APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 93
Lord Brodie Lord Bracadale Lord Boyd of Duncansby	Appeal No: HCA/2014/2284/XC HCA/2014/2336/XC HCA/2014/2317/XC HCA/2014/2337/XC HCA/2014/2343/XC     OPINION OF THE COURT   delivered by LORD BRACADALE   in   Appeal in terms of section65(8) of the Criminal Procedure (Scotland) Act 1995   by   DAVID STEWART; SHELBY SLOAN; NATISHA BENTLEY; DANIEL WHYTE; DANIELLE McSPORRAN Appellants;   against   HER MAJESTY’S ADVOCATE Respondent:   _______

 

First Appellant:  Paterson, Solicitor Advocate;  Paterson Bell, Edinburgh

Second, third and fifth appellant:  Mackintosh;  John Pryde & Co, Edinburgh

Sixth appellant:  Hay;  John Pryde & Co, Edinburgh

Respondent:  Wade QC AD;  Crown Agent

 

28 August 2014

 

 

The appeal

 

[1]        On 2 May 2014, at the end of the April sheriff and jury sitting, the sheriff at Paisley adjourned the trial of the appellants and Kirsten Evans to 1 September 2014 and extended the 12 month time bar under section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act)  to 26 September 2014, the last day of the sitting.  In this appeal the appellants challenge the decision to grant the extension to the 12 month time bar.   They maintain that no cause was shown sufficient to found the extension, and, in any event, the discretion was wrongly exercised.

[2]        As the trial had been adjourned on a number of occasions before 2 May 2014 it is necessary to examine the procedural history of the case in detail. 

 

 

The procedural history of the case

Appearance on petition

[3]        The appellants appeared on petition on 13 February 2013.  On 20 February 2013 David Stewart and Daniel Whyte were fully committed and remanded in custody.  The other appellants and Kirsten Evans were released on bail.  David Stewart was subsequently released on bail on 17 July 2013 and Daniel Whyte on 23 June 2013.  Kirsten Evans failed to appear at a subsequent diet; a warrant for her arrest was granted; the indictment against her was kept alive and she was later arrested.  As she came within section 65(2) of the 1995 Act the 12 month time bar had no application in her case.

 

The indictment

[4]        The appellants were indicted for trial at the Sheriff Court at Paisley on 20 May 2013 with a first diet on 8 May 2013.  Because David Stewart and Daniel Whyte had been remanded in custody the indictment was served within the custody time limits.  There were eight charges on the indictment, two of which were libelled against all of the accused.  Both of these were charges of serious assault:  charge 4 libelled an assault on June Blair by knocking her to the ground, pulling her hair, repeatedly punching and kicking her on the head and body and stamping on her head, whereby she was rendered unconscious, all to her injury and danger of life;  charge 5 libelled an assault on Paul McDonald by brandishing knives at him, uttering threats, repeatedly punching and kicking him on the head and body, and stabbing him on the body with a knife, all to his severe injury and to the danger of his life. 

 

The May 2013 sitting

[5]        The question of the mental health of the sixth appellant, Danielle McSporran, became a recurrent theme throughout the procedural history of the case.  Before the case was indicted she was under the care of a psychiatrist, Dr Blower, and a psychologist, Dr MacDonald.  The first diet on 8 May 2013 was continued to 15 May 2013.  At that diet the procurator fiscal depute drew the attention of the solicitor acting for Ms McSporran to a letter which had been received from Dr McDonald stating:

“Clinical information has emerged which suggests that [Danielle McSporran] may have difficulties that would impact on her ability to partake fully in the legal process and it is possible that she may require special measures in court”. 

 

Dr McDonald had indicated that six weeks would be required for an evaluation of the condition of Ms McSporran.  Having been alerted to this issue, on 17 May 2013 the solicitor moved the court to postpone the trial diet.  The sheriff postponed the trial diet to a sitting commencing 6 August 2013.  The minute of 17 May 2013 records that the reason for the postponement was “to allow a full psychiatric report to be obtained”.

 

The August 2013 sitting 

[6]        On 19 July 2013 Dr Blower sent a report to the solicitor acting for Ms McSporran stating that Ms McSporran was not fit to stand trial at the August 2013 sitting.  At the first diet on 23 July 2013 on the unopposed motion of the solicitor the trial was postponed to the sitting commencing 28 October 2013 with a first diet on 15 October 2013.  The minute records that this was for further assessment of Danielle McSporran to be carried out.

[7]        Because the case had been indicted within the custody time limits no extension of the twelve month time bar was required in respect of the first two adjournments of the trial.

 

The October 2013 sitting

[8]        On 14 October 2013, the day before the first diet, Dr Blower contacted the procurator fiscal explaining her concerns with respect to Danielle McSporran’s refusal to cooperate with requests for hospitalised assessment and treatment.  Dr Blower requested the Crown to move the court to vary Ms McSporran’s bail conditions to compel her cooperation.  The procurator fiscal took the view that this was not competent and asked the psychiatrist to provide a written report.  In the light of the terms of Dr Blower’s report the procurator fiscal concluded that the obligation on the Crown to place information before the court in terms of section 52 of the 1995 Act was met.  In the light of the lack of cooperation by Danielle McSporran the procurator fiscal attempted to invoke the provisions of section 52B.  This application was refused by the sheriff as being incompetent.

[9]        On 25 October 2013, two days before the trial diet, Dr Blower provided an additional report to the procurator fiscal in which she indicated that she considered that Danielle McSporran did not require an assessment order under section 52B but was not fit to go to trial at this diet.  Ms McSporran was suffering from a mental disorder of a neuro-psychiatric nature; further medical assessment was required, which assessment could proceed on a voluntary outpatient basis.  At this time the defence had not taken any plea in bar of trial or produced a report.  In this state of affairs the Crown moved to adjourn the trial diet to clarify the mental condition of Danielle McSporran.  The sheriff adjourned the trial to the sitting commencing 17 February 2014 with a first diet on 4 February 2014.  He extended the 12 month time bar to 7 March 2014.  This was the first extension of the time bar.

 

The February 2014 sitting

[10]      On 18 December 2013 the solicitor acting for Miss McSporran received a verbal update from Dr McDonald and on 4 February 2014 from Dr Blower.  In the light of the up to date information, on 12 February 2014 at a continued first diet the solicitor lodged a plea in bar of trial on behalf of Ms McSporran stating that she was unfit for trial on the basis of mental disorder.  On 17 February 2014 the Crown moved to adjourn the trial diet in the light of the plea in bar of trial.  This was minuted as being for “further investigation into the medical condition of the sixth accused”.  The advocate depute advised us that at this stage, while Dr Blower considered that Ms McSporran was unfit for trial, Dr McDonald’s position was that Ms McSporran was fit for trial.  The Crown wished to ascertain whether Dr McDonald, as a psychologist, was properly qualified to give evidence or whether the Crown should instruct another psychiatrist.  The trial was adjourned to the sitting beginning 17 March 2014 with a first diet on 5 March 2014.  The 12 month time bar was extended for a second time.

 

The March 2014 sitting 

[11]      At a continued first diet on 12 March 2014 the trial was postponed to a sitting of 14 April 2014 with a first diet on 1 April 2014.  The twelve month time bar was extended.  The court minute records that the adjournment was on the unopposed motion of the solicitor acting for the first appellant, David Stewart.  Before us counsel for the various appellants contended that the minute was incorrect and that the motion was made by the Crown.  In support of this contention Mr Paterson on behalf of David Stewart produced the solicitor’s court attendance record.  This noted:

“On the motion of the Crown the case was adjourned further to allow further examination of Gordon Ritchie’s client [Danielle McSporran] and also with a view to re-reporting to Crown Office in light of the fact that it seemed unlikely they would be able to proceed against her.”

 

We are satisfied that the minute is incorrect and that the motion to postpone the trial was made by the Crown.  The reason, however, was related to the continuing issue of the fitness for trial of Danielle McSporran.

 

 

The April 2014 sitting

 

[12]      At the first diet on 1 April 2014 an evidential hearing on the plea in bar of trial on behalf of Danielle McSporran was fixed for 24 April 2014.  The witnesses were to be Dr Blower in support of the plea in bar of trial and Dr McDonald for the Crown contending that Danielle McSporran was fit for trial.  The Crown had come to the view that they would rely on Dr McDonald and had not instructed a psychiatrist.

[13]      The hearing on 24 April could not go ahead.  In his report the sheriff tells us that this was because “one of the psychiatrists was not available”.  He adjourned the hearing in respect of the plea in bar of trial until 29 April 2014.  There was a conflict in the information given to us about the availability of the witnesses.  The Crown claimed that it was the defence psychiatrist, Dr Blower, who was not available, while Ms Hay, on behalf of Ms McSporran, contended, on the basis of the information from her instructing solicitor, that it was the Crown’s witness, Dr McDonald, who was not available.  We are unable to resolve this conflict and can only proceed upon the basis that for one reason or another either the psychiatrist or the psychologist was not available. 

[14]      The sheriff explains that on 29 April 2014 he was hearing evidence in a trial.  A 14 year old child was giving evidence in a sexual offences case.  The result was that the evidential hearing could not go ahead and was adjourned until 2 May 2014 which was the last day of the sitting. 

[15]      The sheriff reports that 50 cases were indicted to the sitting at Paisley commencing 14 April 2014.  The first diets for these cases were held on 1 and 2 April 2014.  After pleas of guilty in some cases and unopposed motions to adjourn in others, 39 cases were continued into the sitting.  In the course of the sitting a further 3 cases were disposed of by pleas of guilty and 3 cases were adjourned.  Two cases were deserted by the Crown and one case was transferred to Dumbarton Sheriff Court.  Over the 12 days of the sitting 3 cases went to trial.  That left 27 indictments, including the present case, to call on the last day of the sitting.  The sheriff says that the Crown moved to adjourn all of these cases into other sittings and, where appropriate, invited the sheriff to extend the time bar.  The sheriff refused to adjourn two cases in which there were continuing witness difficulties; each of these cases had already been adjourned from other sittings because of the same problem.  These cases were deserted simpliciter.  The sheriff was advised by the procurator fiscal depute that the sittings for May and June 2014 were just as busy as the April sitting and consequently he continued the 25 indictments into sittings of July, August and September 2014, extending the time bar where necessary. 

[16]      The sheriff tells us that at the beginning of the sitting he had a meeting with the senior procurator fiscal depute responsible for the prosecution of solemn business in Paisley Sheriff Court.  The sheriff wanted to know whether, from the Crown point of view, it would be possible to set up another jury court to relieve the pressure of business in the sitting.  The sheriff was told that to do so would require a further procurator fiscal depute in the solemn team and it had been made clear to the senior procurator fiscal depute when he had made such an inquiry in the past that such a member of staff would not be made available.  The sheriff noted that to set up another jury court would also have required the employment of part-time shrieval assistance.  In view of the senior procurator fiscal depute’s response and the current budgetary restraints on the deployment of part-time sheriffs, the sheriff did not pursue with the Sheriff Principal the possibility of setting up another court.

 

The decision of the sheriff   

[17]      The sheriff states that he had regard in considering the objections to the extension to HM Advocate v Swift 1984 SCCR 216 and Early v HM Advocate 2007 JC 50.  He noted that while it would not have been possible for him to have heard trials in all of the 27 cases which remained in the sitting it seemed clear that when the indictment was adjourned into the sitting there was an expectation that there would have been time and the opportunity for him to hear the evidential hearing on the plea in bar of trial.  He had regard to the difficulty on 24 April and the fact that on 29 April he was involved in a trial involving alleged sexual abuse against a 14 year old girl which could not be interrupted for the evidential hearing.  He had regard to the history of the case and the difficulties in relation to whether Ms McSporran was fit to stand trial.  He concluded that cause had been shown and that in the whole circumstances of the history of the case he did exercise his discretion by granting the extension.

 

Submissions

The first appellant David Stewart

[18]      On behalf of the first appellant, David Stewart, Mr Paterson concentrated on the question of whether cause was shown and made no submissions as to whether the sheriff erred in the exercise of discretion.  Mr Paterson contended that the Crown had been at fault by failing to take appropriate and timeous steps in relation to the mental condition of Danielle McSporran.  The Crown should have dealt with the issue at an earlier stage.  The motion in terms of 52B was incompetent.  The Crown were unprepared for the evidential hearing because they did not have a psychiatric report.  They had had ample time to obtain a psychiatric report.  The appellant should not be disadvantaged by the failure on the part of the Crown to obtain a psychiatric report.  The Crown could have moved to separate trials. The sheriff was left in a difficult position because the case called on the last day of the sitting along with another 26 cases.  Had the Crown been ready to proceed on 24 April the hearing would have taken place.  Cause had not been shown. 

 

The second, third and fifth appellants, Shelby Sloan, Natisha Bentley and Daniel Whyte

[19]      On behalf of the second, third and fifth appellants Mr Mackintosh focused on what had happened after the plea in bar of trial had been lodged on behalf of Danielle McSporran.  The Crown had erred by failing to address the plea in bar of trial with sufficient urgency.  While the Crown were well aware that there was a difficulty with the mental health of the sixth appellant they failed to obtain a psychiatric report.

[20]      The right conferred upon accused persons by the 12 month rule was an important right which could be departed from only if the appropriate judge was prepared, on cause being shown, to exercise discretion in favour of granting an extension of the time limit.  The Crown failed on both legs.  Even if the sixth appellant was the engine of delay the second, third and fifth appellants were still entitled to their rights under section 65.

[21]      The appellants’ trial could never have been dealt with in the April 2014 sitting.  The sheriff should not have exercised his discretion to extend the time limit without taking further steps to ascertain whether a second court could be established; he should have raised that possibility with the Sheriff Principal whose responsibility it was to manage the business of the court at Paisley.  If there was an irreconcilable conflict between what was said in Warnes v HM Advocate 2001 JC 110 and Uruk v HM Advocate [2014] HCJAC 46 about extension of the 12 month time bar because of pressure of business the case should be remitted to a bench of five judges.

 

The sixth appellant Danielle McSporran

[22]      At the hearing before the sheriff the solicitor acting for Danielle McSporran took a neutral stance in relation to the question of adjournment and extension of the time bar.  Miss Hay explained that the reason for that was that because of the mental health of Ms McSporran the solicitor had difficulty in getting instructions from her on 2 May 2014.  Subsequently, he had spent time with her and felt that he had been able to obtain instructions to pursue the appeal.  We allowed Miss Hay to make her submissions, reserving the question of whether she was entitled to persist in the appeal having regard to the stance taken before the sheriff. 

[23]      After setting out the history of the case from the point of view of Danielle McSporran, Miss Hay submitted that even if the defence were to blame for not lodging the plea in bar of trial until February 2014 matters ought to have crystalized for the Crown when the plea in bar of trial was lodged.  The plea in bar of trial should not have come as a great surprise to the Crown.  At the earlier stages there had been a great deal of discussion between the Crown and the defence about progress of the case with respect to the mental health of Miss McSporran.  The defence understood that the Crown intended to re-report the case to Crown Office. 

 

The Crown

[24]      The advocate depute submitted that where there was an issue with the mental state of an accused the primary duty was on the accused to take a plea in bar of trial.  It was for Danielle McSporran to prove on a balance of probabilities that she was unfit for trial. 

[25]      Between July 2013 and February 2014 the procurator fiscal depute had not given an undertaking to report the case to Crown Counsel.  He had mentioned that as a possibility as being one way forward.  The attempt to use section 52B was against a background where the procurator fiscal was keen to make progress with the case and had taken the view that that was one possible way in which to do so.  By February 2014 Dr Blower had moved onto a new post and much of the care of Miss McSporran was in the hands of Dr Macdonald who took a different view from Dr Blower as to the fitness of Ms McSporran to stand trial.  In the event, the Crown did not instruct a psychiatrist and considered that Dr Macdonald could adequately give evidence as to the fitness of Ms McSporran to stand trial.  As at 24 April 2014 the Crown were relying on the evidence of Dr Macdonald.  The Crown’s position was that Dr Blower was not available on 24 April but that Dr Macdonald, although not cited, was available and could have been brought to court.  The unfortunate history of the case was not the fault of the Crown.  Once the Crown had brought a case to the first trial diet it was thereafter a matter for the court to manage the progress of the case. 

[26]      As to the exercise of discretion, the charges were serious.  There was public interest in the prosecution of such acts of violence including the use of a knife.  The length of the extension had been a matter for the court and was not excessive.  There was no prejudice to the appellants.

 

Discussion

[27]      In the light of the explanation advanced by Ms Hay we are prepared to consider the appeal of Ms McSporran along with the others despite the position adopted on her behalf at the hearing before the sheriff.

[28]      At the first stage we have to consider whether before the sheriff the Crown had shown a reason which might justify the extension (HM Advocate v Swift (supra)).  While the procedural history of the case was protracted to an unfortunate degree we are not persuaded that there was fault on the part of the Crown.  The case was indicted well within the 12 month time limit.  As was stated in Uruk v HM Advocate (supra) once the initial trial diet was lost by the motion on behalf of Ms McSporran to postpone it, the case came under the control of the court.  We are satisfied that throughout the various postponements and adjournments what was being wrestled with was the mental health of Danielle McSporran and whether she was fit to stand trial.  We understood that it was alleged that she was the actor in the stabbing.  We can readily appreciate that in these circumstances the Crown would be reluctant to proceed against the other accused in the absence of Ms McSporran, unless that became unavoidable.  We note that at times at least she would not cooperate with assessment.  Her mental health was a developing problem.  Once the attention of the solicitor acting for Ms McSporran was drawn to the difficulty the primary responsibility for bringing the matter before the court was on the defence.  The solicitor sought two adjournments to investigate the mental health of Ms McSporran.  No doubt there were discussions between the solicitor and the procurator fiscal about how to deal with the issue; Dr Blower appears to have been reporting to both.  Nonetheless, it was not until February 2014 that the plea in bar of trial was lodged.  Thereafter the Crown, the defence and the court were working towards resolution of the issue.  There was a difference of opinion between the two professionals who had been treating Ms McSporran as to whether she was fit for trial.  An evidential hearing was necessary.  As noted above we are unable to resolve the conflict as to which witness was not available on 24 April.

[29]      We accept that pressure of business in the April 2014 sitting did contribute to some extent to the need to extend the 12 month time bar on 2 May 2014.  On any view the sitting in April 2014 was heavily loaded.  We share the concern expressed by the court in Uruk v HM Advocate (supra) about the loading of sittings at Paisley Sheriff Court and note that the responsibility for the efficient disposal of business in the sheriff court lies with the Sheriff Principal.  The sheriff was clearly exercised about the loading of the sitting.  He explored the possibility of opening another court.  He refused extensions in two of the cases in which there were motions to adjourn.  He recognised, however, that when this case was adjourned into the sitting there was an expectation that there would have been time and the opportunity for him to hear the evidential hearing on the plea in bar of trial.  The sheriff has not suggested that there was a systematic failure in relation to cases proceeding within time limits. 

[30]      We are satisfied that when regard is had to the whole history of the case pressure of business was by no means the sole reason to give rise to the need for an extension of the 12 month time limit in this case.  We are satisfied that the developing issues surrounding the fitness of Danielle McSporran to stand trial constituted sufficient reason or cause to satisfy the first stage test in Swift.

[31]      As to whether the sheriff was entitled to exercise his discretion by granting the motion we have regard to the procedural history of the case, the gravity of the charges, the public interest, the question of prejudice to the accused and the length of the extension sought (Early v HM Advocate (supra)).  We have examined the procedural history of the case in detail.  We note that the charges, particularly charges 4 and 5 were very serious.  It is in the public interest that such crimes are prosecuted.  The length of the extension was not untoward: the case had been indicted within the custody time limits; and the sittings immediately following the April 2014 sitting were already full.  None of the appellants were able to point to any significant prejudice.  We are satisfied that the sheriff did not err in exercising his discretion by granting the motion.

 

Decision

[32]      In the result the appeals must be refused.