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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> JAMES MCKECHNIE v. HER MAJESTY'S ADVOCATE [2013] ScotHC HCJAC_121 (02 October 2013) URL: http://www.bailii.org/scot/cases/ScotHC/2013/2013HCJAC121.html Cite as: [2013] ScotHC HCJAC_121 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady PatonLord Mackay of Drumadoon Lady Cosgrove
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[2013] HCJAC 121 XC166/13
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL UNDER SECTION 65(8)
by
JAMES McKECHNIE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_____________ |
Appellant: Wallace, Sol Adv; Lavery Smith & Co, Glasgow
Respondent: G Wade, AD; Crown Agent
1st May 2013
[1] In HMA 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?'."
[2] Mr Wallace
for the appellant was content to focus on the first stage only. The history of
the case is clearly set out in the sheriff's report and we will not rehearse it
here.
[3] In our
view the period which is under scrutiny is that between
15 November 2012 and 4 March 2013 when a sitting began.
During that period the Crown relied upon information obtained from the
complainer. That information suggested that Crown witness no 2 (who was
in the United States of America) would return to Scotland in time for the trial
during the sitting. In fact he did not return, and on 15 March 2013
the case called and the sheriff granted a further extension to
10 May 2013. It is that decision which is appealed against today.
[4] We were
advised by the advocate depute that Crown witness no 2 in fact returned
home to Scotland in early April 2013, and is available for a trial within
the next few days.
[5] In all the
circumstances we are satisfied that sufficient reason has been shown which
might justify the grant of an extension. We find ourselves unable to say that
the sheriff erred in his approach to stage one, and the appeal is refused.
jaw
