High Court affirms sheriff’s decision to extend time bar on long-delayed fire-raising trial

About this case:

• Citation:
  [2023] HCJAC 5
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Appellant BS was accused of setting fire to the Wester Hailes Education Centre in March 2020. It was argued that the progress of his case had been mishandled by both the Crown and the various sheriffs who had dealt with the case at various First Diets as not to justify a further extension of the time bar under section 65 of the Criminal Procedure (Scotland) Act 1995.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. S Collins, solicitor advocate, appeared for the appellant and Borthwick, advocate depute, for the Crown.

Bad faith

The appellant first appeared on petition on 16 June 2020 and was indicted to a First Diet at Edinburgh Sheriff Court on 15 January 2021. The diet was continued administratively until 1 March and then 25 May due to Covid restrictions. There were then six further FDs with repeated continuations, with different fiscal deputes and sheriffs appearing at each one.

It was acknowledged by the Crown that a joint motion for an adjournment at the FD for “further time to prepare” ought to have been refused given the pressures of business brought about by the pandemic, especially as there was little to be gained from it. At subsequent FDs there were further applications for specification of documents to be lodged and further investigations relating to another case involving an accused who was seen in the area of the WHEC, with no trial diet fixed.

A floating trial diet was eventually set for 7 February 2022, but was adjourned until 6 June for a stated reason of “lack of court time”. The time bar was then extended, unopposed, until 10 June. When the case called, no-one appeared for the appellant even though his agent was in the building and no attempts were made to call his phone or carry out a search for him. A new trial diet was then set for 20 September with a further extension of the time bar to 23 September.

It was argued by the appellant that there had been bad faith on the part of the fiscal depute when the case was called, which allow him to secure an unopposed further extension of the time bar. The Crown response was that the situation was at least partly the fault of the appellant’s agent, who had failed to communicate with the depute in court 10, where the case was originally to be called, and thus learn that the case had moved to another court.

Pointless saga

Delivering the opinion of the court, Lord Carloway observed: “Having reviewed the progress which the case has made generally, it raises a wider question about the use of First Diets in sheriff court solemn procedure. It may not be easy for this court to grasp all of the practical difficulties in scheduling, with which a busy sheriff court may be faced. What is clear nevertheless is that the procedure which was followed in this case is unacceptable.”

He went on to say: “None of these adjournments should have been granted. Sheriffs who preside over First Diets must ensure that this type of pointless saga does not happen. The system of FDs in each sheriff court must allow the sheriff time to prepare the cases adequately in light of the written record of the state of preparation, any notices of preliminary pleas or issues and any other application, such as one for disclosure, so that all issues are resolved either at, what in non-Covid times, is the first (and hopefully only) FD.”

Assessing the conduct of all parties on the day the case called, Lord Carloway said: “There is irresistible force in the sheriff’s acceptance that greater efforts should have been made to locate the appellant’s agent. That should undoubtedly have happened. If the agent could not be located immediately, consideration of the application should have been postponed until later in the day. It could not have been difficult for the Crown or the court to have communicated effectively with the appellant’s agent to tell him where and when the case was to be called. The failure to do so is a substantial irregularity. It should not have happened.”

He went on to say: “The explanation for it not happening is not satisfactory. Although the court is not prepared to hold that there was any bad faith, it is not surprised that the agent attributed this to the PFD given the simplicity of contacting him. Notwithstanding the seriousness of the failure, the court requires to be satisfied that, had the appellant’s agent been present, a different decision might have been reached. Such a decision would have been, in effect, to bring an end to this prosecution of a fire-raising which took place at an educational centre where some 100 people, mostly children, were present.”

Lord Carloway concluded: “Having regard to the procedural history, which includes considerable delay at least some of which has been attributable to the appellant’s belated amendment to the defence statement and consequent application for an excessive degree of disclosure, that is not a consequence which would be consistent with the interests of justice. For these reasons, the court will affirm the determination to extend the time bar in terms of section 65(8). Needless to say, the court expects this trial to commence on 20 September.”