COWAN, SECTION 65 APPEAL BY AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> COWAN, SECTION 65 APPEAL BY AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC_73 (13 September 2017) URL: http://www.bailii.org/scot/cases/ScotHC/2017/[2017]_HCJAC_73.html Cite as: 2017 SCCR 526, [2017] HCJAC 73, [2017] ScotHC HCJAC_73, 2017 GWD 31-495, 2017 SCL 1022

Appellant: Findlater; Faculty Services Limited, for Lawson, Coull & Duncan, Dundee

[1] The appellant was originally indicted to a first diet at Dundee Sheriff Court on

28 March 2017, charged with a contravention of section 35 of the Tax Credits Act 2002. Prior

to the First Diet further productions had been intimated by HMRC. A section 71 minute

challenging the relevancy and specification of the indictment had also been served. The

[2] Subsequently, a fresh indictment in identical terms save for the addition of the word

“thereafter” in line 24, was served with a first diet fixed for 2 May and a trial for 15 May. A

second, identical, section 71 minute was lodged. On 2 May, Crown motions, unopposed, to

adjourn the trial and to extend the twelve month timebar to 18 August were granted. A

continued first diet was fixed for 18 July with 31 July as the trial diet.

[3] At the continued first diet, at which the indictment remained in its original form, the

sheriff was again asked to continue the diet. He refused to do so and proceeded to hear

submissions on the section 71 minute. He upheld the minute and deserted the indictment

[4] Thereafter, the Crown sought a further extension of the timebar in terms of

section 65(3) of the 1995 Act, which was granted to 18 October 2017. That decision has been

appealed on the basis that there was no sufficient reason to grant the motion.

[5] Counsel submitted that the Crown had not provided a sufficient reason to grant the

extension; no reason is contained in the sheriff’s report. Under reference of HMA v Swift

1984 JC 83, the sheriff indicates that he “treated the first stage as conceded.” Both parties

submitted that there was no such concession, nor was the argument advanced on a basis

which would entitle an inference of concession to be drawn. In any event, in our view this is

a matter upon which the court requires to be satisfied: it is not a matter for concession by

parties. It is not clear from the report what the sheriff considered to be the relevant reason

for the purposes of the first part of the test, but it cannot be other than fault on the part of the

[6] The identification of the reason is an important factor at both stages of the relevant

test. As the court pointed out in Early v HMA 2007 JC 50, if the reason is not one for which

the Crown is responsible, consideration of whether the reason was a sufficient one would

require the court to address the interests of parties other than the Crown. If the reason is

error on the part of the Crown, the court requires to consider what the error was and why it

occurred. Only at the second stage is it appropriate to consider the nature of the charge, the

public interest, the issue of potential prejudice and similar matters.

[7] At the first stage, it is not appropriate to proceed on the basis of the error being

“major” or minor”: rather the court requires to consider how the error came to be made;

how readily it could have been avoided or detected; the circumstances in which it came to

light; whether the defence were aware of it and failed to draw it to attention. In the present

[8] The sheriff’s decision to dismiss the indictment is not and has not been challenged.

The advocate depute accepted that the decision not to amend was an incorrect one.

Essentially, the reason no action was taken was that those in the local office thought that the

degree of specification was similar to that given in other such cases, and that it gave

adequate notice of the Crown case. However, if that be so, it is difficult to understand why

the Crown was not in a position to advance these arguments to the sheriff on 18 July, when,

the sheriff tells us the depute “advanced no useful submissions in defence of the indictment”

beyond the proposition that the defence could obtain further specification by looking at

extraneous material produced by the Crown. The advocate depute accepted that the basic

fact was that at the time when the sheriff insisted on the minute being heard, the Crown had

not given sufficient attention to the minute either to be able to answer it or to propose

[9] The Crown had indicted the appellant twice, on a virtually identical libel, despite the

defence drawing to their attention the deficiencies in the indictment which eventually led

the sheriff to dismiss it. They failed to address these issues, despite having already been

[10] The advocate depute submitted that it would be sufficient reason to grant an

extension that it would enable the Crown to prepare an indictment which provided

sufficient relevancy and specification, in the face of an original indictment which had been

so lacking in these as to be dismissed. Given the way in which this matter has arisen we

cannot accept that. As the court pointed out in Early (para 22, Lord Justice Clerk (Gill)):

“... it is not enough for the Crown merely to show that an error was made. It must

explain why it was made, and, before any question of discretion arises, the

explanation must satisfy the court that the error is capable of being excused.”

We are not so satisfied and will grant the appeal.

Scottish High Court of Justiciary Decisons