Bills Of Advocate By Harun Akhtar And Nothers
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Eassie,Lady Clark Of Calton |
| Neutral Citation | [2014] HCJAC80 |
| Court | High Court of Justiciary |
| Date | 16 April 2014 |
| Docket Number | HCA/2014-1329-14 |
| Published date | 23 July 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Eassie Lord Menzies Lady Clark of Calton
| HCA/2014-1329-14
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in
BILLS OF ADVOCATION
by
(1) HARUN AKHTAR (2) NASIR MAHMOOD (3) NITIN KUWAR (4) NADEEM ALI
Complainers;
against
PROCURATOR FISCAL, PERTH
Respondent:
_____________ |
First Complainer: G. Anderson; Keegan Smith, Livingstone
Second Complainer: J. Keenan, Solicitor Advocate; Graham Walker Solicitors, Glasgow
Third Complainer: B. Gilfedder, Solicitor Advocate; Murphy Robb & Sutherland, Glasgow
Fourth Complainer: Mullan; Paterson Bell, Edinburgh
Respondent: Wade, QC, AD; Crown Agent
16 April 2014
Summary
[1] The four complainers in the bills of advocation (hereinafter referred to as the appellants) appeared on petition on 12 October 2012 before the Sheriff of Tayside, Central and Fife at Perth along with other co-accused. The appellants, in separate bills of advocation, made complaint against decisions of the Sheriff at Perth on 3 March 2014, whereby the said sheriff, when the indictment called for trial in the sitting to which it had been appointed, ex proprio motu adjourned the trial diet, and thereafter granted a motion by the procurator fiscal depute for an extension of time in terms of section 65(3) of the Criminal Procedure (Scotland) Act 1995.
[2] The bill of advocation presented by Harun Akhtur, the first appellant, was in very similar terms to the bills of advocation of the second, third and fourth appellants, namely Nasir Mahmood, Nitin Kuwar and Nadeem Ali. The answers lodged on behalf of the respondent in respect of each of the bills of advocation were also in very similar terms. The main differences in the bills related to the charges libelled in respect of each of the appellants and their personal circumstances which were relevant to alleged prejudice suffered by individual appellants. At the conclusion of the hearing, the court intimated its decision that the bills should be passed; but that the reasons for the decision would be given later in writing. This we now do.
Charges libelled in the indictment
[3] There were seven charges libelled in the indictment. In respect of each of the charges it was libelled that the offence, in terms of section 29 of the Criminal Justice and Licencing (Scotland) Act 2010, was aggravated by connection with serious organised crime. Charge 1 which named three of the appellants (Nitin Kuwar was not included) and others, alleged a fraudulent scheme to obtain money by unlawful means by pretending to be bank officials and inducing an elderly complainer to provide personal and bank details by fraud and using said details to obtain £50,000.95 of money and goods to the value of £9021.31. The second charge named the aforesaid three appellants and others and libelled the making of purchases with said fraudulently obtained money and converting it into goods contrary to the Proceeds of Crime Act 2002, section 327(1)(c). None of the appellants were named in respect of the third and fourth charges which related to various fraudulent activities. The fifth charge concerned a single accused, who appeared only on that charge. The charge libelled a theft by housebreaking at a date and location peculiar to that charge involving the stealing of bank cards, bank documentation and £400. The sixth charge did not name any of the appellants and libelled a fraudulent scheme to obtain money. The seventh charge named only the third appellant, Nitin Kuwar, and alleged that he conceived a fraudulent scheme to obtain bank details and the use of said details to obtain goods.
History of proceedings
[4] The sheriff noted that he was not personally involved until the trial diet. The sheriff recorded from submissions and the court minutes that on 15 August 2013 a first diet:
“…was adjourned until 22 August to allow disclosure to be made. On 29 August 2013 the trial which had been assigned for 2 September 2013 was discharged and the new trial was fixed for 9 December2013. At the same time the time limit was extended without objection to 20 December 2013. There were a number of continued first diets in relation to further disclosure.
[3] At a continued first diet on 28 November 2013 a motion was made by 4 of the accused namely Nadeem Ali, Nasir Mahmood, Nile Ateem and Jawwad Ali to discharge the trial diet which had been fixed for 2 December 2013. The motion was opposed on behalf of [Harum Akhtar] and [Nitin Kuwar] with the Crown having no objection. The motion was granted by the court and the trial was postponed to the sitting commencing 17 February 2014. At the same time the time bar was extended to 7 March 2014 with no objection being taken by the 4 accused who had applied for the postponement of the trial. The 2 who had opposed the postponement also opposed the extension.
[4] Another first diet took place on 23 January 2014 and the Crown lodged a notice in terms of section 259(5) of the Act and the first diet was continued to 6 February 2014 along with consideration of the notice. The first diet was continued again until 13 February2014. On that date the diet was again continued to 20 February 2014 and on that date it was continued to 24 February 2014 which was the second week of the assize which had been fixed for 3 weeks commencing 17 February 2014 for trial. The diet itself did not call on that date because the Crown were of the view that the 24 February was the start of an original two-week sitting but at some stage in the past the programme was by the clerk to make the assize one of 3 weeks. Instead the Crown asked for their section 259 application to be called to allow it to be continued and it was continued until 27 February 2014 when it was again continued until 28 February 2014.
[5] On that date the Crown called the diet of the case and first of all moved that the section 259 application be granted which was done without opposition. The Crown then informed me that it was their intention to commence the trial the following Tuesday which would be 4 March 2014. They said they were ready for trial and the accused all agreed that they were also ready to start that day. …”
[5] We understand from undisputed submissions before this court that the discharge of the first trial diet fixed for 2 September 2013 was on a Crown motion. The main reason for this was that the Crown had not yet made full disclosure. The second trial diet fixed for 7 December 2013 was adjourned on defence motion but we understand that the reason for that motion related to difficulties which the defence had encountered in the continuing absence of full Crown disclosure. The first and third appellants unsuccessfully opposed the adjournment and the extension of the time bar. The third trial diet was assigned to an assize commencing 17 February 2014 and programmed in the court diary for a period of three weeks.
[6] The charges related to events dating back to May 2011 in respect of which the appellants first appeared on petition on 12 October 2012. There had been numerous first diets, two discharged trial diets and two extensions of the one year time bar prior to 3 March 2014.
The decisions and interlocutor of the sheriff dated 3 March 2014 which were the subject of the bills of advocation
[7] By interlocutor dated 3 March 2014, the sheriff ex proprio motu, adjourned the trial to a date outwith the continuing assize which had commenced on 17 February 2014. The sheriff assigned a first diet for 24 April 2014 and a trial diet commencing 7 May 2014. The sheriff made said decision despite the opposition of all parties who informed the sheriff that they were ready and prepared to proceed to trial within the still current assize. Following the said decision of the sheriff to adjourn the trial, on the motion of the depute procurator fiscal, which was opposed on behalf of the appellants, the sheriff further extended the 12 month time bar until 9 May 2014.
[8] The background to this decision making of the sheriff is set out in detail in his note. The sheriff explained that, unusually for Perth Sheriff Court, an assize programmed for three weeks was set down to accommodate the trial involving the appellants which was expected to last for up to four weeks. The expectation was that the Crown would commence the trial on the first day of the assize, that is 17 February 2014, and a one week overrun could have been accommodated. It was not disputed before this court that the reason the Crown did not commence the case as expected at the commencement of the assize was that the depute procurator fiscal, assigned to conduct the trial, identified an obvious problem in relation to finger print evidence. This related only to the single accused who appeared only on charge 5 (housebreaking). We were told, the problem was that proof of the charge depended wholly on linking crime scene fingerprint lifts to the accused but the Crown had omitted to obtain and include as productions, on the list appended to the indictment, any admissible evidence of fingerprint impressions from the accused in question. At the start of the assize, the Crown were therefor not in a position to lead evidence essential to the proof of charge 5. Although the problem affected only charge 5, the procurator fiscal depute decided to delay commencement of the trial to enable this evidential difficulty to be resolved. As a result of her decision, various continued first diets were held including a continued first diet on 28 February 2014.
[9] On 28 February 2014, the sheriff was informed by the depute procurator fiscal that it was the intention of the Crown to commence the trial on 4 March 2014. The sheriff was informed that all parties were ready for trial. By 28 February 2014, both the sheriff clerk and the sheriff were very concerned about the accommodation of future court business in circumstances where it appeared that the...
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