Her Majesty’s Advocate v. (1) RV; (2) PO; (3) JM; and (4) KS [2016] HCJAC 103

Bills of advocation and section 65 appeals:- On 13 July 2015, at Edinburgh High Court, the trial judge deserted the trial against the 4 respondents pro loco et tempore and then refused to extend the 11 and 12 month timebar periods to allow the Crown to reindict. Here the Crown presented a Bill of Advocation contending that the trial judge had erred in deserting the diet. The circumstances were that the trial proceeded against the 4 respondents in relation to 34 charges including charges of theft, opening and attempting to open lockfast places, breaking into commercial premises, contravening section 2 of the Explosive Substances Act 1883 and section 4(3)(b) of the Misuse of Drugs Act 1971 and uttering of threats to a witness. The first three respondents appeared on petition in October and November 2013. The fourth respondent appeared from custody on 6 August 2014 to answer a petition warrant, also dated November 2013. The original indictment only included the first three respondents, however, subsequently a fresh indictment was served against all four respondents. Between the Preliminary Hearing and the date of the trial, the Crown served five section 67 notices and the trial commenced on 30 June 2015. The Crown called 73 witnesses only 8 of which were cross-examined. A joint minute had been entered into between parties but was limited to the arrest procedures for two of the respondents and five out of thirteen books of photographs. It was noted by the trial judge in her report to the court that it was apparent there was a great deal of evidence that ought to have been agreed and valuable resources and court time saved and the trial judge was critical of a number of aspects of the Crown presentation of their case. On 9 July 2015 the Advocate depute called a witness ‘FC’ and asked the witness various questions in relation to what he had said in his police interview. During the course of the first respondent’s cross-examination of FC it appeared that the copies of one of the transcripts from which the judge, the Crown and counsel for the third and fourth respondents had been working, were not the same as the principal which was being put to the witness or the copies being used by the first respondent’s counsel. The trial was adjourned until the next court day to enable the Crown to check the position. It transpired that other transcripts of FC’s interview also contained differences in the copies of those held by parties some of which were material. The judge granted the respondents’ motion to desert, however, in relation to the Crown application to extend the 11 and 12 month time bars those motions were refused by the trial judge which brought the prosecution to an end against 3 of the 4 respondents. Here the court passed the bills and extended the 12 month period to 29 April 2016. The court considered that a serious ongoing trial in the High Court, like this, should only be deserted when it has become abundantly clear that the circumstances demand such drastic action and where any problem that had arisen could not be cured by direction or by an adequate direction to the jury or by introducing some other reasonable procedural or evidential step. The court considered that desertion ought to be a last resort only to be taken where the actual or perceived unfairness is so material that no step other than desertion could rectify it. The court considered that in the present case the trial could have continued following adjournment once any issues in relation to the transcripts had been addressed. The court also considered that the various failings on the part of the Crown impacted upon the trial judge’s decision to desert albeit noted that the trial judge’s frustration was understandable. The court considered that the trial judge had erred in the exercise of her discretion when balancing the public interest in the prosecution of serious crime and the potential unfairness as a result of the defects in the presentation of the prosecution.