CROWN APPEAL BY HIS MAJESTY'S ADVOCATE AGAINST SYLVIA CATHERINE MACLENNAN [2024] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2024] HCJAC 26

HCA/2023/148/XC

Lord Justice General

Lord Pentland

Lady Wise

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

CROWN APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND)

ACT 1995

HIS MAJESTY'S ADVOCATE

Appellant

against

SYLVIA CATHERINE MacLENNAN

Respondent

Appellant: J Keenan KC (sol adv) AD; the Crown Agent

Respondent: Mackintosh KC; Ward & Co

12 May 2023

Introduction

[1]

This is a Crown Appeal against a decision by the sheriff at Inverness to "uphold" a

minute complaining of unreasonable delay in terms of Article 6(1) of the European

Convention and to acquit the respondent.

History

[2]

The respondent and her partner were both solicitors with the Highland Law Practice

in Wick. They are charged separately on the same indictment with embezzlement. The first

charge, which is against the respondent's partner alone, libels embezzlement of about

£105,130 from the firm between July 2008 and January 2012. The second charge is against

the respondent alone. It libels embezzlement from the firm of about £7,297 in January and

February 2012. It would appear that the embezzlement involves irregular withdrawals from

the client account. In the respondent's case, it is not suggested that, for the most part at

least, she had benefitted directly or personally from these withdrawals.

[3]

Much of the history of the case is not in dispute. During 2011, the respondent was on

maternity leave. She returned to work in January 2012, when her partner became unwell.

He made her aware of problems with the firm's accounts. On 5 January, the firm had

received a letter from the Law Society of Scotland intimating that an inspection of the firm's

accounts would take place in late January.

[4]

On 18 January 2012, the respondent sent a letter to the Law Society advising them

that there was a deficit in the client account. She accepted that she had intromitted with the

client account to the extent libelled in the charge against her. These were either personal

drawings, specific payments to third parties or a transfer of some £4,600 to the firm account

which was used to pay wages. The Law Society inspection was delayed until mid-February,

when a judicial factor on the firm was appointed. At some point (it is not known exactly

when) the JF reported the actions of both accused to the Crown Office.

[5]

On 1 July 2014, the Crown Office instructed the police to investigate. Meantime, in

January 2015, proceedings were raised before the Scottish Solicitors Discipline Tribunal

against the respondent's partner alone. The respondent accepted a restriction on her

practising certificate pending the outcome of any investigation. In the early months of 2015,

the police obtained warrants for the recovery of evidence. A number of documents were

removed from the Law Society, who had in turn uplifted them from the firm's premises. On

6 July 2015, both accused were interviewed and charged. On 25 September, the police sent a

report to the local procurator fiscal. From September 2015 to December 2018, the matter

rested within a specialised unit in the Crown Office. It was then reallocated to a local PFD.

Very little happened during this period. The case was re-reported to Crown Office.

[6]

On 3 January 2019, the Crown Office instructed the procurator fiscal to indict. From

then until 1 August there were discussions about where the accused could or should appear

on petition. They eventually appeared on petition respectively on 1 August and

6 September and were admitted to bail. The accused were indicted to appear at a First Diet

in Inverness Sheriff Court on 10 December 2019. This was discharged administratively

under section 75A of the 1995 Act until 7 April 2020. There were then some 17 separate

occasions on which a First Diet was postponed administratively. Two of these related to

Covid and two are said to have been for the purposes of disclosure or preparation. The

remaining 13 occasions were on joint section 75A applications. The sheriff records, correctly,

that:

"With the benefit of hindsight, there has been a complete lack of judicial oversight

during this period. Six different sheriffs granted the minutes, without, no doubt an

overview as to the extent to which time was drifting."

[7]

At a continued First Diet on 13 September 2022, the sheriff noted that, amongst other

minutes, the respondent had tendered a plea in bar of trial on the basis of oppression and

delay under Article 6. A debate on these minutes was assigned for 4 November. Another

joint section 75A application was tendered and granted for a number of reasons, with a new

debate assigned for 25 to 27 January. In advance of that debate, yet another section 75A

application was made and granted, this time by another sheriff, with 25 January being

preserved in order to assign a further diet. That diet too was the subject of a section 75A

application, but this time it was refused, pending an oral hearing. After further allocations

of first diets and subsequent section 75A applications, the case eventually called for a debate

at a First Diet on 15 March 2023, more than three years after the initial calling.

The eventual First Diet

[8]

The respondent's partner explained that he did not object to an extension of the time

bar under section 65(1)(b) of the 1995 Act, which, having been subject to numerous

extensions, was due to expire at the end of March 2023. A trial was fixed for 16 October 2023

with a "pre-trial hearing" (? Continued First Diet) allocated for 2 May. The partner

maintained that there had been no criminality and that the deficits in the client account had

been caused by a software error. An expert would have to investigate that. All the

paperwork and electronic media had been removed by the Law Society, under the

instructions of the judicial factor, in February 2012. The Law Society had instructed an

expert in the context of the SSDT proceedings. That expert had reported that there had been

no backup when the equipment was seized. The server was now obsolete, as were the disks.

The hard drive battery was swelling due to age. The way forward was to clone the disks,

put them into the server and to boot up the server. Although the expert was not asked to do

anything further by the Law Society, he was later instructed by the respondent's partner. In

his report to him, he said that much of what had been seized was still missing. He repeated,

and the Crown had been advised of this, that the disks were obsolete and the computer

could no longer be booted up. The information on the computers and the software could

not be accessed. It was impossible now to establish whether fraudulent activity, human or

systematic error was the reason for the client account deficits.

[9]

A response from the judicial factor revealed that photographs had been taken of the

items which had been removed. However, the respondent's partner maintained that he had

been asking the Crown for a number of items, which had been removed from the firm's

premises, without success. Pieces of computer equipment had been uplifted, but the expert

had seen only two out of 15 of these. The indictment referred to 48 productions, but 170

documents had been made available to the respondent's partner. There was no hardware

referred to on the list of labels. Some 4,500 posting slips had now been produced. There

were other items which had been removed, but which were still not to hand. The client files

had been passed to another firm and, on the instructions of the JF, destroyed.

[10]

The respondent's position was different. Although she did not require to see any

computer equipment, there had been paperwork which supported her position. Despite

both the Law Society and the Crown being aware of the position for many years,

documentation which she had sought was still not to hand. There was specific reference to

certain folders which had not been made available. Without these, the respondent would

not be able to put any clear and vouched picture of her defence before a jury.

[11]

The Crown maintained that any delay prior to September 2015 had been outwith

their control. From 2015 to 2019 there had been a lengthy delay, but it was not necessarily

the case that no progress had been made. It was conceded that there must have been

periods of time when little had been done, but that was, as the submission was reported by

the sheriff, "in the context of a busy office, with case preparers having many cases to attend

to." Notwithstanding the protracted periods involved, the Crown maintained that there had

been no unreasonable delay (HM Advocate v K 2013 SCCR 549). For the plea of oppression to

succeed, it had to be demonstrated that no direction to the jury could cure any potential

prejudice.

Sheriff's decision

[12]

The sheriff did not consider that the test for oppression, that is whether any prejudice

resulting from the delay was so grave that it could not be removed by an appropriate

direction (McFadyen v Annan 1992 JC 53), had been made out. The sheriff reached the

opposite decision in relation to Article 6. She addressed the question of whether a trial

would inevitably be unfair, having regard to the period of time which had elapsed since the

respondent had been interviewed in July 2015. She took into account the cumulative effect

of a number of factors, notably that: (a) disclosure still had to be made; (b) the regulatory

body had not catalogued and stored the relevant material; (c) the respondent had been

subject to a restricted practising certificate for some 11 years; (d) there was a lack of

explanation on the part of the Crown for several periods of delay, notably from charge to

petition and from indictment to trial; (e) the case was not complex; (f) the case was not

particularly serious in that it involved a relatively small sum; and (g) a significant period

had lapsed since the offence itself (see O'Neill v United Kingdom 2016 SCCR 337 at para 87).

Had the sheriff not sustained the Article 6 unfairness plea, she would have found it difficult

to extend the time bar, given that the interests of justice did not lie in the Crown's favour.

Submissions

Appellant

[13]

Although the appellant accepted that there had been correspondence in which the

respondent had sought certain material, in failing to lodge a defence statement which would

have made it clear what was outstanding, she had not complied with her statutory

obligations (McCarthy v HM Advocate 2021 SCCR 6 at para [22]). She had not made an

application for disclosure. It was not possible to rely on Article 6 as a primary ground of

complaint. The common law of fairness or oppression should first be resorted to (Fraser v

Deveney 2014 SCCR 147 at para [10]). The oppression and compatibility pleas were

essentially the same. The sheriff had been correct in determining that oppression had not

been made out. She had not explained the basis upon which she had repelled the plea of

oppression, yet sustained that in the compatibility minute. She had not explained how the

trial could be unfair if the relevant documents were now located. The Law Society was not a

prosecuting authority (see Coia v HM Advocate 2009 SCCR 1 at para [48]). The fact that the

respondent had been made subject to a restricted practising certificate did not mean that she

could not obtain a fair trial. That was a matter which could be taken into account in any

sentence.

[14]

The appellant accepted that the proceedings had commenced for the purposes of

Article 6 when the respondent was charged by the police in July 2015 (Eckle v Germany

(1982) 5 EHRR 1 ). It was conceded that there had been periods of inactivity from then until the

petition warrant issued in March 2019. There had been no delay between the appearance on

petition and the indictment. Both the Crown and the court had had a responsibility to

progress matters once the First Diet had been allocated. However, it was conceded,

correctly, that there had been a breach of the reasonable time requirement. That being so,

the question was what remedy could and should be afforded to the respondent. Sustaining

a plea in bar of trial was only appropriate where the delay was such that a fair trial could no

longer take place or there was some other compelling reason such as bad faith, unlawfulness

or executive manipulation (Potts v Gibson at para [21]). If a breach had occurred, the

appropriate remedy may be a reduction in sentence or a declarator that the right had been

infringed. The appellant moved the court to quash the sheriff's decision on the

compatibility minute and to grant an extension of the time bar in section 65(1) of the 1995

Act. It was in the interests of justice that the prosecution should continue (Barr v HM

Advocate 2023 SLT 324 at para [16]).

Respondent

[15]

The respondent maintained that the appellant's reliance on a failure to lodge a

defence statement was misplaced. As far back as the section 75A Minute of 5 December

2019, substantially the same information, as would have been required in a defence

statement, had been provided to the Crown and the court. There had been repeated

attempts by the respondent for disclosure, notably in letters or emails throughout 2020 and

2021. No substantial replies have been received.

[16]

On Article 6, this was not a particularly complex case. The issues were clear, as far

back as 2012. The respondent had been on a restricted practising certificate for over eight

years. The matter had been reported to the Crown Office by the judicial factor, but it had

been two years before the Crown had instructed the police to investigate and a further year

before the respondent had been interviewed by the police. In applying the criteria in O'Neill

v United Kingdom (at paras 86-87), the case had all the features of an unreasonable delay

breach. There was: the lack of complexity; prolonged uncertainty; the relatively minor

nature of the offence; and a lack of responsibility on the part of the respondent for any delay.

There were significant gaps in the progress of the case. Some seven years had passed

between the judicial factor's report and the placing of the respondent on petition. The

respondent's partner had already complained to the European Court of Human Rights

about the delay in serving an indictment in 2018. This application had been sisted. His

name had been struck off the roll of solicitors in 2015.

[17]

In determining whether discontinuance of the proceedings was an available remedy,

regard had to be made to Spiers v Ruddy 2009 SC (PC) 1 at para [17], approving A-G's

Reference (No. 2 of 2001) [2004] 2 AC 72 at paras 24, 25 and 29. It was not appropriate to

dismiss proceedings unless there could no longer be a fair hearing or it would otherwise be

unfair to try the accused. The circumstances fell into the latter category.

[18]

Even if the court were to sustain the appellant's argument on delay, no extension of

time ought to be granted. The test was whether it was in the interests of justice that the case

proceed (Barr v HM Advocate at para [16]).

Decision

Oppression

[19]

The issue of oppression was not revisited directly on appeal. It is, however, useful to

repeat the test for oppression before going on to consider unfairness under Article 6 of the

Convention. "Whether oppression can be established depends on the particular facts and

circumstances, including the Crown's conduct, the seriousness of the charge and the public

interest in ensuring that crime is prosecuted" (Fisher v HM Advocate 2023 JC 21, LJG

(Carloway), delivering the opinion of the court, at para [28], following Potts v Gibson 2017 JC

194, LJG (Carloway), delivering the opinion of the court at para [16]). The court has the

power to stop a prosecution in the event of oppression, but the circumstances in which such

a power would be exercised have to be "special"; viz. "whether the risk of prejudice is so

grave that no direction of the trial judge, however careful, could reasonably be expected to

remove it" (Stuurman v HM Advocate 1980 JC 111, LJG (Emslie) , delivering the opinion of the

Full Bench, at 122, followed in HM Advocate v Withey 2017 JC 249, LJG (Carloway),

delivering the opinion of the court, at para [38]). The sheriff recorded that, in the

respondent's case, the Crown "may now have located the various items of paperwork said

to be required". It was on that basis that the sheriff repelled the plea. Otherwise, she

reasoned, the case may, for the reasons given in relation to Article 6, have been categorised

as oppressive.

Article 6

[20]

It was correctly conceded that there has been a breach of the reasonable time

requirement under Article 6(1). The respondent was interviewed and charged by the police

in July 2015; almost eight years ago. However, the remedy of sustaining a plea in bar as a

consequence is only appropriate where the delay is such that a fair trial can no longer take

place or there is some other compelling reason to stop the proceedings (Potts v Gibson at

para [21] following HM Advocate v CAM 2013 SCCR 67, Lady Paton, delivering the opinion

of the court, at para [7] citing A-G's Ref (No 2 of 2001) [2004] 2 AC 72, Lord Bingham at

para 29).

[21]

In A-G's Ref (No 2 of 2001), Lord Bingham explained (at para 24) that where there has

been a breach of the reasonable time requirement:

" ...there must be afforded such remedy as may ([Human Rights Act 1988] section

8(1)) be just and appropriate or (in Convention terms) effective, just and

proportionate. The appropriate remedy will depend upon the nature of the breach

and all the circumstances, including particularly the stage of the proceedings at

which the breach is established. If the breach is established before the hearing, the

appropriate remedy may be a public acknowledgement of the breach, action to

expedite the hearing to the greatest extent practicable... It will not be appropriate to

stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b)

it would otherwise be unfair to try the defendant. The public interest in the final

determination of criminal charges requires that such a charge should not be stayed or

dismissed if any lesser remedy will be just and proportionate in all the

circumstances.

The category of cases in which it may be unfair to try a defendant of course

includes cases of bad faith, unlawfulness and executive manipulation.... But... the

category may not be confined to such cases. ...There may well be cases ... where the

delay is of such an order, or where a prosecutor's breach of professional duty is

such... as to make it unfair that the proceedings against a defendant should continue.

It would be unwise to attempt to describe such cases in advance. They will be

recognisable when they appear. Such cases will however be very exceptional, and a

stay will never be an appropriate remedy if a lesser remedy would adequately

vindicate the defendant's Convention right."

This approach was affirmed as applicable in Scotland in Spiers v Ruddy 2009 SC (PC) 1 (Lord

Bingham at para [17]).

[22]

Applying this approach, the court does not consider that any lesser remedy than

sustaining a plea in bar of trial would be effective, just and proportionate to provide an

adequate remedy to the respondent for the breach of the reasonable time requirement.

Without repeating unnecessarily the various factors which the sheriff took into account, the

significant feature in this case is the exceptional and unjustifiable delay, which was

essentially caused by the Crown, between the first report of the case sometime in 2014 and

the present day; some eight or nine years. As at present, the court has little confidence that

the scheduled trial in October 2023 will proceed, whether the respondent is restored as an

accused or not. There appear to be significant evidential problems in the case against the

respondent's partner involving the state of the computer equipment and the available

paperwork. If the case cannot proceed against the respondent's partner, it is difficult to

envisage it proceeding only against the respondent when her partner would almost

inevitably be called by her as a witness. In this state of grossly excessive delay and future

uncertainty it is appropriate to stop the current proceedings by sustaining the plea in bar.

The respondent is not acquitted but the prosecution against her is discontinued accordingly.

Time Bar

[23]

The original 12 month time bar in terms of section 65 of the 1995 Act would have

expired in September 2020, or rather March 2021 following Covid; two and a half years ago.

That expiry has to be seen in the context of a case which first came to the attention of the

COPFS in July 2014 (nine years ago) and again in September 2015. The test is whether it is in

the interests of justice that the case should proceed (Barr v HM Advocate 2023 SLT 324, LJG

(Carloway), delivering the opinion of the court, at para [16]). The factors taken into account

in relation to Article 6 remain relevant. Balancing all of these, had the court not sustained

the plea in bar on the basis of Article 6, it would have held that it is not in the interests of

justice to allow this prosecution to continue into what is still an uncertain future.

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