Neil Thomas George Graham v. Her Majesty’s Advocate [2022] HCJAC 1

Note of appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995:- The sheriff refused to extend the 12 month time limit within which a person who has appeared on petition must be brought to trial under section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995. Here the Crown appealed against that refusal to extend the 12 month time limit. The indictment contained two charges alleging sexual offences against two complainers. The circumstances were that the respondent appeared on petition on 1 October 2019 and by virtue of the coming into force of the Coronavirus (Scotland) Act 2020 the 12 month time limit was extended by six months to 1 April 2021. After a number of callings of the indictment (including a previous extension to the 12 month time bar) on 20 July 2021 at a trial diet, one of the complainers, TS, failed to attend. On 23 July, the procurator fiscal depute moved the sheriff to adjourn the respondent’s trial diet until 6 September and to extend the 12 month period to 10 September. The sheriff refused the motions. Prior to receipt of the sheriff’s report the Crown had been under the erroneous impression that the sheriff had accepted that the first stage had been met and that only the second stage required to be addressed, however, that was not the case. It was submitted on behalf of the Crown that the two stage test in HMA v Swift 1984 SCCR 216 and Early v HMA 2007 JC 50 had been met and the sheriff had erred in refusing the motions. In relation to the first stage of the test it was submitted that the trial did not start within the 12 month time bar due to the complainer’s failure to appear despite having been duly cited personally by the police and that was a sufficient for the sheriff to have been entitled to excuse the Crown’s failure to commence the trial timeously. It was submitted that insufficient weight had been given to the serious nature of the charges which involved an 8 year old child, the extension sought was moderate, there was no real prejudice to the respondent in the event of an extension being granted and, whilst the length of time since the commencement of proceedings was significant, most was attributable to the impact of the COVID 19 pandemic on court business. Here the court allowed the appeal. The court considered that sufficient reason had been shown to justify the grant of an extension, particularly given that the reason the trial did not proceed was because the complainer had failed to attend court having been duly personally cited to do so. Whilst the court considered that, in hindsight, the Crown might have identified the issue earlier, that failure to do so could not reasonably be described as a fault of such magnitude as results in a trial not proceeding. The court went on to note that some delay had been caused by the COVID pandemic and the Crown were only seeking a 6 week extension to the time bar. In addition, the court noted that refusing the extension would impact not only on the case involving one complainer but also the alleged offences involving the other complainer and the interests of justice required that a short adjournment be granted. In a postscript the court reiterated the benefits of complainers in sexual offences having their evidence taken on commission so issues such as those present in this case could be identified and addressed at an earlier stage in proceedings.