Amanda Cowan v. Her Majesty’s Advocate [2017] HCJAC 73

Appeal under section 65 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to Dundee Sheriff Court in relation to an alleged contravention of section 35 of the Tax Credits Act 2002. A minute in terms of section 71 of the Criminal Procedure (Scotland) Act 1995 had been lodging in which the relevancy and specification of the charge was challenged. Prior to the calling of the indictment at the first diet the Crown indicated that the indictment would not call. Thereafter, a fresh indictment was served which was in identical terms with the exception of the word “thereafter” being added to line 24 of the charge. A second section 71 minute was lodged on behalf of the appellant in identical terms to the first. At the first diet of 2 May 2017 the Crown moved to adjourn the trial which was assigned for 15 May 2017 and to extend the section 65 time bar. The motions were unopposed and the motions were granted with a continued first diet fixed for 18 July and 31 July 2017 as the trial diet. On 18 July 2017 the sheriff was invited to continue the first diet further, however, refused to do so and insisted upon hearing the section 71 minute. The sheriff upheld the minute and deserted the indictment pro loco et tempore. The Crown sought an extension of the timebar in terms of section 65(3) of the 1995 Act, which was granted to 18 October 2017. Here the appellant appealed against that decision on the basis that there was insufficient reason to grant the motion having regard to the two stage test in Swift v. H.M.A. 1984 J.C. 83. It was submitted here on behalf of the appellant that the Crown had failed to provide a sufficient reason for the extension and no reference to such a reason was contained within the sheriff’s report. The sheriff stated that in relation to the first stage of the two stage Swift test he ““treated the first stage as conceded”. It was the position of parties here that no such concession had been made. Here the court allowed the appeal. The court noted that there did not appear to be any reason given in the sheriff’s report as far as the first stage of the Swift test was concerned and that the only reason for the extension being sought had to be fault on the part of the Crown. The court reiterated that the identification of the reason for an extension is an important factor at both stages of the Swift test. If the reason is due to a Crown failure then the court requires to consider what the error was and why it occurred. The court made clear that at the first stage issues like the nature of the charge, the public interest and the potential prejudice are not relevant. Similarly, in relation to the first stage it is not appropriate to proceed on the basis of whether any error on the part of the Crown is ‘major’ or ‘minor’ but, rather, it is necessary for the court to consider the circumstances of the error itself, how it occurred and how it could have been avoided and whether the defence were aware of it and failed to draw the Crown’s attention to it. The court noted that in the present case no such consideration was given by the sheriff and no explanation had been offered by the Crown which satisfied the court as to why the error was capable of being excused. It was conceded here on behalf of the Crown that the failure to amend the indictment was an error. Here the court considered that it was clear on 18 July 2017 when the sheriff heard parties on the section 71 minute that the Crown had not adequately prepared for the hearing on the minute either to answer it or to amend the charge. It was clear that the Crown in reindicting the case had failed to rectify the deficiencies in the libel, despite being aware of the alleged deficiencies by the lodging of the previous defence section 71 minute.