C.S. v. Her Majesty’s Advocate [2021] HCJAC 6

Appeal under section 65 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted in relation to a charge of having with him in a public place a knife, without reasonable excuse or lawful authority, contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 together with a charge alleging a contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995. On 30 October 2020 the sheriff granted the Crown motion to extend the 12 month period due to the COVID-19 pandemic specified in section 65(1) of the 1995 Act from 8 November 2020 to 7 February 2021. The appellant appealed against the decision of the sheriff. On 30 October 2020 it was submitted on behalf of the Crown that the circumstances caused by the pandemic constituted a sufficient reason to justify the extension and, in the absence of fault on the part of the Crown, the court ought to exercise its discretion in favour of granting the motion. The appellant appealed against the sheriff’s decision to grant the Crown motion. It was submitted on behalf of the appellant that whilst the pandemic had resulted in unprecedented challenges to the criminal justice system, in particular, in relation to the conduct of jury trials, the sheriff had insufficient information in relation to the re-commencement  of trials to allow him to hold that sufficient reason for an extension had been provided and the first stage of the 2 stage Swift v HM  1984 JC 83 test had not been met and that the sheriff had exercised his discretion unreasonably. On behalf of the Crown it was submitted that since the hearing of 30 October there had been a public statement released in relation to the recommencement of jury trials and the complaint made on behalf of the appellant had now been met and all relevant considerations had been taken into account in the exercise of the sheriff’s discretion. Here the court refused the appeal and referred to the significant efforts which have been made between May and October 2020 to recommence jury trials in Scotland. The court considered that some of the criticisms advanced on behalf of the appellant in the present case were capable of undermining public confidence in the administration of justice at a time when the system was under significant strain for obvious reasons. The court went on to state that it was incumbent upon legal representatives to justify submissions alleging fault and making criticisms of those involved in the administration of justice. The court noted that in the present case no analysis of the efforts which had been taken by those involved in the administration of justice had been provided and no alternative methods had been suggested in relation to how best to progress solemn criminal case work. The court considered that the sheriff had been correct to hold that, firstly, a sufficient reason had been identified which would entitle him to grant an extension, and, secondly, that the sheriff exercised his discretion appropriately in the circumstances.