J.P.B. v. Her Majesty’s Advocate [2017] HCJAC 28

Note of appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to Glasgow High Court for a Preliminary Hearing to take place on 5 July 2016 in relation to various charges including the anal penetration of a 6 year old girl and a 6 year old boy in 2006. A docquet was attached to the indictment giving notice of the Crown’s intention to lead evidence of other lewd practices involving the complainers and another 6 year old for which the appellant was acquitted in 2008. The appellant’s first appearance on petition was on 6 June 2014 and the indictment was served for a Preliminary Hearing on 5 May 2015. At the Preliminary Hearing a trial diet was fixed for 29 October and the 12 month time bar extended to 4 November 2015.  Due to the unavailability of defence counsel the trial diet was adjourned on the unopposed motion of the defence and a new trial diet was fixed for 5 January with the time bar extended to 11 January 2016. On 5 January 2016 one of the complainers did not attend court as she had not been cited due to an administrative error. Further attempts were made to contact her on 5 and 6 January with the Crown intending to commence the trial towards the end of the floating trial diet. The trial judge was not content with that approach and the indictment was called on 7 January when the advocate depute moved to desert pro loco et tempore due to the absence of the witness and some doubt as to whether she was co-operating with the prosecution. The motion was not opposed on behalf of the appellant. It was noted, and understood, at that stage that the Crown could subsequently apply to extend the time bar retrospectively, if a reasonable explanation for the complainer’s non-attendance was provided and she was co-operating with the prosecution. On 17 January 2016 the complainer was contacted and in February the matter was re-reported to Crown Office and on 1 March 2016 instructions were given to re-indict and apply for a retrospective extension of the time bar. The case was re-indicted to a Preliminary Hearing on 5 July 2016 along with an application under section 65(3) of the Criminal Procedure (Scotland) Act 1995 to extend the time bar to 6 August 2016. The application was opposed, however, the Preliminary Hearing judge granted the application having regard to the two stage test in HMA v Swift 1984 JC 86 together with reference to Early v HMA 2007 JC 1. It was submitted here on behalf of the appellant that the grant of the extension of time was unreasonable due to:- (1) the absence of an adequate reason being given; (2) the judge’s error in excusing the Crown failure to properly cite the complainer for the trial; (3) the judge’s error in excusing the failure by the Crown to obtain the information immediately following the trial diet; (4) the judge’s error in excusing the Crown allowing the statutory time limit to expire; and (5) the judge’s error in excusing the failure by the Crown to lodge an application for a retrospective extension until May 2016. It was further submitted that the judge had erred in the exercise of his discretion. On behalf of the Crown it was submitted that the judge had applied the correct test and the decision made was not unreasonable. Here the court refused the appeal. The court reiterated that the decision whether to grant an extension of the 12 month time bar is generally one for the judge at first instance, applying the two-stage test referred to in HMA v Swift. Whilst the court considered the situation slightly unusual in that the Crown had deserted the indictment pro loco et tempore prior to seeking to re-indict, it was still necessary for the court to identify an error either in the judge’s view that the Crown had shown cause or in the exercise of his discretion when balancing the various factors and deciding to grant the extension. Here the court considered that the Crown had shown cause in that they had attempted to cite the complainer albeit they had been unable to do so. In relation to the exercising of the judge’s discretion, the court noted that the decision to grant such a motion should not be taken lightly and that was reflected by the judge in the careful balancing exercise that had been undertaken in weighing the various factors including the serious nature of the charges and, in the circumstances, the judge’s decision could not be criticised.