Appeal By Donnie Daniel Potts Against Procurator Fiscal, Hamilton
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Turnbull,Lord Justice General |
| Judgment Date | 18 January 2017 |
| Neutral Citation | [2017] HCJAC 8 |
| Published date | 31 January 2017 |
| Docket Number | HCA/2016 |
| Court | High Court of Justiciary |
| Date | 18 January 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 8
HCA/2016/527/XC
Lord Justice General
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL
by
DONNIE DANIEL POTTS
Appellant
against
PROCURATOR FISCAL, HAMILTON
Respondent:
Appellant: A Ogg (sol adv); Callahan McKeown & Co, Renfrew
Respondent: Edwards QC; the Crown Agent
18 January 2017
Introduction
[1] The appellant is charged on a summary complaint with the theft of some £50,000 in cash by housebreaking at Bellshill on 11 April 2013. The owner of the cash was a 74 year old man, who had been hoarding it for some time. The issue is whether the respondent has acted oppressively, by way of an abuse of process or in violation of the appellant’s Article 6 rights in prosecuting him on a summary complaint after the High Court had allowed an appeal against the decision of the sheriff to extend the 12 month time bar in solemn proceedings involving the same charge.
The solemn proceedings
[2] The appellant appeared on petition charged with the housebreaking at Hamilton Sheriff Court on 1 August 2013. He was granted bail. On 29 March 2014, he was indicted to first and trial diets on 2 and 19 May 2014. There then followed three postponements or adjournments of the diets. These were all on the application of the appellant, but it was subsequently determined that they had, in practical terms, been caused by late disclosure by the Crown of DNA findings and telephone analysis. A fourth adjournment had been caused by pressure of business. In due course, the new diets came to be 29 May and 15 June 2015. The 12 month time bar, which would have originally expired in August 2014, had been extended to 21 June 2015.
[3] On 18 June 2015, the respondent sought another adjournment of the trial diet to enable the respondent to recover certain bank records which, it was said, would prove that, within four weeks of the theft, some £15,000 cash had been deposited by the appellant at different branches of his bank. A large number of the notes were out of circulation, thus indicative of them having been part of a hoard. As recorded originally by the sheriff, the procurator fiscal depute accepted that there had been a serious omission in the preparation of the case. The evidence against the appellant had been relatively straightforward. It consisted of DNA on a crowbar found at the locus and a telephone analysis indicative of the appellant’s presence in the vicinity. The depute had nevertheless been concerned about sufficiency. The DNA was not exclusively that of the appellant. The depute had maintained that an error had been made by a junior, non-legally qualified, member of staff, who had wrongly assumed that the bank material could not have been obtained because it was situated in England. The sheriff considered that reasonable cause had been shown to allow an extension of time on the basis of this error. He therefore extended the time to 2 October 2015 and appointed first and trial diets for 4 and 21 September 2015.
[4] On 21 August 2015, the High Court reversed the sheriff’s decision (2016 SCCR 109). Following the first stage test in Swift v HM Advocate 1984 JC 83, the court (at para [11]) considered that the errors of the Crown had been of such gravity that insufficient reason had been advanced to justify an extension. On further enquiry, in relation to the reason for the failure to obtain the bank records, it had been ascertained (at para [9]) that there had effectively been a “complete and sustained breakdown in the procurator fiscal’s administration” regarding the obtaining of a warrant for the bank records. This breakdown could have been detected and avoided. Furthermore, the respondent had previously repeatedly told the court that the Crown were ready for trial.
[5] Prior to 1996, the decision of the High Court would have brought all criminal proceedings to an end. The governing part of the Criminal Procedure (Scotland) Act 1995 was that, in terms of section 65, a failure to bring an accused to trial within 12 months resulted in him being “discharged forthwith and thereafter ... forever free from all question or process for that offence”. This had been the position since the introduction of the 12 month time bar in 1980. The accused would have tholed his assize. However, section 73 of the Criminal Procedure and Investigations Act 1996 deleted the quoted words and provided instead that the effect of the failure would simply be that the accused would “not at any time be proceeded against on indictment as respects the offence” (see now section 65(1A)(b)).
The summary proceedings
[6] The opinion of the High Court was issued in October 2015. The papers were sent for Crown counsel’s view on what ought to happen next. It took some three months before a decision was taken to proceed summarily. A complaint was served in January 2016. This was followed by a plea in bar of trial based on contentions of both oppression and “abuse of process” on the part of the Crown and a breach of the reasonable time requirement in Article 6 of the European Convention. On 30 June 2016, the sheriff repelled the plea.
[7] The sheriff reasoned that the mere passage of time did not equate to oppression. The appellant required to demonstrate that any delay had prejudiced the prospects of a fair trial; that is that the sheriff could not be expected to reach a fair verdict in the circumstances. There had been no prejudice here where the issues involved simply the appropriate inferences to be drawn from undisputed facts. In relation to abuse of process, which the sheriff considered separately, he held that it was not incompetent to bring summary proceedings following upon the discontinuation of a solemn case. This could not involve an abuse of process. It was a step too far to argue that, as a result of the High Court decision, the appellant should thereby avoid prosecution altogether. He had had the benefit of that decision, but the interests of justice required the investigation and prosecution of what the sheriff classified as a serious alleged crime. Following Spiers v Ruddy 2009 SC (PC) 1, the sheriff noted that any breach of the reasonable time requirement could be compensated by the imposition of a lesser sentence. At the time of his decision, he held that there was no continuing violation of the requirement.
[8] The Sheriff Appeal Court (2016 SCCR 412) first considered the question of oppression. The primary focus of the SAC was on the passage of time. It is delay that is recorded as the nature of the submission on this ground. Applying the test in McFadyen v Annan 1992 JC 53 (LJC (Ross) at 60), the SAC asked itself whether any delay had prejudiced the prospects of a fair trial. The question was whether the sheriff could put any prejudice out of his or her mind and reach a fair verdict. Following Stuurman v HM Advocate 1980 JC 111 (LJG (Emslie) at 122), it was recognised that the power to prevent the Lord Advocate from proceeding was one which would only be exercised in special circumstances, likely to be rare. The SAC specifically rejected an argument that there were instances where oppression could arise in circumstances where a fair trial had not been prejudiced. Although the period which had elapsed amounted to about 3 years, the evidence was scientific and documentary. The test in McFadyen v Annan (supra) had not been met.
[9] It had been argued that an abuse of process had arisen because the decision to prosecute amounted to a deliberate attempt to circumvent the High Court decision. However, the SAC held that “abuse of process” was not a separate and distinct plea, different from oppression. Oppression was the proper vehicle within which to bring a complaint based on the conduct of the respondent. For the reasons given in relation to oppression, this contention also failed.
[10] In relation to Article 6, the Crown had conceded that the...
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