Donnie Daniel Potts v. Procurator Fiscal, Hamilton [2017] HCJAC 8

Appeal:- The appellant appeared on summary complaint at Hamilton Sheriff Court in relation to a charge of theft of £50,000 by housebreaking. The appellant had earlier successfully appealed to the High Court against a decision of the sheriff to extend the 12 month time bar in solemn proceedings relating to the same charge. Here the appellant contended that the respondent had acted oppressively in an abuse of process or in violation of the appellant’s Article 6 rights in raising a summary complaint against him despite the decision of the High Court in relation to the solemn time bar. Prior to the coming into force of section 73 of the Criminal Procedure and Investigations Act 1996 the decision of the High Court would have brought all criminal proceedings to an end. Since 1996, however, the effect of the failure to bring an accused to trial within 12 months was that the accused would “not at any time be proceeded against on indictment as respects the offence”. The circumstances were that the High Court issued its opinion reversing the sheriff’s decision in October 2015. The decision of Crown counsel to proceed summarily was taken 3 months later and a complaint was served on the appellant in January 2016. The appellant thereafter lodged a plea in bar of trial based on contentions of both oppression and abuse of process by the Crown and a breach of the reasonable time requirement in Article 6 of the European Convention. On 30 June 2016 the sheriff repelled the plea. The sheriff considered that the appellant required to demonstrate that any delay had prejudiced the prospects of a fair trial and following Spiers v Ruddy 2009 SC (PC) 1, any breach of the reasonable time requirement could be compensated by the imposition of a lesser sentence. The appellant appealed to the Sheriff Appeal Court which focused largely on the issue of the passage of time and the appeal was refused. The appellant appealed to the High Court and contended that the oppression was not only based on delay but on the conduct of the Crown throughout the proceedings. It was submitted on behalf of the appellant that, whilst the alteration in the legislation had been to allow the Crown to discontinue solemn proceedings and to proceed summarily outwith the 12 month period, it had not been designed for circumstances where the solemn proceedings had been discontinued by the court. It was submitted that the SAC had erred in holding that the expedition of the summary proceedings had ceased the Article 6 violation as the commencement and continuation of the summary proceedings amounted to a continuing breach. It was further submitted that the SAC had erred in determining that the effective remedy for the Article 6 breach was a reduction in sentence as there were a number of compelling reasons why it would be unfair to try the appellant on summary complaint and the plea in bar of trial should be sustained and the proceedings halted. On behalf of the Crown it was submitted that the decision of the High Court not to grant an extension of time related to the application of the test in Swift v. H.M.A. 1984 JC 83 and was not ruling on the issue of oppression. It was further submitted that what the Crown had done was allowable under the 1996 amendment to the 1995 Act and there was no unfairness or attempt to circumvent the court’s decision on the part of the Crown. Here the court refused the appeal. It observed that the sheriff and the SAC had been wrong to attempt to divide oppression and abuse of process into two separate pleas and it was not clear how the SAC had concluded that the plea of oppression should be refused. Nevertheless the court considered that the SAC was correct to refuse the appeal. The court reiterated that the decision in relation to a plea of oppression is primarily for the court at first instance. In relation to the allegation of undue delay the court stated that the whole period of time from the first appearance on petition to the present day requires to be considered. The court noted that the summary proceedings were initiated within 3 years of the appellant’s first appearance on petition and the period since then could not be criticised so in these circumstances it was doubtful there had been a breach. The court reiterated that if there is a breach of Article 6 the remedy of sustaining a plea in bar of trial is only appropriate where the delay is such that a fair trial can no longer take place or there is some other compelling reason.