Donnie Daniel Potts v. Her Majesty’s Advocate [2015] HCJAC 124

Note of appeal:- On 18 June 2015, at Hamilton Sheriff Court, the sheriff granted an extension to the 12 month time limit in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995 when Crown motions to adjourn the case to a sitting commencing on 21 September 2015 and extend the twelve month time limit to 2 October 2015 were granted. Here the appellant appealed against those decisions. The circumstances were that the procurator fiscal depute who was dealing with the case on 18 June 2015 had identified an omission in the preparation of the case, namely, evidence of the appellant having deposited large sums of money in different bank branches within 4 weeks of the alleged theft which formed the basis of the indictment. It appeared that earlier in the proceedings a decision had been taken by a non-qualified member of the procurator fiscal’s staff at Dumfries not to pursue this particular line of inquiry. That member of staff had told the reporting officer that the Crown would not be able to get a warrant to recover the relevant bank account records of the appellant which were held in England. The trial depute disagreed and had obtained a warrant which would require to be transmitted to a judge in England for endorsement before it could be executed, however, there was insufficient time to add the evidence by section 67 notice to allow the case to proceed in the sitting. Despite opposition to the motion to adjourn by the solicitor acting on behalf of the appellant the sheriff granted the motion. The sheriff considered that the reason for the adjournment was due to an error made by a junior member of the COPFS staff and once the issue had been identified the obtaining of the material had been pursued diligently. The sheriff considered that the previous extensions granted in the case had been to accommodate the appellant or due to other business set down by the court. Here the court considered all of the circumstances relating to the decision not to obtain a search warrant and then, when the decision was taken to obtain a search warrant, the difficulties that arose through what the court described as the “somewhat bizarre arrangement [that] existed as part of the structure of the procurator fiscal service in the West of Scotland”. The court allowed the appeal. The court considered that the full information in relation to the wrong decision taken by a junior member of the COPFS staff and why the line of enquiry had not been pursued was not placed before the sheriff in relation to the first stage of the two stage test in Swift v HMA 1984 JC 83, namely, whether the Crown had shown sufficient reason which might justify the extension. The court stated that there had been a “complete and sustained breakdown within the administration of the procurator fiscal service in relation to obtaining the warrant” which error could easily have been detected and avoided. Further, the court noted that on a number of occasions the sheriff was told that the Crown was ready to proceed to trial without the banking evidence. The court also considered that whilst there had been previous adjournments on defence motion this was largely due to the late disclosure of a DNA report and the telephone analysis and again the sheriff had not been provided with the full picture on 18 June 2015. Given that the court considered the Crown had failed to advance sufficient reason to justify an extension it was not necessary for the court to consider the question of the exercise of the sheriff’s discretion.