NOTE OF APPEAL UNDER SECTION 65(8) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY HER MAJESTY'S ADVOCATE AGAINST NEIL THOMAS GEORGE GRAHAM

Factual and Procedural Background

This opinion concerns an appeal by the Appellant against a sheriff's refusal to extend the 12-month time limit within which the Respondent, who appeared on petition, must be brought to trial under section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Respondent appeared on petition on 1 October 2019, with the original 12-month deadline extended by six months due to the Coronavirus (Scotland) Act 2020.

The Respondent faced two sexual offence charges arising from incidents in 2011 and 2016 or 2017, involving two complainers, one of whom was under 13 years old at the time. The trial was set as a priority trial for 20 July 2021 but was postponed multiple times due to COVID-19 related reasons. On the trial date, one essential witness, a complainer, failed to attend despite personal citation by the police. The Procurator Fiscal Depute (PFD) chose to commence another priority trial and sought to adjourn the Respondent’s trial and extend the 12-month period, but the sheriff refused this request.

The sheriff applied the two-stage test from HM Advocate v Swift and Early v HM Advocate, concluding the Crown had not shown sufficient reason to justify an extension and would have refused an extension even if the first stage was met, emphasizing the importance of the Respondent’s right against delay. The Crown appealed this decision.

Legal Issues Presented

1. Whether the Crown had shown a sufficient reason to justify an extension of the 12-month time limit for bringing the Respondent to trial under section 65(3)(b) of the Criminal Procedure (Scotland) Act 1995.
2. Whether, having shown such a reason, the court should exercise its discretion to grant an extension in light of all circumstances, including the Respondent’s rights and the interests of justice.

Arguments of the Parties

Appellant's Arguments

• The failure to commence trial within the time limit was due to the complainer’s failure to attend court despite being personally cited by the police, constituting a sufficient reason to justify an extension under the two-stage test.
• The PFD’s decision to proceed with another priority trial was a reasonable use of court time, and seeking a warrant for the complainer’s arrest would not have been appropriate in sexual offence cases.
• The serious nature of the charges, including those involving a young child, warranted a moderate extension, with no real prejudice to the Respondent.
• The delay was largely attributable to COVID-19 pandemic interruptions, which the court should consider in granting the extension.

Respondent's Arguments

• The Crown’s system for alerting them to witness difficulties and ensuring witness attendance was ineffective.
• The Procurator Fiscal had not engaged directly with the complainer from the time of the Respondent’s appearance on petition.
• The Crown was unable to specify when instructions to cite the complainer personally were sent or what efforts were made.
• The PFD knew of the complainer’s failure to appear and should have taken earlier steps, including potentially seeking a warrant or additional contact efforts, rather than starting another trial.
• The reasons for the trial delay were avoidable and attributable to the Crown’s lack of diligence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by applying the established two-stage test from Swift and Early. The first stage required the Crown to show a reason sufficient to justify extending the 12-month time limit. The court found that the failure to commence trial within the time limit was primarily due to the complainer’s failure to attend despite personal citation by the police. Although the Crown might have engaged more effectively with the complainer earlier, the failure was not so attributable to the Crown as to deny the extension.

The court noted that the PFD’s decision to proceed with another priority trial and seek an adjournment was a reasonable strategy given the circumstances, including the complainer’s reluctance and the nature of the charges. The court also considered the impact of the COVID-19 pandemic, which had caused significant delays in court proceedings generally.

In exercising its discretion at the second stage, the court balanced the Respondent’s right to a timely trial against the interests of justice, including the seriousness of the charges and the relatively short extension sought. It concluded that refusing the extension would prejudice both the prosecution and the Respondent’s other charges, and that the interests of justice required granting the extension.

The court also emphasized that the difficulties arising from vulnerable complainers reluctant to attend court might be mitigated by procedural mechanisms such as taking evidence on commission before trial, which could have revealed attendance issues earlier.

Holding and Implications

The court ALLOWED THE APPEAL, granted an extension of the 12-month time limit for trial commencement, and remitted the case to a continued First Diet.

The decision directly affects the parties by permitting the trial to proceed beyond the statutory time limit due to exceptional circumstances. No new precedent was established; rather, the court applied established legal principles to the facts presented. The opinion highlights procedural challenges in cases involving vulnerable witnesses and suggests that earlier use of evidence on commission may prevent similar delays in the future.