Robin Attwell v. Her Majesty’s Advocate [2016] HCJAC 37

Appeal under section 65 of the Criminal Procedure (Scotland) Act 1995:- Here the appellant appealed against the decision of the sheriff on 26 February 2016 to grant the Crown an extension to the 12 month time-bar to 22 April 2016. It was submitted on behalf of the appellant that the sheriff had erred in the application of the ‘two-stage test’ as defined by Lord Justice General Emslie in HMA v Swift 1984 JC 83. In particular, it was submitted that at the first stage of the test one factor to be taken into account was the over loading of sittings by the Crown and that pressure of business did not provide a basis for extending the time limit. Here the sheriff reported to the court that he took the following matters into account in deciding to grant the extension:- (1) there had been an unusually lengthy trial which lasted for 13 days which had not been anticipated and had taken up most of the trial sitting; (2) a back up plan by the Crown to transfer the case to Kilmarnock Sheriff Court where a procurator fiscal depute was available to conduct the trial had failed due to there bing no sheriff available; (3) the time-bar in the 13 day trial had been extended several times; and (4) no systemic failures had been identified. Here the court refused the appeal. The court considered that the sheriff had taken all of the relevant factors into account in relation to the first stage of the Swift test. The court reiterated that in relation to the loadings of sittings the local sheriff is usually best placed to assess what is appropriate or whether there are any systemic failures within the sheriffdom. In relation to the second stage of the test, namely, whether the sheriff was correct to exercise his discretion in favour of the granting of the extension, again the court considered that the sheriff had not erred and observed that such questions of discretion are case sensitive and in the present case the charges were serious, the length of the extension sought was modest and that the Crown assured the court that the trial would proceed during the two week sitting due to commence on 11 April 2016.