APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Marnoch	[2013] HCJAC 49 XJ212/13 and XJ214/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPLICATION FOR EXTENSION OF TIME TO LODGE BILL OF ADVOCATION   by   CATHERINE HELEN MIDDLETON and SEAN JAMES McALLISTER Applicants;   against   PROCURATOR FISCAL, LIVINGSTON   Respondent:   _____________

Applicants: MC MacKenzie; Gilfedder & McInnes (for K W Law, Livingston); Drummond Miller LLP (for Allcourt, Livingston)

Respondent: A Prentice QC (sol adv) AD; the Crown Agent

 

13 March 2013

[1] The applicants appeared on a summary complaint in Livingston on 28 June, 2011; each charged with assaults on the same complainer on 20 March 2011 in Fauldhouse. Intermediate and trial diets were fixed for 14 October and 2 November 2011. The intermediate diet was continued to 28 October, when parties said that they were ready for trial. On 2 November the trial diet was adjourned "ex proprio motu in respect of lack of court time". New intermediate and trial diets were fixed for January 2012. These diets were adjourned for exactly the same reasons until April and May. In May the same thing happened and diets were fixed for August. In August the same thing happened again, when a new trial diet was fixed for 12 December. On 12 December the diet was once more adjourned and a new diet has been fixed for 10 April.

[2] This is an application for an extension of time in which to lodge Bills of Advocation. The court acknowledges immediately that there appears to be a strong prima facie case that the sheriff erred in adjourning a summary trial diet for an extraordinary fifth time for the same apparent reason of "lack of court time". This is particularly so given what appears to be not an uncommon problem in this particular sheriff court (see Robertson v PF Livingston [2012] HCJAC 169, under reference to Hendry v PF Livingston [2012] XJ619/12).

[3] However, the time limit for lodging a Bill of Advocation, in terms of section 191A of the Criminal Procedure (Scotland) Act 1995, is three weeks. These applications come before the court over two months late. The only explanation which the court has been given for the lateness of the applications is the somewhat surprising one that the local agents for each of the applicants were unaware of the existence of the time limit. The limit was introduced by section 6 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010: an Act having substantial consequences in relation to criminal procedure and practice in general. It

is one which might have been thought to have been at the forethought of the thinking of the criminal practitioner.

[3] The court does not consider that ignorance of the law in relation to time limits, professed by agents practising in the very field in which they are applicable, constitutes any form of explanation which can be excused in terms of the statutory provisions. In these circumstances the applications are refused.

 

 

 

DL