James Ayres v. Her Majesty’s Advocate [2015] HCJAC 98

Bill of Advocation:- The appellant was indicted to Paisley Sheriff Court on three charges of fraud relating to so called “bogus workmen” allegations. The procedural history of the indictment was that the case was indicted to a first diet on 23 November 2013 and a trial diet on 9 December 2013 which was postponed until 14 April 2014 on the unopposed motion of the appellant with the 12 month time bar extended until 2 May 2014. The first diet, which had been set for 1 April, was continued to 9 April, on joint motion of the Crown and the co‒accused, to allow the Crown to check the position of witnesses. On 9 April the court was told that the case was ready to proceed to trial. On 2 May 2014 the trial diet was adjourned, on the unopposed motion of the Crown, due to “pressure of business” until 5 August, with a further first diet assigned for 22 July. The time bar was extended to 29 August 2014. On 22 July 2014, the co‒accused failed to appear and a warrant was granted for his arrest, however, the Crown and the appellant stated that they were ready for trial. On 18 August the trial diet was adjourned again due to “pressure of business” to 24 November. A first diet was fixed for 12 November and the time limit extended to 12 December 2014. On 12 November 2014 the co‒accused failed to appear and a warrant was issued for his arrest. On 9 December the Crown moved to adjourn the trial diet due to the unavailability of the complainer in one of the charges In terms of a medical certificate which stated that he was “medically unfit to attend the court” but would be available in two or three months. The appellant opposed the motion to adjourn because of the procedural history of the case. The sheriff granted the motion and adjourned the trial diet tothe sitting of 13 April 2015, with an extension of the time bar to 23 April with a first diet fixed for 18 March 2015. The basis upon which the sheriff exercised her discretion in favour of the Crown and granted the motion was that the sheriff considered it was in the interests of justice to do so, given the serious nature of the charges, the vulnerability of the complainers involved and the Crown had not been at fault in relation to the unavailability of the witness. Here the appellant sought to appeal the decision of the sheriff to extend the time bar in terms of section 65. Here the court considered that the Bill was incompetent and refused the Bill. The court noted that an appeal against a decision to extend the time bar under section 65 of the 1995 Act is taken under section 65(8) of the 1995 Act. In addition to that the court observed that the Bill contained no basis upon which the decision of the sheriff could be challenged. On behalf of the appellant it was submitted that the sheriff erred having regard to the procedural history of the case, however, there was no reference to that in the Bill itself. The court reiterate that local sheriff courts at first instance are generally best placed to decide such applications and in the present case the certificated absence of an essential Crown witness was sufficient reason for the case to be adjourned and the sheriff could not be criticised in the decision that was made. The court did, however, express concern that the elderly complainer had had to attend court on a number of occasions and consideration ought to have been given to all of the elderly complainers giving their evidence on commission under section 272 of the 1995 Act.