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[1] The advocate depute in this case frankly conceded that there had been unreasonable delay. The appellant was charged in September 2010 with two charges of lewd, and libidinous practices involving 15 year old girls. The trial diet eventually took place on 20 August 2012, almost 2 years later. Mr Fyffe pointed out that the offence in the first charge occurred when the complainer was aged 15. That complainer is now aged 22. We note this, as we wish to acknowledge that time has certainly passed in this case. The only issue, therefore, is what the remedy should be.
[2] The appropriate test is set out in Speirs v Ruddy 2008 SCCR 131, Lord Bingham at paras 15, 16 and 17. The sheriff is to be commended for drawing this leading authority to the attention of the lawyers addressing her, as they had not in fact mentioned it.
[3] We were also referred to the dicta of Lord Hamilton in Transco Plc v HM Advocate 2005 SCCR 44, and to guidance contained in the Attorney General's Reference No 2 , [2004] 2 AC 72, at page 90.
[4] Against the background of these authorities, while accepting that the matter was one for the sheriff's discretion, we have been persuaded that there were aspects of the sheriff's approach which can be criticised, such that it is our view that she erred in the exercise of her discretion.
[5] First, only in rare and isolated cases should the remedy of a stay of proceedings be resorted to. As Lord Hamilton observed in Transco Plc v HM Advocate , cit sup,
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