APPEAL BY BEN SINCLAIR AGAINST HMA

Factual and Procedural Background

This appeal concerns a decision by a sheriff to extend a twelve-month time bar under section 65 of the Criminal Procedure (Scotland) Act 1995 in a solemn procedure case involving an alleged wilful fireraising at an educational centre. The appellant, a child, was indicted along with a co-accused and appeared for a First Diet at a sheriff court. Due to Covid-19 restrictions and other factors, the case experienced multiple continuations and adjournments, with seven First Diets held before a trial diet was fixed. The procedural history reveals a lack of consistent case management by both the prosecution and the court, with repeated delays attributed in part to the appellant's late amendment to the defence statement and excessive disclosure requests. The trial diet was initially set but subsequently adjourned multiple times, culminating in an adjournment on the day of trial due to court scheduling issues and the appellant's absence, raising questions about the propriety of extending the time bar without the appellant's presence.

Legal Issues Presented

1. Whether the sheriff was correct to grant an extension of the twelve-month time bar under section 65 of the Criminal Procedure (Scotland) Act 1995 in the absence of the appellant.
2. Whether the procedure followed in managing First Diets in sheriff court solemn procedure complies with statutory requirements and principles of efficient case management.
3. The appropriateness of routine continuations of First Diets versus fixing trial diets within the statutory framework.

Arguments of the Parties

Appellant's Arguments

• The appellant attributed the failure to communicate the change of courtroom and the calling of the trial to bad faith by the procurator fiscal depute (PFD), alleging the case was called in the appellant’s absence to secure an unopposed adjournment and extension of the time bar.

Respondent's Arguments

• The Crown contended that the appellant’s agent bore some responsibility for the failure to communicate effectively with the PFD, noting that the agent was in the building or nearby but was not informed of the change of courtroom or calling.
• The Crown maintained that the extension of the time bar was justified given the pressures on court time and the scheduling difficulties.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the procedural history against the statutory framework established by the Criminal Procedure (Scotland) Act 1995 and related reforms. It emphasized that the First Diet is designed to conclude the preparation stage and fix a trial diet, with continuations being the exception. The repeated adjournments and continuations in this case, often on unopposed motions, were contrary to this statutory scheme and resulted in unnecessary delay.

The court noted that the appellant’s late amendment to the defence statement and excessive disclosure requests contributed to delay but did not justify the procedural mismanagement. It highlighted the responsibility of sheriffs to manage First Diets effectively, ensuring all preliminary issues are resolved and trial diets fixed to prevent repeated continuations.

Regarding the trial diet adjournment on 10 June, the court found a substantial irregularity in the failure to communicate the change of courtroom and the calling of the case to the appellant’s agent, which led to the appellant’s absence. While the court did not find evidence of bad faith by the Crown, it acknowledged that greater efforts should have been made to locate and inform the defence agent, including postponing consideration of the extension until the agent could be heard.

Despite the procedural failings, the court concluded that the extension of the time bar was justified and that even if the appellant’s agent had been present, it was unlikely the prosecution would have been brought to an end given the interests of justice and the case’s history.

Holding and Implications

The court affirmed the sheriff's decision to extend the twelve-month time bar under section 65(8) of the Criminal Procedure (Scotland) Act 1995.

The direct effect of this decision is that the prosecution may proceed beyond the original twelve-month time bar. The court emphasized the expectation that the trial will commence on the newly fixed date, 20 September. No new legal precedent was established; rather, the decision reinforces adherence to existing statutory requirements and the necessity for effective case management, particularly in the conduct of First Diets and trial scheduling.