Appeal court prefers interests of justice to Swift test
A single “interests of justice” test should be preferred to the two stage approach generally relied on since the 1984 case of Swift, in deciding whether cause has been shown for extending the 12 month time limit for commencing a solemn trial due to the non-appearance of a crucial witness, the Criminal Appeal Court has held.
Lord Justice General Carloway, Lord Pentland and Lady Wise gave the ruling in a decision dated July 2022 but only now fully published, on refusing an appeal by Philip Barr against a sheriff’s decision to extend the time limit in s 65(3)(b) of the Criminal Procedure (Scotland) Act 1995, in relation to charges principally alleging a course of domestic abuse. The section permits the court to extend the period “on cause shown”.
Delivering the opinion of the court, Lord Carloway noted that, unlike the provisions covering where an accused was held in custody, this time limit rule had only been introduced in 1980. At the time of Swift, control of the progress of cases was almost exclusively in the hands of the Crown, while court diets were, at least in part, under the control of another arm of the executive, Scottish Courts Administration. The courts’ concern was to ensure the system was funded at a level that ensured the time bar operated in practice. The number of solemn trials was low compared to the subsequent growth due to drug and (often historical) sexual offences.
In the full bench case of Early (2007), neither side questioned whether Swift was correctly decided, and the court therefore applied it on concession. Since then, however, funding for trial diets had passed to the judicially led Scottish Courts & Tribunals Service; and under the Bonomy reforms, the court had taken over some of the executive’s role in progressing cases. The need for judicial scrutiny had therefore changed.
In addition, the difficulty in the present case had been due to the non-appearance of the complainer, and measures had been put in place to secure the testimony of vulnerable witnesses rather than discontinue prosecutions prematurely. The indictment had been served timeously, which distinguished the case from Swift and Early, both of which involved failures due to errors by the Crown. Dicta in those cases “should not readily be transposed into different situations”. It was “unrealistic” for the appellant to argue that the Crown should have ensured the complainer was arrested under a warrant that had been granted by the court (the reason for which the Crown could not now explain); steps should have been taken to persuade her to attend, with appropriate vulnerable witness measures, or “better still”, to have her testimony taken on commission. “It would certainly have been wholly unsatisfactory… effectively to end the prosecution, especially without knowing the reasons for the complainer’s reluctance to appear in court.”
Lord Carloway further observed: “The introduction of the 12 month limit, with its provision for an extension on cause shown, must now be viewed in light of the incorporation of the reasonable time requirement in article 6(1) of the European Convention into domestic law… it may often be difficult to resist an application for an extension of the 12 month time bar when the trial remains due to start within what would be regarded as a reasonable time under the Convention, where a reason for an extension has been proffered and no additional prejudice to the accused is demonstrated.”
He concluded: “As has been explained at some deliberate length, Swift and Early must now be understood as being from a different era… It may still be valuable to pose the two questions which were desiderated in Swift, but the single true question for the court, when it is being asked effectively to stop a prosecution in a solemn case because of the non-appearance of a crucial witness at a trial diet, is: where do the interests of justice lie? This will involve a balancing of the interests of the accused in being brought to trial within the statutory time limit with those of the complainer and the public in general in allowing the system of justice to determine the charges libelled on their substantive merits as opposed to on grounds that are essentially procedural in nature. If the interests of justice dictate that the time bar ought to be extended, cause to do so will have been shown.”