HER MAJESTY'S ADVOCATE v. SCOTT McNALLY

These are notes of appeal under section 65(8) of the Criminal Procedure (Scotland) Act 1995 against the refusal by a temporary judge on 7 April 1999 to extend the 12 month time limit applicable to the two respondents.

In giving his reasons for his decision, the temporary judge first draws attention to the fact that he was given no explanation of why the case had not been put out for trial at an earlier sitting. He continues:

"Secondly, the Crown chose to set the case down for a sitting which they knew was curtailed by the Easter holiday. Moreover, that sitting included two temporary judges who were unable to try cases of murder or rape. The names of the judges presiding at the sitting must, surely, have been known to the Crown well in advance of the sitting. That being the case, I consider that it was foreseeable that there might well be problems with time bar. It was therefore incumbent on the Crown to take steps to ensure that this case could call on some date before the last date of the time limit".

"I was informed that attempts had been made to obtain the services of another judge. These were unsuccessful. This is not surprising given that the sitting was taking place during the Easter vacation, a fact which must have been within the Crown's contemplation.

The judge then refers to the case of Mejka v. H.M. Advocate 1993 S.L.T. 1321. He adds that because of the view he had taken he did not have to consider whether he should exercise his discretion in the Crown's favour but says that, had he had to do so, he would almost certainly have been prepared to grant the extension. The factors favouring that view were the lack of prejudice to the accused and the gravity of the crime charged.