Early v. Her Majesty's Advocate

[1] The appellant appeals against a decision dated 19 September 2005 of Sheriff Vannet to grant the Crown an extension under section 65(3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) of the period of twelve months within which to prosecute him on three charges of lewd, indecent and libidinous practices.

[4] In these appeals we have had the opportunity to review more than 20 years of case law on this provision. There are more than 60 cases, of which 18 have been reported since 2006. It is now even more apparent that, as Lord Rodger of Earlsferry observed in 2000, not all of the cases are easily reconciled ( Ellis v HM Adv , 2001 JC 115, at pp 120I-121A).

[9] Such cases can be distinguished broadly, if imprecisely, from cases arising from administrative mishaps; for example, a failure to specify the locus in a charge ( Stenton v HM Adv , supra ); a miscalculation of a statutory timetable by unqualified staff ( Lyle v HM Adv , 1991 SCCR 599, at p 604B-D; Bennett v HM Adv , 1998 SCCR 23; HM Adv v Freeman , 2005 SCCR 571); a typing error by which the accused is convened to the wrong court ( Fitzpatrick v HM Adv , 2002 SCCR 758), or an accumulation of such errors ( Swift v HM Adv , supra ; Willoughby v HM Adv , 2000 SCCR 73).

[12] In Stenton the defence objected to the indictment on the day of the trial on the ground that no locus was specified in the charges. The sheriff held that the indictment was a fundamental nullity. The procurator fiscal then moved for an extension of the 12 months period. He accepted that the Crown was at fault. He ascribed its error to administrative difficulties within the procurator fiscal's office. The appellant's representatives had noticed the Crown's mistake before the first diet, but had not tendered a plea to the competency of the proceedings then or at the continued first diet.

[13] The sheriff held that the administrative difficulties that had led to the error, however sympathetically they were viewed, were the responsibility of the Crown. He did not consider that the appellant had suffered prejudice. He thought that there was room for the view that the appellant was to some extent the author of his own misfortune because his representatives had noticed the mistake and had said nothing about it until it was too late for another indictment to be served in time. He also considered that the extension sought was relatively short. He therefore granted the application.