Procurator Fiscal, Paisley v. A.K. & A.R. [2012] HCJAC 44

Bill of Advocation:- The two respondents are retired females who have been charged on an indictment containing several charges of physical abuse towards children whilst they were employed at an Approved School. The offences alleged on the indictment occurred over a period from 21 September 1970 to 1 July 1972 and involves six complainers. On 26 and 27 May and 6 June 2011 the sheriff, at Paisley, heard a debate in relation to devolution minutes lodged on behalf of both respondents. On 26 July 2011, in a written determination, the sheriff sustained the first part of the devolution minutes by holding that:- "... as a consequence of the passage of time, the loss of records and the death of potential witnesses the risk of prejudice to both Accused is so grave that it would be impossible to direct a jury in such a way that that prejudice could be avoided. I have therefore decided to sustain the first leg of the Devolution Minutes in relation to the arguments advanced in terms of Article 6 of the European Convention on Human Rights that the Accused would not have a fair trial." By virtue of section 74(1) of the Criminal Procedure (Scotland) Act 1995 the Crown could have appealed against the sheriff's determination within a period of seven days of its being made. The Crown did not do so. On 24 September 2011 the Crown, however, lodged bills of advocation in both cases. The pleas-in-law in support of the bills are in identical terms, namely:- "The learned sheriff's decision to allow the devolution minutes, being unjust, erroneous and contrary to law should be recalled and the indictment remitted to the sheriff with a direction to set new diets and extend the time bar if necessary or to otherwise proceed as accords." In their answers both respondents have a preliminary plea to the effect that:- "This Bill of Advocation being incompetently before this court for the reasons stated at answer 9 above, their Lordships should dismiss the Bill". It was submitted on behalf of the respondents that there was no good reason in principle or practice why there should be two alternative avenues of approach available to the Crown. Here the court considered, having regard to earlier authorities whether a party should be allowed to seek review of court decisions by way of bill of advocation even though the matter could have been made subject to a statutory appeal, brought timeously, under section 74(1) of the 1995 Act.