Ramel Kristian Blake Appleby v. His Majesty’s Advocate [2023] HCJAC 27

Appeal under Section 65(8) of the Criminal Procedure (Scotland) Act 1995:- Here the appellant appealed against a decision of a high court judge to extend the 12 month time bar within which his trial on indictment must commence under section 65 of the Criminal Procedure (Scotland) Act 1995. The circumstances were that the appellant, along with four others, was indicted in the High Court on two charges of being concerned in the supplying of Class A drugs. The indictment was served on 25 October 2021 and at the Preliminary Hearing on 26 November 2021 the court appointed 20 June 2022 as a 13 day floating diet of trial. At the Preliminary Hearing the appellant’s counsel advised the court that the appellant was at that time remanded in custody in England. A few days prior to the trial the defence alerted the Crown to the fact that the appellant was still housed in an English prison establishment and had not been brought to Scotland for trial. The Crown then attempted to arrange for the appellant to be transferred to Scotland, but this could not be done in the limited time that was available. The trial diet called on the last day of the float and was adjourned for a few days to allow the appellant’s advisers to consult further with him and short consequential extensions of time bars were granted unopposed. A further hearing took place on 27 June 2022 at which the trial was further adjourned until 13 March 2023 on the Crown’s unopposed motion. The Crown also moved to extend the 12 month time bar in respect of the appellant until 17 March 2023. That motion was opposed. The judge granted the Crown motion disagreeing with counsel for the appellant’s description of the Crown error as “major”, rather seeing the error as an administrative one. The judge considered the error as excusable and that a sufficient reason had been shown which justified the extension and the judge decided to exercise her discretion in favour of granting the motion having regard to the serious nature of the charges and the public interest that the appellant should be tried on them. Here on behalf of the appellant it was submitted that the nature of the Crown’s error was more serious than the judge assessed it to be and the Crown’s systemic error meant that the first stage of the test in Swift v HMA 1984 JC 83 and Early v HMA 2006 SCCR 583 could not be satisfied. It was submitted that HMA v Graham 2022 SCCR 68 and the unpublished and currently embargoed opinion in B v HM Advocate (28 July 2022) should not be read as overturning the two stage test given that Early was decided by a court of five judges. Here the court refused the appeal. The court referred to Uruk v HMA 2014 SCCR 369 and HMA v Graham 2022 SCCR 68 making clear that what was said in Swift and Early must be read according to the context of the criminal justice system in place at the time in comparison to that in the present era and the particular facts of the case in question. The court considered here that what occurred was a single inadvertent mistake by the case preparer in neglecting to make a diary entry resulting in the trial having to be adjourned and the Crown made significant attempts to remedy the situation albeit these were ultimately unsuccessful. The court regarded the error as one incident of human error rather than a systemic failure on the part of the Crown and it would not be in the public interest for the case to be brought to an end on the basis of a single administrative oversight of the nature seen. The court considered that other than the delay in the resolution of the case against the appellant no other prejudice affecting the appellant was present. The court reiterated that the test to be applied was whether it was in the interests of justice for the 12 month time bar to be extended and the court was satisfied that the judge had not erred in granting the extension.