Gerald Patrick Early v. Her Majesty's Advocate [2006] HCJAC 65

The appellant appealed against a decision of a sheriff to grant the Crown an extension under section 65(3) of the Criminal Procedure (Scotland) Act 1995 of the period of twelve months within which to prosecute him on three charges of lewd, indecent and libidinous practices. The 5 bench court here considered whether the 2 stage test outlined in HM Adv v Swift, 1984 JC 83, should continue to apply. The test was:- (1) the court had to consider whether the Crown had shown a reason that might be sufficient to justify the extension and, if so, (2) the court had to consider whether, in the exercise of its discretion, it should in all the relevant circumstances grant the extension for that reason. The court here considered the operation of section 65(3) in the context of an application necessitated by an error on the part of the Crown and sought to identify the criterion by which the excusability of such an error should be determined at the first stage. It was argued on behalf of the appellant that if the Crown error was categorised as major, the application must fail, no matter in what circumstances it occurred. The court here considered whether the degree of gravity of the error was the singlemost important issue that the question should turn on.