Criminal court: Justiciary Office briefing

Sinclair v HM Advocate; Barr v HM Advocate

Practitioners may wish to be aware of the opinions of the High Court in Sinclair v HM Advocate, 5 August 2022 and Barr v HM Advocate, 28 July 2022. These opinions have not yet been published on the Scotcourts website because the trial proceedings have not been concluded.

In Sinclair, the appellant appealed against the sheriff’s decision to extend the 12 month time bar under s 65(3) of the Criminal Procedure (Scotland) Act 1995. The court commented adversely on the number of first diets and the apparent lack of “ownership” of the case by both the court and the Crown. The first diet was intended to be the end of the preparation stage of a case and continuations should be the exception rather than the rule (HM Advocate v Forrester 2007 SCCR 216 at para 17). In terms of s 71B of the 1995 Act, the court must fix a trial diet at the first diet, having dealt with any preliminary pleas and issues. The procedure adopted had disregarded the statutory provisions.

Although the court refused the appeal, it was critical both of the trial diet being called in the absence of the accused and his agent, and its adjournment for the second time when the accused was a child.

Barr was also an appeal against the extension of the 12 month time bar. The charges concerned domestic abuse. A trial had been adjourned when the complainer, who had been cited, failed to appear. The Crown had sought, and been granted, a warrant to arrest the complainer, but the warrant had not been executed. The court commented adversely on the potential arrest of complainers in domestic abuse cases. 

In refusing the appeal, the court took the opportunity to explain, under reference to HM Advocate v Graham 2022 SCCR 68 and Uruk v HM Advocate 2014 SCCR 369, that the language used in s 65(3), whereby an extension of the time bar could be granted “on cause shown”, did not impose a high test. The modern approach, contrary to some interpretations of HM Advocate v Swift 1984 JC 83 as explained in Early v HM Advocate 2007 JC 50, was not to apply a two stage test but to ask whether an extension was in the interests of justice, having regard to the rights of the accused and the complainer and to the public interest in determining cases on their substantive merits rather than on what are essentially procedural grounds. The court adopted this approach in Sinclair.

Appleby v HM Advocate

Practitioners may wish to be aware of the opinion of the Appeal Court in Appleby v HM Advocate, 19 August 2022. The opinion has not yet been published on the Scotcourts website because the trial proceedings have not been concluded.

In Appleby, the Crown had failed to arrange for the appellant, who was in custody in England, to be brought to Scotland for his trial in the High Court along with four others on serious charges of being concerned in the supplying of class A drugs. The Crown was aware that the appellant was in custody on other matters in England. The problem arose because of an administrative mistake by the case preparer. As a result the trial could not proceed and had to be adjourned for several months. The Crown’s motion to extend the 12 month time bar in respect of the appellant was opposed, but granted by the temporary High Court judge.

Lord Pentland delivered the opinion of the Appeal Court. The court followed the decisions in HM Advocate v Graham 2022 SCCR 68 and Barr v HM Advocate, 28 July 2022, noted above. It held that the circumstances were not similar to those in Swift v HM Advocate 1984 JC 83 and Early v HM Advocate 2006 SCCR 583.

Following the modern approach authoritatively explained in Graham and Barr, it was not appropriate to apply a two stage test to the extension of the 12 month time limit, especially where the Crown had brought the case to a trial diet within 12 months. The “cause shown” test for extending the 12 month time bar was not a high one, and had to be viewed in light of the reasonable time requirement under the ECHR. The correct approach to “cause shown” is to consider whether it is in the interests of justice to extend the time bar.

The court held that there was no prejudice to the appellant in extending the time limit, beyond the delay in the resolution of the case against him. He was in custody in England awaiting sentence on other matters, had never been in custody for the present case and there had been a single inadvertent mistake. The court refused the appeal, stating that it could not be said that the judge had erred in granting an extension to the time bar.

Any further enquiries can be made to the appeals manager at amckay@scotcourts.gov.uk