His Majesty’s Advocate v. Sylvia Catherine MacLennan [2024] HCJAC 26

Crown appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The respondent successfully argued a compatibility issue minute before the Sheriff at inverness in which it had been contended that there had been unreasonable delay in terms of Article 6(1) of the European Convention as a consequence of which the Sheriff acquitted the respondent. The Crown appealed against that decision under section 74 of the 1995 Act. The respondent and her partner, solicitors at a firm of solicitors in Wick, were charged separately on the same indictment with embezzlement. Charge 1 related to the respondent’s partner alone, and was a charge of embezzlement of £105,130 from the firm between July 2008 and January 2012. Charge 2 related to the respondent alone, and was a charge of embezzlement of £7,297 in January and February 2012. The history of the case was that during 2011 the respondent was on maternity leave. She returned to work in January 2012 following her partner becoming unwell. He made her aware of problems with the firm’s accounts. On 5 January, the firm had received a letter from the Law Society of Scotland intimating that an inspection of the firm’s accounts would take place in late January. On 18 January 2012, the respondent sent a letter to the Law Society advising them that there was a deficit in the client account and she accepted that she had intromitted with the client account to the sum libelled in the charge against her which were either personal drawings, specific payments to third parties or a transfer of some £4,600 to the firm account for paying wages. The Law Society inspection was delayed until mid-February 2012 when a judicial factor on the firm was appointed and thereafter the judicial factor reported the actions of both accused to Crown Office. On 1 July 2014, Crown Office instructed the police to investigate. In January 2015, proceedings were raised before the Scottish Solicitors Discipline Tribunal against the respondent’s partner alone. The respondent accepted a restriction on her practising certificate pending the outcome of any investigation. In the early months of 2015, the police obtained warrants for the recovery of evidence. A number of documents were removed from the Law Society, who had in turn uplifted them from the firm’s premises. On 6 July 2015, both accused were interviewed and charged. On 25 September, the police sent a report to the local procurator fiscal. From September 2015 to December 2018, the matter remained within a specialised unit in Crown Office. On 3 January 2019, Crown Office instructed the procurator fiscal to indict. From then until 1 August 2019 there were discussions about where the accused should appear on petition. The accused appeared on petition on 1 August and 6 September 2019 and were admitted to bail. Both accused were indicted to appear at a First Diet in Inverness Sheriff Court on 10 December 2019. This was discharged administratively under section 75A of the 1995 Act until 7 April 2020. There were a further 17 occasions on which a First Diet was postponed administratively. Two of these related to Covid and two were for the purposes of disclosure or preparation. The remaining 13 occasions were on joint section 75A applications. The sheriff recorded that:- “With the benefit of hindsight, there has been a complete lack of judicial oversight during this period. Six different sheriffs granted the minutes, without, no doubt an overview as to the extent to which time was drifting.” At a continued First Diet on 13 September 2022, the sheriff noted that the respondent had lodged various Minutes including inter alia a plea in bar of trial on the basis of oppression and delay under Article 6. A debate on these minutes was assigned for 4 November 2022. Another joint section 75A application was tendered and granted for various of reasons, with a new debate assigned for 25 to 27 January 2023. Prior to that debate, a further section 75A application was made and granted with 25 January 2023 being preserved in order to assign a further diet. That diet was then the subject of a section 75A application, but was refused, for an oral hearing. After further allocations of first diets and subsequent section 75A applications, the case eventually called for a debate at a First Diet on 15 March 2023 in excess of three years after the initial calling of the indictment. The sheriff did not consider the test for oppression under McFadyen v Annan 1992 J.C. 53, namely, whether any prejudice resulting from the delay was so grave that it could not be removed by an appropriate direction had been made out. In relation to the Article 6 minute the sheriff considered that any trial would inevitably be unfair, having regard to the period of time which had elapsed since the respondent had been interviewed in July 2015 including the cumulative effect of various factors:-(a) full disclosure still had to be made; (b) the regulatory body had not catalogued and stored the relevant material; (c) the respondent had been subject to a restricted practising certificate for some 11 years; (d) there was a lack of explanation on the part of the Crown for several periods of delay in the chronology before the court, principally, the periods from charge to petition and from indictment to trial; (e) the case was not complex; (f) the case was not particularly serious in that it involved a relatively small sum; and (g) a significant period had lapsed since the offence itself. The Sheriff stated that had she not sustained the Article 6 delay point she would have found it difficult to extend the time bar given that the interests of justice did not favour the Crown position. The Crown appealed against the decision of the Sheriff. It was submitted that there had been a failure on the part of the respondent to properly outline what disclosure had not been made and she had not adhered to the statutory disclosure requirements. Further, the common law of fairness or oppression should first be resorted to and it was not possible to rely on Article 6 as a primary ground of complaint. It was further submitted that the Sheriff had failed to adequately explain the basis upon which she had repelled the plea of oppression but had sustained the  compatibility minute. In addition, the Sheriff had not explained how the trial could be unfair if the relevant documents were now located and disclosure could be made. In addition, the Law Society was not a prosecuting authority and was not bound by the same disclosure obligations as the Crown. It was accepted on behalf of the Crown that there had been a breach of the reasonable time requirement, however, the question for the Sheriff was what remedy should be afforded to the respondent as sustaining a plea in bar of trial was only appropriate where the delay was such that a fair trial could no longer take place and the court was invited to quash the sheriff’s decision on the compatibility minute and to grant an extension of the time bar in section 65(1) of the 1995 Act as it was in the interests of justice that the prosecution should continue. On behalf of the respondent it was submitted that the Sheriff had been correct to uphold the Minute but if the court was to sustain the Crown’s argument in relation to delay, no extension of the time bar should be granted as it was not in the interests of justice that the case continue. Here the court refused the appeal. The court noted that the Crown had correctly conceded that there had been a breach of the reasonable time requirement under Article 6(1). The court considered what was said by Lord Bingham in A-G’s Ref (No 2 of 2001) [2004] 2 AC 72 at paragraph 29 and confirmed as applicable in Scotland by Lord Bingham in Spiers v Ruddy 2009 SC (PC) 1 at paragraph 17 should be applied and the court did not consider that any remedy less than sustaining a plea in bar of trial would be effective, just and proportionate to provide an adequate remedy to the respondent for the breach of the reasonable time requirement. In relation to the issue of the proposed extension to the time bar the court considered that the test, as enunciated in Barr v H.M.A. 2023 S.L.T. 324, namely, whether it was in the interests of justice that the case should proceed, had not been met and had the court not sustained the Article 6 plea in bar of trial, the court would not have allowed the prosecution to continue as it was not in the interests of justice to do so.