G.B. v. Her Majesty’s Advocate [2018] HCJAC 24

Appeal under section 65 of the Criminal Procedure (Scotland) Act 1995:- The appellant appeared on petition at Elgin Sheriff Court on 26 January 2017 in relation to a charge of assault with intent to rape alleged to have occurred on 27 July 2016. He was admitted to bail at that time. An indictment was served on the appellant on 20 November 2017 with a first diet on 18 December 2017. Before service of the indictment the Crown had instructed Dr Gary MacPherson to prepare a report to consider whether the complainer required any special measures when giving evidence and a report dated 1 August 2017 was produced. At the first diet on 18 December 2017 no vulnerable witness notice was lodged in relation to the complainer due to a communication breakdown within the Procurator Fiscal’s office. On 18 December the first diet was continued on the motion of the Crown, unopposed by the defence, to 23 January 2018 to enable the Crown to give consideration to taking the complainer’s evidence on commission, allow the defence an opportunity to draft an application under section 275 of the Criminal Procedure (Scotland) Act 1995 and to allow a joint minute to be prepared. The day before the continued first diet the appellant’s solicitors contacted the Crown to inquire as to whether a vulnerable witness notice was to be served as one had not been received. On 23 January 2018, at the continued first diet, a vulnerable witness notice was lodged and granted authorising certain special measures including the taking of the complainer’s evidence on commission. The Crown moved the court to adjourn the first diet until 26 March 2018 to allow the evidence of the complainer to be taken on a commission that had been fixed for the earliest date that suited all parties, namely, 26 March 2018. The Crown also sought an extension of the 12 month period to 11 May 2018 to accommodate the trial. The motions were opposed and granted by the sheriff. Here the appellant appealed against the granting of the extension to the 12 month time bar it being contended that the sheriff had erred in the application of the two stage test set out in H.M.A. v Swift 1984 JC 83. It was submitted that the first stage of the test, namely, whether sufficient reason had been shown to justify the extension, had not been satisfied. In relation to the second stage of the test, namely, whether the sheriff was entitled to exercise his discretion in the way he had, it was submitted he had also erred. Here the court refused the appeal. In relation to the first stage of the Swift test the court considered that the sheriff had correctly identified the applicable test and had adequately considered the dates and timescales involved and the nature of the error in the fiscal’s office and whether sufficient reason had been placed before the court to justify the extension. In relation to the second stage of the Swift test the court considered that, having regard to the gravity and nature of the charge, the nature of the error in the fiscal’s office and the relatively short extension granted, the sheriff had not erred in the exercise of his discretion.