APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Emslie Sheriff Principal Lockhart	[2012] HCJAC 37 XC2/12; XC1/12; XC3/12 OPINION OF THE COURT delivered by LADY PATON in Note of Appeal under Section 65(8) of the Criminal Procedure (Scotland) Act 1995 by (1) COLIN KENMUIR, (2) CALUM MCCRAE AND (3) SHAUN TAYLOR Appellants; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellants: (1) Nelson, (2) Hughes and (3) Forrest; (1) Capital Defence, (2) Austin Kelly & Co. and (3) Paterson Bell

Respondent: A Brown QC, Advocate Depute

23^rd February 2012

[1] In HM Advocate v Swift 1984 JC 83, Lord Justice General Emslie defined the two-stage test as follows:

"If an extension is to be granted under [the precursor of section 65 of the Criminal Procedure (Scotland) Act 1995], the first question for the judge concerned is ..... 'Has a sufficient reason been shown which might justify the grant of an extension?' and the second question is 'Ought I in the exercise of my discretion in all the relevant circumstances of the case, to grant the extension for that reason?'."

As has been made clear in the decisions of this court, cases involving the exercise of discretion in terms of section 65 are very fact-sensitive. The five judge bench in Early v HM Advocate 2006 SCCR 583 noted, especially in paragraph 27, that the court must consider all the relevant circumstances in coming to a conclusion at the first stage of the Swift test. For example, the court in Early refers to the circumstance "whether the defence has contributed to the delay in the accused's being brought to trial".

[2] The sheriff in his report has specified all the factors which he took into account, which include the following. First, a previous trial diet in September 2011 had been adjourned on a defence motion to enable them to obtain a medical report and to make further enquiries which they considered essential, in particular regarding mobile phone information. Secondly, no petition for recovery of mobile phone information was presented by the defence, despite having time and opportunity to do so during September 2011 until the start of the sitting on 5 December 2011. Thirdly, as the sheriff records in paragraph 12 of his report, the Crown, relying upon correspondence and communications with the defence in late November and early December 2011, in good faith anticipated that the first appellant would make a defence motion for the trial to be adjourned so that those instructing counsel could petition the court for the recovery of mobile phones and records. Fourthly, because of the need to dispose of seven custody trials during the sitting commencing 5 December 2011, there was insufficient time to start and finish what was anticipated to be a four-day trial within that sitting. Fifthly, as noted in paragraph 19 of the sheriff's report, because Christmas was imminent, there were no days set aside after Friday 16 December 2011 for a sheriff and jury trial in Kilmarnock Sheriff Court: the next sitting was to commence on Monday 9 January 2012.

[3] We acknowledge, as did the sheriff, the decision in Warnes v HM Advocate 2000 SCCR 1127, to the effect that "pressure of business" by itself is not sufficient to meet the first hurdle prescribed in Swift. However, as we have noted above, there were a number of other factors which the sheriff was entitled to, and did, take into account in reaching the decision now under appeal. The question for us is whether the sheriff erred at the first stage of the Swift test. In the light of all the submissions we have heard today, we answer that question in the negative. In relation to the second stage of the test, we recognise Miss Forrest's concern regarding the youth and employment prospects of her client, but in the whole circumstances we are again unable to say that the sheriff erred in the exercise of his discretion.

[4] In the result, therefore, we refuse these appeals.

rfc