct to say that there was no fault by the Crown. The Crown could and should have opposed the motion for the co-accused instead of supporting it. The fact that there are 80 witnesses on the Crown list is meaningless. The Crown has had the opportunity at any time since the service of the indictment to submit a draft joint minute to the defence. Of the 80 witnesses, 37 are police officers, many of whom will no doubt simply speak to the provenance of productions and whose evidence can readily be agreed. The fact that the appellant appeared along with others on five of the ten charges is irrelevant. The complexity of the trial is more apparent than real. Notwithstanding the prolixity of the drafting, the charges are simple and straightforward. They involve the preparation and submission of false mortgage applications with supporting false documentation. In my opinion, the evidence in support of them can be led succinctly and straightforwardly by any competent prosecutor.

[20] The sheriff has not elaborated on the considerations advanced by the Crown; nor has he given a reasoned justification for treating them as amounting to special circumstances.

[21] In my opinion, the Crown produced only the most perfunctory and unconvincing justification for seeking the extension. The sheriff in sustaining the Crown's motion, has not given us any better justification. The suggestion by the procurator fiscal depute that the expediency of proceeding against all three accused together constituted sufficient cause for an extension flew in the face of Mejka v HM Adv (supra). The Crown was unquestionably ready to go to trial and could have gone to trial within the existing extension on the date already fixed. The position taken by the procurator fiscal depute could therefore have given the unfortunate impression that the Crown supported the postponement in preference to getting on with the case.

Disposal

[22] I propose to your Lordships that we should grant the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 56 Appeal No: XC112/12 OPINION OF LORD MACKAY OF DRUMADOON in the Appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995 by CRAIG NICHOL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Allan, sol adv; More and Co

For the Crown: P Ferguson QC, AD; Crown Agent

3 April 2012

[23] For the reasons given by your Lordship in the chair I agree that the appeal should be allowed.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 56 Appeal No: XC112/12 OPINION OF LORD BONOMY in the Appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995 by CRAIG NICHOL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Allan, sol adv; More and Co

For the Crown: P Ferguson QC, AD; Crown Agent

3 April 2012

[24] For the reasons given by your Lordship in the chair I agree that the appeal should be allowed.